United States District Court, E.D. Virginia, Norfolk Division
[Copyrighted Material Omitted]
Sean Mohammed, Plaintiff: Ari Micha Wilkenfeld, PRO HAC VICE,
The Wilkenfeld Law Group, Washington, DC; David John
Sullivan, Reaves Coley PLLC, Chesapeake, VA.
Central Drive Mini Storage, Inc., doing business as Mini
Price Storage, Defendant: Lisa Ann Bertini, LEAD ATTORNEY,
Andrea Ruege, Bertini & Hammer, PC, Norfolk, VA.
OPINION AND ORDER
A. Jackson, United States District Judge.
Memorandum Opinion and Order is issued after a bench trial in
the above-styled matter to resolve retaliation claims on the
basis of religious discrimination brought under Title VII.
Court held a two-day bench trial on January 27-28, 2015. The
parties have filed post-trial briefs and this matter is now
ripe for judicial determination. The Court issues the
following Findings of Fact and Conclusions of Law, as
required by Rule 52(a) of the Federal Rules of Civil
Procedure. For the reasons set forth herein, the Court
FINDS Defendant not liable on
Plaintiff's retaliation claim based on reclassification
to a floater position. The Court FINDS
Defendant liable on Plaintiff's retaliation claim based
on his termination and enters judgment for the Plaintiff.
Factual and Procedural History
is a Seventh Day Adventist who alleges that his former
employer, Mini Price Storage, retaliated against him because
he refused to work on Saturday, the religious day of
observance for adherents of his faith. Plaintiff, who was at
all times employed as an Assistant Manager, alleges that he
expressed his concerns to Tashondi Goodman ("
Goodman" ), the area manager who had the final word
regarding his scheduling needs. When he refused to compromise
on his need for a religious accommodation, i.e., to have
Saturdays off, Plaintiff alleges he was reclassified as a
floater and eventually terminated. Defendant argues Plaintiff
was made a floater because of a business-wide decision to
reduce staff hours and was terminated because of performance
filed a two-count Complaint against Mini Price on August 21,
2013, alleging unlawful religious discrimination, with claims
for hostile environment, failure to accommodate and failure
to promote, and unlawful retaliation. On March 5, 2014,
Defendant filed a Motion to Dismiss Plaintiff's Complaint
for lack of subject matter jurisdiction and failure to state
a claim. On March 19, 2014, Plaintiff filed a Motion to Amend
Complaint along with his opposition to the Motion to Dismiss.
On May 28, 2014, the Court granted Plaintiff's Motion to
Amend as to his religious accommodation and retaliation
claims. The Court denied Plaintiff's Motion to Amend his
hostile work environment and failure to promote claims and
dismissed them with prejudice. Defendant's Motion to
Dismiss was dismissed as moot.
November 14, 2014, Defendant filed its Motion to Dismiss for
Lack of Subject Matter Jurisdiction as to Plaintiff's
retaliation claim, arguing that Plaintiff failed to exhaust
administrative remedies regarding Defendant's alleged
interference with his award of Virginia Employment Commission
(" VEC" ) benefits. On November 25, 2014, Plaintiff
filed his Memorandum in Opposition and conceded that he did
not exhaust the portion of his retaliation claim related to
the VEC benefit award. Plaintiff stipulated that " he
has no claim for liability and no entitlement to damages
arising from any and all actions taken by Defendant with
respect to his VEC unemployment claim" and submitted a
proposed order to that effect. On December 23, 2014, upon
consideration of Plaintiff's response, the Court granted
Defendant's motion to dismiss the VEC unemployment claim.
November 26, 2014, Defendant filed a Motion for Summary
Judgment. On January 22, 2015, after full briefing by the
parties, the Court granted in part and denied in part
Defendant's Motion for Summary Judgment. The Court
dismissed Plaintiff's failure to accommodate claim and
Plaintiff's retaliation claim based on a reduction of
hours. Plaintiff's retaliation claims based on his
reclassification to a floating position and his termination
parties have stipulated to the following facts, which the
Court accepts and finds:
1. The Plaintiff is a citizen of Virginia and a resident of
Newport News, Virginia.
2. The Plaintiff is a Seventh Day Adventist; his religious
beliefs include observation of the Saturday Sabbath.
3. The Defendant, Central Drive Mini Storage, Inc., is a
Virginia Corporation doing business as Mini Price Storage in
Hampton Roads and Richmond, Virginia. Defendant is and at all
relevant times was an
employer within the meaning of and subject to Title VII of
the Civil Rights Act of 1964, as amended.
