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Mohammed v. Central Driving Mini Storage, Inc.

United States District Court, E.D. Virginia, Norfolk Division

June 5, 2015


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[Copyrighted Material Omitted]

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          For Sean Mohammed, Plaintiff: Ari Micha Wilkenfeld, PRO HAC VICE, The Wilkenfeld Law Group, Washington, DC; David John Sullivan, Reaves Coley PLLC, Chesapeake, VA.

         For Central Drive Mini Storage, Inc., doing business as Mini Price Storage, Defendant: Lisa Ann Bertini, LEAD ATTORNEY, Andrea Ruege, Bertini & Hammer, PC, Norfolk, VA.

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         Raymond A. Jackson, United States District Judge.

         This 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.

         The 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.

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         A. Factual and Procedural History

         Plaintiff 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 issues.

         Plaintiff 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.

         On 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.

         On 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 remained.

         B. Stipulated Facts

         The 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

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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 Year 2010.
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 E.E.O.C.
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.

         C. Additional Factual Findings

         The 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; 19:8-11.
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. 18:1-19:2.
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.

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20. From February 2009 to June 2014, Goodman worked as an area manager for the four (4) Peninsula stores. Goodman Dep. 5:24-6:2, 11:19-22.
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. 19:6-17.
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. 25:23-25.
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. 25:13-18. Goodman

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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 Dep. 26:1-2.
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 status. Id.
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

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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. 52:3-14
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.

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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 potential.
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.[1] (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.[2] Goodman Dep. 42:8-11; 22-23.
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 ...

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