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Warren v. Tri Tech Laboratories, Inc.

United States District Court, Fourth Circuit

January 23, 2014

DAVID WARREN, Plaintiff,
v.
TRI TECH LABORATORIES, INC., Defendant.

MEMORANDUM OPINION

NORMAN K. MOON, District Judge.

The pro se Plaintiff, David Warren, filed this action claiming race-based discriminatory treatment in employment and wrongful dismissal in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. Defendant, Tri Tech Laboratories, Inc. ("Tri Tech"), has filed a motion for summary judgment, which I will grant. The summary judgment record reveals that Plaintiff was terminated for legitimate non-discriminatory reasons that have nothing to do with his race.

I.

"[S]ummary judgment is warranted if, from the totality of the evidence, including pleadings, depositions, answers to interrogatories, and affidavits, the court believes no genuine issue of material fact exists for trial and the moving party is entitled to judgment as a matter of law." Whiteman v. Chesapeake Appalachia, L.L.C., 729 F.3d 381, 385 (4th Cir. 2013) (citing Fed.R.Civ.P. 56[1]; Sylvia Dev. Corp. v. Calvert Cnty., Md., 48 F.3d 810, 817 (4th Cir. 1995)). A genuine factual dispute exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Defendant propounded written discovery to Plaintiff, and Defendant notified Plaintiff that it intended to take depositions of three of its former employees (including the decision maker who hired and fired Plaintiff). Plaintiff failed to respond to Defendant's discovery requests, and Plaintiff did not attend the depositions. Having failed to participate in discovery, Plaintiff nonetheless submitted 538 pages of documents purportedly in response to Defendant's motion, and Plaintiff attended the hearing, where he presented his arguments. Plaintiff's response includes two "Statements of Disputed Material Fact, " two affidavits (Plaintiff's own 76-page affidavit, and one from his wife), and an abundance of exhibits. See docket nos. 42, 43, 44, and 45. However, the evidence Plaintiff has submitted is often not credible, see Celotex Corp. v. Catrett, 477 U.S. 317, 330-34 (1986), and is largely inadmissible, see Anderson, 477 U.S. 247-48; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).[2] The vast majority of Plaintiff's submissions rely on speculation, hearsay, or opinion to dispute the evidence submitted by Defendant. To show that a genuine dispute of material fact exists (or does not exist), a party may not rest upon his own mere allegations or denials. See Celotex, 477 U.S. at 324. Rather, the

party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials[.]

Fed. R. Civ. P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir.1993).

Here, Plaintiff relies on his own statements and his own characterization of the various documents he has submitted to argue that he was treated differently than Defendant's white employees. However, other than his own assertions, Plaintiff cannot presently point to any evidence that supports his claim, and Plaintiff's "own naked opinion" that he was a victim of discrimination is not enough to create a genuine dispute of material fact. Goldberg v. B. Green and Co., Inc., 836 F.2d 845, 848 (4th Cir. 1988). Plaintiff's speculative assertions regarding Defendant's "state of mind" or "motivation" do not suffice. Id. Plaintiff must "proffer[] sufficient proof, in the form of admissible evidence, that could carry the burden of proof of his claim at trial. Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).

A district court has an "affirmative obligation... to prevent factually unsupported claims [or] defenses' from proceeding to trial." Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (quoting Celotex, 477 U.S. at 323-24). Given the record Defendant has developed and submitted in support of the motion, Defendant has satisfied its burden of showing the absence of any genuine issue of material fact, and Plaintiff has failed to rebut that showing. See Whiteman, 729 F.3d at 385 n. 7 (citing Celotex, 477 U.S. at 322-23; Anderson, 477 U.S. at 248).

II.