4. Defendant employed less than one hundred (100) employees
in each of twenty (20) or more calendar weeks in Calendar
5. During the interview process, the Plaintiff informed the
Defendant that he was able to work every day of the week with
the exception of his Sabbath, Saturday.
6. The Plaintiff was hired on or about February 12, 2007 and
was terminated on January 31, 2011.
7. During his employment with the Defendant, the Plaintiff
never worked on a Saturday.
8. Tashondi Goodman became his Area Manager in March of 2010.
9. On January 31, 2011, Tashondi Goodman told the Plaintiff
he was terminated due to production issues.
10. The Plaintiff filed a claim with the Virginia Employment
Commission (" VEC" ) on February 2, 2011.
11. On September 25, 2012, the Plaintiff and Defendant were
sent Determination and Conciliation documents by the
12. On November 21, 2012, the E.E.O.C. notified the
Defendant's counsel that no further efforts to conciliate
the case would be made by the E.E.O.C.
13. On May 23, 2013, the Plaintiff was mailed a Notice of
Right to Sue by the E.E.O.C.
Additional Factual Findings
Court has made the following additional factual findings:
14. Plaintiff was hired as an Assistant Manager and retained
that title throughout his employment. Mohammed Dep. 11:7-8;
15. His responsibilities as an Assistant Manager were to
assist customers, sell storage units, sell supplies, make
collection calls, and conduct marketing activities such as
passing out flyers. Mohammed Dep. 19:12-20:1. These were the
same responsibilities for Sales Associates.
16. Prior to becoming a full-time floating Assistant Manager,
Plaintiff worked at the four (4) Mini Price locations within
the Peninsula area: J. Clyde, Tyler Avenue, Pembroke, and
Denbigh. Tr. 18:2-14; Mohammed Dep. 20:10-21; 44:9-13. At the
beginning of his career, Plaintiff worked at a store for a
period of time that ranged anywhere from one month, six
months, nine months to a year, to over one year. Tr.
17. When stationed at a particular store, that store served
as Plaintiff's home base. He was considered an employee
of that store and only worked occasionally at another store
in the Peninsula if he was needed to fill in for someone who
had taken leave. Tr. 19:24-25; 20:6-8.
18. Tashondi Goodman has been an Mini Price employee for 11
years. Tr. 153:20-23. During her tenure was a store manager
from 2005 to 2006. Goodman Dep. 6:13-25. She was then
promoted to area manager and in that role has overseen 15
stores in total.
19. She was the area manager for Mini Price's nine (9)
Southside stores from 2006 to 2009. Goodman Dep. 12:15-20.
20. From February 2009 to June 2014, Goodman worked as an
area manager for the four (4) Peninsula stores. Goodman Dep.
21. From June 2014 to at least November 2014, Goodman served
as the area manager for two (2) store locations, Valley and
Indian River. Goodman Dep. 4:17-5:21.
22. Goodman routinely visited her stores two or three times a
week. During these visits Goodman conducted file audits and,
when needed, coached any employee regarding paperwork or
procedures that were done incorrectly. Goodman Dep. 40:7-15.
23. With Goodman, coaching is not the same as counseling.
Coaching addresses issues on-the-spot and is undocumented.
Goodman conducted " ongoing coaching" for all of
her employees. Goodman Dep. 45:5-7. In contrast, counseling
is synonymous with discipline. Goodman Dep. 25:9-20.
24. Since 2006, Goodman implemented her own policy of
progressive discipline for the employees working in her
stores. Counseling is part of that policy and is documented.
That policy consisted of " two write-ups" before
termination. The first step was to give a verbal warning
which was documented on the form entitled " Verbal
Counseling." This was the first write-up. If the
offending behavior continued, Goodman followed up with a
second document entitled " Written Warning." The
third incident would result in termination. Goodman Dep.
25. The " Verbal Counseling" and " Written
Warning" documents each included a section at the bottom
labeled " Human Resource Use Only." Def.'s Ex.
1 & 2.
26. Sometime in August 2010, but prior to August 30,
Plaintiff engaged in his first protected activity when he had
a meeting with Goodman during which time she first expressed
her displeasure about the fact that Plaintiff did not work on
Saturdays. Tr. 25:16-22; Mohammed Dep. 38:21-23. Goodman had
asked why he wouldn't work on Saturdays and he "
explained to her again [that he] was Seventh-[D]ay Adventist.
