United States District Court, District of Maryland
Ellen Lipton Hollander, United States District Judge
Plaintiff Eric Hemphill, who is self-represented, has sued ARAMARK Corporation and ARAMARK Campus Services, LLC, defendants (collectively, “ARAMARK, ” unless otherwise noted), pursuant to Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. §§ 2000e et seq.; the Maryland Fair Employment Practices Act (“MFEPA”), Md. Code (2009 Repl. Vol., 2013 Supp.), State Gov’t. §§ 20-606 et seq.; and Maryland common law. Amended Complaint (“Am. Compl., ” ECF 47). In particular, Hemphill alleges employment discrimination based on race (Count 1); retaliation (Count 2); wage discrimination based on race (Count 3); unlawful termination based on race (Count 4); breach of contract (Count 5); and wrongful discharge based on race (Count 6).
At the conclusion of discovery, plaintiff filed a motion for summary judgment and a supporting memorandum (ECF 68) (collectively, “Motion”), asserting that the Court should award judgment as a matter of law under the doctrine of spoliation because defendant withheld critical evidence. In a consolidated submission, defendants opposed plaintiff’s Motion and filed a cross-motion for summary judgment (ECF 69) (collectively, “Cross-Motion”). Plaintiff subsequently moved for leave to file a second amended complaint (“Motion to Amend, ” ECF 74), which defendants oppose. ECF 80.
The motions have been fully briefed,  and no hearing is necessary to resolve them. See Local Rule 105.6. For the reasons that follow, I will deny plaintiff’s Motion and plaintiff’s Motion to Amend, and I will grant defendants’ Cross-Motion.
Factual and Procedural Background
On August 5, 2004, plaintiff, who is African-American, submitted an employment application with ARAMARK, a leading food service provider. See Def. Ex. A; Pla. Ex. A; Pla. Dep. at 10-12. On the application, plaintiff responded “No” to the following question: “Have you ever been convicted of a crime (misdemeanor or felony)?” Def. Ex. A, ECF 69-1 at 5; Pla. Ex. A, AMKHEM000001. As the question indicates, it was not limited in duration or scope. Hemphill also signed an acknowledgment stating: “I understand and agree that any misrepresentations or omission of facts in my application may be justified for refusal to hire, or termination of employment.” Def. Ex. A, ECF 69-1 at 8; Pla. Ex. A, AMKHEM000004.
ARAMARK, through its Regional Staffing Center, hired plaintiff on August 20, 2004. See Acknowledgment (“Ellis Decl. Ex. 5, ” ECF 69-1 at 144); Plaintiff’s Affidavit at 1:22-23 (“Pla. Aff., ” ECF 68-1). He was an at-will employee. See Def. Ex. A, ECF 69-1 at 8; Def. Ex. E, Response to Interrogatory No. 2. The Staffing Center initially placed plaintiff in the position of Cook at the Johns Hopkins Bayview Facility at the Mount Washington Conference Center (“MWCC”) in Baltimore. See Pla. Dep. at 10-14. Shortly after plaintiff was hired, the manager of the Bayview Facility sent plaintiff back to the Staffing Center because he was “dissatisfied with [plaintiff’s] work performance.” Pla. Dep. at 13:13-19. Around September 2004, the Staffing Center reassigned plaintiff to the position of a temporary Cook at the Piper Facility, another building at MWCC. Pla. Dep. at 13:19-22 – 14:1-3, 14:13-15. Plaintiff transitioned into a permanent Cook position at the Piper Facility on or about November 18, 2004. See Pla. Dep. at 9:6-14, 14:16-21; Beyer Decl. at ¶ 5; Pla. Aff. at 1:25-27.
On July 11, 2005, ARAMARK promoted plaintiff to “Chef/Manager” at the Piper Facility. Beyer Decl. at ¶ 6. Plaintiff refers to the position as “Executive Chef.” Pla. Dep. at 14:22 – 15:1-9. As a Chef/Manager at the Piper Facility, plaintiff was responsible for “placing food orders, maintaining and tracking inventory, managing up to eight employees, and overseeing attendance, ” as well as “minimal catering functions” during occasional events on weekday evenings. Beyer Decl. at ¶ 7. Initially, plaintiff reported to Marianne Beauchamp, the Food and Beverage Director, and Tim Murphy, the Assistant General Manager. Id. at ¶ 8.
