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Ford v. Berry Plastics Corporation

United States District Court, Fourth Circuit

September 27, 2013

SHARON FORD, Plaintiff,


RICHARD D. BENNETT, District Judge.

The Plaintiff Sharon Ford has brought this action against the Defendants Berry Plastics Corporation and Captive Plastics Corporation, doing business as Grafco Plastics (the "Defendant").[1] The Plaintiff alleges claims of race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a); 2000e-3(a).[2] The Defendant's Motion for Summary Judgment (ECF No. 34) is pending before this Court. The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons that follow, the Defendant's Motion for Summary Judgment (ECF No. 34) is GRANTED IN PART and DENIED IN PART. Specifically, the Defendant's Motion is granted as to the race discrimination claim in Count II, and the Motion is denied as to the retaliation claim in Count III.


This Court reviews the facts and all reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007). The Plaintiff is an African American woman. Pl.'s Opp. to Mot. for Summ. J., ECF No. 35-2 at 2. The Defendant is a manufacturer of plastic bottles. Id. In 1996, the Defendant hired the Plaintiff to work part time at its factory in Hanover, Maryland. Id. The factory runs twenty-four hours a day, seven days a week. D'Orsogna Dep., Def.'s Ex. 2 at 73-74, 79. The Plaintiff became a fulltime employee in 1997 and worked in that capacity until she voluntarily left for another job in 2000. Pl.'s Dep. 34-36. In November of 2004, the Plaintiff was rehired by the Defendant, and worked full time as a Packer, an hourly position whose job duties included examining bottles for defects and packing the bottles into boxes or onto pallets. Id. at 54, 60, 63; D'Orsogna Dep. 74-79. Other hourly employees at the factory included Material Handlers, who made boxes and moved packed products off the factory floor. Id. Packers were regularly required to perform the functions of Material Handlers, and vice versa, in order to cover for employees who were on breaks. Id. Also at the factory were Machine Operators, who worked the various bottle-making machines. D'Orsogna Dep. 74. In 2006, there were approximately sixty to eighty employees on the floor of the Defendant's Hanover factory. ECF No. 35-2 at 2. The workforce at the factory was approximately 60% African American, 20% Caucasian, and 20% Filipino. Id. at 2-3; D'Orsogna Dep. 143-44.

Plaintiff worked for several supervisors at the factory, including Brett Morris, Ian Hamilton, Matt Conard, and Derrick or Derek (last name unknown). Pl.'s Dep. 87-88. Those supervisors were overseen by Plant Manager Chris D'Orsogna. Id. at 63. In her second stint of employment at the factory beginning in 2004, the Plaintiff qualified for a promotion to the title of Packer Associate 2, earning an accompanying pay raise. ECF No. 35-2 at 2; D'Orsogna Dep. 29. The Plaintiff also received quarterly bonuses for productivity. Pl.'s Dep. 244-45.

Beginning shortly after her rehiring, the Plaintiff was the recipient of unwelcome verbal advances by several of the Defendant's employees. The first instances of unwanted comments came from co-worker Jimmy Wright, a maintenance worker who is Caucasian. Id. at 99. In late 2004 through summer 2005, Wright repeatedly asked the Plaintiff out on dates or to his house, bragged about his money, and offered to be her "sugar daddy" because he heard she "liked white guys with money." Id. at 124-30. The Plaintiff told Wright that he was "annoying" but neither specifically told him to stop nor reported his behavior to a superior. Id. at 128-30.

