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Mance v. Owings Mills Autos, LLC

United States District Court, D. Maryland

April 19, 2018



          James K. Bredar Chief Judge

         Plaintiff Timothy Mance brought this action against Defendant Owings Mills Autos, LLC, on August 7, 2017, alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. and the Maryland Fair Employment Practices Act (“FEPA”), Md. Code Ann., State Gov't § 20-601 et seq. (See Compl., ECF No. 1.) Defendant moved to dismiss or in the alternative for summary judgment on October 30, 2017. (Mot. Summ. J., ECF No. 7.) Plaintiff responded in opposition (ECF No. 10) and, on January 5, 2018, Defendant replied (ECF No. 13), and simultaneously moved to strike an affidavit attached to Plaintiff's opposition (Mot. Strike, ECF No. 14). Plaintiff responded in opposition to the motion to strike (ECF No. 15) and Defendant replied (ECF No. 17). Plaintiff then moved for leave to file a surreply. (Mot. Surreply, ECF No. 21.) Defendant responded in opposition (ECF No. 23) and the time for Plaintiff to reply has passed. Therefore, all three motions are ripe for review. There is no need for a hearing to resolve any of the pending motions. See Local Rule 105.6 (D. Md. 2016). For the reasons set forth below, Defendant's motion to dismiss, construed as a motion for summary judgment, will be granted by accompanying order, and Defendant's motion to strike as well as Plaintiff's motion for leave to file a surreply will be denied as moot by accompanying order.

         I. Background[1]

         Timothy Mance began working at Driftwood Inc. d/b/a Northwest Honda (“Northwest Honda”) as a salesperson in February 2006. (Aff. Timothy Mance ¶ 1, ECF No. 10-1.) Plaintiff worked as a “car salesperson” and then a “Used Car Manager.” (Id. ¶ 3.) In 2016, Northwest Honda was sold to Defendant. (See Id. ¶ 2; Aff. Nancy Theodore ¶ 5, p. 2, ECF No. 7-10.[2]) Under the terms of the Asset Purchase Agreement (“APA”) signed by Northwest Honda and Defendant's representatives, “[o]n the Closing Date, Seller [i.e. Northwest Honda] will transition the employment of all Seller's employees with respect to the Business, except for [two employees] in a manner approved in advance by Buyer [i.e. Defendant].” (APA § 8, ECF No. 10-3.) According to the APA, “Buyer shall hire all of Seller's former employees . . . in accordance with Buyer's standard operating and human resources procedures.” (Id.) The APA defined the employees of Northwest Honda hired by Defendant as “Retained Employees” and explained that “Buyers shall have the right, but not the obligation, to employ any or all of Seller's employees related to the Business, and shall have no obligation to retain any Retained Employees for a specific time period following Closing.” (Id.) Closing of the sale occurred on July 12, 2016. (Theodore Aff. ¶ 5, p. 2.)

         “Prior to Closing [the sale between Northwest Honda and Defendant], virtually every employee working at Northwest Honda submitted an Application for Employment package to [Defendant].” (Theodore Aff. ¶ 11.) Plaintiff filled out an Application packet in June 2016 and gave it to “what is now Defendant's Human Relations department.” (Mance Aff. ¶ 5.) Roughly six weeks before closing, Defendant's president told Plaintiff that he was “‘not going to make any dramatic changes' and ‘you will still be manager.'” (Id. ¶ 6.) According to Ms. Theodore, Plaintiff “never submitted any Application for Employment to [Defendant] at any time.” (Theodore Aff. ¶ 12 (emphasis in the original).) According to her, “every new and used car salesperson” at Northwest Honda besides Plaintiff completed and submitted an Application. (Id. ¶ 17.)

