United States District Court, E.D. Virginia, Norfolk Division
June 5, 2015
SEAN MOHAMMED, Plaintiff,
CENTRAL DRIVING MINI STORAGE, INC., d/b/a MINI PRICE STORAGE, Defendant
[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
retaliation for refusing to work on Saturdays. Mohammed Dep.
54. The October 2010 Work Performance form was the only Work
Performance form in Plaintiff's personnel file and there
were no Verbal
Counseling or Written Warning forms in his file. Tr.
55. From 2008 to 2010, Plaintiff received a number of secret
shop evaluations in which he received an overall rating of
" Excellent" or a total score of 100 out of 100
possible points. On one shop he was " rated as providing
the best experience across all of Mini Price." Pl.'s
56. After his termination, Plaintiff worked a few part-time
jobs. He received full-time employment in January 2014.
Mohammed Dep. 44:10-14; 45:2-3.
57. Neither party addressed damages in their post-trial
CONCLUSIONS OF LAW
Jurisdiction & Venue
Court has subject matter jurisdiction over claims that arise
under federal law pursuant to 28 U.S.C. § 1331. 42
U.S.C. § 2000e-5(f).
Court has personal jurisdiction over Defendant because Mini
Price's principal place of business is located in the
Commonwealth of Virginia.
Venue is proper under 28 U.S.C. § 1391 as Defendant is
located in this district and substantially all the events
giving rise to Plaintiff's claims occurred in this
Title VII Retaliation Claims
Title VII makes it " an unlawful employment practice for
an employer... to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of,"
inter alia, an individual's "
religion." 42 U.S.C. § 2000e-2(a)(1).
Title VII also includes a retaliation provision that makes it
unlawful for an employer " to discriminate against any
of his employees ... because he has opposed any practice made
an unlawful employment practice by" Title VII. 42 U.S.C.
antiretaliation provision prevents " an employer from
interfering (through retaliation) with an employee's
efforts to secure or advance enforcement of [Title VII's]
basis guarantees." Burlington Northern & Santa Fe
Ry. Co., 548 U.S. 53, 63, 126 S.Ct. 2405, 165 L.Ed.2d
Title VII does not apply to all retaliation. Rather, it
protects an individual from retaliation that produces an
injury or harm. Id. at 67.
Where direct evidence of retaliation is lacking, Plaintiff
may produce circumstantial evidence and proceed under the
three-step proof scheme set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973). Hill v. Lockheed Martin Logistics
Mgmt., Inc., 354 F.3d 277, 284-85 (4th Cir. 2004)
(abrogated on other grounds by Foster v.
Univ. of Maryland-Eastern Shore, 787 F.3d 243, 2015
WL 2405266 (4th Cir. 2015)).
Under the McDonnell Douglas framework, Plaintiff is tasked
with establishing a prima facie case that:
(1) he engaged in protected activity;
(2) Defendant took an adverse employment action against
(3) a causal link between the protected activity and the
employment action exists.
Coleman v. Md. Court of Appeals, 626 F.3d 187, 190
(4th Cir. 2010).
Plaintiff must establish his prima facie case by a
preponderance of the evidence. Laughlin v. Metro.
Washington Airports Auth., 149 F.3d 253, 258 (4th Cir.
he succeeds, the burden " shifts to [the defendant] to
articulate some legitimate, nondiscriminatory reason"
for the employment action. Hawkins v. PepsiCo, Inc.,
203 F.3d 274, 278 (4th Cir. 2000) (quoting O'Connor
v. Consol. Coin Caterers Corp., 517 U.S. 308, 311, 116
S.Ct. 1307, 134 L.Ed.2d 433 (1996)). See also
King v. Rumsfeld, 328 F.3d 145, 151 (4th Cir. 2003)
(" non-retaliatory" motive for adverse action).
Once the employer produces sufficient evidence to support a
non-discriminatory explanation for its decision, the
plaintiff must " prove by a preponderance of the
evidence that the legitimate reasons offered by the defendant
were not its true reasons, but were a pretext for
discrimination." Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147
L.Ed.2d 105 (2000) (quoting Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089,
67 L.Ed.2d 207 (1981)).
McDonnell Douglas Framework
Establishing a Prima Facie Case
" Protected activities fall into two distinct
categories: participation or opposition."
Laughlin, 149 F.3d at 258; 42 U.S.C. §
Protected participation activity occurs when a plaintiff
" has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding,
or hearing under [Title VII]." 42 U.S.C. §
Protected opposition activity need not " rise to the
level of formal charges of discrimination."
Armstrong v. Index Journal Co., 647 F.2d 441, 448
(4th Cir. 1981) (quoting Sias v. City Demonstration
Agency, 588 F.2d 692, 694-96 (9th Cir. 1978)). Voicing
complaints to employers can constitute protected opposition
Adverse Employment Action
determining whether " actionable retaliation"
exists, the plaintiff must show that a reasonable employee
would have found the challenged action materially adverse.
materially adverse action is one which might have "
dissuaded a reasonable worker from making or supporting a
charge of discrimination." Burlington Northern,
548 U.S. at 67 (quoting Rochon v. Gonzales, 438 F.3d
1211, 1219, 370 U.S. App.D.C. 74 (D.D.C. 2006)).
Acknowledging that the E.E.O.C. has " consistently found
that retaliatory work assignments [are] a classic and widely
recognized example of forbidden retaliation," the
Supreme Court has made it clear that " [w]hether a
particular reassignment is materially adverse depends upon
the circumstances of the particular case, and should be
judged from the perspective of a reasonable person in the
plaintiff's position, considering all the
Id. at 71 (internal quotation marks omitted)
(internal citations omitted).
