Price v. Giant Food, Inc.

KIMBERLY PRICE v. GIANT FOOD, INC.

No. 1623

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

July 23, 2019

Circuit Court for Montgomery County

Case No. 426120-V

UNREPORTED

Wright, Graeff, Sharer, J. Frederick (Senior Judge, Specially Assigned), JJ.

Opinion by Graeff, J.

* This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Kimberly Price, a self-represented litigant, appeals from the order of the Circuit Court for Montgomery County granting summary judgment in favor of Giant Food, Inc. ("Giant"), appellee, with respect to her complaint alleging employment discrimination and retaliation. She contends that the court erred in granting summary judgment because there were disputed facts regarding: (1) "whether she was treated less favorably than similarly-situated employees outside the protected class"; and (2) "whether she engaged in protected activity" and "suffered an adverse job action."¹

For the reasons set forth below, we shall affirm the judgment of the circuit court.²

FACTUAL AND PROCEDURAL BACKGROUND

On October 20, 2016, Ms. Price filed a complaint in the Circuit Court for Montgomery County, alleging that Giant: (1) created a hostile work environment; (2) unlawfully discriminated against her on the basis of age, in violation of Md. Code (2014 Repl. Vol.) § 20-606 of the State Government Article ("SG"); and (3) engaged in behavior that amounted to unlawful retaliation, in violation of SG § 20-606.³ Prior to filing the complaint in circuit court, Ms. Price filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), and a charge of discrimination with the Maryland Commission on Civil Rights ("Commission").

On January 12, 2017, Giant filed its Answer and Affirmative Defenses to Plaintiff's Complaint, in which it: (1) denied that any discriminatory or retaliatory acts occurred; (2) denied Ms. Price's allegations that she had exhausted administrative remedies prior to filing the Complaint; and (3) asserted that Ms. Price's claims were "barred by the applicable statute of limitations." Ms. Price's attorney subsequently filed a Motion to Withdraw, which the circuit court granted on February 8, 2017.⁴

On June 9, 2017, counsel for Giant deposed Ms. Price.⁵ Ms. Price stated that she began working for Giant in 1993 as a cashier at the Virginia store. After working in that position for "seven or eight years," she transferred to other stores in Bethesda, White Oak, Silver Spring, Potomac, and Rockville, Maryland. Her pay at Giant increased each year that she was employed, and at the time of the deposition, her pay was $20.88 per hour.

While employed at the Silver Spring store, Ms. Price worked as a "full-time flex" cashier, which meant that her work hours varied according to the availability of staff. After Ms. Price's manager, Jeff Marconi, reduced Ms. Price's hours for several weeks, Ms. Price requested a transfer to the Potomac store. The request was granted, and, at some point between April and June 2015, she began working at the Potomac store as a full-time flex employee.

Shortly after Ms. Price began working at the Potomac store, Donna Marconi became her manager.⁶ At some point, Ms. Marconi reduced Ms. Price's Sunday work hours, cutting "three hours a day" for "four or five weeks," approximately 12-15 hours in total. Ms. Price stated that she called Paul Barry, and he told Ms. Marconi not to reduce her hours, and Ms. Price was reimbursed for those lost wages.⁷

Ms. Price also met with Steve Lerman, the HR manager, in April or May 2015. She complained about her work hours, but she did not discuss any other topic. Ms. Price also made the same complaint to her union representative, Mike Balliston. Ms. Price stated that she had no facts to show that Ms. Marconi knew that Ms. Price had made complaints against her. And she admitted that her hours were not reduced in response to any complaint.

Ms. Price stated, however, that "shortly after" meeting with Mr. Lerman, Ms. Marconi scheduled her to work late shifts that ended at 11:00 p.m., or one hour later than her normal schedule. She admitted that the change in her work hours was not outside the terms and conditions of her employment as a full-time flex employee. When counsel asked whether she was alleging any other retaliation as a result of her call to Mr. Barry, Ms. Price stated that Ms. Marconi made other cashiers afraid to talk to her. She did not, however, have any knowledge or facts that her complaint to Mr. Lerman prompted Ms. Marconi to tell the other cashiers not to talk to Ms. Price.

Ms. Price stated that Ms. Marconi had harassed her at the Potomac store because of her "race and age."⁸ She subsequently clarified that she was not pursuing a racial discrimination claim.