According to Scott Beyer, the General Manager of the MWCC, Hemphill’s “job performance as Chef/Manager was generally acceptable until 2010.” Beyer Decl. at ¶ 9. However, in early 2010 ARAMARK received complaints about Hemphill’s treatment of other employees, including allegations that Hemphill “raised his voice, yelled and cursed at subordinate employees and that he displayed an insubordinate attitude toward Ms. Beauchamp and Mr. Murphy by storming out of meetings.” Id. at ¶ 10. In addition, Beyer claims that Hemphill’s level of care for customer/client service was not acceptable, he failed to perform standard managerial tasks, and he violated ARAMARK’s policy concerning notification of absence from work. Id. at ¶ 11. For his part, plaintiff avers that he complained to Murphy in October 2010 about unequal pay and unfair treatment. Pla. Aff. at 1:36-38.
In an effort to improve Hemphill’s performance, ARAMARK changed Hemphill’s reporting structure in January 2011, so that he reported directly to Beyer. See Id . at ¶¶ 8, 12. At his deposition, plaintiff indicated that it was his belief that the change in reporting structure occurred due to complaints that staff made about Beauchamp and Murphy. See Pla. Dep. at 16:20-22 – 17:1-15. In any event, according to Beyer, Hemphill’s performance did not improve, despite the change in reporting structure. See Beyer Decl. at ¶ 13. On March 1, 2011, with the approval of ARAMARK’s Human Resources Division, Beyer placed Hemphill on a 60-day Performance Improvement Plan (“PIP”), which Hemphill completed. Id.; see Pla. Ex. I; Def. Ex. I.
In 2011, ARAMARK received two anonymous complaints about Hemphill through its Employee Hotline, both alleging that, on his employment application, Hemphill had been untruthful about his criminal history. See Ellis Decl. at ¶ 4; Employee Hotline Complaints (“Ellis Decl. Ex. 1, ” ECF 69-1 at 72, 79). Specifically, a complaint filed online on January 2, 2011, alleged: “Mr. Hemphill has been convicted of three felonies in the state of New York, of one which included manslaughter.” Ellis Decl. Ex. 1, ECF 69-1 at 72. Likewise, a complaint of June 5, 2011, reported: “Mr. Hemphill obtained employment of your company by misleading the company in stating that he had no prior felony convictions. If you do a background search in Staten Island, New [Y]ork it will show that Mr. Hemphill has three violent felonies including drug charges as well.” Ellis Decl. Ex. 1, ECF 69-1 at 79. The complaint of January 2, 2011, also included inmate information sheets from the New York State Department of Correctional Services, which outlined the details of plaintiff’s convictions and the location and dates of his incarceration. See Ellis Decl. at ¶ 4; Ellis Decl. Ex. 1, ECF 69-1 at 72-78.
ARAMARK’s Employee Relations division subsequently conducted an investigation of the allegations left with the hotline. Ellis Decl. at ¶ 5. The investigation revealed Hemphill’s incarceration at Collins Correctional Facility in Buffalo, New York, which overlapped with his period of alleged employment at “Collins Café” in Buffalo, New York, as reported by Hemphill on his employment application of August 5, 2004. Ellis Decl. at ¶ 5; compare Def. Ex. A, ECF 69-1 at 7 with Def. Ex. C, ECF 69-1 at 42. Based on this information, ARAMARK determined that it had reason to believe that Hemphill had lied on his employment application when he claimed that he had not been convicted of a crime. Ellis Decl. at ¶ 6. Under the Conduct Guidelines set forth in the Employee Handbook that applied to Hemphill, falsifying information on the employment application was an offense that could result in “disciplinary action up to and including dismissal, with or without any written warnings.” Ellis Decl. Ex. 4 (ARAMARK Higher Education Employee Handbook at 22-23); see Ellis Decl. at ¶ 7.