         The day the sale was finalized, Jon Orofino, an employee of Defendant, “fired” Plaintiff and told him “they just don't want you as manager.” (Mance Aff. ¶ 8.) Plaintiff responded by asking if he “could work in sales” but Mr. Orofino “mocked [him], suggesting places for [Plaintiff] to sit that were far from the front door.” (Id.) Plaintiff was confused and spoke with Defendant's management, who told him “please give us enough time to finish the paperwork and I will get back to you.” (Id. ¶ 9.) The following day, Plaintiff “had a meeting with Defendant.” (Id. ¶ 11.) At the meeting, Defendant's Vice President, Mr. Abbas, said that “I have heard great things about you, but I don't think Josh . . . had time to train you well so you can't stay as manager.” (Id.)[3] After Plaintiff inquired about his “status as a salesman, ” Abbas responded “how about you find someplace else to sit.” (Id. ¶ 12.) Plaintiff “refused to return to [his] previous position in Sales, [and his] employment was terminated.” (Charge of Discrimination, ECF No. 7-9.)[4] Plaintiff now works for Driftwood “in their BMW dealership” but he “would rather had [sic] stayed selling Hondas than BMWs, because my clientele that I built up cannot afford BMWs.” (Id. ¶ 18.) (According to Defendant, Plaintiff was never hired as a manager or salesperson, and the “only reason [Defendant] did not hire [Plaintiff] was because he never submitted any Application for Employment.” (Theodore Aff. ¶ 23 (emphasis added).))

         Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission on July 25, 2016. (See Charge of Discrimination; Mance Aff. ¶ 14 (referring to Charge of Discrimination).) In it, Plaintiff alleged that he had been the Used Car Manager for “approximately two months” when “Abbus [sic], the GM, informed [him] of [Defendant's] intention to remove [Plaintiff] as Manager.” (Charge of Discrimination.) Plaintiff believed that he was “terminated due to [his] race, Black.” (Id.) Plaintiff presumably was issued a notice of right to sue, [5] and brought suit in this Court on August 7, 2017. His complaint contains two counts of violations of Title VII, for “Racial Discrimination” and a “Hostile and Abusive Working Environment.” (Compl. ¶¶ 23-28.) His complaint also contained a third count for “Racial Discrimination” in violation of FEPA.

         On October 30, 2017 Defendant moved to dismiss Plaintiff's complaint under Rule 12(b)(6) or for summary judgment “in the alternative.” (ECF No. 7.) Plaintiff responded in opposition on December 1, 2017, and attached several exhibits to his opposition, including an Affidavit by Joshua Dreiband (“Mr. Dreiband”), co-owner of Northwest Honda, and son of Edward Dreiband, also a co-owner of Northwest Honda. (Opp'n Mot. Summ. J., ECF No. 10; Aff. Joshua Dreiband, ECF No. 10-2; see Aff. Edward Dreiband, ECF No. 17-1.) On January 4, 2018, Mr. Dreiband signed an amended affidavit. (See Am. Aff. Joshua Dreiband, ECF No. 16-1.) According to Mr. Dreiband, his original affidavit had been “prepared by Plaintiff's counsel” and although he signed that original affidavit, he had not at the time of signing “see[n] or review[ed] the final draft.” (Dreiband Am. Aff. ¶ 1.) Having now “had the opportunity to review the final draft” he wished “to correct some of the content in order to make it accurate.” (Id.) It is unclear when this amended affidavit was provided to Plaintiff or Plaintiff's counsel, but it was not docketed until January 19, 2018, fifteen days after Mr. Dreiband signed it.

         On January 5, 2018, the day after Mr. Dreiband signed his amended affidavit, Defendant filed its timely reply in support of its motion to dismiss or in the alternative for summary judgment. (Reply, ECF No. 13.) Defendant simultaneously filed a motion to strike the original affidavit of Mr. Dreiband. (Mot. Strike, ECF No. 14.) Plaintiff responded in opposition to the motion to strike on January 19, 2018 (Opp'n Mot. Strike, ECF No. 15), and simultaneously filed a “Line Re: Corrected Affidavit of Joshua Dreiband, ” (ECF No. 16) and attached Mr. Dreiband's amended affidavit. Defendant replied in support of its motion to strike the original affidavit on February 2, 2018 (Reply Mot. Strike, ECF No. 17) and attached an Affidavit of Edward Dreiband, Mr. Dreiband's father.