This was [his] day of worship. [H]is relationship with Christ
was important to [him]." Mohammed Dep. 39:3-6. See
also Tr. 25:24 - 26:5. To which Goodman replied, "
Well, since you don't work on Saturdays, that will
probably qualify you to be a floater." Mohammed Dep.
39:6-8, 43:1-2; Tr. 26:6-7. Goodman also stated that his
skill set and strengths made him a good choice to support the
other stores. Tr. 21:16-19.
27. On August 26, 2010, following his first protected
activity, Goodman notified Mini Price management via email
that as of September 1, 2010, Plaintiff would be a "
full time floater for team." Joint Ex. 12.
28. On August 30, 2010, Plaintiff engaged in his second
protected activity when he had a meeting with Goodman and
Joey Cole (" Cole" ), the store manager for the J.
Clyde store, regarding his scheduling needs. Mohammed Dep.
29. The meeting was called because Cole had given Plaintiff
the schedule for the following month, September 2010, and
Plaintiff was scheduled to work on a Saturday. Mohammed Dep.
had told Cole that Plaintiff would be shadowing him on
Saturdays. Tr. 130:1-4.
30. When Plaintiff reminded Cole that he didn't work on
Saturdays, Cole called Goodman for clarification. Mohammed
Dep. 25:20-22; Tr. 130:5-6. Cole requested that the three of
them meet and Goodman replied that she would come to the
store. Tr. 130:15-20. The testimony of Plaintiff and Cole
establish that contrary to Goodman's testimony that she
visited the store to help Cole address Plaintiff's
unauthorized Starbuck's run, the purpose of her going to
the store was to resolve the issue with Plaintiff's
Saturday schedule. Tr. 132:2-4; Tr.l59:18-23.
31. The call to Goodman was necessary because although her
store managers created the draft schedule for their
respective stores, Goodman finalized each store schedule,
which was then distributed to employees by the store
managers. Goodman Dep. 82:16-83:11
32. During the meeting, Plaintiff told Goodman that he "
could not compromise [his] religious beliefs." Mohammed
33. Goodman responded that Plaintiff that " was not
being a team player," and that he would never "
advance within the company if [he] didn't start working
on Saturdays." Mohammed Dep. 26:3-5. Plaintiff replied,
" Are you telling me if I don't give up my religious
beliefs, I won't go anywhere with the company?"
Mohammed Dep. 26:6-8. To which Goodman responded, " That
is what I am saying." Mohammed Dep. 26:9.
34. Although Goodman stated Plaintiff was the "
designated floater for the Peninsula" area, Plaintiff
was assigned to work at five (5) stores outside the Peninsula
area, " on [the other] side of the water." These
were Bruce Road, Naval Base, Laskin Road, Poplar Hill and
General Booth. Mohammed Dep. 20:14-21; 22:5-16. These stores
were overseen by different area managers. Plaintiff stated he
had to drive more than thirty minutes to work outside of his
area. Plaintiff floated to stores within and outside the
Peninsula -- nine (9) stores in total. Goodman only assigned
two other employees as floaters and they each only floated to
two (2) stores. Tr. 162:20-163:4
35. On October 17, 2010, Plaintiff engaged in his third
protected activity when he emailed Goodman his concerns about
his drastically reduced hours. Plaintiff referenced the
August 30, 2010 meeting and reiterated that he had been very
clear prior to being hired that he required Saturdays off.
Pl.'s Ex. 2.
36. On October 18, 2010, Goodman responded to his email and
stated that Plaintiff was a full-time employee and he would
keep his benefits unless he voluntarily moved to part-time
37. Goodman stated that hours would decrease or increase in
accordance with customer traffic. Id. Regarding his
schedule, Goodman stated:
" There is [sic] no concerns with your weekend schedule.
As you review the schedule for each store, all employees are
rotating or working every Saturday and Sunday. I could
definitely use more help on Saturdays. And your schedule does
differ from anyone else's. Although I was not in your
initial conversation with Angela and
Robin, your requests were honored regarding Saturdays."
38. Goodman called Plaintiff a " valued employee."
Id. ; Tr. 210: 1-5.
39. Goodman then explained that his advancement with the
company was impeded by " some concerns with work
performance," many of which she had addressed with him
directly. Id. Goodman stated that she could outline
those items on paper as a reference and that they would speak
later that week. Id.
40. Goodman's email only references work performance
concerns in the context of advancement with the company.