The Plaintiff also alleges inappropriate conduct by the Plant Manager D'Orsogna, a Caucasian male. In 2005, while the Plaintiff and a female co-worker "Fran" were eating lunch together, D'Orsogna made unwanted comments to both women. Id. at 101-02. D'Orsogna said, "Fran, you can't have me. I have a wife and two other women, " repeating the statement three times. Id. Then, D'Orsogna handed his cell phone to the Plaintiff and said, "You have a call on my cell phone. Here, take it... It's from the boss upstairs. He wants to pay you $20 an hour." Id. The Plaintiff states that she does not know what D'Orsogna meant by his comments to her.[3] Id. at 102. Shortly thereafter, the Plaintiff was assigned by supervisor Morris to work on a machine that was visible from D'Orsogna's office. Id. at 102-03. The Plaintiff heard from two co-workers that Morris stated in a meeting that D'Orsogna would be happy that the Plaintiff was working near his office. Id. D'Orsogna later told the Plaintiff in a seductive manner that he was glad that she was assigned to work a machine near his office. Id. The Plaintiff suspected that Morris and another employee, Joe Gallagher, were monitoring her conversations and relaying them to D'Orsogna and to Plant Administrator Marlene Pifer. Id. at 173-76. In May 2006, the Plaintiff gave D'Orsogna a bottle of wine for his birthday. Id. at 180-87. The Plaintiff stated that she did so because D'Orsogna had been nice and respectful to her, but also because he was mean to others and she thought that no one had ever done anything nice for him. Id. at 172, 180. Around the same time, rumors spread around the factory that the Plaintiff and D'Orsogna were dating. Id. at 181-82. Other employees would point and laugh at the Plaintiff, and encourage her to spend time with D'Orsogna whenever he was in a foul mood. Id. at 184-90. The Plaintiff did not report D'Orsogna's behavior to any of the Defendant's personnel, stating that "I like to gather a lot of stuff before I go and complain against somebody who's a manager." Id. at 279.

In the summer of 2006, co-worker Kelvin Smith, a Machine Operator who is African American, made various lewd comments to the Plaintiff, and to other employees within earshot of the Plaintiff, including telling her about his genitals and asking her about her pubic hair. Id. at 118-19, 167. Smith also took pictures of the Plaintiff and other female employees with his cell phone when they bent over. Id. at 118-24. Additionally, Smith suggested that, because the Plaintiff had returned to work late one evening to meet with Plant Manager D'Orsogna, the two were having a sexual relationship. Id. at 167. The Plaintiff complained about Smith's behavior to Morris, who reported the complaint to D'Orsogna. Id. at 120. D'Orsogna immediately suspended Smith, and the Plaintiff had no further issues with Smith after his suspension. Id. at 122-24.

The Plaintiff also claims that Paul Horgan, an employee in the Defendant's Human Resources department, accessed information from the Plaintiff's personnel file without authorization, such as her age, whether she had children, and her home address. Id. at 151, 241-42. Horgan released this information to a Curtis Dodson, who was a supervisor, but did not work with the Plaintiff. Am. Compl. ¶¶ 12-13. In addition, Pat Stapleton, another Human Resources employee, told the Plaintiff that Horgan made inappropriate comments about the Plaintiff being in such good shape for her age, but was told to stop by D'Orsogna. Pl.'s Dep. 156. The Plaintiff stated that she was not offended by that statement. Id. at 160-61. Even so, the Plaintiff complained to Stapleton about Horgan's conduct in late 2004. Am. Compl. ¶ 17. At Stapleton's direction, Horgan apologized to the Plaintiff. Pl.'s Dep. 162. Following Horgan's comments and release of the Plaintiff's personal data, other employees at the factory began making inappropriate comments to the Plaintiff about her looks and her age. Id. at 163-64. The Plaintiff did not make any further complaints about Horgan's conduct.