In the meantime, on March 7, 2011, plaintiff filed with the Maryland Commission on Human Relations (“MCHR”) a charge of discrimination against “ARAMARK, INC.”, alleging that he was the victim of race discrimination. See ECF 81 at EEOC000082; see also Am. Compl. ¶ 14; Pla. Ex. J-4. Plaintiff filed an amended charge of discrimination on March 17, 2011, adding a claim of retaliation. See ECF 81 at EEOC000081. According to plaintiff, he “received good evaluations since being hired in 2004 through 2010 when he filed his claim with the EEOC.” Pla. Aff. at 1:38 – 2:39. Further, plaintiff attested that after ARAMARK was notified of his EEOC complaint, he began to suffer retaliation by ARAMARK management in the form of “interference with job duties, refusal to perform job evaluations linked to performance pay increases, increased workload, reduced labor, given a write up for calling out of work 1 time in 6 years contrary to [the] Aramark employee handbook, being placed on a 90 day performance based probation for 120 days, change in job status (demoted from executive Chef to Chef/Manager, and made to report to another Executive Chef with less qualifications and seniority), and finally wrongful termination.” Pla. Aff. at 2:39-47. On November 30, 2011, the Equal Employment Opportunity Commission (“EEOC”) dismissed Hemphill’s charge and notified him of his right to sue. See ECF 2-1; Pla. Ex. J-4.
On January 13, 2012, ARAMARK’s Human Resources Director Steven Christian and Human Resources Associate Bonnie Ellis met with Hemphill. Ellis Decl. at ¶ 6, 8; see Pla. Dep. at 52, 70:19-22 – 71:1-2; Ellis. Decl. Ex. 2, ECF 69-1 at 81. At his deposition, plaintiff recalled that he began the meeting by discussing his complaints with the reporting structure. See Pla. Dep. at 54. Plaintiff told Ellis and Christian that he believed the new reporting structure was implemented in retaliation for his complaints and that he thought it was “unfair” that he reported “to another executive chef when [he] was an executive chef.” Pla. Dep. at 54:14-18. The topic of the meeting then turned to the allegations that plaintiff had falsified information on his employment application. See Pla. Dep. at 55:1-10.
At the meeting, Christian and Ellis showed Hemphill the inmate information sheets and asked him to sign an authorization form allowing ARAMARK to conduct a background check to determine plaintiff’s criminal history. Ellis Decl. at ¶ 8; see Pla. Dep. 55:15-18. Christian and Ellis advised plaintiff that, if he did not complete the authorization form, they would make a decision regarding his continued employment based on the information that ARAMARK currently possessed. See Ellis Decl. at ¶ 8; Pla. Dep. at 83:9-14. Hemphill told Christian and Ellis that he wanted to think about the authorization request; he did not confirm or deny that he had been convicted of the crimes listed on the inmate information sheets. Ellis Decl. at ¶ 9; see Pla. Dep. at 56:2-6. ARAMARK suspended Hemphill while he (Hemphill) considered whether to authorize the background check. Ellis Decl. at ¶ 10; Pla. Dep. at 83:15-22.
Ultimately, Hemphill refused to authorize the background check. Ellis Decl. at ¶ 11; see Pla. Dep. 56:12-22 – 57:1-4. As a result, ARAMARK terminated Hemphill’s employment, effective January 26, 2012, based on his dishonesty in connection with his employment application. Ellis Decl. at ¶ 12. According to Beyer, ARAMARK had been unaware of Hemphill’s criminal history and the false statement on his employment application because ARAMARK did not have a mandatory background check policy at the time Hemphill was hired. Beyer Decl. at ¶ 3.
When Hemphill was confronted with the inmate information sheets attached to the Employee Hotline complaint at his deposition, he admitted that he was incarcerated beginning in 1995 for a conviction of manslaughter in the second degree, and was subsequently transferred to the Collins facility in April 1997, where he remained through May 2002. See Pla. Dep. at 59-65, 68. He also admitted that he was incarcerated from February 1988 through August 1989 for criminal possession of a weapon in the third degree, and from May 1993 to May 1994 for attempted criminal possession of a weapon in the third degree. Id. at 66-69. However, plaintiff claimed that when he completed his August 2004 employment application, he asked an administrative assistant about the criminal background question: “I said: ‘If I had a criminal history that was older than five years would it matter, ’ and she said: ‘No, don’t worry about it.’” See Pla. Dep. at 19:12 – 20:18. According to plaintiff, he did not provide the administrative assistant with any detail in regard to his criminal history. Id. at 20:6-8.