" [N]ot everything that makes an employee unhappy is an
actionable adverse action. Thorn v. Sebelius, 766
F.Supp.2d 585, 599 (D. Md. 2011) (quoting Settle v.
Baltimore Cnty, 34 F.Supp.2d 969, 989 (D. Md. 1999)).
is well-settled in the Fourth Circuit that " [a]n
adverse employment action is a discriminatory act that
'adversely affect[s] the terms, conditions, or benefits
of the plaintiffs employment.'" Holland v.
Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir.
2007) (quoting James v. Booz-Allen & Hamilton, Inc.,
368 F.3d 371, 375 (4th Cir. 2004)). Moreover, " [a]n
adverse action is one that 'constitutes a significant
change in employment status, such as hiring, firing, failing
to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change
in benefits." Hoyle v. Freightliner, LLC, 650
F.3d 321, 337 (4th Cir. 2011) (quoting Burlington
Industries Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct.
2257, 141 L.Ed.2d 633 (1998)).
Where reassignment is the alleged adverse action, it is key
that the reassignment presents " some significant
detrimental effect." Boone v. Goldin, 178 F.3d
253, 256 (4th Cir. 1999). " [A]bsent any decrease in
compensation, job title, level of responsibility, or
opportunity for promotion, reassignment to a new position
commensurate with one's salary level does not constitute
an adverse employment action." Id. at 256-57.
their own, inconvenience and mild stress accompanying the
reassignment are insufficient to deem the reassignment an
adverse employment action. See Fitzgerald v.
Ennis Business Forms, Inc., Civil Action No.
7:05CV00782, 2007 WL 81797 at *4 (W.D. Va. Jan. 8, 2007)
(citing Boone, 178 F.3d at 256)).
Plaintiff has not established that his reassignment as a
floater was a materially adverse action.
Termination is an adverse employment action. See
Hoyle, 650 F.3d at 337.
establish a prima facie case of retaliation in contravention
of Title VII, a plaintiff must prove " (1) that she
engaged in a protected activity," as well as " (2)
that her employer took an adverse employment action against
her," and " (3) that there was a causal link
between the two events." Boyer-Liberto v.
Fontainebleau Corp., 786 F.3d 264, 2015 WL 2116849, at
*13 (4th Cir. 2015) (quoting E.E.O.C. v. Navy Fed. Credit
Union, 424 F.3d 397, 405-06 (4th Cir. 2005)).
a recent decision, the Fourth Circuit ruled that the Supreme
Court's decision in Univ. of Texas Sw. Med. Ctr. v.
Nasser, __ U.S. __, 133 S.Ct. 2517, 186 L.Ed.2d 503
(2013), did not apply a heightened " but-for"
standard to the causation prong of a prima facie case of
retaliation. Foster v. Univ. of Maryland-Eastern
Shore, F.3d , 2015 WL 2405266, at *5 (4th Cir. 2015).
The Court stated that the causation standard for establishing
a prima facie retaliation case and proving pretext are not
identical. Id. at *7.
The Court reasoned that applying but-for causation at the
prima facie stage " would be tantamount to eliminating
the McDonnell Douglas framework in retaliation cases"
because doing so would mean that the only plaintiffs who
could use pretext evidence would be those who would not need
it. Id. The Court stated:
" If plaintiffs can prove but-for causation at the prima
facie stage, they will necessarily be able to satisfy their
ultimate burden of persuasion without proceeding through the
pretext analysis. Conversely, plaintiffs who cannot satisfy
their ultimate burden of persuasion without the support of
pretext evidence would never be permitted past the prima
facie stage to reach the pretext stage."
Id. Determining that the Nasser Court did
not " plainly and clearly" articulate an intent to
" retire McDonnell Douglas," the Fourth
Circuit held that the causation prong of a prima face case of
retaliation remains unchanged. Id.
prove a causal connection, a plaintiff asserting a
retaliation claim must be able to show that his employer took
the adverse action " ' because the
plaintiff engaged in a protected activity.'"
Holland, 487 F.3d at 218 (4th Cir. 2007) (quoting
Dowe v. Total Action Against Poverty in Roanoke
Valley, 145 F.3d 653, 657 (4th Cir. 1998)).
Thus, to demonstrate causation, a plaintiff must show that
the employer was aware of the protected activity.
Fourth Circuit and its courts have looked to factors
articulated in the Third Circuit's Farrell
decision, to determine whether causation had been
established. In Farrell, the Third Circuit stated
that causal connection can be established through various
types of circumstantial evidence such as temporal proximity,
intervening antagonism or retaliatory animus, inconsistent
reasons for termination, or the defendant's conduct
toward others. Farrell v. Planters Lifesavers Co.,
206 F.3d 271, 281 (3d Cir. 2000).
Fourth Circuit and its courts have applied the factors
articulated in Farrell to varying degrees. Where
temporal proximity is insufficient to establish a causal
connection, courts have examined whether another factor will
provide the causal link. See Lettieri v. Equant
Inc., 478 F.3d 640, 650 (4th Cir. 2007) (where temporal
proximity is lacking, " evidence of recurring
retaliatory animus during the intervening period can be
sufficient to satisfy the element of causation." );
Linkous v. CraftMaster Mfg., Inc., Civil Action No.