In support of her claim, she cited a single conversation she had with Ms. Marconi sometime between April and October 2015, which she described at the deposition, as follows:

[MS. PRICE]: . . . [Ms. Marconi asked] like how many pairs of shoes do you have.

[COUNSEL]: So that was the first thing [Ms. Marconi] said.

[MS. PRICE]: Yeah, because [Ms. Marconi] looked down at my feet. She was looking down at my feet.

[COUNSEL]: And then you told her 20 or 30.

[MS. PRICE]: I said maybe 20 or 30. I'm not really sure.

[COUNSEL]: And then what did [Ms. Marconi] say?

[MS. PRICE]: And then [Ms. Marconi's] like how old are you. And I said at the time maybe 47. And I was like why do you ask. She's like oh, I was just asking because she said I don't look my age.⁹

Ms. Price responded: "[W]hy are you asking me about my age. I mean I'm . . . a grown woman, I'm not a child, you know. And then she was like oh, okay," and Ms. Marconi walked away.

Ms. Price believed that Ms. Marconi's remarks were discriminatory because Ms. Marconi had no reason to ask her about her age. She asserted that Ms. Marconi was discriminating against her because Ms. Price was "younger than [Ms. Marconi]." When asked whether Ms. Marconi's comment about her youthful appearance could have been a compliment, Ms. Price stated: "I can look at it that way and I can look at it another way."

Ms. Price, who was 48 years old at the time of the deposition, did not know Ms. Marconi's exact age, although she indicated that Ms. Marconi was "much older" than her.Ms. Price stated that, other than the comment that she did not look 47, there were no other facts supporting her claim that she was discriminated against because of her age.

When asked about the "similarly situated" employees that she had described in her complaint, Ms. Price stated that each of them worked as part-time cashiers.¹⁰ They also were younger than her.

On June 28, 2017, Giant filed a Motion for Summary Judgment. Giant alleged that it was entitled to summary judgment because: (1) Ms. Price failed to exhaust her administrative remedies; (2) her claims were time barred; (3) the discrimination claim failed because (a) there were no facts that showed that any change in her hours was because of her age and (b) there was no evidence that a similarly situated employee was treated more favorably; and (4) the retaliation claim failed because Ms. Price did not engage in protected activity that caused an adverse employment action.

Ms. Price opposed the motion. She did not, however, specifically address any of Giant's contentions.

On September 6, 2017, based on the pleadings, the circuit court granted Giant's motion. The order stated:

Upon consideration of the Defendant's Motion for Summary Judgment, any opposition thereto, and the record herein, it is hereby

ORDERED that the Defendant's Motion for Summary Judgment is GRANTED and Plaintiff Kimberly Price's Complaint is dismissed in its entirety, with prejudice; and it isFURTHER ORDERED, that judgment be entered in favor of Defendant.

This appeal followed.

STANDARD OF REVIEW

Maryland Rule 2-501(f) governs motions for summary judgment and states that a trial court "shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law." See Fox v. Fidelity First Home Mortg. Co., 223 Md. App. 492, 507-08, cert. denied, 445 Md. 20 (2015). "A material fact is 'one that will somehow affect the outcome of the case."' Id. at 508 (quoting Commercial Union Ins. Co. v. Harleysville Mut. Ins. Co., 110 Md. App. 45, 51 (1996)). "We review a grant of summary judgment without deference, and construe the facts, and any reasonable inferences that may be drawn from them, in the light most favorable to the non-moving party." Calvo v. Montgomery Cty., 459 Md. 315, 323 (2018).

DISCUSSION

Ms. Price contends that the court erred in granting Giant's Motion for Summary Judgment because there were genuine disputes of material fact regarding her discrimination and retaliation claims. With respect to the discrimination claim, she asserts that there were "disputed facts as to whether she was treated less favorably than similarly-situated employees outside the protected class when her work hours were reduced, when her work end time was increased, when she was only allowed to use the restroom during formal breaks, and when she was questioned about her age[.]" With respect to the retaliationclaim, she asserts that there were disputed facts as to whether "she engaged in protected activity by complaining to [Giant] about her immediate supervisor's behavior, and subsequent thereto, she suffered an adverse job action when her work schedule was altered to make her work later at night[.]"

Giant contends that the court properly granted its Motion for Summary Judgment. With respect to the discrimination claim, it asserts that Ms. Price "cannot demonstrate that a similarly situated employee was treated differently...