United States District Court, D. Maryland, Southern Division
ROLAND N. NYONKA, Plaintiff,
MVM, INC., Defendant.
W. Grimm United States District Judge
Nyonka sues his former employer MVM, Inc. (“MVM”)
for national origin discrimination and retaliation in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq., alleging that MVM
terminated him from his position as a security officer and
then failed to rehire him “because of his national
origin (Cameroon, Africa) and because he brought a prior
complaint of discrimination/retaliation against
Defendant.” Compl. ¶¶ 1, 19-21, ECF No. 1.
Pending is MVM’s Motion for Summary Judgment, ECF No.
26, which the parties fully briefed, ECF Nos. 26-1, 28,
Also pending is MVM’s Motion to Strike, ECF No. 29, in
which MVM asks the Court to strike portions of the
Declaration that Nyonka provided in support of his
Opposition, ECF No. 28-1, see also Jt. Ex. 130-31
(same). That motion, also, is fully briefed. ECF Nos. 34,
Because two of the three identified statements are
inadmissible, I will grant MVM’s motion and strike them
from Plaintiff’s Declaration. Without those two
statements, Nyonka has not identified more than a scintilla
of direct evidence of discriminatory animus and cannot
establish a prima facie case of discrimination or
retaliation. Accordingly, I will grant MVM’s Motion for
31, 2012, Nyonka filed a previous lawsuit for national origin
discrimination and retaliation against MVM, the for-profit
security company that was his employer at the time.
Nyonka v. MVM, Inc., DKC-12-2264 (“Nyonka
I”). Nyonka I settled in September 2013
pursuant to a confidential settlement agreement. Compl.
¶ 11; Def.’s Sum. J. Mem. 4. Nyonka later observed
Ruben Carabello, his manager at the time, “reviewing
the settlement agreement.” Pl.’s Decl.
¶¶ 6-7, Jt. Ex. 130. James Smith became
Nyonka’s supervisor shortly after that, id.
¶ 10, and Carabello spent about a month training him,
Pl.’s Dep. 96:22-97:1, Jt. Ex. 34.
November 22, 2013, Nyonka was arrested. Pl.’s Decl.
¶ 12, Jt. Ex. 131. MVM’s Employee Handbook
required “[e]mployees [to] notify their Department or
Program Manager of any arrest, charge, plea, or conviction
for any unlawful activity within 24 hours, and provide a
written report before the end of the employee’s next
working day.” Handbook 51, Jt. Ex. 9. By his next
workday, November 25, 2013, Nyonka informed MVM of his
arrest, and provided the court documents; he provided a
written report the next day. Pl.’s Dep. 126:8-127:7, Jt.
Ex. 42; Smith Decl. ¶¶ 7, 9. On November 26, 2013,
he met with Smith, who told him that he was suspended
indefinitely, “pending investigation.”
Pl.’s Dep. 138:12-139:1, Jt. Ex. 44-45. In December,
Nyonka received a letter from Smith on behalf of MVM that
Mr. Nyonka; on 26 November 2013, you were place[d] on
administration suspension due to being arrested. You must
provide MVM Inc. and NIH management legitimate documentation
from the State of Maryland/Prince George’s County Court
indicating all charges have been resolved and you have been
exonerated by the Maryland court/justice system.
Mr. Nyonka; in the event you do not provide the requested
documentation, by the COB on 26 December 2013, MVM Inc. and
NIH management have no choice but to release you without
prejudice (termination of employment) as you remain illegible
to return to work due to failure to maintain contract
Jt. Ex. 122; see Pl.’s Dep. 143:21-144:5,
145:16-146:3, Jt. Ex. 46-47 (discussing letter). On December
26, 2013, Smith called Nyonka, who informed him that
“his criminal matter had not yet been resolved.”
Smith Decl. ¶ 11, Jt. Ex. 3. On that basis, Smith
terminated Plaintiff’s employment on December 27, 2013,
effective December 26, 2013. Id. ¶ 12, Jt. Ex.
