MEMORANDUM OPINION
This matter is before the court on Defendant JeffersonSmurfit's Motion for Summary Judgment, Plaintiff Elder LewisBanks' Motion to Be Relieved of the Obligation to Pay forMediator's Fee, and Defendant's Motion to Strike Affidavits toPlaintiffs Response Brief to Defendant's Motion for SummaryJudgment.1 For thereasons set forth herein, Defendant's Motion for SummaryJudgment will be granted. Plaintiffs Motion to be Relieved ofthe Obligation to Pay for Mediator's Fee and Defendant's Motionto Strike will be denied.
I. INTRODUCTION
Plaintiff Elder Lewis Banks, acting pro se, initiated thisaction against his former employer, Defendant Jefferson-Smurfit,on August 25, 2000, asserting violations of Title VII of theCivil Rights Act of 1964, 42 U.S.C. § 2000e, 42 U.S.C. § 1981,42 U.S.C. § 1983, and the U.S. Constitution. Plaintiff, who isblack, claims that Defendant discriminated against him byfailing to promote Plaintiff to a position filled by a whiteman, discharging Plaintiff on the basis of his race, andretaliating against him for filing grievances with the union.Defendant asserts that Plaintiffs claims lack merit and movesfor summary judgment. For the following reasons, Defendant'smotion will be granted.
II. FACTS
Plaintiff commenced his employment at Defendant's foldingcarton and boxboard manufacturing facility in Greensboro inDecember 1996. After working for six months in the finishingdepartment, Plaintiff was reassigned to an entry-level "sheeter"job in the printing department. Plaintiff was responsible foroperating a machine which cut boxboard to the size specified bythe customer.
In December 1997, Defendant hired Kevin Wells for the positionof second pressman in the printing department. The secondpressman position was two levels above the sheeter position inthe printing department's job progression. Mr. Wells was hireddue to his previous training on printing presses. Plaintiff hadno such experience and had not been trained for the secondpressman position. (Def.'s Mot. Summ. J., Seel Aff. ¶¶3-6.)2
On January 5, 1998, Plaintiff filed a grievance with the localunion protesting Defendant's hiring of Mr. Wells without firstposting the position internally. Under the collective bargainingagreement which existed between Defendant and the GraphicCommunications Union, Local 465-S, Defendant was required topost entry-level job openings internally before turning to thegeneral public for applicants. If no current employee was deemedqualified for the position, Defendant was free to seek qualifiedapplicants from outside of the company. Defendant was notrequired to post job openings for positions that were notentry-level. (Def.'s Resp. Opp'n Pl.'s Mot. Order CompellingDisclosure or Disc., attachment to Def.'s Resp. Pl.'sInterrogs.)
Defendant also had an agreement with the union regarding thecontinuous operation of its machinery at peak production times.If production requirements demanded, the plant would operate 24hours a day, with workers relieving each other as the shiftchanged so that the machines were never shut down. It wasDefendant's policy that whenever the company was in such"continuous operations," an employee could not leave his postuntil properly relieved, and would be requiredto work overtime if necessary until a replacement was located.(Id.)
On January 15, 1998, a Thursday, Plaintiff was working thesecond shift, from 3 p.m. to 11 p.m. Before the end of hisshift, Plaintiff was approached by his supervisor and told thathis replacement, the third-shift sheeter, would not be coming towork that night. Plaintiff responded that he was not stayinglate and would be going home at the end of his shift.
Plaintiffs supervisor reported this to his own superior, MarkGrubbs, who then told the shift supervisor, Mr. Lukasik. Afterreviewing the outputs of Plaintiffs machine, Mr. Lukasik decidedthat Plaintiff's machine did not need to be run continuouslythat night. Mr. Grubbs then told Plaintiff he could go homebecause he was not needed. He also reminded Plaintiff that ifhis replacement did not show up, Plaintiff could be required towork overtime of up to four hours. Plaintiff punched out at11:05 p.m. and went home. (Pl.'s Dep. filed June 20, 2001 Ex. 7(Arb.Op.), at 4-5.)