A. Summary Judgment – Standard of Review
Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. It provides, in part: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322–24 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The non-moving party must demonstrate that there are disputes of material fact so as to preclude the award of summary judgment as a matter of law. Matsushita Elec. Indus. Co. v. Zenith, Radio Corp., 475 U.S. 574, 586 (1986). The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion. “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Liberty Lobby, 477 U.S. at 247-48 (emphasis in original).
“A party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [its] pleadings, ’ but rather must ‘set forth specific facts’” showing that there is a triable issue. Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed.R.Civ.P. 56(e)), cert. denied, 541 U.S. 1042 (2004). In resolving a summary judgment motion, the court must view all of the facts, including reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); see also FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013); Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). The “judge’s function” in reviewing a motion for summary judgment is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 249. If “the evidence is such that a reasonable jury could return a verdict for the nonmoving party, ” there is a dispute of material fact that precludes summary judgment. Id. at 248.
When, as here, the parties have filed cross-motions for summary judgment, the court must consider “each motion separately on its own merits ‘to determine whether either of the parties deserves judgment as a matter of law.’” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (citation omitted), cert. denied, 540 U.S. 822 (2003). Moreover, because plaintiff is a self-represented litigant, his pleadings are “‘liberally construed’” and “‘held to less stringent standards than formal pleadings drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted).
B. Plaintiff’s Motion for Summary Judgment
Hemphill contends that he is entitled to summary judgment because “[d]efendants have attempted to defraud the court and engage in spoliation by the withholding of evidence and submitting fraudulent documents as well.” Motion, ECF 68 at 1. He asserts that “Defendants’ inability to produce such documents prove the pretexted [sic] nature of plaintiff’s termination and his related claim” and that “if the Defendants produced the evidence it would undoubtedly prove Plaintiff’s case that his termination was mere pretext in retaliation to his EEOC complaint.” Motion, ECF 68 at 2, 8.
In particular, plaintiff insists that defendants have intentionally withheld a second employment application and second set of new hire paperwork from November 2004, which plaintiff allegedly completed when he transitioned to the Chef/Manager position. See Motion, ECF 68 at 9; see also Pla. Dep. at 9; Pla. Aff. at 1:22-34. Plaintiff maintains that this application “expressly inquired as to any criminal convictions in the past 7 years, ” and that he truthfully responded “no.” Motion, ECF 68 at 4. Moreover, he argues that the original “contract or relationship between Plaintiff and Aramark Food and Support Services was terminated in 11/2004, ” when he changed positions, and therefore he cannot be fired from a later period of employment with ARAMARK Campus Services for falsifying an application for an earlier period of employment with ARAMARK Food and Support Services. See Id . at 9. Thus, he contends that the documents pertaining to his change in position in November 2004 are relevant to show that he did not falsify the purported November 2004 application with respect to his criminal history. See Id . at 4.
Defendants vigorously deny that they have withheld an employment application or new hire paperwork from November 2004. In response to plaintiff’s interrogatories, defendants explained: “Plaintiff was hired in August 2004 and filled out new hire paperwork in August 2004, not November 2004.” Def. Ex. E, Response to Interrogatory No. 5. Defendants also stated: “ARAMARK is unaware of any new hire paperwork that should have been contained in Plaintiff’s personnel file that is not contained in it.” Id.; see also Def. Ex. E, Response to Interrogatory No. 3. And, Beyer attested: “I have searched ARAMARK’s records at MWCC, including Mr. Hemphill’s personnel file, and I have not found any employment application or new hire paperwork completed by Mr. Hemphill as part of this November 2004 transition.” Beyer Decl. at ¶ 5. Further, defendants argue that, at the very least, plaintiff’s Motion should be denied because “Defendants dispute this allegation, making it a disputed issue of fact, ” and “even assuming it as true, it would not result in a judgment in favor of Plaintiff.” ECF 69 at 19.