7:10-CV-00107, 2012 WL 2905598 at *8 (W.D. Va. 2012) ("
Because plaintiff has no evidence of temporal proximity and
has not offered any evidence that [defendant] has offered
inconsistent reasons for his termination, plaintiff must rely
on an intervening pattern of retaliatory conduct to prove
causation." ); Jaudon v. Elder Health, Inc.,
125 F.Supp.2d 153, 165 (D. Md. 2000) (citing Farrell
and stating that " factors pertinent to the causation
element may include temporal proximity between the two
events, an intervening pattern of retaliatory conduct,
inconsistent reasons by employer for adverse action, and
differential treatment of other employees." )
Courts have stated that where there is no temporal proximity,
at least one of these factors must be
established. See e.g., Bush v. Donahoe, 964
F.Supp.2d 401, 426 (W.D. Penn. 2013) (unable to show temporal
proximity, " [p]laintiff must point to evidence of a
pattern of antagonism or retaliatory motive during the
intervening period, or show inconsistent reasons given by
[d]efendant for the adverse employment actions" ).
Defendant was aware of Plaintiff's protected activity
because his protests were made directly to Goodman, the area
manager with final say over his schedule and with the
authority to fire him.
Although three months is too long to establish temporal
proximity, Plaintiff has raised evidence of inconsistent
explanations by Defendant for his termination which satisfy
the causal element and allow Plaintiff to establish his prima
Defendant's Legitimate Non-Discriminatory Reason
offering its explanation of its legitimate,
non-discriminatory reason, the employer must be " clear
and reasonably specific." Burdine, 450 U.S. at
defendant's burden, however, is one of production, not
persuasion. Causey v. Balog, 162 F.3d 795, 800 (4th
meeting its burden, the defendant rebuts the presumption of
discrimination created by the plaintiff's prima facie
case and the presumption " drops from the case."
Laughlin, 149 F.3d at 258 (quoting Burdine,
450 U.S. at 255 n.10).
Defendant stated legitimate non-discriminatory reasons for
reclassifying Plaintiff as a floater and terminating him.
Plaintiff's Proof of Pretext
Pretext is " a lie or deceit designed to cover one's
tracks," not merely a business error. Holley v. N.C.
Dep't of Admin., 846 F.Supp.2d 416, 430 (E.D.N.C.
2012) (quoting Cardoso v. Robert Bosch Corp., 427
F.3d 429, 435 (7th Cir. 2005)).
" In appropriate circumstances, the trier of fact can
reasonably infer from the falsity of the explanation that the
employer is dissembling to cover up a discriminatory purpose.
Such an inference is consistent with the general principle of
evidence law that the factfinder is entitled to consider a
party's dishonesty about a material fact as
'affirmative evidence of guilt.'"
Reeves, 530 U.S. at 147 (quoting Wright v.
West, 505 U.S. 277, 296, 112 S.Ct. 2482, 120 L.Ed.2d 225
employer's offer of " different and arguably
inconsistent explanations" may allow the factfinder to
infer that the articulated reasons are pretextual.
E.E.O.C. v. Sears Roebuck and Co., 243 F.3d 846, 853
(4th Cir. 2001) (quoting Dominguez-Cruz v. Suttle Caribe,
Inc., 202 F.3d 424, 432 (1st Cir. 2000)).
plaintiff cannot base a pretext argument on " minor
discrepancies that do not cast doubt on the explanation's
validity, or... points that are wholly irrelevant to
it." Bonds v. Leavitt, 629 F.3d 369, 386 (4th
Cir. 2011) (quoting Hux v. City of
Newport News, 451 F.3d 311, 315 (4th Cir. 2006)).
retaliation cases, the same type of evidence may be used to
prove both the causal connection requirement and pretext.
See Jaudon, 125 F.Supp.2d at 169 (finding
evidence that established plaintiff's prima facie case
was also pertinent to plaintiff's allegations of
pretext); Philbrick v. Holder, 583 Fed.Appx. 478,
490 (6th Cir. 2014) (unreported) (" the court may
consider evidence of pretext to buttress [the causal
connection] prong of the prima facie case" ); Zann
Kwan v. Andalex Group LLC, 737 F.3d 834, 846 (2d Cir.
2013). " A plaintiff may prove [but-for causation] by
demonstrating weaknesses, implausibilities, inconsistencies,
or contradictions in the employer's proffered legitimate,
nonretaliatory reasons for its action. From such
discrepancies, a [factfinder] could conclude that the
explanations were a pretext for a prohibited reason." ).
" Without evidence of pretext for retaliation, [the]
Court will not act as a 'super-personnel department that
reexamines an entity's business decisions.'"
Chappell v. School Bd. of City of Virginia Beach, 12
F.Supp.2d 509, 517 (quoting Beall v. Abbott
Laboratories, 130 F.3d 614, 620 (4th Cir. 1997)
(abrogated on other grounds)).
" [I]t is not [the court's] province to decide
whether the reason was wise, fair, or even correct,
ultimately, so long as it truly was the reason for the
[reassignment]." Hawkins, 203 F.3d at 279.
Evidence of pretext will call into question whether the
reasons offered by the defendant employer for its personnel
decisions were the true reasons for making those decisions.
record establishes sufficient evidence suggesting that the
reasons offered by Goodman for her decision to reassign
Plaintiff to a floater position and subsequently terminate
him, were not the true reasons for those decisions.
" [A] Title VII plaintiff is generally entitled to back
pay 'as a matter of course.'" Martin v.
Cavalier Hotel Corp., 48 F.3d 1343, 1358 (4th Cir. 1995)
(quoting Brady v. Thurston Motor Lines, Inc., 753
F.2d 1269, 1273 (4th Cir. 1985)).
" An improperly dismissed employee may not remain idle
and recover lost wages from the date of discharge."
Edwards v. School Bd. of City of Norton, Va., 658
F.2d 951, 956 (4th Cir. 1981). He must make a reasonable
effort to find other suitable employment. Id.
