United States District Court, D. Maryland
MEMORANDUM AND ORDER
William M. Nickerson Senior United States District Judge.
March 30, 2016, this Court issued a Memorandum, ECF No. 114,
and Order, ECF No. 115, granting in part and denying in part
Defendant Safeway Inc.'s Motion for Summary Judgment. The
Court granted the motion as to Plaintiff Stephen
Colfield's racial discrimination claims, but denied the
motion as to his retaliation claim. Defendant filed a timely
motion under Rule 54(b) of the Federal Rules of Civil
Procedure asking the Court to reconsider its decision
regarding the retaliation claim. ECF No. 119. The Court will
deny that motion.
Rule 54(b), a district court can revise any order "at
any time before the entry of a judgment adjudicating all the
claims and all the parties' rights and liabilities."
See Am. Canoe Ass'n v. Murphy Farms, Inc., 326
F.3d 505, 514-15 (4th Cir. 2003). This Court's March 30,
2016, Memorandum and Order was such an interlocutory
judgment. Resolution of a motion for reconsideration of such
a judgment is "committed to the discretion of the
district court, " id. at 515, and the goal
"is to reach the correct judgment under law.”
Netscape Communications Corp. v. ValueClick, Inc.,
704 F.Supp.2d 544, 547 (E.D. Va. 2010) (internal citations
motion begins with a somewhat inaccurate characterization of
this Court’s ruling on the summary judgment motion.
Defendant declares that “[t]he Court acknowledged that
the termination of Plaintiff’s employment was for
legitimate non-discriminatory reasons because Plaintiff had
engaged in workplace violence.” ECF No. 119-1 at 1
(citing ECF No. 114 at 35-37). In the referenced portion of
the opinion, the Court concluded that “there is no
evidence upon which a jury could reasonably conclude that the
termination of Plaintiff’s employment for the
alleged violation of Defendant’s
zero-tolerance Workplace Violence Policy was racially
based.” ECF No. 114 at 35 (emphasis added). While
the Court concluded that a jury could not find that
Plaintiff’s termination was racially motivated, it did
not conclude that Plaintiff was terminated for a
portion of its opinion, the Court did note that Karen Graham,
the primary decision maker in Plaintiff’s termination,
“concluded that Plaintiff intentionally pushed
Assistant Manager Deinlein and bumped into [Tia] Person . . .
.” during the April 25, 2012, incident that lead to the
termination of Plaintiff’s employment. Id. at
36. The Court also opined that, because Graham, like
Plaintiff, is African American, “[t]hat alone seriously
undermines any inference that Plaintiff was disciplined
differently because of his race.” Id.
(emphasis added). As the following portion of the
Court’s March 30, 2016, opinion made clear, however,
the Court also found that there is at least a dispute of fact
as to whether Graham reached that conclusion honestly or,
instead, as a convenient pretext to terminate Plaintiff in
retaliation for his troublesome complaints of discrimination
made on behalf of himself and other employees. See
id. at 38-45.
also raises several specific concerns with this Court’s
ruling on its summary judgment motion which the Court will
briefly address. First, Defendant makes much of the fact that
Tony Mack may have confused the order in which Plaintiff and
Jimmy Bennett were transferred to Defendant’s Owings
Mills store. ECF No. 119-1 at 5-8. Mack stated in his
affidavit that Bennett, who is African American, told him
that he was sent to the Owings Mills store to fire Plaintiff
so that Plaintiff would not be able to claim discrimination.
ECF No. 98-22 ¶ 3. Defendant notes that Graham stated in
her affidavit that “Bennett was actually transferred to
the Owings Mills Store in November 2011 - three months
before Plaintiff was transferred to the store in
January 2012.” ECF No. 119-1. In its Reply memorandum,
Defendant suggests that this timing issue “does not
square with Plaintiff’s entire theory of the case,
” and that the fact that “Bennett was actually
transferred to the Owings Mills Store months prior to
Plaintiff” is “a fact that Plaintiff has, until
now, overlooked.” ECF No. 123 at 12-13.
however, has represented all along that Bennett was already
at the Owings Mills store before Plaintiff was transferred
there. In an April 4, 2012, letter to the Equal Employment
Opportunity Commission (EEOC), Plaintiff wrote that he had
been moved to a store that had a black co-manager, Jimmy
Bennett, so that he could be fired and any claim of
discrimination would be discredited. ECF No. 98-1, Attach. A
at 1. In his opposition to the motion for summary judgment,
Plaintiff stated that, in December 2011, when he first
learned that he was to be transferred, he “immediately
recalled information that in November 2011, an African
American was transferred to Owings Mills as an Assistant
store manager.” ECF No. 98 at 16. The Court, as
Defendant acknowledges, recognized that Plaintiff was
asserting that he was transferred to a store where Bennett
was already an assistant manager. See ECF No. 114 at
39 (noting that there was evidence that “Defendant
transferred Plaintiff to Bennett’s store so
that Plaintiff could be fired”) (emphasis added). The
issue is not, and has never been, who was transferred first.
next takes issue with the Court’s citation to Rashida
Daniels-Gordon’s affidavit as evidence of a retaliatory
motive on the part of Graham. ECF No. 119-1 at 8-9; ECF No.