State’s Attorney entered a nolle prossequi on
January 9, 2014, and the charges against Nyonka were
dismissed. Nyonka notified MVM, providing Smith and
MVM’s Human Resources Department with the court
documents. Pl.’s Dep. 149:3-153:14, Jt. Ex. 47-48. He
did not reapply for his position, which already had been
advertised, and MVM did not rehire him. Id. at
152:8-155:12, Jt. Ex. 48-49.
of Review on Summary Judgment
reviewing a motion for summary judgment, the Court considers
the facts in the light most favorable to the nonmovant,
drawing all justifiable inferences in that party’s
favor. Ricci v. DeStefano, 557 U.S. 557, 585-86
(2009); George & Co., LLC v. Imagination Entm’t
Ltd., 575 F.3d 383, 391-92 (4th Cir. 2009). Summary
judgment is proper when the moving party demonstrates,
through “particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .,
admissions, interrogatory answers, or other materials,
” 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), (c)(1)(A); see
Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th
Cir. 2013). Significantly, a party must be able to present
the materials it cites in “a form that would be
admissible in evidence, ” Fed.R.Civ.P. 56(c)(3), and
supporting affidavits and declarations “must be made on
personal knowledge” and “set out facts that would
be admissible in evidence, ” Fed.R.Civ.P. 56(c)(4).
party seeking summary judgment demonstrates that there is no
evidence to support the nonmoving party’s case, the
burden shifts to the nonmoving party to identify evidence
that shows that a genuine dispute exists as to material
facts. See Celotex v. Catrett, 477 U.S. 317, 324
(1986). The existence of only a “scintilla of
evidence” is not enough to defeat a motion for summary
judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986). Instead, the evidentiary materials
submitted must show facts from which the finder of fact
reasonably could find for the party opposing summary
judgment. Id. This means that the nonmovant
“‘must do more than simply show that there is
some metaphysical doubt as to the material facts,
’” because “‘[w]here the record taken
as a whole could not lead a rational trier of fact to find
for the nonmoving party, there is no “genuine issue for
trial.”’” Scott v. Harris, 550
U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)
“[T]he 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.” When opposing parties tell two
different stories, one of which is blatantly contradicted by
the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.
Id. (quoting Anderson, 477 U.S. at 247-48).
VII states that it is
an unlawful employment practice for an employer...to fail or
refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion,
sex, or national origin.
42 U.S.C. 2000e-2(a). To prevail on a claim of national
origin discrimination in employment, Nyonka may
“demonstrate ‘through direct or circumstantial
evidence’” that his “national origin
‘motivated the employer’s adverse employment
decision, ’” or he “may ‘proceed
under a “pretext” framework’-commonly
referred to as the McDonnell Douglas
approach-‘under which the employee, after establishing
a prima facie case of discrimination, demonstrates
that the employer’s proffered permissible reason for
taking an adverse employment action is actually pretext for
discrimination.’” Nana-Akua Takyiwaa Shalom
v. Payless Shoesource Worldwide, Inc., 921 F.Supp.2d
470, 484 (D. Md. 2013) (quoting Hill v. Lockheed Martin
Logistics Mgmt., Inc., 354 F.3d 277, 284, 285
(4th Cir. 2004)); see Holland v. Wash. Homes, 487
F.3d 208, 213- 14 (4th Cir. 2007) (citing Hill).
Direct evidence is “evidence of conduct or statements
that both reflect directly the alleged discriminatory
attitude and that bear on the contested employment
decision.” Warch v. Ohio Cas. Ins. Co., 435
F.3d 510, 520 (4th Cir. 2006) (internal marks omitted).
“Only the most blatant remarks, [the intent of which]
could be nothing other than to discriminate ... constitute
direct evidence of discrimination.” Signal v.
Gonzales, 430 F.Supp.2d 528, 541 n.5 (D.S.C. 2006)
(internal bracket omitted) (quoting Carter v. City of
Miami, 870 F.2d 578, 582 (11th Cir. 1989)). If believed,
direct evidence “would prove the existence of a fact
... without any inference or presumptions.”
O’Connor v. Consol. Coin Caterers Corp., 56
F.3d 542, 548 (4th Cir. 1995) (internal marks omitted),
rev’d on other grounds, 517 U.S. 308, 116
S.Ct. 1307, 134 L.Ed.2d 433 (1996). To defeat a motion for
summary judgment, the evidence must show that the employer
announced, admitted, or “otherwise unmistakably
indicated” that an impermissible consideration was a
determining factor, or that discrimination can properly be
assumed from the circumstances. Cline v. Roadway Express,
Inc., 689 F.2d 481, 485 (4th Cir. 1982).