Accordingly, Title VII back pay awards must be reduced by
" (i)nterim earnings or amounts earnable with reasonable
diligence by the person or persons discriminated
against...." Id. (quoting 42 U.S.C. §
Although the duty to mitigate rests with the plaintiff, it is
" well established that the employer bears the burden of
proving the employee's failure to mitigate."
Martin v. Mecklenburg Cnty., 151 Fed.Appx. 275, 282
(4th Cir. 2005) (citing Cavalier Hotel, 48 F.3d at
amount of a back pay award rests within the discretion of the
Court. Cavalier Hotel, 48 F.3d at 1358.
" The equitable remedy of front pay is generally
available when an employer has terminated an employee
unlawfully and the employee's reinstatement is not
possible." Taylor v. Republic Servs., 968
F.Supp.2d 768, 802 (E.D. Va. 2013) (quoting Loveless v.
John's Ford, Inc., 232 Fed.Appx. 229, 238 (4th Cir.
2007) (unpublished per curiam decision) (citation omitted)).
Designed to place a plaintiff in the financial position he
would have been in had he been reinstated, front pay should
" be granted sparingly" because it could "
result in an unfair windfall." Id. (quoting
Ford v. Rigidply Rafters, Inc., 984 F.Supp. 386, 392
(D. Md. 1997)).
Although " [t]he Fourth Circuit has not specifically
enumerated a list of factors to consider in deciding to award
front pay[,] [o]ther courts have considered the
plaintiff's prospect of obtaining comparable employment;
the time period of the award; whether the plaintiff intended
to work; and whether liquidated damages have been
awarded." Id. (quoting Ford, 984
F.Supp. at 392). " Because front pay necessarily
involves speculation as to future events, the Court must
judiciously scrutinize the record to determine whether future
events are sufficiently predictable to justify such an
award." (quoting Ford, 984 F.Supp. at 392).
Front pay is awarded at the discretion of the district court.
" Under Title VII, compensatory damages are available
for, among other things, 'emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, and
other nonpecuniary losses.'" Homesley v.
Freightliner Corp., 61 Fed.Appx. 105, 116 (quoting
U.S.C. § 1981a(b)(3)). An award of compensatory damages
must be supported by the record.
Punitive damages are available under Title VII only in cases
where " the complaining party demonstrates that the
respondent engaged in a discriminatory practice or
discriminatory practices with malice or reckless indifference
to the federally protected rights of an aggrieved
individual." 42 U.S.C. § 1981a(b)(1); see
Kolstad v. Am. Dental Assn., 527 U.S. 526, 535, 119
S.Ct. 2118, 144 L.Ed.2d 494 (1999).
Loeffler v. Frank, the Supreme Court held that
consistent with the " make-whole" scheme of Section
706(g) of Title VII, " Title VII authorizes prejudgment
interest as part of the back pay remedy in suits against
private employers." 486 U.S. 549, 557, 108 S.Ct. 1965,
100 L.Ed.2d 549 (1988).
" Prejudgement interest serves to compensate for the
loss of use of money due as damages from the time the claim
accrues until judgment is entered, thereby achieving full
compensation for the injury those damages are intended to
redress." West Virginia v. United
States, 479 U.S. 305, 310 n. 2, 107 S.Ct. 702, 93
L.Ed.2d 639 (1987).
" Prejudgment interest, like all monetary interest, is
simply compensation for the use or forbearance of money
owed." Transmatic, Inc. v. Gulton Industries,
Inc., 180 F.3d 1343, 1347 (Fed. Cir. 1999). See
Maksymchuk v. Frank, 987 F.2d 1072, 1077 (" A
dollar tomorrow, unless interest is added, does not equal a
dollar today." ); City of Milwaukee v. Cement
Division, National Gypsum, Co., 515 U.S. 189, 197, 115
S.Ct. 2091, 132 L.Ed.2d 148 (1995) (" [p]rejudgment
interest is not awarded as a penalty; it is merely an element
of just compensation." ).
Prejudgment interest lies within the sound discretion of the
Court. Maksymchuk, 987 F.2d at 1077. " An
appropriate method to calculate prejudgment interest is to
compound the total amount of back pay for the period between
Plaintiff's termination from [employer] and the date of
the jury's verdict, at an interest rate corresponding to
the average inflation rate for that time period."
Ford v. Rigidply Rafters, Inc., 984 F.Supp. 386, 391
(D. Md. 1997).
prevailing party on a claim for retaliatory discharge is
entitled to attorneys' fees and costs. 42 U.S.C. §
2000e-5(k). A reduced fee award is appropriate if the relief,
however significant, is limited in comparison to the scope of
the litigation as a whole." Hensley v.
Eckerhart, 461 U.S. 424, 435, 439-40, 103 S.Ct. 1933, 76
L.Ed.2d 40 (1983).
Plaintiff's Retaliation Claims
Reclassification as a Floater
Prima Facie Case
Court finds that Plaintiff has failed to establish a prima
facie case that his reclassification as a floater was an
actionable retaliatory act. The second prong is established
by the two meetings he had with Goodman in August 2010 (the
first being one-on-one at an undetermined date and the second
occurring later on August 30 with Cole present). The third
prong is established by the very close causal connection
between the August 30 meeting and his reclassification as a
floater one month later in October, and the conflicting
reasons Goodman gave for making him a floater. Nevertheless,
the Court finds
Plaintiff has failed to establish the second prong because he
has not presented sufficient evidence that reclassification
as a floater was an adverse action.
Personnel decisions that result in a " mere
inconvenience" do not constitute an adverse employment
action, unless that inconvenience causes a significant change
in employment status. See Nichols v. Comcast
Cablevision of Maryland, 84 F.Supp.2d 642, 659 (D. Md.
