United States District Court, D. Maryland
William M. Nickerson Senior United States District Judge
Before the Court is a Motion for Summary Judgment filed by Defendant Safeway Inc. ECF No. 88. That motion is fully briefed. Also pending is Defendant’s Motion to Strike several of the exhibits attached to Plaintiff’s Opposition to Defendant’s Summary Judgment Motion. ECF No. 107. That motion is also ripe. Upon review of the motions and the applicable case law, the Court determines that no hearing is necessary, Local Rule 105.6, and that both motions will be granted in part and denied in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was employed by Defendant as a food or produce clerk from January 2004 until his employment was terminated on or about July 16, 2012. Plaintiff is African American and brings this suit alleging that he was discriminated against on the basis of his race and that he was retaliated against when he complained about various discriminatory practices to which he and other employees were subjected. His claims focus on four specific actions or categories of actions taken against him by Defendant.
The first relates to Defendant’s refusal to assign him any Sunday hours while he was on light duty status from September 2010 to August 2011. Plaintiff suffered an on-the-job injury in March of 2010 and was on injured workers’ compensation leave from June 2010 to September 2010. When he returned to work, he requested and was granted light duty status. During this time, he was assigned to Defendant’s Ellicott City store under Store Manager Larry Kunze,  a Caucasian. He contends that Kunze permitted two white employees who were also on light duty status to work Sundays but would not permit him to do so despite his repeated requests for Sunday hours. Plaintiff desired Sunday work because it is compensated at twice that of regular time pay.
The second category of actions taken by Defendant that Plaintiff believes was discriminatory or retaliatory was his assignment to undesirable tasks, like cleaning up dead mice or filthy trash, and his being subjected to disproportional discipline for minor work rule violations. Plaintiff asserts that this was the first time in his twenty years of experience as a food or produce clerk that he was given these types of undesirable tasks to perform. As an example of disproportional discipline, Plaintiff cites incidents where he was written up for failing to hit a particular button on the cash register which, after scanning the customer’s Club Card, would indicate whether that customer was an “elite customer.” This requirement was part of Defendant’s “Rapport Program, ” which was designed to “promote sincere dialogue between Safeway customers and employees.” Kunze Aff. ¶ 10, ECF No. 88-11. Plaintiff cites instances where other employees committed more serious work rule violations and did not receive any discipline. For example, while Defendant’s Employee Store Purchase Policy prohibits employees from ringing up the purchases of family members, a Caucasian cashier, Christine Haley, checked out her sister on more than one occasion and Kunze took no disciplinary action. Mark Robins Aff. ¶ 7, ECF No. 98-38 and Leslie Easton Aff. ¶ 11, ECF No. 98-39.
The third action taken against Plaintiff that he views as discriminatory and retaliatory was his suspension on December 13, 2011, for his purchase of a “Planet of the Apes” DVD one day before it was due to be released for sale to the public. Plaintiff picked up the DVD from the receiving room of the store and, not knowing it was not supposed to be sold until the next day, took it to the self-checkout. When he experienced some difficulty at the self-checkout register unrelated to the prerelease status of the DVD, he was assisted by the self-checkout cashier, Tiffany Mertes, and made the purchase. Mertes Statement, ECF No. 98-15. The next day, Mertes, who is Caucasian, reported the sale to Kunze and Plaintiff was immediately suspended.
Although Defendant acknowledges that it suffered no negative repercussions for this pre-release sale, ECF No. 98-16, it maintains that the purchase violated the following Employee Purchase Policy: “All employees, their friends and family members shall be treated as other customers. At no time are they to be extended preferential treatment.” Karen Graham Aff., Exhibit E, ECF No. 88-10 at 28. For this violation, Plaintiff was suspended for three weeks, without pay. At the conclusion of the suspension, Plaintiff was transferred to Defendant’s Owings Mills store, effective January 1, 2012.
The fourth and final adverse action taken by Defendant against Plaintiff was his suspension and the termination of his employment following an alleged incident of work place violence that occurred on April 25, 2012. On that date, Plaintiff went to the management office of his store and spoke with two assistant store managers, Angela Corprew and Charles “Mike” Deinlein. Having heard that a co-worker, Tia Person, was about to lodge a complaint against him with Defendant’s Human Resources Department, Plaintiff requested that Corprew call Person into the office, which she did. Tia Person is African American and Corprew is of mixed race. According to Plaintiff, soon after he and Person began their discussion, both became agitated and Person became confrontational. As the situation escalated, Plaintiff tried to leave the office but Person blocked his path causing him to bump shoulders with her as he left the office. Plaintiff was immediately suspended pending investigation and an investigation was conducted by Allen Tlusty, a Loss Prevention Investigator for Defendant. Plaintiff’s employment was ultimately terminated on or about July 16, 2012, based upon this alleged violation of Defendant’s zero-tolerance Workplace Violence Policy.
