Shalom v. Payless Shoesource Worldwide, Inc.

921 F.Supp.2d 470

NANA–AKUA TAKYIWAA SHALOM

v.PAYLESS SHOESOURCE WORLDWIDE, INC., et al.

Civil Action No. DKC 11–1382.

United States District Court, D. Maryland.

Feb. 5, 2013.

Peter Jerome Eide, Law Offices of Peter J. Eide, Columbia, MD, Theodore Bruce Godfrey, Law Office of Bruce Godfrey, Reisterstown, MD, for Plaintiff.

Dorothy Hae Eun Min, Albert A. Foster, Jr., Mary S. Diemer, Timothy Joseph Fitzgibbon, Nelson Mullins Riley and Scarborough LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for resolution in this employment discrimination action is what the court construes as a motion for reconsideration filed by Plaintiff Nana–Akua Takyiwaa Shalom (ECF No. 45) and a partial motion for summary judgment filed by Defendants Payless Shoesource Worldwide, Inc., Richard DeMicco, and Ronald Ebelein (ECF No. 43).¹ The relevant issues have been briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Plaintiff's motion will be denied and Defendants' motion will be granted in part and denied in part.

I. BackgroundA. Factual Background

Unless otherwise noted, the following facts are either undisputed or uncontroverted.² On November 5, 2006, Plaintiff Nana–Akua Takyiwaa Shalom, an African–American woman born in Ghana, was hired by Defendant Payless Shoesource Worldwide, Inc. (“Payless”), to work as a store associate at a Payless location in Bowie, Maryland. At the time of her hiring, Plaintiff was provided an employee handbook, which contained the company's equal employment opportunity, sexual and unlawful harassment, and workplace violence prevention policies. (ECF No. 43–2, at 3–7).³ She was also given a pamphlet advising of Payless' “AlertLine,” a confidential hotline through which employees were encouraged to report any incident of sexual harassment or similar misconduct occurring in the workplace. ( Id. at 26–27). Plaintiff signed an acknowledgement form indicating that she had read the handbook and pamphlet and understood that she was “responsible for becoming familiar with [the] content” of these documents. ( Id. at 29).

Throughout the course of her employment, Plaintiff consistently received strong evaluations and earned a number of performance-based awards. (ECF No. 2 ¶¶ 11, 32). In or around February 2007—just a few months after she was hired—she was promoted to the position of store manager at the Bowie location. Plaintiff's “essential functions” in that capacity included hiring and training employees, conducting performance evaluations, and “develop[ing] a weekly work schedule for Store Associates based on sales forecasts and other business demands.” (ECF No. 43–2, at 31–32). Payless' workweek guidelines provided that store managers were expected to “work a five day work week and average 45 hours per week,” and that “[i]t may be necessary for [them] to work beyond the 45 hour per week guidelines in cases of holidays or peak periods.” ( Id. at 34). Plaintiff was provided a copy of the store manager handbook, which again included Payless' workplace violence prevention and non-discrimination and harassment policies—referencing the AlertLine service—and set forth the company's “Code of Conduct.” ( Id. at 3–7). The Code of Conduct provided, inter alia:

In an effort to maintain a productive work environment, the following acts of misconduct are considered serious violations of Company policy and may result in immediate termination without prior disciplinary warning: ...

* Insubordinate behavior, including refusal or failure to perform job assignments....

* Threatening, coercing, disorderly conduct, fighting, or use of foul, profane or abusive language towards Customers, Associates or Managers.

( Id. at 6–7).

Following her promotion, Plaintiff's immediate supervisor was district manager Defendant Richard DeMicco. On at least two occasions in early 2009, DeMicco caused Plaintiff to feel embarrassed when he mimicked her accent. On or about January 27, 2009, as DeMicco called roll at a meeting, Plaintiff answered “present sir,” and DeMicco “attempted to imitate [her] accent and stated ‘why don't you just answer ‘here’ or ‘good morning?’ ” (ECF No. 2 ¶ 35). Approximately one week later, as DeMicco took some supplies from Plaintiff's store, Plaintiff “said something about him taking too many of our light bulbs,” and DeMicco “imitated what Plaintiff said” and said, “I don't like your accent.” ( Id.).⁴

Plaintiff also had a number of uncomfortable interactions with Defendant Ronald Ebelein, a Payless field auditor who visited Plaintiff's store on a monthly basis to take inventory. She asserts:

Ebelein constantly made sexual comments about [her] body. He occasionally asked if she was wearing Victoria's Secret underwear. He often made comments about male genitalia[,] including comments about the relationship between shoe size and penis size. He often talked about sexual activities and various positions for engaging in sex. On one occasion he asked Plaintiff to watch a pornographic video on his cell phone[,] which included an overweight woman engaging in sex.