2000) (" [a] mere inconvenience without a significant
change in employment status is insufficient" ).
change in working conditions becomes materially adverse only
if it is " more disruptive than a mere
inconvenience." Galabya v. New York City Bd. of
Educ., 202 F.3d 636, 640 (2d Cir. 2000). An
inconvenience, such as an increased commute or unfavorable
hours, does not constitute an adverse employment action for
the purposes of Title VII. See Johnson v.
Eastchester Union Free Sch. Dist., 211 F.Supp.2d 514,
518 (S.D.N.Y. 2002). A longer commute, on its own, does not
constitute an adverse employment action. See
Smith v. Alabama Dep't of Pub. Safety, 64
F.Supp.2d 1215, 1222 (M.D. Ala. 1999) (citing Spring v.
Sheboygan Area Sch. Dist., 865 F.2d 883, 886 (7th Cir.
Fourth Circuit has held that " absent any decrease in
compensation, job title, level of responsibility, or
opportunity for promotion, reassignment to a new position
commensurate with one's salary level does not constitute
an adverse employment action even if the new job does cause
some modest stress not present in the old position."
Boone, 178 F.3d at 256-57. Plaintiff argues that the
transition to floater status was adverse because Plaintiff
had to travel longer distances without compensation, he was
no longer assigned to a home store, and was no longer
guaranteed set hours at one location. The Court finds that
these factors were mere inconveniences and do not rise to the
standard set forth by the Fourth Circuit in Boone.
explained in this court's January 2015 Order, there was
no material change in Plaintiff's benefits, pay, or
actual hours worked during his time as a full-time floater.
Furthermore, Plaintiff admits he was paid mileage for his
commute while a floater. Although the Court questioned
whether Plaintiff's title had been changed from Assistant
Manager to Sales Associate, there is no evidence that the
discrepancy in how Plaintiff was referred to in payroll
documents was the result of anything other than a default
software setting. Because Plaintiff does not press the point,
the Court will resolve that issue in Defendant's favor.
Moreover, Plaintiff does not allege that his promotional
opportunities or employment status was affected by his
reclassification. Plaintiff also fails to allege or offer
evidence that being made a floater resulted in a decrease in
prestige or job responsibilities. Consequently, Plaintiff
does not allege any legally cognizable injury or harm flowing
from his reclassification as a floater. Therefore, Plaintiff
has failed to establish that his reclassification as a
floater constitutes a materially adverse employment action.
Prima Facie Case
first prong of Plaintiff's prima facie case is
established by the three acts of protected activity Plaintiff
engaged in, the two meetings in August and the October 17
email he sent to Goodman. The third prong is also established
because termination is an adverse action. Regarding
the second prong, although three months is not sufficiently
close to establish temporal proximity, see
Pascual v. Lowe's Home Centers, Inc., 193
Fed.Appx. 229, 233 (4th Cir. 2006) (stating three to four
months is too long to establish a causal connection by
temporal proximity alone), causation is established through
Goodman's inconsistent reasons for her decision to fire
on January 31, 2011, Goodman told Plaintiff that he was
terminated for " productivity" and "
inconsistency" issues. Second, later that day she sent
an email to Higgerson and stated he was terminated " due
to lack of performance and lack of work." This is the
first time " lack of work" arises as a reason.
During her third rehashing, 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)." There was no
mention of " lack of work." And, on her fourth
opportunity to explain her actions, during her deposition on
November 18, 2014, the sole reason she gave, yet again, was
performance issues. When asked if there were any other
reasons, she said no. Nonetheless, while testifying during
trial on January 27, 2015, she cited performance issues and
renewed her " lack of work" excuse. The evidence
establishes that on five separate occasions, Goodman had an
opportunity to explain why she terminated Plaintiff. And
nearly every time she gave a different answer from the
Plaintiff has not presented evidence that his position was
subsequently filled, which is the kind of evidence typically
submitted when lack of work is set forth as the legitimate
business reason, he has put forth evidence that Goodman hired
full-time store employees during the same time frame she was
tasked with staffing her stores down. Apart from these hiring
decisions, the Court finds Goodman's statements to be so
lacking in credibility that her " lack of work"
assertion merits no weight absent evidence to the contrary.
Thus, Defendant's inconsistency in citing the reasons for
Plaintiff's termination is sufficient to establish
Legitimate Non-Discriminatory Reason
of work is a permissible basis for employment decisions.
Mirza v. Dept. of Treasury, 875 F.Supp. 513, 521
(N.D. 111. 1995). Job performance is also widely recognized
as a valid, non-discriminatory base for employment decisions.
Chappell, 12 F.Supp.2d at 517 (citing Evans v.
Technologies Applications & Serv. Co., 80 F.3d 954, 960
(4th Cir. 1996)). In wrongful termination suits, what is
relevant is " the perception of the decision maker...
not the self-assessment of the plaintiff." Hawkins
v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir. 2000).
put forth two legitimate non-discriminatory reasons for
Plaintiff's termination -- poor performance and lack of
Defendant articulated nondiscriminatory reasons
(e.g., that there was a lack of work and that
Plaintiff's work performance was inadequate) for its
actions, the preponderance of the evidence establishes that
these proffered reasons are pretextual.
