United States District Court, D. Maryland, Southern Division
FIJI A. ZAIRE, Plaintiff,
PROTECTIVE SERVICES TRAINING ACADEMY, LLC, Defendant.
W. Grimm, United States District Judge.
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.
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.
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
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.
with Stephen Mlynarski
chief antagonist in Ms. Zaire's account is a coworker
named Stephen Mlynarski, who worked alongside her as a fellow
full-time associate. 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,
• 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.
• May 25, 2015: 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.
• October 1, 2015: While in the store,
Mr. Mlynarski "kept putting his hands on [her] shoulder
and putting his hands in [her] hair." 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: 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.
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.
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.
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.
Made by Management
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
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
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
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.
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. ¶
Reilly interviewed Mr. Mlynarski on January 29, 2016. See
Id. ¶ 9. Mr. Mlynarski resigned the next day.
See Id. ¶ 10.
in Ms. Zaire's Job Title
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.
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. 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.
Allegations Against Ms. Zaire
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.
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.
response to these incidents, PST suspended Ms. Zaire for
three days. 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.
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
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.
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.
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.
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.
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.
parties have fully briefed their arguments. See ECF
Nos. 52, 58, 60, 64, 67. No. hearing is necessary.
See Loc. R. 105.6.
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.
challenges Counts 1 and 2 alike, raising different arguments
in response to each ...