Opinion
Civ. No. DKC 98-2404.
December 1999.
MEMORANDUM OPINION
This is an employment discrimination action in which the Plaintiff has alleged racial harassment and discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the Maryland Fair Employment Practices Act. Pending before the court are: 1) Plaintiff's motion to enforce settlement agreement; and 2) Defendant's motion for summary judgment. The issues have been fully briefed. No hearing is deemed necessary, and the court now rules pursuant to Local Rule 105.6. For the reasons set forth below, the court shall DENY Plaintiff's motion to enforce settlement agreement and GRANT Defendant's motion for summary judgment.
I. Background
Plaintiff, Kalilou Fadiga, is a black male who emigrated from his home country of Sierra Leone, Africa, to the United States in 1988. In June 1996, he was hired by Defendant at its Hecht's Department Store as an "expediter" in the china/tabletop department. His duties were to move merchandise from the loading platform to the china department, unload it on the sales floor and in the stock room, and break down empty boxes and dispose of them. His job also required him to move fixtures around in the store as needed. Fadiga's supervisor was Karen McKinney, a white female.
Fadiga alleges that from the time he was hired he was subjected to a pattern of racial harassment. This harassment, according to Fadiga, consisted of: 1) the "commanding" manner in which McKinney gave him work instructions, and 2) a racially derogatory remark made by McKinney to another supervisor when referring to Fadiga and one of his co-workers. On or about November 17, 1996, as McKinney was leaving work for a long weekend, she was discussing with Amy Rak, another supervisor, the availability of personnel to assist Rak with her duties. It is alleged that during the exchange McKinney said to Rak: "[Fadiga] and Dale [Lertjunpharangool] [are] going to be your slave[s] for the week, and make sure you work them the way you want to." Fadiga did not hear McKinney's alleged remark, but Dale did. Dale immediately told Fadiga, and Fadiga confronted McKinney.
Fadiga testified at his deposition that when he confronted McKinney she admitted making the remark and apologized. Fadiga further testified that McKinney "begged" him not to report the incident to personnel. McKinney denies making such a remark. She does admit to using the word "slave" during her conversation with Rak, but claims she was referring to Rak, a white female, and the long hours she had been working. Rak, at her deposition, stated she did not remember any conversation with McKinney in which the word "slave" was used.
Fadiga claims that two or three days after the incident, McKinney gave him a souvenir mug and matches from the White House, where her husband works, in an attempt to dissuade him from reporting the incident. Fadiga described the gift as a bribe. McKinney claims it was a Christmas gift, and there is evidence that she gave all of her associates gifts that year.
McKinney gave her version of the exchange at her deposition:
I was getting ready to go off on a long weekend. We were discussing who was going to be working with [Rak]. I had told her that she would have [Fadiga], that she would have Dale, that they were bringing a couple of other associates from other areas to assist her. And at that point I said, "And then there's you, but then that's that slave labor thing", referring to the amount of hours that [Rak] was putting in.
Fadiga claims there were other incidents of harassment. He testified at his deposition about an incident that occurred a couple of weeks after the alleged "slave" remark. Fadiga alleges that the following exchange occurred between him and McKinney in front of a customer:
McKinney: "Kal [Fadiga], what's this stuff doing out here?"
Fadiga: "But Karen [McKinney], I don't have a space for it on the floor, but I'm going to take it in the back room."
McKinney: "You better make sure you take it now. And I mean it, I want it done now."
Fadiga states that McKinney yelled these commands at him. In addition to this incident, Fadiga alleges that throughout his employment at Hecht's, McKinney would speak to him in a commanding voice when giving him work instructions. Fadiga points to no other specific instances of such conduct, but complains generally that McKinney would: 1) use a commanding voice when assigning him tasks and giving deadlines for completing those tasks; and 2) interrupt him in the middle of certain tasks and tell him to do other things. Fadiga testified at his deposition that he believes McKinney was discriminating against him because of his race and national origin. He points to the alleged "slave" remark and the fact that he never witnessed McKinney speaking in a commanding manner to other Hecht's employees as the basis for his claim.