The following day, Friday, January 16, 1998, Plaintiff heardother employees discussing the fact that Plaintiff had left workthe previous night without being relieved. Plaintiff asked themif he could be terminated for leaving before his replacementarrived. They told Plaintiff that he could. (Id. at 5.)
Later that evening, Plaintiffs replacement called in onceagain to report that he would not be in to work. This messagewas not immediately received by any of the supervisors, however,and was not communicated to Plaintiff. At the end of his shifton January 16, Plaintiff shut down his machine without beingrelieved. He then turned in his paperwork to Mr. Lukasik in theoffice, who told Plaintiff to have a good weekend. Plaintiffclocked out at 11:05 p.m. and went home. (Id.)
About 20 minutes later, Mr. Grubbs noticed that Plaintiffsmachine was dark and was not in operation. After checking thecall-in sheet, Mr. Grubbs realized that Plaintiffs replacementhad called in absent several hours before the end of the shift.Mr. Grubbs then called Mr. Lukasik at home, who said he had notknown that Plaintiffs replacement was absent and had not givenPlaintiff permission to go home without being relieved. (Id.)
The next work day, Monday, January 19, 1998, a meeting wasconducted between Plaintiff, Mr. Lukasik, and a unionrepresentative to discuss Plaintiffs conduct. When told that hewas being charged with leaving his post without being relieved,Plaintiff became loud and boisterous and stated, "this is amodern day lynching." At the close of this meeting, Plaintiffwas suspended pending further investigation. (Id. at 6.)
During the subsequent investigation, Plaintiff asserted thatno one had told him that he was needed to stay late the night ofJanuary 16, as they had done in the past. He also argued thatthe plant had not been in continuous operations that night.Nevertheless, the plant manager found that Plaintiff haddeliberately violated a clearly stated plant rule by leaving hispost without being properly relieved and issued Plaintiff aletter of discharge dated January 27, 1998. (Id.)
Prior to this incident, other employees had been disciplinedfor walking off the job, but under different circumstances. TonyStanley, a white employee, had left his post without beingrelieved and received a two-day disciplinary layoff. However,Mr. Stanley convinced his supervisors that he left only becausehe mistakenly believed he had seen his replacement arrive, whenin fact the replacement had not arrived. He also expressedremorse for his conduct and promised itwould not happen again. (Def.'s Mot. Summ. J., Seel Aff. ¶¶12-14.)
Mary-An Anderson, another white employee, received athree-week disciplinary layoff without pay and six months'probation for walking off the job on a Sunday morning. Ms.Anderson had previously told her supervisor, who was absent onthe day in question, that she could not work on Sundays due toher religious convictions. After expressing remorse for heractions and promising to meet certain conditions in the future,Ms. Anderson was allowed to return to work. (Id.)
Following Plaintiffs discharge on January 27, 1998, Plaintifffiled another grievance, asserting that he had been dischargedfor filing a grievance regarding Mr. Wells.3 Pursuant tothe collective bargaining agreement, the matter was referred toarbitration. After conducting a hearing on January 6, 1999, thearbitrator found Plaintiff guilty of violating company policy byleaving his post without being properly relieved. However, thearbitrator also found that under the circumstances, dischargewas too severe a penalty, and ordered Plaintiff reinstatedwithout back pay on April 15, 1999.4 (Arb. Op. at 1,11-15.)
Plaintiff also filed a charge with the Equal EmploymentOpportunity Commission ("EEOC") on February 5, 1998, complainingof racial discrimination and retaliation by Defendant. Followingits investigation, the EEOC declined to pursue the matterfurther and issued Plaintiff a right-to-sue letter on December8, 1999.5
After being reinstated, Plaintiff filed several additionalgrievances against Defendant, based on "harassment andretaliation." Plaintiff asserted that he had been unfairlydeprived of seniority after being reinstated, that hissupervisors had mistreated him, and that investigation of hisprevious grievances had been unfair, among other things. Thesegrievances became the subject of several meetings betweenPlaintiff and management in the summer of 1999.