As support for his claim that these actions were taken against him in retaliation for his opposition to Defendant’s discriminatory practices, Plaintiff recites a history of his advocating for himself and others. In January of 2011, Plaintiff complained to Human Resources Representative Karen Graham that, while Kunze would not schedule him for Sunday shifts while on light duty status, he was giving Sunday work to two white employees who were also on light duty status, Tiffany Mertes and Crystal Adams. Karen Graham is African American. On or about September 28, 2011, Plaintiff met with Graham and again complained about Kunze’s refusal to schedule him for Sundays, assigning him undesirable tasks, and severely restricting his interactions with co-workers. Plaintiff also mentioned Kunze’s discriminatory harassment of a Jewish coworker, Mark Robins. While Plaintiff maintains that he presented these complaints as complaints of discriminatory harassment, Graham did not investigate those allegations. He also asserts that Kunze issued him a disciplinary write up the very next day, September 29, 2011. Pl.’s Aff. ¶ 14, ECF No. 98-1.
On or about October 15, 2011, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) asserting that he believed he was being discriminated against on the basis of his race and retaliation. EEOC Charge, ECF No. 88-30. On or about October 27, 2011, Plaintiff filed a grievance for racial harassment against Kunze with his union, United Food and Commercial Workers Union, Local 27 (Local 27). Plaintiff met with Graham on or about November 22, 2011, to discuss his grievance. Graham states that, while she understood that Plaintiff was asserting that Kunze was biased against him, she did not understand that the bias was racially based. Graham Aff. ¶ 7, ECF No. 88-10. The Court notes, however, that the EEOC had sent a Notice of Charge of Discrimination to Graham on October 25, 2011, and that Notice clearly indicated that Plaintiff was asserting a claim of discrimination based on race as well as retaliation. ECF No. 98-30.
On April 4, 2012, Plaintiff sent a letter to the EEOC updating his charge regarding his transfer to the Owings Mill store and his belief that he was moved to this store so that the black co-manager of that store, Jimmy Bennett, could fire him and, because Bennett was black, Plaintiff would not be able to argue that his firing was racially based. Pl.’s Aff., Ex. A, ECF No. 98-1 at 7-9. On April 24, 2012, Plaintiff had a fact finding meeting at the EEOC concerning his EEOC charge which Graham and several store managers attended. It was the very next day that the confrontation with Person that led to his termination occurred.
In addition to filing charges and grievances on his own behalf, Plaintiff also assisted other employees with charges and grievances against Defendant. From 2006 to 2010, while Plaintiff was assigned to Defendant’s Pikesville Store, Plaintiff served as the shop steward for Local 27. Although he did not maintain that role once transferred from that store, other employees still sought his advice and assistance. For example, he assisted Maria Jones, an African American produce clerk, with an EEOC charge after she was suspended by Jimmy Bennett. He also assisted African American co-workers Danny Carr and Anthony Wade with their filing of EEOC charges of racial discrimination although it is not clear that Defendant was aware that Plaintiff was providing this assistance.
In the period immediately leading up to the termination of his employment, Plaintiff was also assisting co-worker Rashida Daniels-Gordon with filing an EEOC charge for sexual harassment after store manager, Jimmy Bennett, sent her text messages pressuring her for sex. In the process of providing that assistance, Plaintiff inadvertently sent copies of the text messages to Defendant’s attorney, who forwarded the information to Graham. Graham then requested that Daniels-Gordon meet with her at a secret location away from the store. Graham met with Daniels-Gordon at a nearby sandwich shop and, while Graham told Daniels-Gordon that the purpose of the meeting was to investigate her sexual harassment complaint, Daniels-Gordon stated that Graham focused her questions more on Plaintiff - how he knew about her complaint and if he was helping with that complaint. Rashida Daniels-Gordon Aff. ¶¶ 6, 7, ECF No. 98-37. Graham ended the meeting by warning Daniels-Gordon not to tell anyone about the meeting, especially Plaintiff. Id. ¶ 10.
Based upon this series of events, Plaintiff brought claims in his Amended Complaint under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (Title VII), the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981 (§ 1981), and 42 U.S.C. § 1985(3) (§ 1985(3)). The § 1985(3) claim was asserted against Plaintiff’s union, Local 27, as well as Defendant Safeway. On November 18, 2014, this Court dismissed the § 1985(3) claim and dismissed Local 27 as a defendant. Thus, what remains are Plaintiff’s race discrimination and retaliation claims under Title VII (Counts One and Two, respectively) and his race discrimination claim under § 1981 (Count Four).