Fadiga acknowledged at his deposition that the reason McKinney would interrupt his work and direct him to perform other tasks was that her supervisor had ordered her to make sure those other tasks were completed.
There is a dispute as to when Fadiga first brought these matters to the attention of Hecht's management. Fadiga insists he complained about the "slave" remark to Kelly Leach, the store's Human Resources Manager, in December 1996. He contends that after he made his complaint he did not hear back from Leach until April 1997. Defendant, on the other hand, claims that Fadiga did not report the incident until April 1997, and that Leach immediately initiated an investigation.
Defendant's version of events is supported by the deposition testimony of Leach and a letter from Fadiga's attorney to the Maryland Human Relations Commission, which read:
Mr. Fadiga admits that he did not bring the incident in which he was referred to as a "slave" to the attention of management for a period of six months. The reason for the delay was largely because Mr. Fadiga was concerned about his job security.
The investigation into Fadiga's complaint consisted of: 1) a meeting between Leach and McKinney; 2) a meeting between Fadiga, Leach, McKinney, and Gary Boyer, the store's general manager; 3) and other meetings that involved Fadiga, Leach and various members of Hecht's management, including Boyer, Sean Kennefick, the Divisional Sales Manager, and Elliot Welan, Operations Manager. In addition, Kennefick interviewed Rak regarding her recollection of her November 1996 conversation with McKinney. Rak could not recall any conversation between her and McKinney in which the word "slave" was used.
Leach testified that these meetings were held the same day Fadiga first complained to her about McKinney's remarks — April 4, 1997. As noted above, Fadiga alleges he complained to Leach in December 1996.
Dale Lertjunpharangool was unavailable because he had been terminated by Hecht's.
What happened next is also the subject of some dispute. Leach testified at her deposition that on April 25, 1997, a meeting was held at which Fadiga, Leach, and Boyer were present. The purpose of the meeting was to inform Fadiga that his complaint could not be substantiated, and that investigation into the matter was being terminated. Fadiga was presented with a written statement of this finding and asked to sign it to acknowledge it was reviewed with him. Fadiga refused to sign the statement. A copy of that statement has been provided by Defendant. Fadiga does not remember this meeting or having been presented with the statement submitted by Defendant. He claims he attended a meeting in May 1997 with Boyer, Leach and Kennefick at which he was asked to drop his complaint and to sign a letter to that effect. Fadiga does not have a copy of this letter.
Leach also testified at her deposition that she and Boyer met with McKinney on May 5, 1997 to discuss the results of the investigation. At that meeting, McKinney signed a statement indicating that the investigation failed to substantiate the claim against her, and warning that retaliation against persons involved in the investigation was against company policy.
In July 1997, Fadiga was transferred from the china/tabletop department to the loading dock. In the new position, Fadiga received the same pay, hours and benefits. Fadiga claims, however, that in the new position he was unable to learn about crystal and fine china, and that his opportunity for promotion was thereby diminished. He also claims the transfer was an adverse employment action because his job duties changed. Defendant claims Fadiga was transferred because several female employees in the china/tabletop department had complained that Fadiga harassed and intimidated them. Defendant also argues that Fadiga did not lose promotional opportunities after his transfer, and that his job duties were substantially the same. Shortly after the transfer, in September 1997, Fadiga filed a charge of retaliation and race and national origin discrimination with the Montgomery County Human Relations Commission ("MCHRC").
The parties offer different accounts of the circumstances surrounding Fadiga's departure from Hecht's. In his opposition to the motion for summary judgment, Fadiga claims he was fired because of his race and national origin and/or in retaliation for filing his complaint against McKinney and his charge with the MCHRC. Defendant, on the other hand, claims that Fadiga quit. On October 13, 1997, Fadiga was working on the loading platform with Elliot Welan, store Operations Manager, and Guillermo Otero, a loading dock supervisor. Fadiga was complaining about a stomach ache and stated several times that he wanted to go home. Welan told Fadiga to go on a break to take some medication. When Fadiga returned he continued to complain. Welan and Fadiga began arguing, and Fadiga claims that Welan told him to go home and not come back. Welan claims that he told Fadiga to go home until he felt better, but did not tell him that he should never return to work. Fadiga's version of his exchange with Welan is supported by Otero's deposition testimony.