At several of the grievance meetings, Plaintiff attempted toopen the meeting with a religious invocation.6 After onesuch incident, a management representative informed Plaintiffthat he was free to pray privately prior to his grievancemeeting, but that open prayer in company forums would not beallowed. When Plaintiff attempted a similar invocation at thenext meeting, the management representative terminated themeeting. Plaintiff filed another grievance in protest.7
In August 1999, Plaintiff was told by a supervisor that hisproduction levels were low compared to other employees.Believing this to be unfair, Plaintiff filed anothergrievance. In October 1999, Plaintiff received a written warningregarding his level of absenteeism. Plaintiff filed anothergrievance, asserting that he was not given a verbal warningprior to receiving the written warning.
III. DISCUSSION
A. Standard of Review
Summary judgment is appropriate when the pleadings and otherevidence show that there is no genuine issue of material factand the moving party is entitled to judgment as a matter of law.See Fed.R.Civ.Proc. 56(c); Celotex Corp. v. Catrett,477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).The essential question for the court's determination is whetherthe evidence "is so one-sided that one party must prevail as amatter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). Where thenonmoving party fails to make a sufficient showing to establishan essential element of its case, summary judgment is properbecause a "complete failure of proof" on an essential elementrenders all other facts immaterial. Celotex, 477 U.S. at322-23, 106 S.Ct. at 2552.
B. Analysis
Plaintiff asserts that Defendant discriminated against him onthe basis of his race in violation of Title VII of the CivilRights Act of 1964, 42 U.S.C. § 2000e, et seq.,42 U.S.C. § 1981 and 42 U.S.C. § 1983, by failing to promote Plaintiff tothe position given to Kevin Wells, discharging Plaintiff forleaving his post without being relieved, and retaliating againstPlaintiff in various ways as a result of grievances he filedwith the union. Defendant responds that Plaintiff has failed toestablish a prima facie case of discrimination or retaliationbecause Plaintiff was not qualified for the position given toMr. Wells and Plaintiff was appropriately disciplined forviolating a clearly established plant rule.
At the outset, the court notes that Plaintiff may not rely on42 U.S.C. § 1983 to advance his claims. Section 1983 provides afederal cause of action to those whose constitutional rights areviolated by a state or local government actor.8 AsDefendant is a private employer, § 1983 does not providePlaintiff with a cause of action against Defendant.
To survive summary judgment on his remaining claims, Plaintiffmay proceed in either of two ways. First, Plaintiff may presentdirect evidence that race was a determining factor inDefendant's employment decisions. See Equal EmploymentOpportunity Commission v. Northwest Structural Components,Inc., 822 F. Supp. 1218, 1219 (M.D.N.C. 1993). Alternatively, ifPlaintiff is unable to present direct evidence ofdiscrimination, Plaintiff may establish his case throughcircumstantial evidence, using the McDonnell Douglasburden-shifting scheme.9 See McDonnell Douglas Corp. v.Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668(1973). Under this scheme, Plaintiff must first present evidencedemonstrating a prima facie case of discrimination. See id. IfPlaintiff succeeds in establishing a prima facie case, theburden of proofshifts to Defendant to articulate a legitimate,non-discriminatory reason for its actions. See id. Plaintiffthen must be given the opportunity to show that Defendant'sstated reasons are pretextual or a mere "coverup" for raciallydiscriminatory action. See 411 U.S. at 804-05, 93 S.Ct. at1825-26.
Plaintiff has asserted what are essentially three distinctdiscrimination claims in this case: 1) failing to promotePlaintiff to a position filled by a white employee; 2)discharging Plaintiff; and 3) retaliating against Plaintiff forPlaintiffs union grievances against Defendant.
1. Discriminatory Failure to Promote
In order to establish a prima facie case of discriminatoryfailure to promote, Plaintiff must demonstrate the following: 1)Plaintiff is a member of a protected class; 2) Plaintiff appliedfor the position in question; 3) Plaintiff was qualified for theposition in question; and 4) Plaintiff was rejected undercircumstances giving rise to an inference of unlawfuldiscrimination. See Carter v. Ball, 33 F.3d 450, 458 (4th Cir.1994).