Defendant has moved for summary judgment as to all of those remaining claims. ECF No. 88. Plaintiff opposed the motion, ECF No. 98, and Defendant then filed a motion to strike a variety of documents (or at least portions of documents) that were submitted by Plaintiff in support of his opposition. ECF No. 107. Because resolution of the motion to strike will determine the evidence that can be considered in resolving the motion for summary judgment, the Court turns first to the motion to strike.
II. MOTION TO STRIKE
Defendant challenges the documents submitted by Plaintiff on a variety of grounds. Some are challenged because the documents purportedly were not produced or the affiant was not identified as a witness during discovery. Others are challenged because the document is unsworn. Portions of some documents are challenged because the testimony is not based on personal knowledge, is based on hearsay, or goes beyond the scope of knowledge of the affiant disclosed in discovery. Portions of Plaintiff’s affidavit are challenged on the ground that they are allegedly inconsistent with Plaintiff’s deposition testimony.
Defendant’s motion to strike is governed by several provisions of the Federal Rules of Civil Procedure. Rule 37(c)(1) provides that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Rule 26(e)(1) provides that, when a party has responded to interrogatories, requests for production, or requests for admissions and later learns that its disclosure or response is incomplete or incorrect in some material respect, the party must supplement its previous disclosure or response. Rule 56(c)(4) requires that “an affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence and show that the affiant or declarant is competent to testify on the matters stated.” Thus, under this Rule, statements in an affidavit or declaration cannot be conclusory or based upon hearsay. Evans v. Tech. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996). In addition, where a party has been deposed, courts do not permit that party to avoid summary judgment by submitting an affidavit that contradicts the prior sworn deposition testimony. Barwick v. Celotex Corp., 736 F.2d 946, 975 (4th Cir. 1984).
When applying these rules to a motion to strike, however, courts use “a scalpel, not a butcher knife, ” to strike only those portions of an affidavit that do not satisfy the requirements of Rule 56(c). Upshaw v. Ford Motor Co., 576 F.3d 576, 593 (6th Cir. 2009). In addition, “the papers of a party opposing summary judgment are usually held to a less exacting standard than those of the moving party, ” Blasic v. Chugach Support Servs., Inc., 673 F.Supp.2d 389, 396 (D. Md. 2009), and “doubts regarding admissibility are resolved in favor of the party opposing summary judgment.” United States v. Bell, 27 F.Supp.2d 1191, 1194 (E.D. Cal. 1998).
With these principles in mind, the Court turns to the evidence challenged by Defendant.
A. Affidavit of Leslie Easton (ECF No. 98-39)
In its motion to strike, Defendant contended that Leslie Easton was never disclosed as a potential witness during discovery and that Plaintiff failed to provide her affidavit during discovery even though it was, more than two months prior to the close of discovery on May 27, 2015. Defendant also contends that Easton’s statements are not based on personal knowledge. In his Opposition, Plaintiff correctly notes that the Easton Affidavit was produced to Defendant as part of a supplemental production on April 6, 2015, shortly after it was signed and more than a month and a half before the close of discovery. Defendant concedes in its Reply that it did indeed receive this affidavit during discovery.
As to the content of the affidavit, Easton signed the affidavit under the following affirmation:
I solemnly affirm under the penalties of perjury that all the information contained in this Affidavit is based on personal knowledge, except as to those things stated upon information and belief and as to those things; I believe them to be true.
Seizing on the last part of that affirmation, Defendant suggests that, at the least, paragraph 9, in which she stated she “believed that she was targeted for punishment and discipline” because the father of her child was African American should be stricken. ECF No. 98-39 ¶ 9. Except for her statement that she actually “observed” Defendant’s managers targeting African American employees for punishment and discipline while giving white employees more favorable treatment, id. ¶ 8, the remainder of her statements are challenged on the ground that she does not state the way in which she came to have personal knowledge of the facts to which she attests.
While paragraph 9 certainly must be stricken, the remainder of the statements in her affidavit will not be. Easton affirmatively declares that she has personal knowledge of the events she describes and they are all events that she readily could have observed in the store in which she worked. For example, in addition to the incidents in paragraph 8 that she expressly states she observed, she describes in paragraph 10 one specific occasion when a customer complained about a Caucasian employee and Kunze took no action and another when a customer complained about an African American employee and that employee was reprimanded. She states that a Caucasian employee, Tiffany Mertes, was assigned Sunday shifts while on light duty where Plaintiff was not. These are all events that Easton could have seen while working in the store in which they took place.
In moving to strike most if not all of Easton’s affidavit, Defendant seems to suggest that, to be admissible, every statement in the affidavit must be preceded by the phrase that she “personally observed” the event in question. ECF No. 112 at 7. At this stage in the litigation, the Court finds sufficient Plaintiff’s affirmation that all of the information in the affidavit (except paragraph 9) was based on personal knowledge. While ...