Clark v. Ace Afscme Local 2250

KENETH CLARK, Plaintiff, v. ACE AFSCME LOCAL 2250, Defendant.

Case No.: GJH-17-3748

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division

August 15, 2019

MEMORANDUM OPINION

Plaintiff Keneth Clark alleges race discrimination, hostile work environment, retaliation, and Fair Labor Standards Act ("FLSA") claims against his former employer, Defendant Association of Classified Employees/American Federation of State, County and Municipal Employees Local 2250 ("Local 2250"). Defendant has filed a Motion for Summary Judgment. ECF No. 21. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2018). For the following reasons, Defendant's Motion for Summary Judgment is granted in part and denied in part.

I. BACKGROUND¹

Plaintiff, a black male, began working for Defendant during the summer of 2012 to perform scanning and clerical work. ECF No. 22-1 ¶¶ 1-2. Plaintiff was paid by the hour, and was not given holiday pay, vacation leave, sick leave, or health benefits. ECF No. 21-2 ¶ 8. He typically worked forty hours or more each week. ECF No. 22-1 ¶ 2. Over time, Plaintiff took on additional job duties, including "clerical responsibilities, painting, setting up and staging rooms for meetings, maintenance tasks at the Union's building, maintaining and assisting with theUnion website, helping with membership databases and various 'as needed' or odd jobs." Id. ¶ 3. Plaintiff was supervised by James Spears, Defendant's Field Service Director. Id. ¶ 4. Plaintiff complained on "numerous" occasions about not receiving a full benefits package, and not being paid the appropriate hourly rate when working holidays, weekends, and overtime. Id. Plaintiff's complaints were not resolved during the tenure of his employment. Id. ¶ 5.

When Plaintiff was hired, Daniel Besseck served as Defendant's Executive Director. ECF No. 21-2 ¶ 6. But in October 2013, Besseck left this job and Wanda Twigg, a white female, replaced him. Id. ¶ 12. Plaintiff also complained to her about his lack of benefits, holiday pay, and overtime pay. ECF No. 21-1 ¶ 6.

Plaintiff contends that Ms. Twigg made several comments evincing "disdain and animus for African Americans." Id. ¶ 8. Plaintiff claims that on more than one occasion, she referred to largely Black groups of people as "you people" in a generalizing and disdainful way. Id; ECF No. 22-5 ¶ 6. Plaintiff also complains about other "rude and unprofessional" comments Ms. Twigg made to him. ECF No. 21-1 ¶ 9. In his deposition, Plaintiff explained that Ms. Twigg made "implied racial comments" on a "daily" basis. ECF No. 22-2 at 51.² He claims that she treated "the few white employees kinder and with less disgust and animus" than she treated the African-American employees. ECF No. 21-1 ¶ 9. A former member of Local 2250's Board has submitted an affidavit claiming that Ms. Twigg said that the majority-Black Board "acted like animals" and embarrassed her. ECF No. 22-5 ¶ 6. Plaintiff alleges that at some point Ms. Twigg gave one African-American employee a card with monkeys on the front. See ECF Nos. 22-1 ¶ 7, 22-5 ¶ 8. Defendant disputes this claim, explaining that the card in question was actually sent to Ms. Twigg by the employee. ECF No. 21-2 at 4-7.

Plaintiff also attributes various other offenses to Ms. Twigg: insubordination to the majority-Black Board—including hiring one white employee without its consent and refusing to discipline another white employee at the Board's request—that eventually cost her her job; attempting to fire another African American employee; and insulting the intelligence of two African Americans the Board appointed to an Insurance Committee. ECF Nos. 22-5 ¶¶ 5-7. Plaintiff says that he complained about Ms. Twigg's allegedly discriminatory conduct on multiple occasions, and that his employment was terminated soon after one of these complaints, despite the Board having directed Ms. Twigg to extend to him a benefits package. Id. ¶ 5; ECF No. 22-1 ¶ 11.

