Civ. No. JFM-98-1080.United States District Court, D. Maryland.
September 15, 1998.
MEMORANDUM
J. FREDERICK MOTZ, United States District Judge.
Plaintiff Nestor Talinao has brought this action against Hardware City, his former employer, alleging discriminatory termination in violation of Title VII. Talinao, a native of the Philippines, claims that he was terminated on the basis of his national origin. Defendant Hardware City has moved for dismissal, or, in the alternative, for summary judgment.[1] For the reasons that follow, I will grant summary judgment in favor of Hardware City.
I.
Talinao began working as a sales clerk at the Hardware City in Bowie, Maryland in 1991. He worked at the store without incident until 1996. In May 1996, Larry Callicoat was assigned to the Bowie store to work as the assistant manager. As part of his duties, Callicoat supervised the sales clerks, including Talinao.
On June 28, 1996, Callicoat was given the responsibility of distributing to store employees a memorandum reiterating the store’s policy governing employee breaks taken during work hours. When Callicoat approached Talinao to give him a copy of the memorandum, Talinao refused to accept the document and walked away. Callicoat persisted in his attempts to give Talinao the memorandum, and ultimately demanded that he either accept the document or leave the premises. When Talinao refused the demand, Callicoat advised Talinao that he intended to call the police to have him escorted from the premises. Callicoat claims that he warned Talinao that if he was forced to call the police, Talinao’s employment would be terminated. Eventually Callicoat called the police, and Talinao was terminated.
Talinao now alleges that he was terminated on the basis of his national origin. In support of his claim he alleges that on two occasions during the month prior to his firing, Callicoat observed him talking on the telephone in his native language, Tagalog. He claims that on both occasions Callicoat mocked his native tongue by “speaking gibberish and nonsensical phrases.” Talinao also alleges that during the week prior to his firing, Callicoat warned him that he was “going to get rid of [him].” He claims that he refused to accept the memorandum from Callicoat the evening of June 28, 1996 because he feared that Callicoat was terminating him, and that he refused to leave the premises because he feared Callicoat would then accuse him of abandoning his post. Talinao further alleges that when Callicoat terminated him he told him to “go back to [his] country.”[2]
II.
Talinao asserts a claim for discriminatory termination pursuant to Title VII. A plaintiff may prove a claim of discriminatory treatment under Title VII by direct or indirect evidence or by utilizing the judicially created scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under the McDonnell Douglas scheme, the plaintiff must first establish by a preponderance of the evidence a prima facie case of discrimination. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506 (1993) (internal citations omitted). Establishment of a prima facie case creates a presumption that the employer unlawfully discriminated against the employee, and the burden then shifts to the defendant to produce evidence that the adverse employment actions were taken for a legitimate, nondiscriminatory reason. See id. at 506-507 (internal citations omitted). If the defendant is successful in carrying this burden, the plaintiff must demonstrate by a preponderance of the evidence that defendant’s stated reason is pretextual, and that the real reason for defendant’s actions is the discriminatory one alleged. Seeid. at 507-508 (internal citations omitted). The ultimate burden of persuasion remains at all times with the plaintiff. See id. at 507.
Talinao’s claim must fail, since he cannot establish the requisite elements of a prima facie case of discriminatory discharge. A prima facie case consists of the following elements (1) plaintiff is a member of a protected class; (2) plaintiff was qualified for the job and performed the job satisfactorily; (3) in spite of plaintiff’s qualifications and performance, plaintiff was demoted and ultimately discharged; and (4) the position remained open to similarly qualified applicants after plaintiff’s dismissal. See Carter v. Ball, 33 F.3d 450, 458-9 (4th Cir. 1994) (internal citations omitted). In order to establish the second element of a prima facie case, plaintiff must demonstrate that he was performing at a satisfactory level and was meeting the employer’s legitimate expectations. See EEOC v. Western ElectricCo., Inc., 713 F.2d 1011, 1014 (4th Cir. 1983). In determining whether an employee is performing satisfactorily, only the employer’s perception is relevant. See Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980).
In this case, defendant has submitted substantial evidence that Talinao was terminated because, in the view of his employer, he was not performing his job satisfactorily. Both Callicoat and Rosenbloom stated in affidavits that Talinao was terminated as the result of his insubordination on June 28, 1996. In addition, Talinao has acknowledged that he refused to comply with Callicoat’s request that he accept the memorandum from store management, and that he refused to leave the premises despite repeated requests by Callicoat. It is certainly legitimate and reasonable for an employer to expect an employee to comply with the requests of his supervisor, and it is clear that Talinao chose not to do so. He thus cannot establish a prima facie case of discriminatory discharge.
Talinao counters that granting summary judgment to defendant is inappropriate since he has not yet had adequate time to conduct discovery. In support of this argument, plaintiff’s counsel has submitted an affidavit in accordance with Federal Rule of Civil Procedure 56(f), articulating the need for further discovery into such issues as defendant’s policies and procedures on discipline, discharge and insubordination; defendant’s record regarding discharging employees for insubordination; and defendant’s normal method of communicating information to employees. Under other circumstances I would permit discovery to proceed on such issues. Here, however, discovery would be fruitless in light of the facts, undisputed by Talinao, that (a) he refused to comply with a supervisor’s express directive either to accept a memorandum the supervisor was trying to hand to him or to leave the premises, (b) when he refused to do so, he was told that if he did not leave, the police would be called and that in that event his employment would be terminated, and he then forced the issue by requiring the supervisor to call the police. Absent an allegation, of which there is none, that other employees were not terminated despite having committed such acts of gross insubordination, Talinao simply cannot meet his initial burden that he was performing his job satisfactorily.[3] The “mere hope that something might turn up” in discovery is not sufficient to counter the substantial evidence submitted by defendant. See Goodell v. RehrigInternational, Inc., 683 F. Supp. 1051, 1054 (E.D. Va. 1988).
A separate order effecting the rulings made in this memorandum is being entered herewith.
ORDER
For the reasons stated in the Memorandum entered herewith, it is, this 15th day of September 1998
ORDERED:
1. The motion to dismiss, or, in the alternative, for summary judgment filed by defendant Hardware City is granted; and
2. Judgment is entered in favor of defendant Hardware City.