Beyond qualifying as a member of a protected class, Plaintiffhas failed to establish any of the elements of a prima faciecase of discriminatory failure to promote. First, Plaintiffnever applied for the second pressman position awarded to KevinWells, nor was he legally entitled to an opportunity to do so.The second pressman position was not an entry-level position,but the third position in the progression of jobs within theprinting department. Although it was Defendant's policy to postentry-level positions internally so that current employees couldreceive preferential consideration for those jobs, this policydid not extend to non-entry level positions. (Def.'s Resp. Opp'nPl.'s Mot. Order Compelling Disclosure or Disc., attachment toDef.'s Resp. Pl.'s Interrogs.) Thus, Defendant had no duty topost the second pressman job internally, and Plaintiff had nocorresponding right to apply under company policy.
Secondly, even if Plaintiff had applied for the secondpressman position, he was not qualified. Plaintiff worked as asheeter, an entry-level position in the printing department, andhad not been trained to operate the press. Mr. Wells, on theother hand, had received such training. Plaintiff has presentedno evidence whatsoever that he was qualified for the position ofsecond pressman.
Plaintiffs lack of qualifications makes it virtuallyimpossible for him to demonstrate the fourth element of a primafacie case, that he was rejected for the position undercircumstances giving rise to an inference of discrimination. Theposition was a skilled one requiring training that Plaintiff didnot have, and the position was eventually filled by a personwho, unlike Plaintiff, had received such training. Plaintiffsimply has presented no evidence that Defendant rejected him fordiscriminatory reasons or under questionable circumstances.
Plaintiff does assert that he assisted in training Mr. Wellsfor his new position and for that reason was just as qualifiedas Mr. Wells. However, even taking this fact in the light mostfavorable to Plaintiff, the fact remains that Plaintiff was asheeter and that the job of second pressman was not next in theline of progression within the printing department. Moreover,Defendant had no responsibility to open the job to Plaintiff orothers in the sheeter position because the job of secondpressman was not an entry-level position. Plaintiff has failedto meet his burden of production on his claim of failure topromote.
2. Discriminatory Discharge
To establish a prima facie case of discriminatory discharge,Plaintiff must demonstrate that 1) Plaintiff is a member of aprotected class; 2) Plaintiff was qualified for his job and wasperforming the job satisfactorily; 3) despite his qualificationsand performance, Plaintiff was discharged; and 4) the positionremained open to similarly qualified individuals afterPlaintiff's discharge. See Carter, 33 F.3d at 458-59.
Plaintiff has made a partial showing of the elements requiredfor a prima facie case of discriminatory discharge, but asbefore, his case ultimately falls short of what is required tosurvive summary judgment. Plaintiff has established that he is amember of a protected class, that he was qualified for theposition of sheeter, and that he was discharged. However,Plaintiff has failed to demonstrate that he was performingsatisfactorily at the time of his discharge. The evidence showsthat Plaintiff committed a serious offense by failing to stay athis post until properly relieved, in violation of the collectivebargaining agreement. (Arb. Op. at 12.) Moreover, a supervisorreminded Plaintiff of the rule only 24 hours before he committedthe violation, and Plaintiffs co-workers confirmed on the day ofthe violation that he could be terminated for such conduct.
Plaintiff argues that this violation should not be heldagainst him for several reasons. First, Plaintiff alleges he wasnot told that his replacement would be absent the night ofJanuary 16, and thus Plaintiff was unaware that he was needed towork overtime.10 However, Plaintiff was expressly warnedthe previous night that he would need to work overtime if hisreplacement did not report to work. Moreover, on the night ofJanuary 15, the last occasion on which Plaintiffs replacementhad failed to report for work, Plaintiff was allowed to go homeonly after he asked for and received special permission to doso. Thus Plaintiff knew or should have known that he lacked theauthority to make such a determination himself.
Plaintiff also asserts that the plant was not in continuousoperations that night, and thus his machine did not need to berun during the third shift. Plaintiff has presented no evidencesupporting this assertion. It is uncontroverted that Plaintiffwas allowed to go home the previous night only after supervisorsevaluated his output and determined that Plaintiffs machine wasnot needed during the third shift that night. At the same time,Plaintiffs supervisor reminded him that in the future, he wouldbe required to stay over if his replacement had not arrived.(Id. at 4-5.)