Believing he had been fired, Fadiga did not show up for his next scheduled work shifts. Kelly Leach called Fadiga and left him a message that he was still a Hecht's employee and should report to work for his scheduled shifts. Fadiga did not respond to the message. Defendant claims that when Fadiga came to pick up his paycheck, Leach again told him that he was expected to report for his scheduled shifts. Fadiga never again reported to work. On October 27, 1997, Leach sent Fadiga a letter warning him that he would be deemed to have abandoned his job if he failed to report for his next shift, October 29, 1997. Leach removed Fadiga from the payroll, effective October 30, when he failed to report for his October 29 shift. Fadiga claims Leach's actions were merely an attempt to re-hire him, and that his decision not to return to Hecht's was justified because of the harassment and retaliation he had suffered. This lawsuit followed.
II. Plaintiff's Motion to Enforce Settlement Agreement
Fadiga claims the parties have entered into a binding settlement that Defendant now seeks to avoid. According to Fadiga, settlement discussions between the parties yielded an initial offer from Defendant to settle this case for $6000. Fadiga rejected this offer, and countered with an offer to settle for $12,000 plus reinstatement to his previous position as a tabletop expediter at Hecht's. Fadiga asked that Defendant respond to his offer with its "best offer" so as to avoid further "haggling" between the parties. Fadiga states:
[Defendant's counsel] thereafter advised [Plaintiff's counsel] that $7000 was the defendant's "best offer" and that Hecht's would not reinstate [Plaintiff] as part of any settlement. [Plaintiff's counsel] subsequently advised [Defendant's counsel] that [Plaintiff] still wanted $12,000 to settle the case. [Plaintiff's counsel] indicated that Hecht's would be filing its Motion for Summary Judgment, but did not indicate that the offer would be withdrawn. Moreover, there had been a course of dealing between the parties such that the previous offer remained open each time counsel had communicated.
Defendant filed its motion for summary judgment on March 1, 1999. Fadiga subsequently decided that he wanted to accept Defendant's offer of $7000, and on March 10, 1999 Fadiga's counsel called Defendant's counsel and purported to accept the $7000 offer. According to Fadiga, Defendant's counsel indicated that she would have to check with her client as to whether the $7000 was still "on the table." However, prior to receiving any response from Defendant, Fadiga's counsel sent a letter to Defendant's counsel dated March 11, 1999 "confirming" that Fadiga had accepted Defendant's offer to settle the case for $7000.
Defendant's counsel immediately responded with a letter denying any settlement between the parties, noting that Fadiga had previously rejected the offer to settle for $7000 and characterizing Fadiga's purported acceptance as a mere counter-offer that Defendant had not yet accepted. Defendant's counsel sent another letter that same day rejecting Fadiga's offer to settle for $7000. Fadiga then filed the pending motion to enforce settlement.
The question presented is whether Defendant's offer to settle the case for $7000 remained open and could be accepted by Fadiga after he responded to the offer by stating that he "still wanted $12,000 to settle the case." Fadiga does not dispute Defendant's assertion that this communication constituted a counter-offer, and thus a rejection of Defendant's offer. Fadiga, however, advances the theory that despite the rejection, the offer remained open because it was not formally withdrawn by Defendant. This contention, however, runs counter to the most basic and well settled principles of contract law.