There is no indication that her concerns regarding work
performance issues were so significant that she was
considering terminating him. Id.
41. Hours later, Mohammed replied and thanked her for her
response. He stated, " [Y]ou have no idea how much it
means to me that you care enough to actually coach me to be a
better employee." Id.
42. The same day, Goodman forwarded the email chain to Angela
Higgerson, the HR manager. Id.
43. On October 20, 2010, Plaintiff met with Goodman to
discuss his performance. Goodman reviewed five areas for
improvement for Plaintiff which she outlined on a form
entitled " Work Performance." Pl.'s Ex. 3.
44. In her 11 years with Mini Price, Goodman used the Work
Performance document only once -- with Plaintiff. Tr.
222:18-21. There is no evidence any Mini Price management
employee used the " Work Performance" document
Goodman used. And unlike the " Verbal Counseling"
form and " Written Warning" form, there was no
field labeled " Human Resource Use Only" on the
" Work Performance" document.
45. In general, Plaintiff was directed to improve his verbal
tone with co-workers, higher management and customers; allow
managers to make executive decisions before taking the
initiative to do so; cease completing personal tasks during
business hours; complete paperwork according to company
policy unless given a management directive to do otherwise;
and complete assigned daily tasks.
46. After the meeting Plaintiff stated that he did not get
the impression that he was " in trouble" because
Goodman just covered " points she wanted [him] to work
on to make [him] a stronger manager." Mohammed Dep.
52:17-22. He stated that the meeting wasn't an
evaluation. Goodman addressed areas " she wanted [him]
to reference so that [he] could help [his] progress with the
company which is what [he] requested via e-mail."
Mohammed Dep. 51:17-20. She stated that working on those
areas " would help [him] with [his] promotion
progress" to becoming a store manager. Mohammed Dep.
47. Goodman stated that the Work Performance form was written
documentation of a verbal warning. Goodman Dep. 41:20-23.
48. Though Goodman stated that she told Plaintiff that if his
performance in those areas did not improve, he would be
terminated (Tr. 210:1-5; Goodman Dep. 57:8-12), the form does
not include any language about termination.
49. Though the form provides a section for the employee and a
witness to sign, the Court notes that there are no signatures
on the form.
50. Plaintiff maintained his health benefits as a floater and
there were no changes to his title, pay, or promotion
51. Sometime in December 2010, Goodman spoke with Plaintiff
about his performance. He stated " she mentioned that
she saw a 360-degree change in [his] performance
activities" and that she " seemed pleased."
Mohammed Dep. 54:1-2. Goodman stated that after that
conversation she " felt that [they] were going in the
right direction" Goodman Dep. 56:15-16. Although she saw
" certain processes [that Plaintiff was] doing
better," she also observed areas where Plaintiff was not
improving. Goodman Dep. 56:5-6. Specifically, Goodman
remarked that she saw " a complete decline toward the
end of the year" in late November and December Goodman
Dep. 56:6-7; 16-17.
52. On January 31, 2011, Goodman terminated Plaintiff's
employment. The reason she gave him for her decision was
" productivity." Mohammed Dep. 11:22-24.
On January 31, 2011, the same day she terminated
Plaintiff's employment, Goodman emailed Higgerson that
Plaintiff was terminated " due to lack of performance
and lack of work." Joint Ex. 4.
Although " lack of work" was an option on the VEC
documents, Higgerson only checked the field for "
discharge" as the reason for Plaintiff's
termination. (ECF No. 35, Pl.'s Mem. in Opp to
Def.'s Mot. for Summary J. Ex. 4, " VEC
Employer's Report of Separation and Wage
Information" dated Feb. 15, 2011.)
In an email to Barry Sifen dated March 25, 2014, Goodman
attached a list entitled Peninsula Employee Assignment, and
stated the reason for Plaintiff's termination as "
(performance)." Pl.'s Ex. 8. There was no mention of
" lack of work."
During her deposition on November 18, 2014, the sole reason
she gave was performance issues. When asked if there were any
other reasons, she said no. Goodman Dep. 42:8-11;
At trial Goodman stated performance issues and renewed "
lack of work" as the reason for Plaintiff's
termination. Tr. 182:7-8.
53. Following his termination, Plaintiff requested and was
granted an exit interview. In February 2011, Plaintiff met
with Barry Sifen, CEO/CFO, Dana Hicks, Vice President and
Higgerson, and stated that he believed he was terminated in