Even assuming that Plaintiff had established a prima faciecase, Defendant has articulated a legitimate, non-discriminatoryreason for its action. See McDonnell Douglas, 411 U.S. at 802,93 S.Ct. at 1824. Defendant disciplined Plaintiff for violatinga clearly-established plant rule, just as it had done for otheremployees in the past.
Plaintiff, however, argues that Defendant's explanation ismerely a pretext for discrimination, see id., 411 U.S. at 804,93 S.Ct. at 1825, because other employees who committed similarviolations were given less serious sanctions than termination.In effect, Plaintiff alleges not only that Defendant's reasonsare pretextual, but that the disparate treatment of Plaintiff ascompared to those employees was itself racially discriminatory.
To establish such a claim of "discriminatory discipline," thefollowing elements must be shown under the McDonnell Douglasburden-shifting scheme: 1) Plaintiff is a member of a protectedclass; 2) the prohibited conduct in which Plaintiff engaged wascomparable in seriousness to the misconduct of employees outsidethe protected class; and 3) the disciplinary measures enforcedagainst Plaintiff were more severe than those enforced againstthose other employees. See Cook v. CSX Transp. Corp.,988 F.2d 507, 511 (4th Cir. 1993).
While the evidence does suggest that several other employeesreceived less severe disciplinary sanctions than Plaintiff forwalking off the job, Defendant has articulated legitimate,non-discriminatory reasons for the differences. See id. TonyStanley, a white employee, was given a two-day disciplinarylayoff. However, unlike Plaintiff, Mr. Stanley convinced hissupervisors that he left his post without relief by mistake andpromised it would not happen again. (Def.'s Mot. Summ. J., SeelAff. ¶¶ 12-13.) Mary-An Anderson, also white, was given athree-week disciplinary layoff and six months' probation;however, she too expressed regret for her actions and wasallowed to return to work only after agreeing to certainconditions. (Id. ¶¶ 12, 14.) By contrast, Plaintiff neverexpressed remorse for his actions and never agreed to obey therule in the future. (Id. ¶ 12.) Therefore, Plaintiff hasfailed to meet his burden on either a discriminatory dischargeor a discriminatory discipline claim.
3. Retaliation
To establish a prima facie case of retaliation, Plaintiff mustdemonstrate the following: 1) Plaintiff engaged in someprotected activity; 2) Plaintiffs employer took adverseemployment action against Plaintiff; and 3) a causal connectionexisted between Plaintiffs protected activity and the employer'sadverse action. See Carter, 33 F.3d at 460. Although thetemporal proximity of Plaintiffs protected action and theemployer's adverse action can be indirect proof of a causalnexus, "`mere knowledge on the part of an employer that anemployee . . . has filed a discrimination charge is notsufficient evidence of retaliation to counter substantialevidence of legitimate reasons'" for adverse action againstPlaintiff. Id. (quoting Williams v. Cerberonics, Inc.,871 F.2d 452, 457 (4th Cir. 1989)).
Plaintiff claims that his discharge on January 27, 1998, wasin retaliation for the grievance he filed on January 5, 1998,regarding the hiring of Kevin Wells.11 Plaintiff haspresented no evidence linking these two events other than theirtemporal proximity. Defendant, however, has presentedsubstantial evidence of a legitimate reason for Plaintiffsdischarge, as described above. Even assuming that Plaintiff methis burden of establishing a prima facie case by virtue of thetemporal proximity of these events, Plaintiff has presentedinsufficient evidence to rebut Defendant's legitimate reasons.See id.
Plaintiff also alleges other forms of adverse treatment,including loss of his seniority after being reinstated, unfairinvestigations of his grievances by management, a supervisor'stone of voice being "out of order" on a given occasion, asupervisor's warning that Plaintiffs production rate was low,and a written warning for excessive absenteeism. (Compl. ¶¶16-19.)Although Plaintiff filed grievances in response to these acts,he has presented no direct evidence suggesting a causal nexusbetween these adverse actions and any grievance filed. Indeed,the record reflects that most of Plaintiffs grievances werefiled in response to various acts of Defendant, not the otherway around.