An offeree's power of acceptance is terminated by his making a counter-offer, unless the offeror has manifested a contrary intention or the offeree manifests an intention to take the original offer under further advisement. Restatement (Second) of Contracts § 39(2) cmt. c (1981); Ebline v. Campbell, 209 Md. 584, 591, 121 A.2d 828, 831 (1956) ("A counter-offer by one party relating to the same matter as the original offer, is a rejection of the original offer, unless the offeror in his offer, or the offeree in his counter-offer states that regardless of the counter-offer the original offer shall not be terminated."). The Restatement provides an illustration of this principle that is dispositive of this case:
A offers B to sell him a parcel of land for $5000, stating that the offer will remain open for thirty days. B replies, "I will pay $4800 for the parcel," and on A's declining that, B writes, within the thirty day period, "I accept your offer to sell for $5000." There is no contract . . . unless A's reply to the counter-offer manifested an intention to renew his original offer.Id. § 39 cmt. a, illus. 1; Ebline, 209 Md. at 590, 121 A.2d at 831 (quoting the foregoing illustration). There is no allegation that Defendant stated the $7000 offer would remain open after Fadiga made his $12,000 counter-offer, or that Fadiga manifested his intention to take the $7000 offer under further advisement, despite his $12,000 counter-offer. Thus, Fadiga's power of acceptance was terminated upon communicating his $12,000 counter-offer. Defendant did not have the burden of formally withdrawing its offer after it was rejected, and the fact that it failed to so did not permit Fadiga to accept an already rejected offer. The court shall therefore DENY Plaintiff's motion to enforce settlement.
III. Defendant's Motion for Summary Judgment
A. Summary Judgment Standard
A motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, if there clearly exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment is inappropriate. Anderson, 477 U.S. at 250; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir. 1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950). The moving party bears the burden of showing that there is no genuine issue of material fact. Fed.R.Civ.P. 56(c); Pulliam, 810 F.2d at 1286 (citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)).
When ruling on a motion for summary judgment, the court must draw all reasonable inferences in favor of and construe the facts in the light most favorable to the non-moving part. Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 437 (4th Cir. 1998). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. "[A] complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. Thus, on those issues on which the non-moving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence. Anderson, 477 U.S. at 256.
In Celotex, the Supreme Court stated:
In cases like the instant one, where the non-moving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the "pleadings, depositions, answers to interrogatories, and admissions on file." Such a motion, whether or not accompanied by affidavits, will be "made and supported as provided in this rule," and Rule 56(e) therefore requires the non-moving party to go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial."Celotex, 477 U.S. at 324. However, "`a mere scintilla of evidence is not enough to create a fact issue.'" Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir. 1984) (quoting Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627, 632 (E.D.N.C. 1966), aff'd, 388 F.2d 987 (4th Cir. 1967)). There must be "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
As noted above, Plaintiff alleges violations of Title VII and the Maryland Fair Employment Practices Act. The Maryland law is modeled on Title VII, Burnett v. Grattan, 468 U.S. 42, 51 (1984), and Maryland courts apply the standards of proof governing Title VII claims to claims under state law. See Chappell v. Southern Md. Hosp., Inc., 320 Md. 483, 494-96, 578 A.2d 766, 772-73 (1990). Therefore, Plaintiff's claims under each statute will be treated together.
B. Racial Harassment Claim
To prevail on his claim that he was subject to a hostile or abusive work environment because of his race and national origin, Fadiga must show that: "1) the harassment was unwelcome; 2) the harassment was based on his race or [national origin]; 3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and 4) there is some basis for imposing liability on the employer." Causey v. Balog, 162 F.3d 795, 801 (4th Cir. 1998) (citing Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 772 (4th Cir. 1997)). To be actionable, conduct must be severe or pervasive enough to "create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); see Faragher v. City of Boca Raton, 118 S.Ct. 2275, 2284 (1998) ("We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment. . . ."). Fadiga must also show that his work environment was subjectively hostile. Id. at 2283. Whether a work environment is sufficiently hostile or abusive is determined by examining "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23. Courts also consider whether the plaintiff suffered any psychological harm. Id.
