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Davis v. Baltmore Hebrew Congregation

United States District Court, D. Maryland

November 27, 2013

VICTOR V. DAVIS, Plaintiff,

As Corrected April 10, 2014.

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For Victor V Davis, Plaintiff: Derek Gerrod Challenger, LEAD ATTORNEY, Smith Barlow and Challenger LLC, Columbia, MD.

For Baltimore Hebrew Congregation, Defendant: Gil A Abramson, LEAD ATTORNEY, Katherine Levy, Jackson Lewis LLP, Baltimore, MD; Carl S Silverman, Law Office of Carl S Silverman LLC, Baltimore, MD.


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Richard D. Bennett, United States District Judge.

This is an employment discrimination case in which the Plaintiff Victor V. Davis asserts claims against the Defendant Baltimore Hebrew Congregation pursuant to 42 U.S.C. § § 1981, 1982 & 1983; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ; and the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ; as well as state law claims for breach of contract and wrongful discharge. Pending before this Court is Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment (" Motion" ) (ECF No. 14). The parties' submissions have been reviewed and no hearing is deemed necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons that follow, Defendant's Motion (ECF No. 14) is GRANTED in all respects, except as to Defendant's request for attorneys' fees and costs.


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, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The Plaintiff, Victor V. Davis, is an African-American resident of Baltimore County, Maryland. Compl. ¶ ¶ 1, 14, ECF No. 1. The Defendant, Baltimore Hebrew Congregation (" BHC" ), is a synagogue in Baltimore, Maryland. Id. ¶ 2. Beginning in 1998, the Plaintiff was employed by BHC as an Associate Facilities Manager, and was eventually promoted to Facilities Manager. Id. ¶ 4. Davis's job summary stated that he

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had " [d]irect responsibility for all maintenance, repair, custodial and janitorial aspects of the Temple building, other facilities and grounds, including electrical, plumbing, carpentry, cabinet work, painting, purchasing material and supervising staff." Pl.'s Opp. Ex. 6, ECF No. 15-7. The Plaintiff was supervised by BHC's Executive Director, JoAnn Windman. Deposition of Victor V. Davis 127, ECF No. 15-3.

The Plaintiff alleges that he worked without any major issues until April of 2009, but this contention is not borne out by the record. Davis attended weekly staff meetings in which Windman frequently had to inform him of jobs that had been assigned to him but were not completed in a timely manner. Deposition of JoAnn Windman 16-17, ECF No. 15-4; Davis Dep. 108-10. Davis acknowledges that he was informed of outstanding work issues in meetings, but states that, upon receiving notice, he completed all jobs. See, e.g., Davis Dep. 185-93.

As Facilities Manager, Davis initially had the authority to make schedules for maintenance personnel, but that responsibility was taken away from him in October 2008, about one year before his termination. Davis Dep. 57; Windman Dep. 9, 28, 54. Thereafter, Davis still had responsibility to ensure that maintenance jobs had adequate coverage by working directly with administrative employee Fred Rahming, an African-American, who took over the scheduling. Deposition of Fred Rahming Dep. 13-15, ECF No. 15-8; Windman Dep. 14-15. The Plaintiff also had the power to purchase materials on behalf of BHC, but lost that authority in October of 2008. Davis Dep. 96-97; Windman Dep. 53. Windman stated that Davis failed to comparison shop and overpaid for an expensive item, but Davis denies this. Windman Dep. 28, 52-54; Davis Dep. 97, 116-17. From that point forward, the Plaintiff was required to get permission from another BHC employee, Francie Gill, to make purchases. Davis Dep. 97-98; Windman Dep. 29, 38. Windman stated that part of the reason for taking scheduling and purchasing responsibilities away from Davis were to free up time for him to complete his maintenance work. Windman Dep. 53-54. Davis's work performance did not improve. Id.

The Plaintiff also had issues with maintaining proper communication in the workplace. During the course of the Plaintiff's employment, it was often necessary for BHC to relay work orders to Davis by contacting him on his cell phone. Windman Dep. 21-22. Davis alleges that he always responded when contacted by telephone, see, e.g., id. at 101, but Windman testified that he frequently did not. Windman Dep. 22-24. Evidence shows that after Davis's termination, BHC discovered that at least some voicemails from BHC to Davis were never opened and thus could not have been heard. Windman Dep. 66-67. Furthermore, the Plaintiff acknowledges that he failed to give proper notice and make sure that there was enough maintenance staff coverage when he took vacation in September 2009. Davis Dep. 123-24, 202-04. He concedes that it was a legitimate BHC policy not to allow vacation during the High Holidays.[1] Id. Davis also alleges that the maintenance staff was targeted by BHC's " use-it-or-lose-it" vacation policy, but stated that he did not know whether that policy also applied to employees

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outside the maintenance department. Davis Dep. 118-21, 246-49.

With regard to personal interactions, there were numerous reports of the Plaintiff being disrespectful toward other staff. Davis Dep. 242-43; Windman Dep. 60-62. Davis acknowledges that complaints were received by Windman and relayed to him. Davis Dep. 242-43. In addition, under the Defendant's policies, the Plaintiff was subject to an annual performance evaluation. Davis Dep. 132-50. He completed his portion of the evaluation for fiscal year 2005, but refused to do so in all other years of employment at BHC, despite repeated reminders. Windman Dep. 11-12, 20.

