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Nhira v. Thompson Hospitality

United States District Court, D. Maryland

September 8, 2016



          William M. Nickerson Senior United States District Judge.

         On March 14, 2016, Defendants Thompson Hospitality, Compass Group, Maurice Jenoure, Jill Brown, Dina Zaikouk, Dana Mitchell, Dan Kelly, and Abdelmajid Zaghari filed a Motion for Summary Judgment. ECF No. 102. That motion is ripe. Upon a review of the pleadings and the applicable case law, the Court determines that no hearing is necessary. Local Rule 105.6. For the reasons set forth below, the Court will grant Defendants' Motion for Summary Judgment.


         Thompson Hospitality[2] provides food services to various colleges and universities through the operation of on-campus cafeteria-style dining halls, food courts, retail stores, catering services, and concessions. In July of 2004, Plaintiff Tafadzwa Nhira was hired to work as Thompson Hospitality's Food Service Director (FSD) at Savannah State University in Georgia. In June of 2005, Plaintiff was transferred to the FSD position at Morgan State University in Maryland. As an FSD at Morgan State, Plaintiff's job was to plan, direct, and manage all aspects of the food services operation in the university's main dining hall, food court, faculty dining room, and convenience store. Plaintiff was primarily responsible for tracking and reporting the expenses, revenue, food costs, and inventory for each of these units.

         Every Monday, Plaintiff provided financial reports to his District Manager, Dina Zaikouk. In 2011, in order to compile those reports, Plaintiff was counting the inventory in the dining hall and Executive Chef Francis Hassaine was responsible for counting the same in the food court. On Monday evenings, Zaikouk and the FSDs in her district would collectively review each university's financial status. Zaikouk and others in management relied on these reports from FSDs to determine whether the university accounts were operating efficiently and in a profitable manner. Further, Thompson Hospitality used the reports to administer a Quarterly Bonus Plan, which provided additional compensation to FSDs and other managers based on the profitability of their accounts.

         In October of 2011, two Thompson Hospitality employees were caught reporting inflated inventory figures. Timothy Kent, the FSD at Mississippi Valley University, was terminated October 18, 2011, for falsifying inventory numbers, ECF No. 102-23, and Patrick Brooks, FSD at Tougaloo College, was terminated on October 18, 2011, because one of the managers reporting to him falsified inventory numbers and Brooks failed to check that manager's reports, ECF No. 102-24. In response to these cases of fraudulent reporting, Zaikouk decided to create a new procedure for taking and recording inventory in her district. On October 17, 2011, Zaikouk sent an email outlining that procedure to the FSDs in her district, other district managers, and Corporate Executive Chef, Todd Burge. ECF No. 102-25. Under the new procedure, two associates were needed, one to count and the other to record inventory numbers. Before inventory reports were submitted to finance, an FSD was to perform a recount to confirm the associates' numbers.

         On October 31, 2011, Thompson Hospitality hired Alessandra McGuire to serve as the Retail Director of the Morgan State food court. On November 28, 2011, McGuire emailed Zaikouk, stating that she was uncomfortable working with Plaintiff because the “inventory was incorrect and the numbers being reported were inflated compared to what we actually have on hand.” ECF No. 102-19. On or about that same day, Zaikouk instructed Michael Amos, Executive Chef for the dining hall, that he should be one of the two people counting inventory each week. ECF No. 102-6 ¶ 9. On December 1, 2011, Amos recorded the dining hall inventory and gave the report to Retail Manager Roy Wilkins, who transferred the numbers onto a computer spreadsheet. That spreadsheet, reflecting $15, 275.05 in inventory, was sent to Zaikouk and Plaintiff.

         When Zaikouk received Wilkins' email, she was concerned because the inventory reported by Amos was significantly less than that reported by Plaintiff for the previous two weeks.[3] ECF No. 102-20 ¶ 17. Zaikouk asked Burge to travel to Morgan State on Monday December 5, 2011, in order to assess the inventory in the dining hall. Burge's report also showed that the dining hall's inventory was significantly lower than the inventory submitted by Plaintiff for the previous two weeks. When Plaintiff received the email from Wilkins, he decided to conduct his own count because he thought Amos missed some items. Plaintiff prepared an inventory summary sheet which stated that the correct inventory level for the dining hall was over $27, 000. ECF No. 102-3 at 216. Plaintiff, Burge, and Amos met, and Plaintiff was able to identify a few things that Amos and Burge missed, and those things were added to their summaries. By Burge's account, the final inventory for the dining hall as of December 4, 2011, was $17, 611.38.

         On that same day, Monday December 5, 2011, Zaikouk and Burge spoke with Hassaine, and Hassaine acknowledged that he had been padding the inventory levels for the food court. ECF No. 102-30. The next day, December 6, 2011, Zaikouk, Burge, and the Vice President of Human Resources, Jill Brown, traveled to Morgan State to meet with Hassaine and Plaintiff. That day, Hassaine was terminated for submitting false reports and Plaintiff was terminated for improperly inflating inventory figures and for failing to discover and report Hassaine's inflated inventory figures.