Fadiga claims that McKinney's slave remark coupled with her "commanding" style of management created a racially hostile work environment. It is well established that the mere utterance of an ethnic or racial epithet that engenders offensive feelings in an employee does not sufficiently affect the conditions of employment to constitute a violation of Title VII. Id. at 21 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971))); see also Williams v. Prince George's County Hosp. Ctr., 932 F. Supp. 687, 689 (D. Md. 1996) (mem.) ("An isolated racial remark, even though offensive and entirely inappropriate, does not establish an abusive working environment." (citing Carter v. Ball, 33 F.3d 450, 461 (4th Cir. 1994); Autry v. North Carolina Dep't of Human Resources, 641 F. Supp. 1492, 1501 (W.D.N.C. 1986), aff'd, 820 F.2d 1384 (4th Cir. 1987))). The fact that McKinney, in addition to making the "slave" remark, may have sometimes used a commanding tone when giving work instructions to Fadiga is not sufficient to establish severe or pervasive conduct by McKinney. At his deposition, Fadiga was able to cite only one specific incident where McKinney raised her voice when giving a work directive. He stated he could not remember any other specific instances of such conduct, and made only vague and general allegations regarding McKinney's commanding tone. General allegations are not sufficient to establish an actionable claim of harassment. The Fourth Circuit requires claims of harassing conduct to be substantiated by accounts of specific dates, times or circumstances. Carter, 33 F.3d at 461-62.
Additionally, even assuming McKinney's management style was autocratic and she used a commanding voice when instructing Fadiga, such conduct, as alleged, does not constitute actionable harassment. See Rio v. Runyon, 972 F. Supp. 1446, 1459-60 (S.D. Fla. 1997) (holding supervisors' "no-nonsense management styles that were more direct than Plaintiff was accustomed to or would have preferred" not actionable); Chawla v. Emory Univ., 1997 WL 907572, at *10 (N.D. Ga. Nov. 13, 1997) ("While Plaintiff has minimally shown that perhaps [his supervisor] was harsh or abrasive in his tone and management style, the Eleventh Circuit has noted that employment discrimination laws are `not a shield against harsh treatment in the workplace.'" (citing Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984); Hawkins v. Ceco Corp., 883 F.2d 977, 986 (11th Cir. 1989))); see Faragher, 118 S.Ct. at 2283 ("The standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a `general civility code.' Properly applied, they will filter out complaints attacking `the ordinary tribulations of the workplace, such as the sporadic use of abusive language. . . .'" (quoting Oncale v. Sundowner Offshore Servs., Inc., 118 S.Ct. 998, 1002 (1998))); see also 1 Barbara Lindemann Paul Grossman, Employment Discrimination Law 349 (3d ed. 1996) ("Discourtesy or rudeness should not be confused with racial harassment."). The court shall therefore grant summary judgment on this claim.
C. Retaliation/Discrimination Claims
1. McDonnell Douglas Burden Shifting Framework
In determining whether to grant summary judgment on Plaintiff's retaliation and discrimination claims, the court must apply the familiar McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 442 (4th Cir. 1998). Under this framework, a plaintiff must carry the initial burden of establishing a prima facie case of retaliation or discrimination. Williams v. Cerberonics, Inc., 871 F.2d 452, 455 (4th Cir. 1989) (citing McDonnell Douglas, 411 U.S. at 802; Holmes v. Bevilacqua, 794 F.2d 142, 146 (4th Cir. 1986) (en banc); Smith v. University of N.C., 632 F.2d 316, 332 (4th Cir. 1980)) . An inference of discrimination arises once the prima facie case is established. Id. at 455-57. This inference may be rebutted, however, if the employer can provide a legitimate, non-discriminatory reason for the adverse employment action. Id.; see Gillins v. Berkeley Elec. Coop., Inc., 148 F.3d 413, 416 (4th Cir. 1998) ("[U]nder the McDonnell Douglas burden-shifting scheme, a defendant is required to respond to the prima facie case by `merely articulating' a non-discriminatory criterion." (citing Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25 (1978))). Once the employer proffers a legitimate non-discriminatory reason, the burden shifts back to the plaintiff to produce evidence that the proffered reason is pretextual. Williams, 871 F.2d at 456. To satisfy this final burden, the plaintiff must make a two-pronged showing: "he must adduce sufficient evidence both that the proffered, non-discriminatory reason is false and that . . . discrimination is the `real reason' for [his termination]." Gillins, 148 F.3d at 417 (citing Vaughan v. Metrahealth Cos., Inc., 145 F.3d 197, 201-02 (4th Cir. 1998)).