On September 17, 2012, Plaintiff filed "this action in order to enforce his rights to be free from discrimination based upon his race as provided by Civil Rights Act of 1964, as amended, 42 U.S.C. § 1981." The complaint states, in part (paragraph numbering and exhibit citations omitted; quoted verbatim except for bracketed insertions):[3]

Plaintiff is an African American male citizen of the Unites States who resides in McKinney, Texas.
Defendant Tri Tech Laboratories, Inc. is a foreign corporation licensed and doing business in the State of Virginia. Tri Tech Laboratories is a contract or third party manufacturer of beauty and cosmetic products.
Plaintiff filed a timely Charge of Discrimination with the United States Equal Employment Opportunity Commission [the "EEOC"] and received his Notice of Right to Sue on June 18, 2012.
* * *
Plaintiff began employment with Defendant as the Director of Quality on February 4, 2012 at its Lynchburg, Virginia facility.
Defendant's method of selecting which employees are afforded an opportunity to participate in Defendant's well-established and robust, written progressive discipline program is a primary source of discrimination which has resulted in an unfair and wrongful termination of employment opportunities for the Plaintiff. In its response to the [EEOC] regarding Plaintiff's charge, Defendant referenced its language in its written handbook, citing it reserves the right, in its sole discretion, whether and what disciplinary action will be taken in a given situation. Defendant then makes an erred statement that Plaintiff was responsible for a mislabeled Over the Counter drug product as credence to its actions.
Defendant stated in its response to the [EEOC] that it terminated Plaintiff's employment due to mislabeled products and complaint from customer. Although the Plaintiff denies and such allegation of fact surrounding mislabeled products or complaints lodged that were a result of Plaintiff's actions, Caucasian employees have conducted far worse offenses which could and possibly should have resulted in loss of business from its customers prior to Plaintiff's employment. Those Caucasian employees have not been terminated, reprimanded, or even subjected to any disciplinary actions by Defendant. On February 8, 2010, approximately four (4) days after Plaintiff's employment began, a formal notice of a recall of products produced by the Defendant in 2011 for microbial contamination of Burkholderia Cepacia prior to Plaintiff's employment was published by the Food and Drug Administration [the "FDA"] for Kao Brands, makers of Jergens and John Freda product dated December 29, 2009. The products were traced back to Defendants' facility solely and released under the auspices of the quality management system of Mark Hallett, Sr. Director of Quality (Caucasian), Cathleen Owen, Director of Quality (Caucasian), and Blake Hemmel, Manager of Quality (Caucasian). Manufacturing operations at the facility was halted for approximately one week. Neither of these Caucasian employees, directly responsible for preventing unadulterated products from entering the marketplace that can harm to the public under Federal Food, Drug, and Cosmetic act, were terminated for their actions.
Prior to Plaintiff's tenure with Defendant and during the approximate time periods of November 2009 and December 2009, Caucasian Employees, Mark Hallett, Cathleen Owen, and Blake Hemmel, released products manufactured for Beauty Avenues, the makers of Bath and Body Works product, that did not meet the legal fill weight under Federal Food, Drug, and Cosmetic Act. Beauty Avenues raised the issue as a customer complaint during Plaintiff's employment where their stores and patrons complained. These products were subject to recall under Federal Food, Drug, and Cosmetic Act and could have resulted in loss of business.
Prior to Plaintiff's tenure and while all Caucasian employees were responsible, Defendant has release OTC products that were mislabeled with the wrong expiration date as shown by Defendant's previous year scorecard provided by Beauty Avenues.
Prior to Plaintiff's tenure, Defendant shipped products to Canada that were mislabeled and were not approved through customs in the country. Caucasian Employees, Mark Hallett and Cathleen Owen were responsible for the released products that were held in customs due to improper labeling of hand sanitizers manufactured for Beauty Avenues, the makers of Bath and Body Works. Plaintiff corrected the issue where the products could be released from customs and properly enter the Canadian marketplace.
During Plaintiff's employment, Mark Hallett, Caucasian, instructed a change be made to the manufacturing process for liquid moist soaps. This change caused the products to be adulterated under Federal Food, Drug, and Cosmetic Act, where the products were not homogeneous and a copolymer and acrylic was undispersed in the products. The defect was noted by the rancidity and foul, sulfur odor caused from the lack of neutralization of the acrylic copolymer to the appropriate pH. Beauty Avenues, their largest customer, complained about the odor of the Twilight Woods product on or about May 3, 2010. The Twilight Woods was a new product, with approximately 400, 000-500, 000 units affected. These products should ahve been destroyed. The Caucasian employee was not terminated or subjected to disciplinary actions for his actions.
Additionally, other Caucasian employees have been formally cited for lack of performance and have been afforded opportunities under Defendant's progressive discipline policy, even to the extent of outside counseling assistance for managerial training.