         On March 7, 2014, Plaintiff, acting pro se, filed an eleven-count Complaint against Thompson Hospitality, Compass Group, Morgan State University, Bowie State University, and ten individuals who are current and former employees of Thompson Hospitality. ECF No. 1. Plaintiff added a twelfth count on April 17, 2014. ECF No. 4. Plaintiff's Complaint and amendment thereto assert a variety of causes of action against Defendants, as discussed below. On November 11, 2014, the Court granted motions to dismiss filed by Morgan State University and Bowie State University. ECF No. 66. In addition, Plaintiff was unable to serve some of the individual Defendants; Todd Burge, Nancy Wediner, Michael Amos, and Alessandra McGuire; and those Defendants were dismissed without prejudice on March 25, 2015. ECF No. 77. All remaining parties joined in the Motion for Summary Judgment pending before the Court.


         Summary judgment is appropriate “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). This standard requires courts to “draw all justifiable inferences in favor of the nonmoving party, including questions of credibility and of the weight to be accorded particular evidence.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520 (1991) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (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.” Anderson, 477 U.S. at 247-248. Further, “[f]actual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.

         Where a plaintiff is pro se, the court may be obligated to construe that plaintiff's papers liberally. Carter v. Hutto, 781 F.2d 1028, 1031 (4th Cir. 1986). The court may not, however, bend the substantive requirements necessary to defeat a motion for summary judgment. Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003). Specifically, the plaintiff cannot rely on conclusory allegations or speculation; instead, he must offer evidence to show that there is a genuine dispute of material fact. Id.


         Although Plaintiff's allegations predominantly fall under Title VII, Plaintiff attempts to plead numerous other causes of action. The Court will address those first, and then turn to Plaintiff's Title VII claims.

         A. Causes of Action other than those under Title VII

         Plaintiff's fifth cause of action states “denial of due process in violation of constitutional rights and Title VII, in furtherance of their real motive of discrimination and retaliation.” ECF No. 1 at 28. The Fifth and Fourteenth Amendments to the United States Constitution, both of which contain a due process clause, limit the power of the federal government and the state governments to discriminate. Plaintiff's due process claim is inadequate because private citizens and employers, like Defendants in this case, are not subject to suit for constitutional violations absent government involvement. Brentwood Acad. v. Tennessee Secondary Sch. Athletic Assoc., 531 U.S. 288, 295-296 (2001). Plaintiff similarly lacks a legal basis for seeking due process protection under Title VII, which addresses unlawful employment practices, and contains no due process protections. See generally 42 U.S.C. § 2000e-2.

         Plaintiff's eighth cause of action states:

I, Tafadzwa Nhira, allege and repeat covenant of fair dealing. After dedicated years of self-less service, there had developed a good faith relationship between Thompson, Compass group and all their strategic partners to treat me fairly and at least give me opportunity to explain myself in unclear situations as opposed to just saying an audit was conducted yesterday and it was confirmed therefore today you are terminated.

         ECF No. 1 at 28. Maryland law does not recognize breach of the implied covenant of good faith and fair dealing as an independent cause of action. Mount Vernon Properties, LLC v. Branch Banking & Tr. Co., 907 A.2d 373, 381 (Md. Ct. Spec. App. 2006). A breach of that implied covenant simply supports “another cause of action at law, e.g., breach of contract.” Id. Thus, construing Plaintiff's eighth cause of action as a claim for breach of contract, under Maryland law, that claim must allege with certainty and definiteness “facts showing a contractual obligation owed by the defendant to the plaintiff and a breach of that obligation by the defendant.” Cont'l Masonry Co., Inc. v. Verdel Constr. Co., Inc., 369 A.2d 566, 569 (Md. 1977). Plaintiff has not alleged with certainty any contractual obligation owed by the Defendants. To the extent Plaintiff refers to the Thompson Hospitality Policies and Procedures Handbook, that handbook specifically states “[n]either this handbook nor any other Company document, confers any contractual right, either expressed or implied, to remain an employee of the Company.” ECF No. 102-4 ¶ 102.b. The handbook additionally informs employees that “[y]our employment is not for any specific time and may be terminated at will, with or without cause and with or without prior notice.” Id. This language is notable, as Maryland does not recognize a cause of action for breach of the covenant of good faith and fair dealing where the employee in question is an at-will employee. Ward v. 84 Lumber, 758 F.Supp. 335, 336-337 (D. Md. 1991).

         Plaintiff's ninth cause of action states:

I Tafadzwa Nhira, allege parents and students of Morgan State gave Thompson and Compass Group and Morgan an opportunity to do well, therefore budgets should be reasonable specifically for Rawlings Dining hall where students are forced to eat in the dining hall.

         ECF No. 1 at 28. There is no discernable cause of action in count nine. Setting budgets is a prerogative of any business, and federal courts do not have a responsibility to evaluate the ...

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