2. Retaliatory/Discriminatory Transfer
Fadiga claims that his transfer from the china/tabletop department to the loading dock was an adverse employment action in retaliation for his filing a complaint against McKinney and/or because of his race and national origin. To make out a prima facie case of retaliation, Fadiga must show that: 1) he engaged in protected activity; 2) the employer took adverse employment action against him; and 3) a causal connection existed between the protected activity and the adverse action. Causey, 162 F.3d at 803 (citing Carter, 33 F.3d at 460). Fadiga's claim of discriminatory transfer also requires him to show Hecht's took adverse employment action against him. McClamb v. Rubin, 932 F. Supp. 706, 717 n. 11 (M.D.N.C. 1996) (mem.).
Adverse employment actions include discharge, demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, reduced opportunities for promotion, or reassignment with significantly different responsibilities. Boone v. Goldin 178 F.3d 253, 257 (4th Cir. 1999) (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Reinhold v. Virginia, 151 F.3d 172, 175 (4th Cir. 1998); Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981)). Fadiga does not dispute Defendant's assertion that in his new position, he received the same pay, hours and benefits. Fadiga claims, however, that the transfer deprived him of the opportunity to work with crystal and fine china and thereby negatively affected his chances to be promoted to a sales position or to management. He also claims the transfer was an adverse employment action because the nature of his work duties changed.
Fadiga, however, has presented no evidence that his new position on the loading dock presented less opportunity for promotion than the expediter position in the china/tabletop department. When asked at his deposition whether he knew if a person working on the loading dock had the same promotional opportunities as an expediter, Fadiga responded that he did not know. On the other hand, Kelly Leach testified at her deposition that Fadiga's promotional opportunities would be the same in either position.
Additionally, the change in Fadiga's duties was not so significant as to constitute adverse employment action. His job in the china/tabletop department required him to move merchandise from the loading platform to the china department, unload it on the sales floor and in the stock room, and break down empty boxes and dispose of them. His job also required him to move fixtures around in the store as needed. Otero, the loading dock supervisor, testified that Fadiga's new position was as an "expediter," whose job it was to take merchandise from the loading dock to the various floor locations. In his prior position, Fadiga was an "expediter" who delivered merchandise only to the china/tabletop department. The nature of the work for the two jobs is substantially similar. Fadiga complains, however, that the loading dock position was more physical, requiring him to move heavy merchandise throughout the store, instead of only to one location. This slight variation in job responsibilities is not significant enough for the transfer to constitute adverse employment action. Crady v. Liberty Nat'l Bank Trust Co., 993 F.2d 132, 136 (7th Cir. 1993) ("[A] materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities."); Darnell v. Campbell County Fiscal Court, 731 F. Supp. 1309, 1313 (E.D. Ky. 1990) ("The clear trend of authority is to require that a[n alleged discriminatory] transfer with no change in wages or benefits amount to a `constructive discharge' to be actionable as an `adverse employment action.'" (citations omitted)). Thus, the court finds that Fadiga cannot show he suffered an adverse employment action and, therefore, cannot establish a prima facie case of retaliatory or discriminatory transfer. Summary judgment on these claims is therefore appropriate.
Even assuming Fadiga could make out a prima facie case, the court would enter summary judgment in favor of Defendant because it has offered a legitimate non-discriminatory reason for the transfer and Fadiga has not presented any evidence that the proferred reason for the transfer was pretext. Defendant claims Fadiga was transferred because several employees in the china/tabletop department complained they had problems working with Fadiga. Ann White, a sales associate in the department, made several oral and written complaints regarding Fadiga's conduct, characterizing it as harassment and intimidation. She complained in a memo to Boyer, the store manager, that Fadiga yelled at her; approached her angrily while shaking his fists; mimicked her voice and imitated the way she walked; and generally interfered with her ability to do her job — citing several specific incidents. She wrote that she feared Fadiga, and would file a complaint with the EEOC if Hecht's did not promptly address her concerns.