Plaintiff's performance was outstanding and had received praise from internal employees and Defendant's customers, including Bierdorf and Beauty Avenues. Yet, Plaintiff was never informed about his performance or that there was an issue with the customers during his employment; thus he was never given an opportunity to correct any deficiency in his performance. Defendant has presented no documented evidence of any meeting where Plaintiff and his supervisor discussed a performance issue.
Defendant states to the [EEOC] that Plaintiff was not able to perform up to Tri Tech's expectations for the position. Upon hire, Mark Hallett, Caucasian, stated to me directly that Cathleen Owen, former Caucasian Director of Quality whose position Plaintiff was hired to replace, was not performing well. Mrs. Owen was promoted to Regulatory Director for the corporation. However, he went on to state that she should have been fired because she could not perform the duties.
Defendant states as a precursor to terminating Plaintiff's employment that Beauty Avenues, its largest customer, was in some way disappointed in his performance. Beauty Avenues has been disappointed with Tri Tech for periods well before the Plaintiff ever heard of the company. The scorecard provided by the Beauty Avenue in February 2010, reflecting performance for the previous calendar year, states on page 5that Tri Tech should continue to focus on OTC and on pages 3-4 of the document state the Defendant should be proactive in quality issue resolution, improve on the number and percentage of defective products and further states OTC definitely needs improvement in 2010 listing the following poor performance indicators from 2009: 1) mislabeled OTC AB Moisturizing Hand Soap was labeled AB Cleansing Hand Soap, 2)Fragrance didn't match standard, 3) Incorrect expiration date on OTC products, printed 3 year expiration date instead of 2 years, and 4) Finished units were found with mixed price stickers. In addition to the scorecard, Beauty Avenues representatives stated that they were excited to work with the Plaintiff and that he was improving the quality and communications tremendously, in such a short period. They also stated that the organization was disappointed with Mark Hallett and Cathleen Owen and the way they managed the quality unit. Similar statements were made by Biersdorf's employees, where Tri Tech did not complete the Corrective Action needed to begin the phases of product transfer until the Plaintiff managed the process.
The Defendant is in internal conflict regarding its written and implemented progressive discipline policy, as to the existence of or non-existence of such a policy. In its letter to the Plaintiff dated June 10, 2010 at paragraph 3, Defendant states "... Thus, the reality is that while Tri Tech does not have any process which mandates progressive discipline as you suggest, even if this had been the case, the seriousness of your performance issues required the actions taken against you" and later states to the [EEOC] in paragraph 2, "... Respondent denies all allegations and asserts that they will generally take action in a progressive manner." The conflicts in application written and well-established reveals an internal struggle and indicates a potential pattern of inconsistent treatment and unequal and unfair treatment as is evident on the fact of the Plaintiff's complaint.
Defendant has adopted written handbook denominated as Tri Tech Laboratories, Inc. Employee Handbook, where it outlines and states, "The Company has adopted a progressive discipline policy to identify and address employee related problems." In its written handbook it provides guidance for its probationary period that is twenty-eight (28) days in length to evaluate its new hire employees where it states in its Discipline/Discharge policy "Probationary employees are held to the highest standards of behavior and job performance. Progressive Discipline is the exception rather than the rule for probationary employees." It further outlines the policy stating, "Tri Tech will normally adhere to the following progressive disciplinary process: 1) Informal Discussion, 2) Verbal Warning, 3) Written Warning, 4) Suspension, and 5) Termination.
Due to Defendant's wrongful implementation of its written and accepted programs and practices, Plaintiff was terminated without consideration or even acknowledgement of an opportunity to correct any performance gap that might have been present or even a written list of duties, tasks, and expectations, while Caucasian employees have performed far less poorly than Plaintiff could ever perform, even if Defendant's allegations were true, and have been granted access to the progressive discipline program and even to extreme measure of progressive discipline not listed on its written policy, outside counseling.
As direct and proximate cause of the actions of the Defendant, Plaintiff has been terminated and denied employment terms and conditions and privileges of employment due to his race in violation of 42 U.S.C. § 2000(e) et seq., and 42 U.S.C. § 1981 and has no other recourse but to file suit. He is entitled to equitable relief for the amount of pay he would have earned but for the discriminatory actions by the Defendant. Plaintiff seeks compensatory damages for the mental anguish and distress, embarrassment, and humiliation that he suffered as a result of racial discrimination by Defendant. Plaintiff has been damaged by the intentional acts of the Defendant and is therefore entitled to relief of the Court.
Plaintiff has included Exhibit "F", email correspondence with racial overtones and harassment, and Exhibit "G", weekly highlights submitted to manager for performance....