Additionally, Plaintiff asserts that Defendant retaliatedagainst him by terminating one of Plaintiffs grievance meetingsafter Plaintiff attempted to give a religious invocation, inviolation of Plaintiffs First Amendment rights. However,Plaintiff is barred from pursuing this claim because he did notassert it in his EEOC charge or later amend his charge toreflect this claim. See Leskinen v. Utz Quality Foods, Inc.,30 F. Supp.2d 530, 533 (Md. 1998) (only claims stated in originalcharge, reasonably related to original charge, and developed byreasonable investigation of original complaint may be raised insubsequent Title VII suit), aff'd, 165 F.3d 911 (4th Cir.1998).
IV. CONCLUSION
For the reasons stated herein, the court will grantDefendant's Motion for Summary Judgment on each of Plaintiff'sclaims.
A judgment in accordance with this memorandum opinion shall befiled contemporaneously herewith.
JUDGMENT
For the reasons set forth in the memorandum opinion enteredcontemporaneously herewith,
IT IS ORDERED AND ADJUDGED that Defendant's Motion for SummaryJudgment [39] is granted.
IT IS FURTHER ORDERED that Plaintiffs Motion to Be Relieved ofthe Obligation to Pay for Mediator's Fee [24] and Defendant'sMotion to Strike Affidavits to Plaintiffs Response Brief [59]are denied. Plaintiffs Motion to Dismiss the Defendant's Answer[4] and Plaintiffs Motion to Dismiss the Defendant's Motion [61]are dismissed.
1. Plaintiff has also filed two additional motions styled"Plaintiff's Motion to Dismiss the Defendant's Answer Failure toState a Claim Upon Which Relief Can Be Granted" [4] and"Plaintiff's Motion to Dismiss and Objects to the Defendant'sMotion and Memorandum to Strike Affidavits of John Means Geroge[sic] Moyer Shaney Suffern [sic] and Other Material theDefendant's Motion and Memorandum to Strike Affidavits and OtherMaterial" [61]. These motions have no basis in fact andPlaintiff cited no law to make them material. They are subjectto disposal without further elaboration.
2. According to Plaintiff, however, he was asked to helptrain Mr. Wells on the operation of the press. (Compl. ¶ 1.).
3. Plaintiff filed a similar charge with the National LaborRelations Board ("NLRB"). This charge was deferred pendingresolution of the union grievance.
4. The NLRB subsequently dismissed Plaintiff's charge as aresult of the arbitrator's award.
5. Plaintiff originally filed suit in federal district courton February 10, 2000. The court dismissed that action withoutprejudice on August 17, 2000, for failure to assert that thePlaintiff had received a right-to-sue letter from the EEOC. Thecomplaint in the present action, filed August 25, 2000, curedthis defect.
6. According to Plaintiff, this invocation consisted of thestatement, "I'd like to give honor to my Lord and Savior, JesusChrist, for he is the power that made these proceedings todaypossible." (Pl.'s Dep. at 214, filed June 20, 2001.).
7. The subject of this grievance was never made part ofPlaintiff's EEOC charge. (Pl.'s Dep. Exs. 3, 4, filed June 20,2001.).
8. See Monroe v. Pape, 365 U.S. 167, 172, 81 S.Ct. 473,476, 5 L.Ed.2d 492 (1961) (noting that § 1983 targets those "whocarry a badge of authority of a State . . . whether they act inaccordance with their authority or misuse it").
9. The McDonnell Douglas burden-shifting scheme applies toboth Title VII and § 1981 claims. See Patterson v. McLeanCredit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 2377, 105L.Ed.2d 132 (1989).
10. Plaintiff also points to the fact that his shiftsupervisor told him to "have a good weekend" as he left theplant on the night of January 16. However, the shift supervisorwas in the office and could not see that Plaintiff's replacementwas not at his post.
11. Plaintiff's EEOC charge was not filed until after hisdischarge, and thus is not part of Plaintiff's claim ofretaliation.