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Price v. Grasonville Volunteer Fire Department

United States District Court, D. Maryland

October 26, 2016

OSCAR PRICE Plaintiff,


          Ellen L. Hollander United States District Judge

         Plaintiff Oscar L. Price has sued the Grasonville Volunteer Fire Department (the “Department” or “GVFD”), defendant, asserting four claims: employment discrimination on the basis of race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) (Count One); a racially hostile work environment, also in violation of Title VII (Count Two); employment discrimination on the basis of race, in violation of the Civil Rights Act of 1991, 42 U.S.C. § 1981 et seq. (Count Three); and retaliation, in violation of Title VII (Count Four). See ECF 22 (“Amended Complaint”). Trial is scheduled to begin on January 9, 2017. See ECF 76.

         In anticipation of trial, the Department has filed an “Omnibus Motion in Limine” (ECF 88), supported by a memorandum (ECF 88-1) (collectively, the “Motion”) and several exhibits. See ECF 88-3 to ECF 88-10. Price opposes the Motion (ECF 90, “Opposition”) and has submitted several lengthy exhibits. ECF 90-1 to ECF 90-5. No reply has been filed, and the time to do so has expired. See Local Rule 105.2(a).

         A hearing is not necessary to resolve the Motion. See Local Rule 105.6. For the reasons stated below, I shall grant the Motion in part and deny the Motion in part.

         I. The Framework

         A motion in limine is a request for guidance by the court regarding an evidentiary question.” United States v. Luce, 713 F.2d 1236, 1239 (6th Cir. 1983), aff'd, 469 U.S. 38 (1984). Motions in limine help to streamline a case, because such motions “enable[] a court to rule in advance on the admissibility of documentary or testimonial evidence and thus expedite and render efficient a subsequent trial.'” INSLAW, Inc. v. United States, 35 Fed.Cl. 295, 303 (1996) (citation omitted); see Adams v. NVR Homes, Inc., 141 F.Supp.2d 554, 558 (D. Md. 2001). However, such rulings are preliminary, made in the discretion of the court, to assist counsel in preparation for trial. Luce, 713 F.2d at 1239-40. When the evidence is actually offered at trial, the trial court may change its ruling. Id. at 1239.

         A motion in limine must be considered in light of the contentions asserted by the parties. I turn to review the claims alleged by plaintiff.

         Plaintiff has filed suit under Title VII, which prohibits an employer from, inter alia, discriminating 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)(1). See Freeman v. Dal-Tile, 750 F.3d 413, 420 (4th Cir. 2014). The statutory language makes clear that Title VII prohibits only certain kinds of employment actions, and only actions taken against an employee on a prohibited basis. See 42 U.S.C. §§ 2000-e2(a).

         First, “the existence of some adverse employment action is required.” James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004). An “adverse employment action” is one that “‘constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'” Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). Second, the intentional discrimination must be on the basis of the plaintiff's “race, color, religion, sex, or national origin.” See 42 U.S.C. §§ 2000-e2(a)(1).

         Single acts that may not be cognizable as adverse actions on their own may, over time, cumulatively amount to an unlawful employment practice by creating a hostile work environment. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Hoyle, 650 F.3d at 333-34. Plaintiff advances such a claim.

         “A hostile environment exists ‘[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'” Boyer-Liberto v. Fontainbleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (en banc) (quoting Harris, 510 U.S. at 21 (alterations in Boyer-Liberto)). To show that a hostile work environment was created on the basis of race, a plaintiff must establish that the offending conduct (1) was unwelcome, (2) was based on race, (3) was sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment, and (4) was imputable to the employer.” Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011).

         Plaintiff also alleges a retaliation claim under Title VII. Title VII prohibits an employer from “discriminat[ing] against any of [its] employees . . . because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a). In Coleman v. Maryland Court of Appeals, 626 F.3d 187 (4th Cir. 2010), aff'd, __U.S.__, 132 S.Ct. 1327 (2012), the Fourth Circuit stated, 626 F.3d at 190. “The elements of a prima facie retaliation claim under Title VII are: (1) engagement in a protected activity; (2) adverse employment action; and (3) a causal link between the protected activity and the employment action.” In actuality, however, a “materially adverse action, ” rather than an “adverse employment action, ” is “the proper articulation of the adversity element in retaliation claims.” Hinton v. Virginia Union Univ., __ F.Supp.3d __, 2016 WL 2621967, at *13 (E. D. Va. May 5, 2016). See also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006); Jensen-Graf v. Chesapeake Employers' Ins. Co., 616 Fed. App'x. 596, 598 (4th Cir. 2015) (per curiam); Mascone v. Am. Physical Soc'y, Inc., 404 Fed. App'x. 762, 765 (4th Cir. 2010) (per curiam); Buckley v. Mukasey, 538 F.3d 306, 315 (4th Cir. 2008).