The "Exhibit F'" to which the complaint refers is a chain of e-mails, beginning on Wednesday, April 21, 2010, with a message from Blake Hemmel to a person named Khanh Severino, to whom Mr. Hemmel provided a tracking number. Khanh Severino responded to Mr. Hemmel (and apparently copied the response to others) as follows: "Just got the package so I will be reviewing them. I will be away from the office next week so I will have to send it to you on Monday 5/3." Mr. Hemmel then forwarded the e-mail to Tri Tech employees Mark Hallett, David Warren, Cathleen Owen, Theresa McGuire, and Rhonda Seay, including the following message: "THANK GOD! A WEEK OF PEACE AND QUIET!" Several messages between these persons ensued, including the statement, "That woman is a menace!" and, at least in the document provided by Plaintiff, concluding with an e-mail message from Mark Hallett to the others that simply stated, "She's Viet Nam's revenge."

The "Exhibit G'" to which the complaint refers appears to be two pages of notes, entitled "Weekly Highlights, " that Plaintiff compiled regarding work he had been doing.

Soon after filing the complaint, Plaintiff filed a "Motion to Strike Defendant's Affirmative Defenses and Answer, and in the Alternative, Motion for Summary Judgment, " which I denied by memorandum opinion and order of May 15, 2013. In support of its response in opposition to Plaintiff's motion, Defendant submitted the "Affidavit of Steven Fullerton, " who was president of Tri Tech Laboratories, Inc. at that time and had been since October 2007. The affidavit, which has also been submitted among the exhibits in support of Defendant's summary judgment motion, is quoted here, in pertinent part (paragraph numbering omitted):

