MEMORANDUM OPINION
This is an employment discrimination case in which the Plaintiff Victor V. Davis asserts claims against the Defendant Baltimore Hebrew Congregation pursuant to 42 U.S.C. §§ 1981, 1982 & 1983; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; as well as state law claims for breach of contract and wrongful discharge. Pending before this Court is Defendant’s Motion to Dismiss or, in the Alternative, for Summary Judgment (“Motion”) (ECF No. 14). The parties’ submissions have been reviewed and no hearing is deemed necessary. See Local Rule 105.6 (D.Md. 2011). For the reasons that follow, Defendant’s Motion (ECF No. 14) is GRANTED in all respects, except as to Defendant’s request for attorneys’ fees and costs.
BACKGROUND
This Court reviews the facts and all reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris,
The Plaintiff alleges that he worked without any major issues until April of 2009, but this contention is not borne out by the record. Davis attended weekly staff meetings in which Windman frequently had to inform him of jobs that had been assigned to him but were not completed in a timely manner. Deposition of JoAnn Windman 16-17, ECF No. 15-4; Davis Dep. 108-10. Davis acknowledges that he was informed of outstanding work issues in meetings, but states that, upon receiving notice, he completed all jobs. See, e.g., Davis Dep. 185-93.
As Facilities Manager, Davis initially had the authority to make schedules for maintenance personnel, but that responsibility was taken away from him in October 2008, about one year before his termination. Davis Dep. 57; Windman Dep. 9, 28, 54. Thereafter, Davis still had responsibility to ensure that maintenance jobs had adequate coverage by working directly with administrative employee Fred Rahming, an African-American, who took over the scheduling. Deposition of Fred Rahming Dep. 13-15, ECF No. 15-8; Windman Dep. 14-15. The Plaintiff also had the power to purchase materials on behalf of BHC, but lost that authority in October of 2008. Davis Dep. 96-97; Windman Dep. 53. Windman stated that Davis failed to comparison shop and overpaid for an expensive item, but Davis denies this. Wind-man Dep. 28, 52-54; Davis Dep. 97, 116-17. From that point forward, the Plaintiff was required to get permission from another BHC employee, Francie Gill, to make purchases. Davis Dep. 97-98; Windman Dep. 29, 38. Windman stated that part of the reason for taking scheduling and purchasing responsibilities away from Davis were to free up time for him to complete his maintenance work. Wind-man Dep. 53-54. Davis’s work performance did not improve. Id.
The Plaintiff also had issues with maintaining proper communication in the workplace. During the course of the Plaintiffs employment, it was often necessary for BHC to relay work orders to Davis by contacting him on his cell phone. Wind-man Dep. 21-22. Davis alleges that he always responded when contacted by telephone, see, e.g., id. at 101, but Windman testified that he frequently did not. Wind-man Dep. 22-24. Evidence shows that after Davis’s termination, BHC discovered that at least some voicemails from BHC to Davis were never opened and thus could not have been heard. Windman Dep. 66-67. Furthermore, the Plaintiff acknowledges that he failed to give proper notice and make sure that there was enough maintenance staff coverage when he took vacation in September 2009. Davis Dep. 123-24, 202-04. He concedes that it was a legitimate BHC policy not to allow vacation during the High Holidays.
With regard to personal interactions, there were numerous reports of the Plaintiff being disrespectful toward other staff. Davis Dep. 242-43; Windman Dep. 60-62. Davis acknowledges that complaints were received by Windman and relayed to him. Davis Dep. 242-43. In addition, under the Defendant’s policies, the Plaintiff was subject to an annual performance evaluation. Davis Dep. 132-50. He completed his portion of the evaluation for fiscal year 2005, but refused to do so in all other years of employment at BHC, despite repeated reminders. Windman Dep. 11-12, 20.
Another issue arose when the Plaintiff did not provide his driver’s license and auto insurance information upon the Defendant’s request. Because part of the Plaintiffs work responsibilities involved driving between the Temple and BHC’s two cemeteries to work on the gatehouses there, BHC stated that this information was necessary to ensure adequate insurance coverage and that it would pay the difference if the Plaintiffs premium increased. Windman Dep. 50-51. The Plaintiff did not provide the requested information because he objected to giving personal information that would allow BHC to contact his insurer and alert the insurer that he was using his personal vehicle for work purposes. Davis Dep. 111-14, 184-85. Davis alleges that - he eventually provided his driver’s license information and proof of insurance, but continued to object to providing certain insurance information because he did not want BHC to contact his insurer. Davis Dep. 183-85. Windman states that Davis provided his driver’s license information just before he was terminated. Windman Dep. 10-11.
With regard to the Plaintiffs allegations of race discrimination, he alleges that BHC was run like a “plantation,” with white employees in administrative positions and African-Americans in maintenance. Davis Dep. 254-57. Davis further alleges that BHC was like a plantation in that maintenance staff was required to serve lunch to the administrative staff. Compl. ¶ 4. The evidence reveals that there were African-American employees who worked in both maintenance and administrative jobs, and that the practice of certain employees serving food to others ended in 2002. Davis Dep. 254-57; Wind-man Dep. 31-33; PL’s Opp., ECF No. 15-1 at 8. The Plaintiff also alleges that he overheard Carol Caplan, a non-employee member of the Congregation, call the maintenance staff “darkies.” Compl. ¶ 14. This occurred “between twelve and eighteen months” before his termination. Davis Dep. 260-61. The Plaintiff did not report this incident to anyone at BHC. Id. at 273-74.