         Notably, the “materially adverse action” standard is “less restrictive” than the “adverse employment action” standard applicable to discrimination claims. Hinton, 2016 WL 2621967, at *13 (citing White, 548 U.S. at 62). In the discrimination context, an “adverse employment action” must “affect employment or alter the conditions of the workplace.” But, a materially adverse action” in the retaliation context “need not impact conditions in the workplace to be actionable.” Hinton, 2016 WL 2621967, at *13; see White, 548 U.S. at 64-67.

         In White, the Court stated: “The scope of the antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.” Id. at 67. Further, the Court explained, id. at 63: “An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace.” Therefore, under White, effect on terms or conditions of employment is no longer necessary to establish a retaliation claim. Id. at 63-67.[1]

         As noted, plaintiff has also sued under 42 U.S.C. § 1981. In relevant part, § 1981(a) provides: “All persons within the Jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” Section 1981(b) states: “For purposes of this section, the term ‘make and enforce contracts' includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”

         Like Title VII, 42 U.S.C. § 1981 prohibits, inter alia, “discrimination in employment on the basis of race.” Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 551-52 (4th Cir. 2006); see Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 459-60 (1975) (“§ 1981 affords a federal remedy against discrimination in private employment on the basis of race”). Section 1981(b) was enacted as part of the Civil Rights Act of 1991 in order to overrule legislatively the Supreme Court's holding in Patterson v. McLean Credit Union, 491 U.S. 164 (1989), to the effect that § 1981 applied “only to the formation of a contract” and not “to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions.” Id. at 176-77. See generally CBOCS West, Inc. v. Humphries, 553 U.S. 442, 449-51 (2008) (discussing post-Patterson enactment of § 1981(b)).

         The framework for proof of claims of employment discrimination under § 1981 is the same as the framework applicable to a Title VII claim. See Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir. 2004) (stating, in case involving employment discrimination claim under Title VII, § 1981, and § 1983, that “the elements required to establish such a case are the same under all three statutes”) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 n. 1 (1993)). In particular, discrimination may be proven by one of two methods: (1) “‘direct or indirect'” evidence of discrimination, under “‘ordinary principles of proof, '” Burns v. AAF-McQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996) (citation omitted); or (2) the burden-shifting approach articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Lightner v. City of Wilmington, N.C. , 545 F.3d 260, 263 n.* (4th Cir. 2008) (“[T]he McDonnellDouglasframework applies to discrimination claims under . . . § 1981.”); Love-Lane, 355 F.3d at 786 (stating that “the McDonnell Douglas framework, developed for Title VII, has been used to evaluate race discrimination claims under the three statutes, ” i.e., Title VII, § 1981, and § 1983); Gairola v. Com. of Va. Dept. of Gen'l Servs., 753 F.2d 1281, 1285-86 (4th Cir. 1985).

         “Procedurally, however, Section 1981 claims are not subject to the same exhaustion and timeliness requirements as those asserted pursuant to Title VII.” Sewell v. Strayer Univ., 956 F.Supp.2d 658, 673 (D. Md. 2013) (citing White v. BFI Waste Servs., LLC, 375 F.3d 288, 291-92 (4th Cir. 2004)); cf. Johnson, 421 U.S. at 460, stating that “the filing of a Title VII charge and resort to Title VII's administrative machinery are not prerequisites for the institution of a § 1981 action.”). Accordingly, a plaintiff's claims for employment discrimination under § 1981 are not limited to factual allegations that the plaintiff exhausted through the EEOC's administrative process. “The timeliness of Section 1981 claims is instead governed either by state law (as to allegations of misconduct during the formation of an employment contract) or by the four-year statute of limitations established by 28 U.S.C. § 1658 (as to allegations of misconduct after the formation of the employment relationship).” Sewell, 956 F.Supp.2d at 673.

         Several rules of evidence are important to the Court's analysis of the Motion. Under Rule 402 of the Federal Rules of Evidence, “[r]elevant evidence is admissible” unless rendered inadmissible pursuant to some other legal provision, but “[i]rrelevant evidence is not admissible.” Notably, “[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed.R.Evid. 401. Of course, under Rule 403, even if the evidence is relevant, the court “may exclude [it] if its probative value is substantially outweighed by a danger of . . . unfair prejudice, ” or would confuse the issues, mislead the jury, cause undue delay, waste time, or “needlessly” involve “presenting cumulative evidence.”

         With this background, I turn to the parties' contentions.

         II. Discussion

         A. The EEOC Determination of September 18, 2013

         The Department seeks to exclude “[a]ny evidence regarding the EEOC's September 18, 2013 Determination issued with regard to Oscar Price[.]” ECF 88, ¶ 1. The Department seeks to exclude the evidence on the basis of prejudice, as well as lack of probative value in a trial de novo. See ECF 88-1 at 2-4.

         The EEOC determined that Mr. Price was “subjected to racial harassment in the form of offensive race-based comments made by the President and various officers, as well as finding his gear removed from his locker and placed in the back of the fire house.” ECF 88-3. It concluded that “this conduct was severe and pervasive and that because ...

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