Nana-Akua Takyiwaa Shalom, 921 F.Supp.2d at 484;
see Betof v. Suburban Hospital, No. DKC-11-1452,
2012 WL 2564781, at *6 (D. Md. June 29, 2012) (“To
constitute direct evidence, statements must be directly
related to the employment decision in question”).
establish a prima facie case of national origin
discrimination in employment under the McDonnell
Douglas approach, Nyonka must show “(1) membership
in a protected class; (2) satisfactory job performance; (3)
an adverse employment action; and (4) less favorable
treatment than similarly situated employees outside the
protected class.” Linton v. Johns Hopkins Univ.
Applied Physics Lab., LLC, No. JKB-10-276, 2011 WL
4549177, at *5 (D. Md. Sept. 28, 2011) (citing White v.
BFI Waste Servs., 375 F.3d 288, 295 (4th Cir. 2004)).
Notably, although Plaintiff focuses on his termination in his
Complaint, Compl. ¶ 1, he refers also to MVM’s
failure to rehire him, id. ¶¶ 19-21, and
on summary judgment, he argues that “[h]is termination
and more importantly, the failure to reinstate/rehire
him, is an adverse employment action, ”
Pl.’s Opp’n to Sum. J. 5. MVM considers both acts
as alleged adverse employment actions. See
Def.’s Sum. J. Mem. 11; Def.’s Reply 8.
Therefore, I also will consider whether Nyonka has shown the
elements of a claim of national origin discrimination in a
failure to rehire, that is: “(1) [Plaintiff] is a
member of a protected class; (2) the employer had an open
position for which he applied; (3) he was qualified for
the position; and (4) he was rejected for the position
under circumstances giving rise to an inference of unlawful
discrimination.” Pugh v. Montgomery Cty. Bd. of
Educ., No. DKC-13-2862, 2016 WL 560793, at *6 (D. Md.
Feb. 12, 2016) (citing Brown v. McLean, 159 F.3d
898, 902 (4th Cir. 1998)), aff’d, No. 16-1260,
2016 WL 3971742 (4th Cir. July 25, 2016).
has the burden of establishing a prima facie case of
discrimination under this framework. See McDonnell
Douglas Corp. v Green, 411 U.S. 792, 802 (1973); see
also Anderson v. Westinghouse Savannah River Co., 406
F.3d 248, 267 (4th Cir. 2005). Then MVM must demonstrate
“that it acted with a legitimate, nondiscriminatory
reason.” Anderson, 406 F.3d at 267 (citing
Murrell v. Ocean Mecca Motel, Inc., 262 F.3d 253,
257 (4th Cir. 2001)). Provided that MVM is able to make that
showing, “then plaintiff must ‘present evidence
to prove that the defendant’s articulated reason was
pretext for unlawful discrimination.’”
Id. (citing Murrell, 262 F.3d at 257).
argues that Nyonka’s discrimination claim fails because
he “has not produced any evidence of direct
discrimination” and he “cannot establish a
prima facie case of discrimination” under the
McDonnell Douglas burden-shifting framework
“because he cannot demonstrate that he was performing
his job at a satisfactory level at the time of his
termination or that a similarly-situated employee outside of
his protected classes was treated more favorably.”
Def.’s Sum. J. Mem. 9 n.10, 10-11. In response, Nyonka
contends that “[t]his case involves instances of direct
evidence of discriminatory animus by the decision maker
involved in terminating Mr. Nyonka and refusing to
reinstate/rehire him after the charges against him were
dismissed.” Pl.’s Opp’n to Sum. J. 3.
Nyonka cites Paragraphs 10 and 11 of his Declaration as
“direct evidence that Mr. Smith displayed
discriminatory animus towards African born employees.”
Id. at 4.
of Paragraph 10
Paragraph 10, Nyonka declared: “Soon thereafter, my
supervisor became James Smith. Co-workers and even managers
repeatedly referenced a statement Mr. Smith made that he
wished to “rid the workplace of accents.” I took
that to mean persons like myself, who do not speak with an
American accent, were targeted for termination.”
Pl.’s Decl. ¶ 10. Defendant moves to strike the
second two sentences on the ...