Zaire v. Protective Servs. Training Acad., LLC

FIJI A. ZAIRE, Plaintiff, v. PROTECTIVE SERVICES TRAINING ACADEMY, LLC, Defendant.

Case No.: 8:17-cv-01185-PWG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division

May 29, 2019

MEMORANDUM OPINION

Plaintiff 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.

Ms. 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.

I 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 charge.

FACTUAL BACKGROUND

This 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.

Encounters with Stephen Mlynarski

The chief antagonist in Ms. Zaire's account is a coworker named Stephen Mlynarski, who worked alongside her as a fellow full-time associate.¹ 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, in particular:

• 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, whopromised to discuss the incident with Kelvin Jones, the facility's general manager. See id. at 98:14-99:8.

• May 25, 2015:²Mr. 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. 78:8-79:3.

• October 1, 2015: While in the store, Mr. Mlynarski "kept putting his hands on [her] shoulder and putting his hands in [her] hair."³ 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, 2015:⁴Once, 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.

There 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.

Beyond 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.

Ms. 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.

Comments Made by Management

Mr. 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 considered derogatory.

The 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 135:19-22.

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 133:18-22.

First EEOC Charge

Ms. 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. TheEEOC 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.

Ms. 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....