In addition to several complaints by White, sales associates Bernadette Malloy, Karen Atchison and Agnes Martinko also complained about Fadiga's behavior. Many of the employee complaints were documented by Hecht's. Leach testified that Fadiga was counseled approximately six times regarding the concerns of his co-workers, and ultimately it was decided that a transfer out of the department was appropriate. See Olivares v. NASA, 934 F. Supp. 698, 703-04 (D. Md. 1996) (stating that a contrariness and inability to get along with employers, supervisors and co-workers, fully qualifies as a legitimate non-discriminatory reason for an adverse employment action).
To survive the motion for summary judgment, Fadiga is required to produce some evidence that the proferred reasons for his transfer were pretext. This requires that he "adduce sufficient evidence both that the proferred, non-discriminatory reason is false and that race discrimination [and/or retaliation] is the `real reason' for his [transfer]." Gillins, 148 F.3d at 416-17 (citing Vaughan, 145 F.3d at 201-02). Fadiga might generate a genuine issue of fact with regard to pretext by producing evidence that other Hecht's employees who harassed and intimidated their co-workers were not transferred out of their departments. Id. at 416. However, he has not produced such evidence or any other evidence from which a jury might find that the reason given for his transfer was false.
Fadiga asserts that the transfer was "suspicious" because one of the complaining employees, Ann White, is alleged to be a friend of McKinney. There is no evidence, however, that McKinney and White were friends. Fadiga's unsubstantiated allegation regarding a potential motive for White to fabricate her allegations regarding his conduct fails to disprove the explanation offered by Hecht's for his transfer. Additionally, Fadiga's "suspicions" about White do not explain the complaints of the other department employees.
Thus, as an alternative ground for granting summary judgment on the claims relating to his transfer, the court finds that Fadiga has failed to meet his burden of producing some evidence of pretext in response to the proffer of a legitimate non-discriminatory reason for the action.
3. Retaliatory/Discriminatory Discharge
The court will grant summary judgment as to Fadiga's claim of retaliatory and/or discriminatory discharge based on his own deposition testimony. After describing the incident on the loading dock, which Fadiga claims resulted in Welan firing him, Fadiga testified as follows:
Q: And then this day you're sick, you complained about it to [Welan] a couple of times, and then you say [Welan] fired you.
A: Exactly.
Q: Are you saying — and I think you said earlier — [Welan] fired you because you were sick?
A: Correct.
Q: Is that correct?
A: Correct.
Q: Are you saying [Welan] fired you because you were black?
A: No. I didn't say [Welan] fired me because I was black.
Q: Okay.
A: [Welan] fired me because I was sick.
Q: Okay. That's clear. Do you think [Welan] fired you because of your national origin?
A: [Welan] fired me because I was sick.
. . . .
Q: Do you think [Welan] fired you because you had reported the slave remark to Karen McKinney? Do you think it had anything to do with that —
A: I don't know.
Q: — or was it because you were sick?
A: Because I was sick; that's what I understand that day, for that particular day.
. . . .
Q: Okay. So my understanding is that at this point, you have no reason to believe that [Welan] did anything but — that if [Welan] fired you — and you think he did fire you —
A: Yes.
Q: — that he fired you because you were sick; is that correct?
A: Correct.
Having admitted his alleged firing was not because of his race, national origin or in retaliation for the filing of his complaint against McKinney and the charge of discrimination with the MCHRC, Fadiga cannot make out a prima facie case of discrimination or retaliation. The court will therefore grant summary judgment on Fadiga's claims relating to his alleged termination.
IV. Conclusion
For the foregoing reasons the court shall DENY Plaintiff's motion to enforce settlement agreement and GRANT Defendant's motion for summary judgment.
A separate order will be entered.
ORDER
In accordance with the accompanying Memorandum Opinion, IT IS this ____ day of December, 1999, by the United States District Court for the District of Maryland, ORDERED that:
1. The motion by Plaintiff to enforce settlement agreement BE, and hereby IS, DENIED;
2. The motion by Defendant for summary judgment BE, and hereby IS, GRANTED;
3. Judgment BE, and hereby IS, ENTERED in favor of Defendant, and against Plaintiff, on all claims; and
4. The Clerk is directed to mail a copy of this Order and the accompanying Memorandum Opinion to counsel for the parties and CLOSE this case.