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Zaire v. Protective Services Training Academy, LLC

United States District Court, D. Maryland, Southern Division

May 29, 2019

FIJI A. ZAIRE, Plaintiff,
v.
PROTECTIVE SERVICES TRAINING ACADEMY, LLC, Defendant.

          MEMORANDUM OPINION

          Paul W. Grimm, United States District Judge.

         Plaintiff Fiji Zaire, an African American woman, has brought this suit against her former employer, Protective Services Training, LLC ("PST") under Title VII of the Civil Rights Act of 1964. She alleges her supervisors disregarded her complaints that a white, male co-worker had been harassing her on the basis of both her sex and race and that they themselves had repeatedly taunted her because of the color of her skin. She further alleges that shortly after she filed a charge with the Equal Employment Opportunity Commission ("EEOC"), the company withheld a promised promotion, wrote her up for a series of alleged infractions, and then terminated her employment.

         Ms. Zaire's lawsuit asserts two claims. The first seeks to hold PST liable for fostering a hostile work environment. The second accuses the company of retaliating against her. PST has moved for summary judgment on both claims.

         I conclude that there remain genuine disputes of material fact that preclude me from granting summary judgment for PST on either of Ms. Zaire's claims. I do agree with PST, though, that Ms. Zaire cannot pursue her allegations that various African American supervisors harassed her because of the lightness of her skin, as these assertions bear little to no connection to the allegations she raised in her EEOC charge.

         FACTUAL BACKGROUND

         This suit concerns a series of conflicts and confrontations that took place between March 2014 and April 2016, while Ms. Zaire was working at PST's facility in Upper Marlboro, Maryland. See Zaire Dep. 29:4-30:20, ECF No. 52-3. PST provides weapons- and security-related training to companies and the general public. See Coker Decl. ¶ 5, ECF No. 52-2. Ms. Zaire, who describes herself as a light-skinned African American woman, worked as an associate in the retail shop abutting the gun range. See Zaire Dep. 34:11-16, 136:10-17.

         Encounters with Stephen Mlynarski

         The chief antagonist in Ms. Zaire's account is a coworker named Stephen Mlynarski, who worked alongside her as a fellow full-time associate.[1] Ms. Zaire stated in her deposition that she "had no issues'" with Mr. Mlynarski during the spring and summer of 2014, when he first started working at the shop. See id at 69:16-71:12. In time, though, there began a string of incidents in which Mr. Mlynarski, who is white, made inappropriate comments or otherwise conducted himself in ways that Ms. Zaire found "unprofessional" or "offensive." See Id. at 73:4-75:8. Ms. Zaire's briefs in opposition to the motion for summary judgment allude to four incidents, in particular:

April 2015: Mr. Mlynarski asked Ms. Zaire to join him and his fiancee for dinner. See Id. at 97:5-98:21. When Ms. Zaire declined, he said, "Oh, well, why not, because we wanted a threesome?" See Id. at 97:21-98:1. Ms. Zaire replied, "[D]on't talk to me that way . . .. That's very disrespectful to me for you to think that I would even do something like that." Id. at 98:4-7. She immediately reported the episode to her supervisor, Patricia Wilson, who promised to discuss the incident with Kelvin Jones, the facility's general manager. See Id. at 98:14-99:8.
May 25, 2015:[2] Mr. Mlynarski, ostensibly commenting on Ms. Zaire's hair, told her that it looked as though she had "stuck [her] finger in a socket." Id. at 75:5-8; see Hedrick Dep. 78:15-17, ECF No. 52-5; November 2015 EEOC Charge 2, ECF No. 52-2, Ex. B. PST's finance manager, Betty Hedrick, was present at the time and overheard the comment. See Hedrick Dep. 78:8-79:3.
October 1, 2015: While in the store, Mr. Mlynarski "kept putting his hands on [her] shoulder and putting his hands in [her] hair."[3] November 2015 EEOC Charge 2. The following day, Ms. Zaire reported the incident to Janice Simons, human resources manager for PST's parent company, Akal Security, Inc. See Id. Ms. Simons discussed the matter with Mr. Fraser, who said the allegation sounded like another incident he had previously addressed. See Fraser Dep. 222:17-223:15, ECF No. 52-6. Mr. Fraser recalled in his deposition that, in response to the earlier incident, he told Mr. Mlynarski "[t]hat he needs to not, you know, play so much in the store, especially with Ms. Zaire, because she advised me that you guys are not cool like that, you know, so she prefer[s] that he just not joke with her and play with her." Id. at 224:21-225:4.
October 21, 2015:[4] Once, as Ms. Zaire entered the store, Mr. Mlynarski said, "Oh, man, I can tell you're black now. . .. Your hair looks so nappy, like you've been picking cotton in the field." Zaire Dep. 74:21-75:4; November 2015 EEOC Charge 2; Reilly Notes of Interview with Zaire 2, ECF No. 52-9. Ms. Zaire reported the incident to Mr. Jones and Ms. Wilson the following day. See November 2015 EEOC Charge 2.