II. STANDARD OF REVIEW

Under Fed. R. Civ. P. 56, summary judgment is appropriate only when the Court, viewing the record as a whole and in the light most favorable to the nonmoving party, determines that there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). The burden is on the moving party to demonstrate that there exists no genuine dispute of material fact. See Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). To defeat the motion, the nonmoving party must submit evidence showing facts sufficient for a fair-minded jury to reasonably return a verdict for that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Additionally, a party must be able to put facts to be considered in support of or opposition to a motion for summary judgment in an admissible form. See Williams v. Silver Spring Volunteer Fire Dep't, 86 F. Supp. 398, 407 (D. Md. 2015).

III. DISCUSSION

Plaintiff claims Defendant discriminated against him on the basis of race, created a hostile work environment, and retaliated against Plaintiff for his Complaints, all in violation of 42 U.S.C. § 1981. Plaintiff also claims that Defendant failed to pay him overtime wages in violation of the FLSA, 29 U.S.C. § 207.

A. Race Discrimination

Section 1981 provides, in relevant part, that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens." 42 U.S.C. § 1981(a). The statute defines the phrase "make and enforce contracts" as including "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). The United States Court of Appeals for the Fourth Circuit has explained that a claim under § 1981 may lie in the context of an at-will employment relationship. See Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018-19 (4th Cir. 1999) (noting that plaintiff's relationship with former employer, "though terminable at will, was contractual").

A plaintiff may establish a claim for race discrimination under § 1981 through one of two avenues of proof: by demonstrating through direct or circumstantial evidence that race was a motivating factor in the employer's adverse employment action, or by proceeding under a "pretext" framework by demonstrating that "the employer's proffered permissible reason for taking an adverse employment action is actually a pretext for discrimination." Holland v. Washington Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007). Under the latter framework, advanced by Plaintiff here, the plaintiff must make out a prima facie case by showing "(1) he is amember of a protected class; (2) he suffered adverse employment action; (3) he was performing his job duties at a level that met his employer's legitimate expectations at the time of the adverse employment action; and (4) the position remained open or was filled by similarly qualified applicants outside the protected class." Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Defendant does not challenge Plaintiff's evidence on any of these elements.³ Therefore, Plaintiff has established a prima facie case of discrimination.

Under this framework, the burden now "shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action." Holland, 487 F.3d at 214. Defendant has met this burden by producing an affidavit stating that Plaintiff was terminated because his work was "absorbed by the Union's permanent staff." ECF No. 21-2 ¶ 15. Therefore, the burden shifts back to Plaintiff "to prove by a preponderance of the evidence that the employer's stated reasons were not its true reasons, but were a pretext for discrimination." Holland, 487 F.3d at 215 (internal quotations omitted). Summary judgment is appropriate if "a plaintiff created only a weak issue of fact as to whether the employer's reasons were untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." Id. A court must thus consider "the probative value of the proof that the employer's explanation is false." Id. (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149 (2000)).

The evidence in the record before the Court is sparse. Defendant's only evidence of its stated reason for Plaintiff's termination—that his services were no longer necessary—is anaffidavit submitted by Plaintiff's former supervisor. Plaintiff offers an affidavit from a former Local 2250 Board member stating that Ms. Twigg was directed by the Board to offer Plaintiff a permanent employment package, thus calling into question the legitimacy of Defendant's proffered explanation. Defendant counters with an affidavit attacking the reliability of Plaintiff's witness, as she had been forcibly removed from the Board of Directors. See ECF No. 23-1 ¶ 6. It is not for the Court to determine the reliability of these two witnesses and grant judgment based solely on their affidavits—therefore, summary judgment on Plaintiff's race discrimination claim must be denied.⁴

B. Hostile Work Environment

A hostile work environment claim under 42 U.S.C. § 1981 is congruent with a hostile work environment claim under Title VII. Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015). That is, a hostile work 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." Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). To prevail on a hostile work environment claim, "a plaintiff must show that there is (1) unwelcome conduct; (2) that is based on the plaintiff's race; (3) which is...