123 at 12. In her affidavit, Daniels-Gordon recounts a
meeting she had with Graham, a meeting that she was told was
for the purpose of investigating a sexual harassment
complaint she had made against Bennett. Defendant posits that
there was nothing unusual about this interview and that
“it was natural for a Human Resources Manager to ask
employees to keep their investigations confidential”
and “to not involve others in this HR
investigation.” ECF No. 123 at 12. Defendant questions
“[h]ow could one possibly infer a retaliatory
motive” from the exchange, and noted that the meeting
occurred “after Plaintiff had already engaged in
workplace violence.” ECF No. 119-1 at 9.
conveniently ignores what Daniels-Gordon actually said in her
affidavit. Daniels-Gordon stated that while Graham told her
the meeting was about the sexual harassment claim, Graham
“focused her questions on [Plaintiff].” ECF No.
98-37 ¶ 7. Graham did not simply ask her to keep the
investigation confidential, she threatened to fire her if she
told anyone about this meeting, especially Plaintiff.
Id. ¶ 10. Defendant also omits mention that
Graham warned Daniels-Gordon that Plaintiff “was trying
or may try to use [her] to benefit himself in something he
was trying to do, ” id., a comment that
borders on a breach of the confidentiality concerns that
Defendant asserts a Human Resources Manager would naturally
seek to enforce. As for the timing of this conversation,
while it occurred after the alleged incident of workplace
violence, it took place immediately before the decision was
made to terminate Plaintiff’s employment.
next criticizes the Court for failing to consider comparator
evidence when evaluating Plaintiff’s retaliation claim.
As the Court explained in its previous decision, given that
there is some direct evidence of retaliation, it was at least
questionable as to whether the Court needed to engage in the
McDonnell Douglas analysis, an analysis which would
have encompassed that comparator evidence. ECF No. 114 at
38-39. In its reply in support of the motion for
reconsideration, Defendant argues that Bennett’s
alleged statement that he was tasked to fire Plaintiff
because Plaintiff was a troublemaker was not sufficiently
related to his termination to constitute direct evidence of
retaliation. ECF No. 123 at 10-11 (citing Betof v.
Suburban Hosp., Inc, Civ. No. 11-1452, 2012 WL 2564781
(D. Md. June 29, 2012)).
Betof, a case alleging racial discrimination, this
Court did hold that “[d]irect evidence is evidence of
conduct or statements that both reflect directly the alleged
discriminatory attitude and that bear directly on the
contested employment decision.” 2012 WL 2564781, at *6
(internal quotation omitted). In Betof, the
statements that plaintiff asserted were direct evidence of
racial discrimination, this Court found were, “in fact,
racially neutral” and were not “in any way linked
to [plaintiff’s] subsequent termination.”
Id. For those reasons, the Court found the
statements were not direct evidence of discrimination. In
contrast, here we have a statement of one of
Defendant’s managers that Defendant wanted Plaintiff
fired because of his troublesome EEOC activity.
questioning if it was necessary, the Court did evaluate
Plaintiff’s retaliation claim under the
McDonnell-Douglas framework. In that evaluation, the
Court did not discuss comparators because, particularly as to
Plaintiff’s termination based upon the April 25, 2012,
incident, there is a question as to what the conduct of
Plaintiff actually entailed that would then be compared to
the conduct of other employees. The Court found, and still
finds, that there are material disputes of fact as to whether
Plaintiff engaged in workplace violence.
suggests that Plaintiff admitted that he committed an act
that violated Defendant’s Workplace Violence Policy.
ECF No. 119-1 at 12; ECF No. 123 at 9. Selectively quoting
from a “Statement and Grievance” written by
Plaintiff regarding the incident, Defendant states that
Plaintiff admitted “that he ‘argued’ with
Ms. Person, ‘point[ed] his finger at her, ’
‘bump[ed]’ her and ‘pushed [Mr.
Deinlein’s] hands.’” ECF No. 119-1 at 12
(quoting ECF No. 88-19). From this, Defendant concludes
Plaintiff committed an “egregious act of workplace
violence.” ECF No. 119-1 at 7.
Plaintiff recounted in his Statement and Grievance was that,
in response to Person lying and accusing Plaintiff of talking
about her, he “started pointing [his] finger at
her.” ECF No. 88-19. She told him not to point his
finger and he told her to stop lying. In frustration, he
started to walk out of the office when Deinlein
“grabbed me very hard on my left shoulder and bruised
it, [and] I pushed his hand off of me.” Id.
When he started to leave the office again, Person
“decided to block me from leaving by standing in my way
and refusing to move.” Id. After he told her
to move and she would not, “in order to walk out I was
forced to bump shoulders with her since she wouldn’t
move and continued to stand in my way knowing ...