David Warren was employed as the Technical Director of Quality Assurance up until the time of his termination in May 2010.
The Technical Director of Quality Assurance is ultimately accountable for issues of product quality and customer dissatisfaction.
During Warren's tenure, Tri Tech received multiple complaints about Warren's performance, both internally as well as from Tri Tech's customers. Two events, in particular, led to Tri Tech's decision to terminate Warren's employment.
Warren, as the Technical Director of Quality Assurance, was assigned to lead an investigation into an FDA-regulated drug product that had incorrect labels on them. The investigation dragged on to such an extent that the customer in question would call daily inquiring as to when the product would ship.
Following a visual inspection of all products, Warren recommended that the products be shipped out. Importantly, even one mislabeled unit could trigger a recall. Doubtful of the accuracy of a visual inspection, Mark Hallett ("Hallett"), Senior Director of Quality, ordered an electronic re-inspection of the products, which uncovered 2, 268 additional units with the wrong back label on them.
The investigation was assigned to and spearheaded solely by Warren, by virtue of his position at the Company. Warren's choice to disregard recognized laboratory procedures and instead incorporate visual inspection of the product labels directly resulted in the drawn-out and ultimately unsuccessful management of the quality issue in question.
The second major event behind Warren's termination involved an olfactory issue that affected several hundred thousand units from Tri Tech's largest client. Tri Tech and the client conducted a joint investigation, and Warren, as Technical Director, was once again asked to lead the investigation on behalf of Tri Tech.
During his investigation, Warren pursued a single theory of what had created the off-odor, and conducted testing in an attempt to discover the root cause. Ultimately, his single cause theory of the off-odor was proven wrong.
During his investigation, Warren failed to record his data, did not communicate his plans or the results adequately internally or with the client, and otherwise failed to conduct his investigation in compliance with good laboratory practice; something he should have been and claimed to have been familiar with. In fact, Warren's failure to communicate with the client resulted in the client flying two of its investigation teams, at substantial expense to the client, out to Lynchburg, Virginia to complain about Warren's performance and lack of communication.
As the person directly responsible for leading the investigation on behalf of Tri Tech, this behavior was unacceptable. No other Caucasian employees were staffed with leading the investigation into the olfactory issue. The management of the investigation on behalf of Tri Tech was solely the responsibility of Warren. Once again, Hallett was forced to step in and take over the management of the olfactory issue, which was ultimately corrected under Hallett's leadership.
I was personally involved in the decision to terminate Warren's employment at Tri Tech. Warren's race played no role in the decision to terminate him from employment. Tri Tech hired Warren knowing he was African American.
Additionally, the Caucasian employees listed by Warren in his Complaint and his Motion for Partial Summary Judgment were not similarly situated as Warren, and thus, are not proper comparators to show disparate treatment. Stated simply, discovery will show that these employees did not engage in the same type of misconduct/poor performance as Warren which resulted in Warren's discharge.

III.

The summary judgment record discloses the following facts.

Defendant, Tri Tech Laboratories, Inc., is one of four companies owned by Knowlton Development Corporation ("KDC"), and is a contract manufacturer of personal care and health and beauty aids. During the time relevant to Plaintiff's claims, Defendant's largest customer was Beauty Avenues, of which Bath & Body Works is a division. Some of the products manufactured by Defendant - including some of those manufactured for Beauty Avenues - are regulated by the Food and Drug Administration ("FDA").

As previously stated, Steve Fullerton was the president of Tri Tech during the time of Plaintiff's employment there.[4] As president, Fullerton had overall responsibility for the plant, and maintained relationships with the top executives of Defendant's customers. One of Defendant's senior management officials, reporting directly to Fullerton, was Mark Hallett, who was the Senior Director of Quality Assurance.[5] In turn, Plaintiff reported to Hallett, who hired him.

Sherry Stone was Defendant's Director of Human Resources and Safety.[6] Stone oversaw all of Defendant's human resource functions, and she was knowledgeable about the facility's human resources policies and procedures.

Cathleen Owen is the Corporate Director of Regulatory Affairs and Compliance for Defendant's corporate parent, KDC. She was formerly Defendant's Director of Quality, prior to her 2009 promotion to KDC. Her job at Tri Tech was the same or similar position Plaintiff held during his employment with Defendant; indeed, it was her promotion to KDC that opened the position for which Plaintiff was hired. Fullerton testified that, after Owen was "appointed director of corporate quality for our parent company, " she still "resided in our office and was still playing a key role at our location."

During Plaintiff's employment, Defendant employed approximately 400 people, and of those, approximately 60% were minority. Defendant had, and continues to have, a non-discrimination policy, which includes a prohibition against race discrimination. The policy is found in Defendant's employee handbook, and it is titled "Equal Employment Opportunity" ("EEO Policy"). Every employee, including Plaintiff, was provided a copy of the handbook. According to the EEO Policy, any employee who believed there was discrimination could complain to the Human Resources Department, or Defendant's president, or others. Plaintiff made no complaint during his employment with Defendant.

