Bethea v. Merchants Commercial Bank

JIMMY BETHEA, Plaintiff, v. MERCHANTS COMMERCIAL BANK, et al., Defendants.

Civil Action No. 11-51

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN

September 8, 2014

AMBROSE, U.S. Senior District Judge

OPINION AND ORDER OF COURT

I. Synopsis

Pending are Motions for Summary Judgment filed by (1) Defendants Tom Bolt ("Bolt") and BoltNagi, PC ("BoltNagi") (jointly referred to as "Attorney Defendants") at ECF No. [550] and (2) Merchants Commercial Bank ("MCB" or "Bank"), James E. Crites, William B. Cashion, I. Steven Simon, J. David McCay, and Michael B. Burgamy (collectively "Bank Defendants") at ECF No. [584]. All defendants filed briefs in support of their motions. ECF No. [551] (Attorney Defendants) & ECF No. [585] (Bank Defendants). Plaintiff Jimmy Bethea filed a brief in opposition, ECF No. [633], to which Defendants replied, ECF No. [656] (Attorney Defendants) & ECF No. [660] (MCB and Bank Defendants). After careful consideration, and for the reasons set forth below, the motions are GRANTED IN PART and DENIED IN PART.

II. Background

The background of this case is well-known to the parties, and I repeat it only as necessary here. Plaintiff Jimmy Bethea is a black male over the age of forty who was employed by MCB as Senior Client Development Officer during the Bank's inception and was subsequently named its Chief Credit/Lending Officer. Bethea claims that he was denied reviews, compensation, and benefits and ultimately was terminated because of his race and because he blew the proverbial whistle on discriminatory-lending practices and improper insider loans. Plaintiff asserts discrimination by MCB in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., 42 U.S.C. § 1981,¹ and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et. seq. He also brings state law claims of discrimination pursuant to Chapter 1 of Titles 10 and 24 of the Civil Rights Act of the U.S. Virgin Islands against all defendants. Plaintiff further purports to assert claims against MCB for breach of duty of good faith and fair dealing, breach of the Bank's Whistleblower Policy as an implied contract, violations of COBRA, violations of 14 V.I.C. § 341 (shareholder derivative suit), and violations of U.S. Whistleblower Laws pursuant to 12 U.S.C. § 1831j; for defamation against Crites and the Attorney Defendants; and tortious interference with contracts against the individual defendants. Bethea seeks punitive and compensatory damages.

III. Legal Analysis

A. Legal Standard

Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter oflaw. FED. R. CIV. P. 56(c). In considering a motion for summary judgment, the Court must examine the facts in a light most favorable to the party opposing the motion. Int'l Raw Materials, Ltd. V. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir. 1990). The moving party bears the burden of demonstrating the absence of any genuine issues of material fact. United States v. Omnicare, Inc., 382 F.3d 432 (3d Cir. 2004).

Rule 56, however, mandates the entry of judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof. Celotex Corp. v. Cattrett, 477 U.S. 317, 322 (1986). The sum of the affirmative evidence to be presented by the non-moving party must be such that a reasonable jury could find in its favor; it cannot simply reiterate unsupported assertions, conclusory allegations, or suspicious beliefs. Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995); Saldana v. Kmart Corp., 260 F.3d 228, 232, 43 V.I. 361 (3d Cir. 2001). Importantly, "if the non-movant's evidence is merely speculative, conclusory, 'or is not significantly probative, summary judgment may be granted.'" Raczkowski v. Empire Kosher Poultry, 185 Fed. Appx. 117, 118 (3d Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)).

B. Count I - Discrimination²

In Count 1, Plaintiff alleges that MCB (i) discriminated against him, (ii) retaliated against him, and (iii) created a hostile work environment for him on the basis of race, sex, and age underTitle VII, Section 1981, and the ADEA. Fourth Amend. Verified Compl. ("Amend. Compl.") ¶¶ 122-24.

i. Pre-termination Discrimination

a. Exhaustion & Timeliness—Title VII / ADEA

Defendant MCB asks for summary judgment on Bethea's non-termination based claims, arguing that Bethea failed to exhaust his administrative remedies under Title VII and that any such claims also are untimely. MCB Br. 7-10. MCB does not address whether Plaintiff's claims are timely under § 1981 because it believes that the Bank is entitled to summary judgment for claims brought under this section as a matter of law.³ MCB Br. 21, n. 29.