Another issue arose when the Plaintiff did not provide his driver's license and auto insurance information upon the Defendant's request. Because part of the Plaintiff's work responsibilities involved driving between the Temple and BHC's two cemeteries to work on the gatehouses there, BHC stated that this information was necessary to ensure adequate insurance coverage and that it would pay the difference if the Plaintiff's premium increased. Windman Dep. 50-51. The Plaintiff did not provide the requested information because he objected to giving personal information that would allow BHC to contact his insurer and alert the insurer that he was using his personal vehicle for work purposes. Davis Dep. 111-14, 184-85. Davis alleges that he eventually provided his driver's license information and proof of insurance, but continued to object to providing certain insurance information because he did not want BHC to contact his insurer. Davis Dep. 183-85. Windman states that Davis provided his driver's license information just before he was terminated. Windman Dep. 10-11.

With regard to the Plaintiff's allegations of race discrimination, he alleges that BHC was run like a " plantation," with white employees in administrative positions and African-Americans in maintenance. Davis Dep. 254-57. Davis further alleges that BHC was like a plantation in that maintenance staff was required to serve lunch to the administrative staff. Compl. ¶ 4. The evidence reveals that there were African-American employees who worked in both maintenance and administrative jobs, and that the practice of certain employees serving food to others ended in 2002. Davis Dep. 254-57; Windman Dep. 31-33; Pl.'s Opp., ECF No. 15-1 at 8. The Plaintiff also alleges that he overheard Carol Caplan, a non-employee member of the Congregation, call the maintenance staff " darkies." Compl. ¶ 14. This occurred " between twelve and eighteen months" before his termination. Davis Dep. 260-61. The Plaintiff did not report this incident to anyone at BHC. Id. at 273-74.

While on the job at BHC, Davis sustained injuries that he asserts give rise to disability discrimination claims. In 2003, he injured his shoulder in a fall from a ladder. Davis Dep. 24-33. He filed a claim for Workers' Compensation for the shoulder injury and received benefits. Id. Then, in April 2009, Davis sustained an injury to his lower back while moving a bookcase. Compl. ¶ ¶ 5, 7; Davis Dep. 33-38. He alleges that BHC's controller David Weiss attempted to discourage him from filing a Workers' Compensation claim. Compl. ¶ ¶ 6-7, 28-29; Davis Dep. 234-36. The Plaintiff alleges that he was afraid that if he filed a Workers' Compensation claim, he would be fired in retaliation. Compl. ¶ 6. Nevertheless, he filed a claim and received benefits. Davis Dep. 33-34. He underwent fusion surgery on his spine. Id. at 41-42.

When Davis returned to work following his back injury, his doctor limited him to

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light work. Davis Dep. 55-58. He alleges that he requested that another maintenance employee work with him at all times, but BHC did not provide this accommodation, forcing him to work alone even though he needed help. Compl. ¶ ¶ 8-9. BHC denies that Davis requested any accommodations. Windman Dep. 16. Despite having lost scheduling authority, Davis retained a certain amount of control over the schedule and further had the ability to assign another worker to help him with heavy lifting. Davis Dep. 39-41; Windman Dep. 14-15.

The events that led directly to Davis's termination occurred in the fall of 2009. As part of his duties, Davis was required to construct a Sukkah, a structure used in celebrating the Sukkot holiday. Compl. ¶ 12-13; Davis Dep. 153-174. At times, students from BHC's religious school would ask Davis questions about the Sukkah, and he explained to the children how it was built. Davis Dep. 154. He also explained the religious significance of the Sukkah, to the extent of his " limited knowledge." Id. The wood used to construct the Sukkah needed to be replaced from time to time, but Davis did not have the authority to make the required purchases himself. Compl. ¶ 12-13; Windman Dep. 37. The Plaintiff alleges that he had informed BHC of the need to acquire additional lumber, but none had been purchased. Id. Consequently, the Sukkah was built smaller than required because the Plaintiff alleges that it would have been unsafe to build it to full size. Id. ¶ 12. Windman instructed the Plaintiff to rebuild the Sukkah to the desired size, but he did not complete this task. Windman Dep. 8-10. Davis alleges he was blamed for the actions of a white Jewish maintenance employee, Michael Kogan, who misplaced parts and set up the Sukkah too small. Davis Dep. 263-64.

On October 5, 2009, the Defendant terminated the Plaintiff. Id. ¶ 10. BHC sent Davis a letter which stated, " Unfortunately, reasons have developed over the past several months, more so over the last several weeks, and especially over the last several days which leave [ ] no choice . . . to terminate your employment as Facility Supervisor." Id., Ex. 1. Specifically, BHC stated that it dismissed Davis for the following reasons:

-Failure to cooperate with the Executive Director in making it possible to support the work at the cemetery gate houses that had to be done over the summer (e.g. sharing drivers ...

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