Shifting Rationale for Termination
Fourth Circuit has stated that a plaintiff presents
sufficient evidence of pretext by showing that his employer
first asserted he was being fired for lack of work, and then
later alleged that he was fired for unsatisfactory job
performance. Holland, 487 F.3d at 222 (citing
Alvarado v. Bd. of Trustees, 928 F.2d 118, 122-23
(4th Cir. 1991)). In this case, the same evidence used to
establish causation applies
to pretext. Goodman has fluctuated between two contradictory
Inconsistent Application of Policy
[A]n informal policy is no less a policy," and its
selective, erratic, or " case-by-case" application
by the employer may suggest pretext. See Merrill
v. Old Dominion Freight Line, Inc., 601 F.3d 289, 297-99
(4th Cir. 2010). On its own, an employer's failure "
to follow its own internal procedures does not necessarily
suggest that the employer was motivated by illegal
discriminatory intent." Vaughan v. Metrahealth Cos.,
Inc., 145 F.3d 197, 203 (4th Cir. 1998) (abrogated on
other grounds) (quoting Randle v. City of Aurora, 69
F.3d 441, 454 (10th Cir. 1995). See also Daniel
v. Pickens Cnty. Sheriff Dept., 2009 WL 2394343, *18
(D.S.C. July 31, 2009) (same). The manner in which an
employer implements a disciplinary policy " might be
evidence of pretext." Matvia v. Bald Head Island
Mgmt. Inc., 259 F.3d 261, 272 (4th Cir. 2001)).
matter, the Court finds Goodman's testimony to be evasive
and incredible. The Court first considers Goodman's
deposition testimony. Despite nearly 10 years of experience
in a managerial role with Mini Price, nine of which she spent
as an area manager for more than 15 stores, Goodman was
unable to recall the name, store location, or time period of
at least one individual she claimed to have terminated for
productivity issues, such as failure to properly complete
paperwork. Goodman Dep. 45:8 - 46:2. Goodman's inability
to recall these details is suggestive of pretext.
although Goodman stated that she had a policy that she
follows, she was not sure whether her process was the
Q: Okay. So can you tell me what that policy is, what the
procedure is for counseling an employee?
A: I can tell you the policy of what I practice, which is I
follow a verbal and then I go through a written process. I do
two write-ups. One of those write-ups may end in termination
if it gets to the second one. If it gets to the second
write-up and then there's a third one, that's when
termination is. So it could possibly be a termination
anywhere between your first write-up and your second one, but
by the third time that you're getting written up, you
will be terminated.
Goodman Dep. 19:6-17.
Q: Okay. And is that policy in the Mini Price handbook?
A: I cannot be for certain.
Q: Okay. So is it accurate to say that that's your policy
as a -- your personal policy, not the company's policy?
A: That's what I practice.
Q: And you're not sure if that's what the company
Goodman Dep. 19:18-20:2.
despite the fact that she supposedly did not know the
corporate policy for counseling employees, she stated that
she knew it was written in the employment handbook, a
handbook she also stated she had not seen. Goodman Dep.
18:3-19:1. When asked again, she reiterated that
was not sure whether what she practiced was company
Court finds it incredible that Goodman, who had eight years
of managerial experience, managing upwards of 15 Mini Price
stores, a) had not seen the employee handbook and b) did not
know whether the progressive discipline policy she followed
for nearly ten years was the same policy found in the
employee handbook she never bothered to read.
testimony at trial was likewise incredible. First, Goodman
unsuccessfully attempted to distance herself from her
deposition testimony that she practiced a set policy for
eight years. On the stand, she attempted to argue that the
policy she mentioned was one that she used currently, not
when Plaintiff was an employee. The Court finds that during
her deposition, Goodman volunteered information regarding a
practice she had developed and used for eight years, which
clearly included the timeframe in which Plaintiff was an
employee. Indeed, after a lengthy discussion regarding the
verbal and written warning documents, Goodman was asked:
Q: Okay. And how long has this been the policy that you have
A: Eight years.
Q: Okay. So starting back in 2006 when you were the Southside
area manager, you had been following this procedure since
Goodman Dep. 22:13-15; 19-22.
the Court notes that Goodman stated that at the time she
fired Plaintiff she did not have any forms. Tr. 212:1. Not
only did this contradict Goodman's testimony at her
deposition, it also contradicted evidence Plaintiff presented
of the " Verbal Counseling" and " Written
Warning" documents she used in 2009 with other
addition, Goodman gave conflicting testimony regarding the
use of forms and whether she was even permitted to use them.
At one point she testified, " I used all kinds of
different forms, and sometimes I didn't use forms at
all." Tr. 218:3-5. Immediately thereafter she stated,
" [W]e weren't authorized to use forms." Tr.
218:7-8. And still later she testified that when Sean was an
employee, she and her fellow area managers " were able
to do what [they] wanted to do as far as documents." Tr.
219:20-21. This testimony conflicts with her testimony during
her deposition in which she answered in the affirmative
whether the " Written Warning" document was a form
document maintained by Mini Price. Goodman Dep. 20:14-20.
That the document was maintained by Mini Price is believable
because it includes a field for the HR department to
complete. The format of these forms, and the fact that she
and her fellow area managers used them, undercut
Goodman's contention that she was not authorized to use
this testimony the Court concludes that regardless of whether
Mini Price had a formal policy for progressive discipline,
Goodman, by her own admission, did. The fact that Goodman did
not follow her own policy with Plaintiff and that she gave
false and misleading statements about whether this was a new
policy or one which she had used for years at Mini Price,
addition, the Court does not find Goodman's
characterization of the document as documentation of a verbal
warning to be credible. First, the Court considers the
context of how the meeting arose. The impetus for their
October meeting was an email conversation in which Plaintiff
expressed a desire to advance with the company and his
concerns that his need for a religious accommodation was
viewed as a hindrance to that goal. In response, Goodman
downplayed his need for Saturdays off and stated that his
advancement was stymied by performance issues. But
critically, in that message she did not use any language that
suggested that his performance issues were so significant
that his continued employment was in jeopardy. There is a
stark difference between being promotable (which Plaintiff
was concerned about) and being on the brink of getting the
pink slip. If Plaintiff was in danger of losing his job,
Goodman would have said so in that email. Her failure to do
so lends credence to Plaintiff's characterization of the
in-person meeting that followed as merely a coaching session
in which Goodman outlined the areas in which Plaintiff needed
to improve in the context of obtaining his desired promotion,
and that Goodman did not mention the possibility of
termination. In other words, if Goodman sought to communicate
the supposed severity of Plaintiff's standing with the
company, she would have stated that in her email instead of
framing his performance issues as matters impeding his
advancement into store management only.
