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Nyonka v. MVM, Inc.

United States District Court, D. Maryland, Southern Division

August 11, 2016

ROLAND N. NYONKA, Plaintiff,
MVM, INC., [1]Defendant.


          Paul W. Grimm United States District Judge

         Roland 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, 31.[2] 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, 35.[3] 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 Summary Judgment.

         Factual Background

         On July 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.

         On 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.[4] 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 stated:

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 compliance.

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. 4.

         The 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.

         Standard of Review on Summary Judgment

         In 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).

         If the 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) (footnote omitted)).

“[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).


         Title VII states that it is

an unlawful employment practice for an 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[5] 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”).

         To 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).

         Nyonka 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).

         MVM 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.

         Admissibility of Paragraph 10

         In 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 ...

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