         There were other comments as well. Once, she said, he told her, "You, as black people, feel like you should be entitled to things." Zaire Dep. 123:2-17. Another time, he remarked that black women are "always so quick to have an attitude." Id. at 124:19-22. Ms. Zaire also recalled an incident where Mr. Mlynarski vented his frustration with an African customer who had just left the store, commenting that he "can't stand fucking Africans." Id. at 82:11-19.

         Beyond these episodes, Ms. Zaire said in her deposition that Mr. Mlynarski made sexual comments about her "multiple times a week." Id. at 108:3-22. "He would say stuff about my behind, he would touch me, touch my hair, and I constantly asked him to stop touching me ...," she said. Id. at 109:3-6. She said he touched her hair or shoulders roughly two to three times per week. See Id. at 110:4-12.

         Ms. Zaire said she discussed some of these incidents with General Manager Kelvin Jones and Store Manager Jermaine Fraser during an hour-long meeting in Mr. Jones's office. See Id. at 151:15-153:2. "I expressed to them again about things that Steve was doing to me, touching me, saying to me, and how it was making me feel," she said. Id., at 151:20-152:1. "And they both told me that I need to quit being so sensitive about the situation. I was told, 'You don't work on Sesame Street, and you're not going to get along with or like people that you work with ... but you still have to come to work and do your job." Id. at 152:2-8.

         Comments Made by Management

         Mr. Mlynarski was not alone in offending Ms. Zaire during this time. Ms. Zaire alleges that several members of the company's management team made remarks about her that she considered derogatory.

         The first incident occurred in December 2014, when she and several colleagues were driving back from a gun show in Fredericksburg, Virginia. See Id. at 134:9-135:18. In a text message exchange between Mr. Jones and Ms. Wilson, Mr. Jones wrote, "Becky was givin ammo away" and told Ms. Wilson, "I want u 2 keep a eye on Becky." Jones & Wilson Texts 2, ECF No. 58-6. Ms. Wilson, who was sitting next to Ms. Zaire in the car, wrote back, "Becky telling on herself. I knew u were white." Id. at 1; see Zaire Dep. 134:20-135:2. Ms. Zaire later saw the exchange and understood that "Becky" was meant to refer to her. See Zaire Dep. 135:8-10. ("Becky," she said in her deposition, is a derogatory way of referring to a white woman. See Id. at 136:7-10.) Ms. Zaire said that when she talked to Mr. Jones about it the next Monday, he asked her''why [she] was being so sensitive about it." Id. at 135:19-22.

         At least two other incidents followed. In April 2015, Office Manager Kathy Jones commented to Ms. Wilson that the food Ms. Zaire had brought in for lunch one day "sounds like some of her white people stuff that she eats." Id. at 131:19-132:12. Another time, either in April or May 2015, several managers at the store were talking about Ms. Zaire's looks - specifically, how she looked "like a white girl" - and Mr. Jones again referred to her as "Becky." Id. at 133:1-10. Ms. Zaire, who was nearby, said, "I don't think that's funny. Like, why would you call me that?" Id. at 133:7-8. Ms. Wilson, according to Ms. Zaire's deposition, replied: "Well, because you're so light-skinned[.] [Y]ou know, you would have been one of the slaves inside of the house telling on us from the outside." Id. at 133:11-15. When Ms. Zaire insisted their comments were "offensive," Mr. Fraser added, "Look, she can't even take a joke, and then she's talking like a white girl and saying 'offensive' to me. That's just her white side being upset." Id. at 133:18-22.