Plaintiff’s argument hinges on the doctrine of spoliation. “The evidentiary spoliation doctrine is a rule of evidence, administered at the discretion of the trial court to respond to circumstances in which a party fails to present, loses, or destroys evidence.” Hartford Ins. Co. of Midwest v. Am. Automatic Sprinkler Sys., Inc., 23 F.Supp.2d 623, 626 (D. Md. 1998) (Davis, J.), aff'd, 201 F.3d 538 (4th Cir. 2000) (citing Anderson v. Nat’l R.R. Passenger Corp., 866 F.Supp. 937, 945 (E.D. Va. 1994), aff'd, 74 F.3d 1230 (4th Cir. 1996)). Under the spoliation doctrine, a court may order dismissal, grant summary judgment, or permit an adverse inference to be drawn against a party in order to “level the evidentiary playing field and for the purpose of sanctioning improper conduct.” Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995).
However, “spoliation does not result merely from the ‘negligent loss or destruction of evidence.’” Turner v. United States, 736 F.3d 274, 282 (4th Cir. 2013). For spoliation to occur, “the alleged destroyer must have known that the evidence was relevant to some issue in the anticipated case, and thereafter willfully engaged in conduct resulting in the evidence's loss or destruction. Although the conduct must be intentional, the party seeking sanctions need not prove bad faith.” Id. (citations and internal quotation marks omitted); see also Goodman v. Praxair Servs., Inc., 632 F.Supp.2d 494, 505 (D. Md. 2009) (setting forth the elements that a party seeking spoliation sanctions is required to prove).
Plaintiff objects to consideration of the declarations of Beyer and Ellis to the extent that “they have no personal knowledge as to the events that transpired in November of 2004 concerning Plaintiff’s hiring and the language contained in the mentioned job application at that time.” ECF 73 at 3. Declarations submitted on summary judgment must contain admissible evidence, premised on personal knowledge. See Fed. R. Civ. P. 56(c); see also Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996). But, Beyer attested that he obtained the information in his affidavit through the performance of his duties at ARAMARK and his review of business documents kept by ARAMARK in the ordinary course of business. Beyer’s statement that he searched ARAMARK’s personnel records and was unable to locate an application completed by Hemphill in November 2004 reflects personal knowledge as to the search and the content of ARAMARK’s personnel records. That Beyer did not personally observe plaintiff’s job transition would not defeat the admissibility of such testimony. Moreover, personnel records are generally admissible at trial as business records, pursuant to Fed.R.Evid. 803(6). See Equal Rights Ctr. v. Equity Residential, 798 F.Supp.2d 707, 714 n.2 (D. Md. 2011). And, evidence that a matter is not included in a record is also admissible in accordance with Fed.R.Evid. 803(7).
Imposition of spoliation sanctions is plainly unwarranted here. Plaintiff has offered only bare allegations that he completed a second employment application in November 2004, and has not demonstrated that defendants intentionally destroyed it. Moreover, he has failed to demonstrate the relevance of the alleged second employment application and new hire paperwork, even if they exist. In other words, even if plaintiff completed a second employment application and new hire paperwork when he became Chef/Manager in November 2004, such documents would have no bearing on the issue of whether plaintiff lied on his August 2004 employment application when he responded that he had no criminal history. And, even if one ARAMARK division terminated plaintiff’s employment based on an application he completed for another ARAMARK entity, ARAMARK’s decision to do so would not establish that the termination of plaintiff’s employment was pretextual. See Uy v. Mount Sinai Hosp., No. 10 Civ. 5674(LAP), 2012 WL 4560443 (S.D.N.Y. Sept. 30, 2012) (finding that plaintiff failed to establish pretext where she argued that “she [could not] be fired from a later period of employment for falsifying an application for an earlier employment period, so when Defendants terminated her, they did so because of her age, ” and reasoning that “logic supports that an employer can fire an employee for lying on a job application, regardless of when the falsification occurred”).
Accordingly, the production of a November 2004 application would not, as plaintiff contends, prove that “there was no fraud during the hiring process and his termination was retaliation for his EEOC complaint.” See Motion, ECF 68 at 9. For these reasons, plaintiff’s Motion will be denied.
C. Defendants’ Cross-Motion for Summary Judgment
1. Title VII/MFEPA Claims (Counts 1, 2, 3, 4, ...