unlike the document entitled " Verbal Counseling,"
a form entitled " Work Performance" does not give
any notice whatsoever that termination would follow. The
Verbal Counseling form has fields that clearly communicate
the severity of a violation. The field " Reason(s) for
verbal counseling," indicates why it is being given; the
field " Previous actions taken" indicate that the
conduct being addressed has been raised as a problem
previously; and the field " Corrective action
required," which also appears in bold font, indicates
what an employee must do to adequately address the issue.
Moreover, the use of the term " required" signals
that any language that follows would entail mandatory actions
for the employee and one could reasonably infer that a
failure to take those actions might result in termination.
Court also notes that the Work Performance form was
Goodman's second means of written communication with
Plaintiff, with the first being the aforementioned email
message. If Goodman intended to communicate that termination
would result if Plaintiff's performance did not improve,
she would have given him the " Verbal Counseling"
form, a document she had used in the past with other
employees. If that document was unavailable and she had to
use the Work Performance form, a form no other area manager
had seen or used, and a form Goodman admitted she had
never given to any other employee, she would have noted on
the form that termination was a possibility if
performance did not improve. Her failure to do either,
coupled with her failure to raise termination in her email to
Plaintiff, causes the Court to doubt that she ever told
Plaintiff he could be fired because of performance issues.
clear to the Court that the context of Goodman's meeting
with Plaintiff was his suitability for promotion not
termination. Further, despite engaging in two means of
written communication with Plaintiff -- once by email and a
second time by use of the Work Performance form -- Goodman
never mentioned that Plaintiff was in danger of losing his
job. These facts, along with her failure to follow her own
policy of progressive discipline establish that Goodman's
decision to fire Plaintiff was pretexual.
Employer's Longstanding Tolerance of Plaintiff's Job
added relevance to the pretext determination is whether the
plaintiff had a disciplinary record prior to termination.
Jaudon, 125 F.Supp.2d at 170. In determining whether
an employer's performance-related rationale for
terminating plaintiffs employment was genuine, the Court
should consider " whether the performance-related
problems were longstanding such that the employer had
tolerated them for a long time, and suspiciously ceased
tolerating the performance deficits around the time the
employee engaged in protected activity.... [T]hese factors
help courts distinguish cases where performance concerns are
genuine from those in which they are a mere pretext for
retaliation." Louis v. Sun Edison, LLC, 797
F.Supp.2d 691, 705 (D. Md. 2011).
began working for Mini Price in February 2007. In nearly four
years, it is undisputed that the only physical evidence of
any issue whatsoever Defendant had with Plaintiff's
performance was the Work Performance document Goodman
completed two days after Plaintiff's email, his third
complaint about his religious accommodation.
does not dispute that he had been coached regarding his job
performance while he was an employee. Indeed, Goodman
routinely provided coaching to all of her store employees.
However, there is no evidence that prior to August 2010, the
earliest date of his protected activity, Goodman (or any of
the store managers Plaintiff worked for) counseled him or
expressed dissatisfaction with his performance such that he
was in danger of termination. Moreover, all of the negative
statements regarding Plaintiff's performance were drafted
months after his termination as a result of Defendant's
effort to either fight Plaintiff's EEOC complaint or his
VEC claim. The fact that Goodman and Hinson did not document
these alleged concerns contemporaneous to their occurrences
lessens their credibility.
record before the Court includes evidence of Plaintiff's
errors concerning contracts and failure to make the requisite
number of daily collection calls. In the Court's view,
the problem with these documents is that with one exception,
they all account for performance errors that occurred after
Plaintiff engaged in his protected activity. The call logs
are from September 2010 to November 2010. In addition,
Defendant alleges that Plaintiff was consistently drafting
contracts with the wrong price. The only contract Defendant
submitted in support of this allegation is dated July 11,
2010, but it does not establish an error by
contends that Plaintiff's alleged failure to complete
contracts stems back to at least June 2, 2010. Indeed,
Defendant submitted forms that show that since March 2010,
when Goodman became Plaintiff's area manager, there were
at least four occasions on which Plaintiff failed to submit
forms correctly: June 2, 2010, July 11, 2010, August 27,
2010, and October 15, 2010. The Court notes that there is no
evidence that Goodman warned Plaintiff about her concerns
until after his protected activities -- his two discussions
with her in August, his Oct. 17 email, and the Oct. 20
with the fact that despite nearly four years of employment,
Defendant has not produced any performance reviews for
Plaintiff and there is evidence that Plaintiff consistently
excelled in his mystery shops, as a whole, the record
establishes that whatever shortcomings existed with respect
to Plaintiff's performance, Goodman tolerated them until
he engaged in protected activity. This is despite the fact
that Goodman had a " set practice" she had followed
for eight years to coach and or discipline employees.
Plaintiff has put forth sufficient evidence that
Goodman's " proffered explanation is unworthy of
credence," Rowe v. Marley Co., 233 F.3d 825,
829 (4th Cir. 2000), and that Goodman's discriminatory
motive was the determining factor in his termination.
