Shabazz v. Bob Evans Farms, Inc., 976

Citation163 Md. App. 602,881 A.2d 1212
Decision Date02 September 2005
Docket NumberNo. 976,976
PartiesWendy SHABAZZ v. BOB EVANS FARMS, INC., et al.
CourtCourt of Special Appeals of Maryland

881 A.2d 1212
163 Md.
App. 602


No. 976, September Term, 2003.

Court of Special Appeals of Maryland.

September 2, 2005.

881 A.2d 1216
Nicholas Woodfield (R. Scott Oswald, The Employment Law Group, PLLC on the brief), Washington, D.C., for appellant

Robert A. Harris (Stacia M. Jones on the brief), Columbus, OH, (Paul W. Mengel, III, Vorys, Sater, Seymour and Pease, LLP on the brief), Alexandria, VA, for appellee.

Argued before EYLER, DEBORAH S., ADKINS, RAYMOND G. THIEME, JR. (Ret'd, Specially Assigned), JJ.


In the Circuit Court for Prince George's County, Wendy Shabazz filed a two-count complaint against Bob Evans Farms, Inc. ("Bob Evans"), and Brian Martin, an employee of Bob Evans, for employment discrimination based on race and for retaliation for opposing an unlawful employment practice. After a hotly contested six-day trial, a jury found Bob Evans not liable on both counts and found Martin not liable for discrimination but liable for retaliation. It awarded "0" in compensatory damages and $85,000 in punitive damages.

A judgment was entered by the clerk in favor of Bob Evans and against Shabazz, for costs. A separate judgment was entered by the clerk in favor of Shabazz and against Martin for $85,000 and costs.

Martin filed a motion for judgment notwithstanding the verdict ("JNOV"), on the ground that the punitive damages award against him was not supported by a compensatory damages award. The court

881 A.2d 1217
granted that motion. The court denied a post trial motion by Shabazz for "backpay" and to submit additional evidence on that issue. Finally, the court denied Shabazz's petition for attorney's fees

In this appeal, Shabazz presents four questions for review, which we have reworded and reordered:

I. Did the trial court err by denying her motion to revise the judgment against Martin to add Bob Evans, so they would be jointly and severally liable?
II. Did the trial court err by denying her motion for backpay and to submit additional evidence about backpay?
III. Did the trial court err by granting Martin's JNOV motion on the ground that punitive damages are not recoverable in Maryland unless actual damages have been awarded?
IV. Did the trial court err by denying her petition for attorney's fees and costs?

For the following reasons, we shall affirm the judgment of the circuit court.


Bob Evans is an Ohio corporation that owns and operates family restaurants throughout the United States, including one on Crain Highway in Bowie.

On March 13, 2000, Shabazz was hired by Bob Evans to work as a server in the Bowie restaurant. Shabazz is a black person who is African-American. Soon after she started working at the Bowie restaurant, Martin was hired as its general manager. Martin is a black person who was born in Bermuda. Linda Hannah was the assistant manager of the Bowie restaurant at the relevant times. Hannah is white.

As a server, Shabazz was paid a modest hourly wage. She depended on tips to supplement her earnings. She worked primarily on the day shift. When Shabazz first was employed at the Bowie restaurant, the restaurant's policy was that each server was assigned to a particular station of tables for an entire shift. According to Shabazz, that policy enabled servers to develop regular customers, which in turn helped them increase their tips.

According to Shabazz, she and other African-American employees at the Bowie restaurant heard Martin make derogatory racial remarks about African-Americans, criticizing their speech and calling African-American males "thugs" and names that are racial epithets.

On March 3, 2001, the Bowie restaurant instituted a new station rotation policy, by which, during a given shift, servers were to move from station to station. A few weeks later, on March 16 or 17, 2001 (or perhaps on both — the record is not clear), Shabazz complained to Hannah that the station rotation policy was being implemented unfairly because white servers were not consistently being made to rotate stations but black servers were, and black servers were being moved to stations that were not desirable, and were being paired with black customers.

The next day, Hannah communicated Shabazz's complaint about the station rotation policy to Martin. Martin reacted by firing Shabazz on March 18, ostensibly on the basis that a regular customer had complained about her.