The Plaintiff also alleges that Morris forced African American employees to do the work of white co-workers. Specifically, Morris "told all the white Material Handlers that they can sit on the side, and he told them he would approach every Packer - and told us to take on the Material Handlers' responsibility." Id. at 132. In general, three female Caucasian Material Handlers were allowed to take more breaks than others, some of which breaks lasted all day. Id. at 133-38, 274-75, 280-81. On three separate occasions, the Plaintiff was instructed to cover their responsibilities while they took breaks. Id. In July of 2005, the Plaintiff complained to Morris and Hamilton about assigning more duties to African American workers. Id. at 288. The Plaintiff further complained to D'Orsogna about Morris's conduct. Id. at 139-40. Shortly after the Plaintiff complained, D'Orsogna offered the Plaintiff a position as a team leader. Id. at 140. The Plaintiff declined the offer because she did not want to take on more responsibility and wanted to focus on working on her independent record label. Id. at 140-41. After lodging her complaint to D'Orsogna, the Plaintiff was never asked by Morris to perform the work of a Material Handler again, although the Plaintiff states that the Caucasian female Material Handlers themselves continued to shirk their duties. Id. at 144. The Plaintiff did not complain further on this issue. Id. at 145-46.

During the relevant time period, the Defendant had an attendance policy outlined in an internal document entitled "Attendance Procedure - Hourly" that was governed by a point system. ECF No. 35-2 at 3-6; Pl.'s Ex. 3. For each incident of lateness or leaving work early, an employee was assessed one-half of a point. Pl.'s Ex. 3. For missing work entirely, an employee was assessed a full point. Id. at 1-2. If an employee missed more than one day of work in a row for documented illness, the entire occasion of absence counted for one point, instead of a separate point for each missed day. Id. An employee who worked for thirty days without incurring any points would have a point deducted from his or her total. Id. at 3. Points would not be incurred for leave taken pursuant to the Family Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq., but would be if an employee called in sick without taking FMLA leave. D'Orsogna Dep. 119-20. The policy dictated that the employee would receive written notice if his or her total reached three, four, or five points. Pl.'s Ex. 3 at 4. The supervisor was responsible for providing written notice on forms provided by the Defendant. Id. at 4-5. If the total reached six points, the employee could be terminated. Id. at 4. The Plaintiff testified that she and other employees knew the point system, but stated that she never saw the written "Attendance Procedure - Hourly" document. Pl.'s Dep. 70, 196-97.

The Plaintiff alleges that the point system was not consistently applied. Pl.'s Opp. at 6-8. For example, reaching six attendance points did not guarantee termination. Pl.'s Opp. at 5. Some employees were not terminated until they reached up to eleven-and-a-half points, while others had greater than six points but were not fired. D'Orsogna Dep. 142-44, 205-09. The Plaintiff also alleges that race played a role in the point system. She states that Caucasian employees who were late to their shifts were not assessed a half point for lateness, but rather Morris would tell them not to clock in so he could manually enter them as having arrived on time. Am. Compl. ¶ 79; Pl.'s Dep. 227-31. Similarly, if Caucasian employees forgot their badges and were unable to clock in, Morris would mark them on time with no questions asked. Am. Compl. ¶ 82.

The Plaintiff also alleges that employees who were not African American were allowed to miss work for extended periods without incurring points. Jimmy Wright missed work to undergo heart surgery, which qualified him for FMLA leave. Am. Compl. ¶ 98; Affidavit of Terry Rice, Pl.'s Ex. 7 ¶ 13. In addition, Filipina employee Alma Sajol, [4] shortly after beginning her employment at the factory, was allowed to take thirty days off to get married, without incurring any points. Pl.'s Opp. at 8; Pl.'s Dep. 234-36. Such exceptions to the point system were not made for African American employees. Pl.'s Opp. at 8. Indeed, the Plaintiff claims that other employees told her that as of October 2006, all African American employees were assessed five-and-one-half points. Am. Compl. ¶ 90; Pl.'s Dep. 231-32.