Complaint requests back pay and prejudgment interest in the
amount of $49,888.99; future back pay or " front
pay" in the amount of $86,487.16 for an estimated four
(4) years; compensatory damages of an undetermined amount;
punitive damages in the amount of $163,623.85; and
attorneys' fees and costs.
seeks back pay in the amount of $49,888.99 and prejudgment
interest. It is undisputed that at the time of his
termination on January 31, 2011, Plaintiff's salary was
$21,500.00 per year and that obtained full-time employment in
November 2014. Accordingly, the Court calculates
Plaintiff's back pay for 46 months at a rate of
$21,500.00 per year as $82,416.52.
Court finds that Plaintiff's testimony at trial
established that he mitigated his damages in the interim by
taking part-time positions as a nightclub doorman and front
desk staff at a hotel and therefore reduces his back pay
amount by $9,600.00 to $72,816.52.
case, the back pay is compounded for the fifty-three (53)
months between Plaintiff's termination and the date of
this Order. The Court will use a 0.166 % rate of interest,
based on the approximate average interest rate during the
time period. Using the formula set forth in Ford,
the Court will grant Plaintiff $150,730.19.
the Court hereby ORDERS a back pay award in the amount of
Court has reviewed the record and finds there is insufficient
basis for an award of front pay.
Court has reviewed the record and finds that Plaintiff did
not offer any evidence of emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, or
other nonpecuniary losses.
Therefore, there is insufficient basis for an award of
Plaintiff has not demonstrated that Defendant engaged in a
discriminatory practice with malice or reckless indifference,
the Court declines to award punitive damages.
prevailing party on his claim for retaliatory discharge,
Plaintiff is entitled to reasonable attorneys' fees and
costs. 42 U.S.C. § 2000e-5(k).
carefully considering the evidence introduced at trial, the
arguments of counsel, and the law pertaining to this matter,
the Court FINDS that Defendant is liable on Plaintiff's
retaliation claim based on his termination. Accordingly, the
Court hereby ENTERS JUDGMENT FOR SEAN MOHAMMED and awards him
$150,730.19 in back pay with prejudgment interest, as well as
reasonable attorneys' fees and costs. Within fourteen
(14) days of the date of this Order, Plaintiff is ORDERED to
submit proper documentation in support of the attorneys'
fees and costs that he seeks for prevailing on his claim for
Clerk is DIRECTED to send a copy of this Memorandum Opinion
and Order to counsel for the Parties.
The second page of the VEC document, which
asked, inter alia, what reason was given to
applicant for his termination and whether the applicant had
been warned about his conduct, was blank.
Q: Okay. Why did you decide to terminate
Mohammed's employment in January of 2011?
A: The productivity was still going backwards. There
was no consistency in his work.
Q: Okay. Any other reasons?
A: No, not that I can think of.
The Court in Ford employed the
following compound interest formula: F = P [1 (i/12)
]m. Where F = future value of money (total of
principal and interest), P = principal (back pay award), i =
interest rate expressed as a decimal, and m = number of
months compounded. Ford, 984 F.Supp. at 392 (citing
Jose A. Sepulveda et al., Theory of Problems of Engineering
Economics MICS 12 (1984)).
The record establishes that Defendant's
stated reason for reclassifying Plaintiff was pretext.
Although Defendant claims the measure was taken as part
of a reduction in store hours, Goodman's inconsistent
statements as found in the VEC documentation, her deposition,
her affidavit, and her testimony at trial. In her written
statement to the VEC, Goodman stated that she made Plaintiff
a floater because of complaints she had received from the
store managers. Pl.'s Ex. 6, " T. Goodman 10/21/10 -
1/31/11 Summary." In her deposition, she expressly
denied that she made him a floater as a means of punishment.
Goodman Dep. 60:10 - 17; 61:2 - 6. Rather, she stated that
she reclassified him because he was familiar with the stores
and the properties. She also stated that it was a positive
opportunity for Plaintiff. Goodman Dep. 67:5 - 25. In her
affidavit, she stated that she chose him because he had the
most experience and had familiarity with almost all the store
locations. (ECF No. 36, Pl.'s Reply to Def.'s Resp.
in Opp. to Pl.'s Mot. for Summary J., Affidavit of
Tashondi Goodman, Dec. 16, 2014.) Finally, at trial, she
again denied that she made him a floater as a form of
discipline and that his productivity was not a factor. Tr.
Q: Okay. So you have a Mini Price employee handbook;
is that correct?
Q: Okay. And does that handbook have a policy in it
regarding counseling of employees.
A: I haven't seen the handbook. 1 know
there's one in there. I don't know how it's
Goodman Dep. 19:25 - 20:2.
Q: The document you're talking about, if it gets
to the written stage, is that a form document that the
Q: So there's a Mini Price written warning
Robert Hinson an area manager stated that
he recognized the Verbal Counseling and Written Warning
forms, but did not recognize the Work Performance form.
See Tr. 145:16-146:1. The Court also notes that
although Ms Higgerson stated at trial that the Work
Performance and written warning forms were " used
interchangeably," (Tr. 262-14-15) that other managers
had used the Work Performance form and she had seen
them in the files of other employees (Tr 25420-24), when
asked whether she was " sure" that she had seen the
Work Performance form applied to other employees, she stated,
" I've seen this format. I'm not sure as far as
the title. It may have been difference, but the format, yes,
I've seen this." Tr. 259:2-6. The Court also notes
that Defendant failed to produce any evidence that the Work
Performance form was used by anyone else.
The Court does not find that Plaintiff
made an error regarding pricing for the January 2, 2011
contract because the rate sheet Defendant included only
covered August 9, 2010 to November 30, 2010. The chart did
not list the prices for January 2011 or even December 2010.
The Court also notes that the other contracts Defendant
attempted to enter into evidence were illegible and therefore