         First EEOC Charge

         Ms. Zaire filed an administrative charge of discrimination with the Prince George's County Human Relations Commission and the EEOC on November 28, 2015. See November 2015 EEOC Charge. The charge chronicled a series of incidents involving Mr. Mlynarski between May 2015 and October 2015. See Id. The list included one incident in October 2015 in which Mr. Jones "bumped up against [her] and stated, 'Uh Oh! I better not touch you cause I might get a complaint!" Id. It also noted that Mr. Jones had told colleagues that same month that he "was not going to do anything to Stephen [Mlynarski]" in connection with Ms. Zaire's complaints. Id. The EEOC charge made no mention of Mr. Jones's or Ms. Wilson's use of the word "Becky" or other comments members of the management team had allegedly made about Ms. Zaire's skin tone.

         Ms. Zaire's lawyer formally notified the company of the EEOC charge in a letter dated December 28, 2015, characterizing the charge as a "complaint of discriminatory harassment on the basis of her race and sex against Stephen Mlynarski, a co-worker." Cobbina Letter, ECF No. 52-2, Ex. A. Akal Human Resources Compliance Manager Justin Reilly promptly launched an investigation into the allegations against Mr. Mlynarski. See Reilly Decl. ¶ 3; Coker Dep. 71:7-21, ECF No. 52-4. Meanwhile, on January 6, 2016, the company suspended Mr. Mlynarski pending the outcome of Mr. Reilly's investigation. See Reilly Decl. ¶ 4.

         Mr. Reilly interviewed Mr. Mlynarski on January 29, 2016. See Id. ¶ 9. Mr. Mlynarski resigned the next day. See Id. ¶ 10.

         Changes in Ms. Zaire's Job Title

         Ms. Zaire's job title changed several times during the roughly two years she worked for PST. She was first hired as a part-time retail associate but received two promotions in short order, becoming a full-time associate in June 2014 and then assistant retail manager the following month. See Zaire Dep. 34:11-35:21. The company effectively demoted her back to a full-time associate in February 2015, for reasons that remained unclear to Ms. Zaire at the time of her deposition and are not in dispute in this case. See Id. at 47:16-50:3; February 2015 Payroll Change Notice, ECF No. 52-3, Ex. 6.

         Ms. Zaire's title was set to change again heading into 2016. In her deposition, Ms. Zaire said that Mr. Jones, the general manager, told her in November 2015 that he would be promoting her to the position of retail manager, effective January 1, 2016.[5] See Zaire Dep. 198:1-19. She said she later learned that PST President Eugene Morabito had decided that her position would merely be elevated to assistant retail manager. See Id. at 199:10-18. That promotion took effect on January 1, 2016. See Id. at 58:12-59:7. Ms. Zaire said she was "happy" to be promoted. Id. at 61:21-22.

         Subsequent Allegations Against Ms. Zaire

         Trouble, though, ensued. In February 2016, PST Office Manager Kathy Jones began investigating allegations that Ms. Zaire had violated company policies on back-to-back days the previous week. See Coker Deck ¶ 13. The first allegation was that Ms. Zaire had closed the retail store two hours early on February 12, 2016, "[w]ithout obtaining appropriate approval from her supervisor or Office Manager." March 2016 Investigation Report 1, ECF No. 52-2, Ex. C. Ms. Zaire explained that she believed she had to close the store because the rest of the staff, including the range safety officer, would soon be heading home, and her understanding was that PST policy required a minimum of two people to be present at closing, for safety reasons. See Id. at 8. Ms. Zaire further testified that Mr. Fraser, in a phone call, gave her advance authorization to close shop early. See id.; Zaire Dep. 163:15-164:17. The report, however, concluded that the decision was unauthorized. See March 2016 Investigation Report 3.

         The second allegation was that Ms. Zaire led Mr. Fraser to believe that a car accident she had suffered on the morning of February 13, 2016, would not prevent her from coming into work. See Id. at 1. Ms. Zaire's recollection of the morning was that she had called Mr. Fraser after the accident and told him she "wasn't going to make it in due to the roads and that [she] was being towed back to [her] house." Id. at 9. The report, though, concluded that she failed to make clear she would not be coming in and that, as a result, the store was closed for the entire day. See Id. at 1-3.

         In response to these incidents, PST suspended Ms. Zaire for three days.[6] March 2016 Letter of Counseling, ECF No. 52-2, Ex. D. The letter announcing the suspension stated: "This is a Final Warning that any future substantiated violations of any nature will result in the termination of your employment with the PSTA." Id.