On March 20, 2001, Shabazz contacted Al Desiderio, the Area Director for Bob Evans, and protested her firing to him. The next day, Desiderio met with Shabazz and Martin. Shabazz told Desiderio that she thought Martin had fired her in retaliation for her complaint about the station rotation policy. Desiderio announced at

881 A.2d 1218
the meeting that Shabazz was being reinstated to her server position. In addition, he told Shabazz he would investigate her complaint about the station rotation policy

Shabazz returned to work on March 22, 2001. A few days later, she called Desiderio and complained that her tables were being held open for extended periods, without customers being seated, which she thought was an act of retaliation by Martin.

Desiderio investigated Shabazz's new complaint and her earlier complaint about the station rotation policy. He concluded that there was no basis for either complaint. With respect to the station rotation policy, for example, his investigation showed that white and black servers all were being rotated and the stations were not assigned based on race.

According to Shabazz, over the next several months, Martin and his management staff, including Hannah, reduced her table assignments and deliberately did not assign her overtime, although it was available. Shabazz again complained to Desiderio, who on June 22, 2001, directed Martin to prepare an analysis of Shabazz's sales and tips.

On June 24, 2001, Martin completed a write-up in Shabazz's employment file. The write-up reprimanded Shabazz for going above Martin's head to complain to Desiderio, admonishing that "failure [to bring her issues of concern to Martin] will be considered as misconduct and will result in termination." Yet, Bob Evans had an "open door" employee complaint policy that permitted Shabazz to take her complaints directly to Desiderio.

On June 28, 2001, Martin wrote a report that Shabazz contended did not accurately reflect the computer-generated data about her sales and tips. The report included a comment that Shabazz ought to be fired for making complaints.

Accurate data about sales and tips in the Bowie restaurant did not reflect that there was any discriminatory practice with respect to seating arrangements. Furthermore, although Shabazz's overtime assignments decreased, the Bowie store generally had cut back on overtime for servers as a cost-saving mechanism.

On July 7, 2001, Martin blocked off Shabazz's station to accommodate a party of 30 that was assigned to her. In anticipation of the large party, Martin assigned Shabazz's regular customers to other servers. Apparently, the party of 30 either never arrived or arrived late. Shabazz complained to Martin, who was sitting at a table with a customer, that this assignment unfairly deprived her of customers. According to Shabazz, Martin said he was "just sick of" her complaining, and fired her, for "conduct unbecoming to a Bob Evans employee" (a violation of a company work rule). As Shabazz was gathering her belongings to leave, Martin said, "Yeah, I got you now, I finally got you, I've got a customer complaint and it's on you." He showed her a customer complaint form that had been filled in by the person he had been sitting with.

According to Martin, when Shabazz became angry over the customer seating assignment on July 7, she openly cursed in the restaurant and yelled at a long-time customer, who left the store in tears.

In the meantime, on April 9, Shabazz had made a complaint about the station rotation policy to the United States Equal Employment Opportunity Commission ("EEOC"). On June 25, she amended her EEOC charge to include "retaliation regarding [her] EEOC charge." On July 10, Shabazz filed an additional charge with the EEOC regarding her July 7 termination.

881 A.2d 1219
Shabazz received a "Notice of Right to Sue" from the EEOC on August 9, 2001.1

On January 24, 2002, in the Circuit Court for Prince George's County, Shabazz filed a two-count complaint against Bob Evans and Martin. In count I ("retaliation claim"), she alleged that the appellees had unlawfully retaliated against her on March 18, 2001, and again on July 7, 2001, by firing her for having made a complaint of discrimination on the basis of race, in violation of Md.Code (1957, 1998 Repl.Vol.), art. 49B, section 16(f), and section 2-185(a) of the Prince George's County Code. In count II ("employment discrimination claim"), she alleged that the restaurant's station rotation policy, as implemented, was an unlawful employment practice, because it discriminated against her with respect to her employment conditions and compensation, based on her race, in violation of Article 49B, section 16(a), and section 2-185(a) of the Prince George's County Code.

In both counts, Shabazz alleged that, as a proximate cause of the unlawful conduct, she had been

damaged in an amount to be determined at trial, including, but not limited to, the following: backpay, bonuses, tips, pension contributions and benefits, insurance contributions and benefits, fringe benefits, expenses and interest, front pay, costs of litigation, attorneys [sic] fees, emotional distress, and all other forms of economic, compensatory and punitive damages.

Shabazz sought "economic damages, compensatory damages, and punitive damages to be determined at trial, plus attorneys' fees, costs" and any other appropriate relief, and demanded a jury trial "for all issues proper to be so tried."

The case proceeded through discovery, with a final scheduled...

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