As I have already observed, Defendant opened the position into which Plaintiff was hired, Technical Director of Quality Assurance, when Owen was promoted to KDC. Several external and internal candidates were interviewed. Plaintiff was interviewed by telephone and was then brought to Lynchburg from Texas for a face-to-face interview with several managers. Plaintiff is African-American; the other finalist for the position was an internal candidate, Blake Hemmel, who is white. Hallett decided to hire Plaintiff, and this decision was supported by others, including Owen, who participated in the screening and interviewing of the external candidates. By letter dated December 23, 2009, Plaintiff was offered the position.

Plaintiff was living in McKinney, Texas when Defendant hired him, and he apparently lives there now. As Plaintiff learned in the interview process, the job required Plaintiff to relocate to Lynchburg. Although Plaintiff was offered employment in December 2009, he did not begin working for Defendant until February 2010. The December 23, 2009, letter from Stone to Plaintiff stated, in pertinent part:

This will confirm our offer of employment for the position of Technical Director at an annual salary of $97, 000, plus a potential annual bonus based on annual salary. Bonuses are determined based on the performance of the company as well as individual performance. You will report to Mark Hallett, Senior Director of Quality Assurance. This offer is contingent upon the satisfactory results of a pre-employment drug screen and background check.
As a full time employee of Tri Tech, you will be entitled to our comprehensive benefit package that includes: life insurance, medical insurance, dental insurance, disability coverage, and a 401(k) savings plan. In addition, you will be given three weeks of vacation.
We are offering you reimbursement of relocation expenses for your move from McKinney to Lynchburg. In addition, we will reimburse expenses for one trip to Lynchburg while searching for your new home. If needed, we will also provide up to seven month's [ sic ] rental assistance while you are searching for your new home.... If before the completion of one year of employment you voluntarily leave Tri Tech Laboratories, you must repay the above relocation expenses.
It should be understood that this letter does not constitute a contract of employment or promise of employment for a definite term and either party may terminate the employment relationship for any reason at any time.

(Emphasis added.) Plaintiff signed the letter, indicating his acceptance of the offer, and returned it to Defendant.

Stone testified that at-will employment was standard practice at Tri Tech, and the employee handbook states, under the sub-heading "NATURE OF EMPLOYMENT, " that

[e]mployment with Tri Tech is entered into voluntarily and is at-will. This means an employee is free to resign at any time, with or without reason, and Tri Tech may terminate the employment relationship at any time, with or without notice of reason.
Neither the policies set forth in this handbook nor any other policy of Tri Tech is intended to create a contract of employment for any specific duration. The provisions of the handbook have been developed by the discretion of management and, except for the policy of employment-at-will, may be amended or cancelled at any time, at Tri Tech's sole discretion.

Plaintiff's responsibilities were identified and provided to him in a job description prepared by Hallett.[7] Plaintiff did not raise any concerns with Hallett as to what his job required him to do. The job description specified the following "Primary Responsibilities/Accountabilities":

Assist the organization with the development, implementation, management and continual improvement of an effective quality assurance program. Serve as a regulatory resource to the organization by providing input and opinions that are in compliance with applicable rules and regulations. Manage and drive systems to closure that are already established within the quality program. Serve as a role model for company values and culture, consultant for internal/external customers on compliance and regulatory issues.
• Lead the day to day activities of the Quality Assurance Departments to support the smooth flow of production through the facility. Establish appropriate performance metrics for each group and for Production (i.e.: Analytical Lab, Micro Lab, Validation/Calibration, Document Control, Release/Records, Incoming Inspection, In-Process Inspection).
• Continually improve product quality and client satisfaction by strengthening the company's Quality Management System and documentation consistent with FDA's QSRs and ISO guidelines, especially CAPA.
• Lead investigations of product quality issues, non-conformances, COS events, and document those findings. Inform senior management of product quality issues in a timely manner, and report investigation findings and corrective and preventative actions clearly and concisely.
• Initiate and approve senior level quality system documentation, such as validation protocols and reports, standard operating procedure, client quality ...

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