1. Exhaustion—Title VII / ADEA

Defendant MCB submits that Bethea's Charge of Discrimination does not adequately allege his non-termination based claims—that he was discriminated against with respect to his salary, bonuses, and other benefits, and subject to a hostile work environment claim. MCB Br. 7-8. Plaintiff contends he filed his Intake Questionnaire in conjunction with his formal charge and "all of the facts that he asserts now were before the agency and within the scope of what it reasonably should have investigated." Pl.'s Br. 19.

"It is a basic tenet of administrative law that a plaintiff must exhaust all required administrative remedies before bringing a claim for judicial relief." Slingland v. Donahoe, 542 Fed. Appx. 189, 191 (3d Cir. 2013) (quoting Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997)). A plaintiff is required to first exhaust administrative remedies under both Title VII and the ADEA by filing a charge with the U.S. Equal Employment Opportunity Commission (the"EEOC"). See id. "The EEOC will then investigate the charge, and the plaintiff must wait until the EEOC issues a right-to-sue letter before [he] can initiate a private action." Barzanty v. Verizon PA, Inc., 361 Fed. Appx. 411, 412 (3d Cir. 2010) (citing Burgh v. Borogh Council, 251 F.3d 465, 470 (3d Cir. 2001)).

"Once a charge of some sort is filed with the EEOC, . . . the scope of a resulting private civil action in the district court is 'defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination . . . ." Paul v. Hovensa L.L.C., Civ. No. 1:07-cv-00051-AET-GWC, 2013 WL 1408861, at *13 (D.V.I. April 4, 2013) (citing Hicks v. ABT Assoc., Inc., 572 F.2d 960 (3d Cir. 1978)). "EEOC charges are given a "fairly liberal construction," and "the failure to check a particular box on an EEOC charge . . . is not necessarily indicative of a failure to exhaust the mandatory administrative remedies." Lowenstein v. Catholic Health East, 820 F. Supp. 2d 639, 644 (E.D. Pa. 2011) (citing Schouten v. CSX Transp., Inc., 58 F. Supp. 2d 614, 616 (E.D. Pa. 1999)). "Because the EEOC is required to serve notice on the employer against whom the charges are made, this standard also allows an employer to be put on notice of the claims likely to be filed against it." Barzanty v. Verizon PA, Inc., 361 Fed. Appx. 411, 414 (3d Cir. 2010) (referencing 42 U.S.C. §§ 2000e-5(b), (e)(1)).

Although there are circumstances when an Intake Questionnaire may count as a plaintiff's charge of discrimination, see Federal Express Corp. v. Holowecki, 552 U.S. 389, 395 (2008),⁴ "the EEOC Charge Form and the Intake Questionnaire serve different purposes." Barzanty, 361 Fed. Appx. at 415. "An Intake Questionnaire facilitates "pre-charge filing counseling" and allows the Commission to determine whether it has jurisdiction to pursue acharge." Id. (citing Holowecki). "[T]he Intake Questionnaire is not shared with the employer during the pendency of the EEOC investigation." Id. Accordingly, "[a] plaintiff cannot be allowed to transfer the allegations mentioned only in the questionnaire to the charge itself. Not only would this be circumventing the role of the Commission, but it would be prejudicial to the employer." Id.

Here, Plaintiff submits that he filed his Intake Questionnaire "in conjunction with his charge." Pl.'s Br. 18. Plaintiff filed his Intake Questionnaire, which included an eleven page attachment detailing his allegations against the Bank, the Attorney Defendants, and the individual defendants, with the EEOC on July 21, 2010. ECF No. 619-4, 22-36. Plaintiff filed his formal charge of discrimination, via EEOC Form 5, on August 20, 2010. ECF 586-20, 14. Bethea received a Right to Sue letter from the EEOC on February 15, 2011.⁵ Id. at 18. Bethea's Charge of Discrimination included handwritten and initialed corrections by Bethea and in it he alleges:

I began working as a Senior Client Development officer for the above Respondent on January 2006 and later, Chief Lending Officer, until February 2010 when I was discharged.

I am a black male over 40 years of age. During most of my time at the Bank I was the only male employee besides Mr. James Crites, the CEO, a white male. The conduct committed by the Respondent against me was wrongful and was intended to cause me harm financially. Such conduct was done directly by Mr. Crites, CEO, Ms. Annette [sic] Williams, CFO and Personnel Manager, the Board of Directors, Mr. Thomas Bolts, counsel, and others. Such conduct was taken against me because of the fact that I am a male, African-American Individual, that I am over 40 years of age, and in retaliation for complaints I made about disparate conditions that I considered discriminatory. I have been treated differently from others who are employed by the Bank.

I believe I was discriminated and retaliated against by being discharged from my position because of my...