         The letter announcing the suspension was dated March 15, 2016. See Id. By that time, though, several other incidents had transpired. The first of these took place on March 11, 2016, PST President Morabito told Ms. Zaire he was interested in buying .40-caliber ammunition. See First Jones Statement 1, ECF No. 52-2, Ex. D. Ms. Zaire said the store was out of that product but that "we were placing an order" to replenish the stock. See Zaire Dep. 205:2-3. The vendor later confirmed that he had spoken with Ms. Zaire about the ammunition and had given her a price quote, but that she had not, in fact, placed an order on that date. See Jones Investigative Statement 1. Ms. Zaire did, ultimately, place an order with a different vendor on March 15, 2016. See Second Jones Statement 1.

         The next day, an instructor entered the store around closing time and found it was still open, but no staff members were immediately visible. See Id. at 2. The instructor, who did not work for PST, said that when Ms. Zaire returned to the retail area, she refused to sell him targets, explaining that the register was closed. See Haynes Email, ECF No. 52-2, Ex. D. The instructor later discussed the incident with Mr. Eraser. See id.

         Two days later, on March 14, 2016, PST staff discovered that $20 was missing from the safe, even though a paper record from the last count of the safe's contents (on March 12, 2016) indicated there had been a $10 overage. See Hedrick Statement 1, ECF No. 52-2, Ex. D. Finance Manager Betty Hedrick stated that, when she asked Ms. Zaire about the discrepancy, Ms. Zaire said that she had not, in fact, counted the money in the safe, but that, rather, she had simply copied the records for the previous day's count. See Id. at 2. Later, in an interview with Ms. Jones, Ms. Zaire provided a different account, saying she did count the money in the safe "and that the count was correct." March 22, 2016 Statement 3, ECF No. 52-2, Ex. E.

         Ms. Zaire filed a second EEOC charge of discrimination on April 8, 2016. See Second EEOC Charge, ECF No. 52-2, Ex. G. This charge alleged that in November 2015 she was promised a promotion to retail manager, but the company reneged on the promise. See Id. It also referred to her three-day suspension. See Id. The charge stated: "I believe I have been retaliated against for engaging in protected activity . . . ." Id.

         The company terminated Ms. Zaire's employment on April 12, 2016. See Termination Letter, ECF No. 58-7. The letter formalizing the decision, signed by Chief Administrative Officer Janet Gunn, did not explain the reason for the termination, saying only that PST "is separating your at-will employment." Id.

         Ms. Zaire brought this suit against PST on April 29, 2017. See Compl., ECF No. 1. The Amended Complaint asserts two claims, which I construe as follows: (1) hostile work environment based on sexual and racial harassment in violation of Title VII of the Civil Rights Act of 1964, and (2) retaliation, also in violation of Title VII. See Am. Compl. ¶¶ 62-65, ECF No. 9. PST has moved for summary judgment on both claims. See Mot. for Summ. J., ECF No. 52.

         The parties have fully briefed their arguments.[7] See ECF Nos. 52, 58, 60, 64, 67. No. hearing is necessary. See Loc. R. 105.6.

         STANDARD OF REVIEW

         Rule 56(a) of the Federal Rules of Civil Procedure obliges a court to enter summary judgment in a movant's favor upon a showing 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). A material fact is one that 'might affect the outcome of the suit under the governing law.'" Smith v. Renal Treatment Ctrs.-Mid-Atl., Inc., No. RDB-16-3656, 2018 WL 950018, at *4 (D. Md. Feb. 20, 2018), aff'd, 736 Fed.Appx. 68 (4th Cir. 2018). "A dispute of material fact is genuine if the evidence would allow the trier of fact to return a verdict for the nonmoving party." United Bank v, Buckingham, 301 F.Supp.3d 561, 568 (D. Md. 2018). The court must view the facts and make all reasonable inferences "in the light most favorable to the nonmoving party." Bauer v. Lynch, 812 F.3d 340, 347 (4th Cir. 2016). In doing so, though, the court maintains an •'affirmative obligation to prevent factually unsupported claims and defenses from going to trial." Smith, 2018 WL 950018, at *4. "The mere existence of a 'scintilla' of evidence in support of the nonmoving party's case is not sufficient" to defeat summary judgment. Id.

         DISCUSSION

         PST challenges Counts 1 and 2 alike, raising different arguments in response to each ...


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