         This was not enough for the Plaintiff. He filed a motion for leave to file a surreply in opposition to Defendant's motion to strike on February 15, 2018. (Mot. Surreply, ECF No. 21.) Defendant responded in opposition on February 27, 2018 (ECF No. 23), and Plaintiff did not reply. Accordingly, Defendant's motion to dismiss or in the alternative for summary judgment, Defendant's motion to strike Mr. Dreiband's affidavit, and Plaintiff's motion for leave to file a surreply are all ripe for decision.

         The Court will treat Defendant's motion to dismiss as one for summary judgment. Under Rule 12(d) a Court may convert a motion to dismiss to one for summary judgment and consider matters outside the pleadings, but the parties must “be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d). When, however, “the movant expressly captions its motion ‘in the alternative' as one for summary judgment, and submits matters outside the pleadings for the court's consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur; the court ‘does not have an obligation to notify parties of the obvious.'” Pevia v. Shearin, Civ. No. ELH-13-2912, 2015 WL 629001, at *3 (D. Md. Feb. 10, 2015) (quoting Laughlin v. Metro Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998)). Defendant here captioned its motion as one for summary judgment “in the alternative” and Plaintiff took the hint: he attached exhibits and affidavits to his opposition. Therefore, the Court is satisfied that Plaintiff had proper notice and it will construe the motion as one for summary judgment.[6] The Court will now turn to the standards for the several motions pending before it.

         II. Standards

         “The court shall grant summary judgment 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to current Rule 56(a)). The burden is on the moving party to demonstrate the absence of any genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing the motion, then a genuine dispute of material fact is presented and summary judgment should be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the “mere existence of a scintilla of evidence in support of the [opposing party's] position” is insufficient to defeat a motion for summary judgment. Id. at 252. The facts themselves, and the inferences to be drawn from the underlying facts, must be viewed in the light most favorable to the opposing party, Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008), who may not rest upon the mere allegations or denials of his pleading but instead must, by affidavit or other evidentiary showing, set out specific facts showing a genuine dispute for trial, Fed.R.Civ.P. 56(c)(1). Supporting and opposing affidavits are to be made on personal knowledge, contain such facts as would be admissible in evidence, and show affirmatively the competence of the affiant to testify to the matters stated in the affidavit. Fed.R.Civ.P. 56(c)(4). In fact, “a court may strike portions of affidavits that lack personal knowledge, contain hearsay, or rest upon conclusory statements.” Contracts Materials Processing, Inc. v. Kataleuna GmbH Catalysts, 164 F.Supp.2d 520, 527 (D. Md. 2001) (citing Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996)); see Fed. R. Civ. P. 56(c)(2). “Generally, an affidavit filed in opposition to a motion for summary judgment must present evidence in substantially the same form as if the affiant were testifying in court.” Evans, 80 F.3d at 962 (citing former Fed.R.Civ.P. 56(e)). If material in an affidavit is in contravention of Rule 56(c), i.e. it would not be permissible for the affiant to so testify in court, the Court need not, and should not, strike the entire affidavit. In Evans, “[t]he district judge did not strike the entire affidavit and did not grant all of [the defendant's] requests to strike, but instead struck and disregarded only those portions it deemed inadmissible or improper in accordance with [former] Rule 56(e) [now Rule 56(c)].” Id.

         As for Plaintiff's motion for leave to file a surreply, “[s]urreplies are highly disfavored in this District, ” and may only be filed with the Court's permission. Roach v. Navient Solutions, Inc., 165 F.Supp.3d 343, 351 (D. Md. 2015) (citing Local Rule 105.2(a)). Surreplies, however, “may be permitted when the moving party would be unable to contest matters presented to the court for ...

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