( Id. at ¶ 33).⁵ Although this conduct made her “extremely uncomfortable,” Plaintiff felt that she was “unable to seek relief from DeMicco or [Payless Director of Retail Operations Kathy Rhule] because if either one of them mentioned Plaintiff's discomfort or feelings of harassment, [Ebelein] could easily exact revenge ... by distorting his reports about the inventory shrinkage at [Plaintiff's] store.” ( Id. at ¶ 34).

On or about February 18, 2009, Plaintiff was involved in an automobile accident in which she “sustained several painful yet unapparent injuries to ... her neck and back.” ( Id. at ¶ 13). At a meeting the following day, she advised DeMicco that she was experiencing “severe back and neck pain resulting from the automobile collision” and that “the numerous pills she was taking” provided no relief. ( Id. at ¶ 15). DeMicco encouraged her to continue working, stating that “he needed her to be around when Kathy [Rhule] visited the [d]istrict.” ( Id.). Plaintiff saw a physician, but was initially unable to “secure documentation describing the treatment she received.” ( Id. at ¶ 14). She was later referred to a physical therapist, however, who provided “documentation recommend[ing] that she not work more than 45 hours per week during her recuperation.” ( Id.;see also ECF No. 43–2 at 50, 54).⁶

On or about March 10, 2009, “Plaintiff and all other Store Managers in her Region ... were told by Kathy Rhule ... that during the weeks of March 29 to April 11 they would have to work 54 hours per week” due to the Easter holiday. (ECF No. 2 ¶ 16; see also ECF No. 43–2, at 36). Plaintiff “understood that there was a requirement that during holiday periods [ ] managers would need to work beyond the 45 hour per week guidelines” and she had regularly worked increased hours during past holidays. (ECF No. 43–2, at 95–96).

On March 25, Plaintiff “was experiencing severe back and neck pain” at work and called DeMicco, leaving a “detailed voice-mail message that ... [she] was planning to work only 45 hours [that] week ... [and] 50 hours the following week.” (ECF No. 2 ¶ 18). On the same date, DeMicco received “a weekly employee schedule” for Plaintiff's store reflecting that Plaintiff “had scheduled herself to work only a 5 day/45 hour per week schedule for the period from March 29—April 4, which was not in compliance with Ms. Rhule's directive.” (ECF No. 43–2, at 9–10).

Plaintiff was unable to reach DeMicco until March 27, at which time DeMicco told her “to take 2 weeks [l]eave of [a]bsence.” (ECF No. 2 ¶ 20). Plaintiff voiced concern that the leave of absence was part of a “plan to remove her from the store so [DeMicco] could bring in another Store Manager such as ‘Kevin’ or ‘Stephanie,’ ” to which DeMicco replied, “I am the District Manager and can do whatever ... I want[.]” ( Id.). Plaintiff told DeMicco that although she was still struggling with back and neck pain, “she would gladly work over the 45 hours to which she was restricted.” ( Id.).⁷ After this encounter, Plaintiff called Curtis Snell, a human resources manager, and advised him of her injury, of the work restriction recommended by her physical therapist, and that “her doctor was unavailable” to provide documentation. ( Id. at ¶ 21).⁸

On March 28, Plaintiff faxed to Snell documentation from her physical therapist “recommending that she work no more than 45 hours per week during her recuperation.” ( Id. at ¶ 22). Snell received the fax on the same date, noting that it “did not include a doctor's note or medical excuse stating that Ms. Shalom was medically restricted from working more than 45 hours per week from March 29–April 11, 2009.” (ECF No. 43–2, at 44). ⁹ “After reviewing her fax, [Snell] discussed [Plaintiff's] failure to provide a doctor's note with hours restrictions with DeMicco, and it was determined that Ms. Shalom would receive progressive discipline in the form of a Final Written Warning in Lieu of Termination ... for insubordination based upon her refusal to comply with the 6/54 Policy.” ( Id. at 44; see also id. at 5).

Regarding the events of March 31, 2009 (and thereafter, according to Plaintiff), the parties present markedly different accounts. Plaintiff asserts:

On or about March 31, 20[09 ¹⁰], Plaintiff was at the store in the morning when DeMicco entered. He went directly to the stockroom and yelled that Plaintiff was not to come to the stockroom. Thereafter, a customer asked Plaintiff for a shoe that Plaintiff knew to be in the stockroom. She went to the stockroom and DeMicco yelled at her that he had asked her [not to] come to the stockroom. She explained that her intrusion was at a customer's request. Later, he announced that she would not immediately receive a written warning for not working 54 hours but that he would “write her up” as he...