With regard to the Plaintiff in particular, she alleges that she received more points than she should have earned through absences. Pl.'s Opp. at 9-11. On October 11, 2006, the Plaintiff returned to work after being absent for an illness. Id. at 10. Morris told her that as of October 8, 2006, she had accumulated enough points to be terminated. Pl.'s Dep. 264-65; Morris Dep. 108-09, 130-35, 145-46. Morris had not provided the notice required by the policy, although he testified that he did not follow the written notice procedure for any employees. Pl.'s Dep. 230-31; Morris Dep. 98-101, 105. By the Plaintiff's calculations, she should only have been assessed three-and-one-half points. Am. Compl. ¶¶ 114-16. When Plaintiff produced a doctor's note stating that she had been in the emergency room and needed to see a specialist for abdominal pain, Morris told the Plaintiff that she would still get a point if she was absent for surgery. Am. Compl. ¶¶ 120-21; Pl.'s Dep. 236. According to the Defendant's attendance policy, a doctor's note would ensure that an absence that spanned multiple days counted for only one point, but did not allow an employee to avoid a point altogether. Pl.'s Ex. 3 at 2. The Plaintiff did not request FMLA leave, nor did any of Defendant's personnel suggest that she do so. Pl.'s Dep. 237; Pifer Dep. 40. The Plaintiff complained to Morris about employees of other races getting better treatment with regard to points for absences. Am. Compl. ¶ 113; Pl.'s Dep. 284-85, 287-88. It was later discovered by the Plaintiff that co-worker Gail Venzke, a Caucasian woman, was late for work ten times in May 2006, but did not earn any attendance points. Absentee Calendar, Pl.'s Opp. Ex. 16 at 2.

On October 12, 2006, the Defendant summoned the Plaintiff to a meeting in D'Orsogna's office for the purpose of discussing her attendance. Pl.'s Opp. at 11-13. Pifer, the Plant Administrator who handled various personnel issues, was also present, along with supervisors Morris and Conard. Am. Compl. ¶ 129; D'Orsogna Dep. 161. The Plaintiff disputed the number of points that the Defendant's personnel attributed to her. Pl.'s Dep. 106. D'Orsogna became angry and decided to terminate the Plaintiff. Am. Compl. ¶ 144; Pl.'s Dep. 106-08. At the same meeting the Plaintiff also alleges that D'Orsogna told the Plaintiff that, despite the number of points she had accumulated, she could "have as many chances as you want." Pl.'s Dep. 100-01. Ultimately, D'Orsogna decided that because Morris had failed to provide the Plaintiff with written notice of her point total, she would not be suspended or terminated immediately. D'Orsogna Dep. 171-74. Despite the Plaintiff's claim that she had earned only three-and-a-half points, she signed a form stating that she had six points. Pl.'s Notice of Absentee Occurrence, Am. Compl. ¶ 144 Ex. 12. The Plaintiff was placed on a thirty-day probationary period with the understanding that if she had any "issues" with attendance or other conduct, she would be terminated. Pl.'s Dep. 111-12; D'Orsogna Dep. 170.

On October 16, 2006, Morris approached the Plaintiff while she was working on the factory floor. Pl.'s Dep. 208-09. The Plaintiff was wearing earplugs of two different types because the string holding her usual pair together had broken. Id. at 213. Morris, thinking that the Plaintiff was wearing earbuds (headphones) against company policy, instructed the Plaintiff to remove them from her ears. Am. Compl. ¶ 148; Pl.'s Dep. 208-09. The Plaintiff, who claims that she did not hear Morris ask her to do anything, kept working. Pl.'s Dep. 212-14. The Plaintiff also stated that she could not stop the belt or stop working unless another employee relieved her. Id. at 212-13. The Plaintiff states that Morris fabricated the encounter. Pl.'s Opp. at 13.

Morris told Pifer of the perceived safety concern and the Plaintiff was called into another meeting. Pifer Termination Report, Pl.'s Opp. Ex. 18. Morris stated that the Plaintiff yelled at him after he warned her about her earplugs. Morris Dep. 160-70. Pifer noted that the Plaintiff stormed out of the meeting twice, having to be escorted back into the room. Pl.'s Opp. Ex. 18. D'Orsogna made the ultimate decision to terminate the Plaintiff on October 16, 2006. ECF No. 35-2 at 13-15; D'Orsogna Dep. ...

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