While on the job at BHC, Davis sustained injuries that he asserts give rise to disability discrimination claims. In 2003, he injured his shoulder in a fall from a ladder. Davis Dep. 24-33. He filed a claim for Workers’ Compensation for the shoulder injury and received benefits. Id. Then, in April 2009, Davis sustained an injury to his lower back while moving a bookcase. Compl. ¶¶ 5, 7; Davis Dep. 33-38. He alleges that BHC’s controller David Weiss attempted to discourage him from filing a Workers’ Compensation claim. Compl. ¶¶ 6-7, 28-29; Davis Dep. 234-36. The Plaintiff alleges that he was afraid that if he filed a Workers’ Compensation claim, he would be fired in retaliation. Compl. ¶ 6. Nevertheless, he filed a claim and received benefits. Davis Dep. 33-34. He underwent fusion surgery on his spine. Id. at 41-42.
When Davis returned to work following his back injury, his doctor limited him to
The events that led directly to Davis’s termination occurred in the fall of 2009. As part of his duties, Davis was required to construct a Sukkah, a structure used in celebrating the Sukkot holiday. Compl. ¶ 12-13; Davis Dep. 153-174. At times, students from BHC’s religious school would ask Davis questions about the Sukkah, and he explained to the children how it was built. Davis Dep. 154. He also explained the religious significance of the Sukkah, to the extent of his “limited knowledge.” Id. The wood used to construct the Sukkah needed to be replaced from time to time, but Davis did not have the authority to make the required purchases himself. Compl. ¶ 12-13; Wind-man Dep. 37. The Plaintiff alleges that he had informed BHC of the need to acquire additional lumber, but none had been purchased. Id. Consequently, the Sukkah was built smaller than required because the Plaintiff alleges that it would have been unsafe to build it to full size. Id. ¶ 12. Windman instructed the Plaintiff to rebuild the Sukkah to the desired size, but he did not complete this task. Windman Dep. 8-10. Davis alleges he was blamed for the actions of a white Jewish maintenance employee, Michael Kogan, who misplaced parts and set up the Sukkah too small. Davis Dep. 263-64.
On October 5, 2009, the Defendant terminated the Plaintiff. Id. ¶ 10. BHC sent Davis a letter which stated, “Unfortunately, reasons have developed over the past several months, more so over the last several weeks, and especially over the last several days which leave [ ] no choice ... to terminate your employment as Facility Supervisor.” Id., Ex. 1. Specifically, BHC stated that it dismissed Davis for the following reasons:
-Failure to cooperate with the Executive Director in making it possible to support the work at the cemetery gate houses that had to be done over the summer (e.g. sharing drivers license information; insurance information.)
-Failure to interactively work out some way that the jobs at the gate houses could be done that was satisfactory to the BHC. These were two recent and very important projects.
-Inability and/or unwillingness to treat staff with a minimum satisfactory level of respect.
-Park Heights Day School Sukkah was set up, full size, by school students with the help of two maintenance [workers] on September 22.
-Without communication to the Executive Director or the Facility/Event Coordinator you took it upon yourself to make Park Heights Sukkah smaller.
-In a memo to you of October 1, along with voice mail messages on your cell phone and on your work voice mail, you were instructed to rebuild the Park Heights Sukkah to full size and when checked it was only 3/4 its full capacity size, thereby failing to handle the assignment before leaving for the day.
-In the same October 1 memo you were instructed, by end of day October 2, to erect the Sukkah on the Day School playground which was never done and again there was no communication to theExecutive Director or the Facility/Event Coordinator as to why.
-You failed to have proper staff coverage on Friday, October 2, another major Jewish holiday, despite knowing that two maintenance employees had called out, and again you neglected to inform the Executive Director or the Facility/Event Coordinator. This is a breach of your responsibility as a supervisor. The points made above appear to be reckless conduct on your part. There is a sense and level of non cooperation and gross negligence of your duties.
Your extensive controlling conduct without apparent justification and without prior approval from the Executive Director is inexcusable and unacceptable.
Letter of Oct. 5, 2009 Re: Termination of Employment from Baltimore Hebrew Congregation, Compl. Ex. 1, ECF No. i-1.
The Plaintiff filed a charge with the Equal Employment Opportunity Commission and the EEOC issued him a right to sue letter, exhausting his administrative remedies. ECF No. 1-2. Davis then filed a seven-count
ANALYSIS
1. The Ministerial Exception
As an initial matter, this Court addresses the Defendant’s argument that all of the Plaintiffs claims are barred by the First Amendment. The Supreme Court recently held for the first time that the Religion Clauses of the First Amendment create a “ministerial exception,” which prevents government entanglement in religion by precluding employment discrimination suits “concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church v. EEOC, — U.S. -,
The Court of Appeals for the Fourth Circuit, while similarly eschewing a rigid formula for deciding whether the ministerial exception applies, has employed an individualized, fact-specific “primary duties” test. Rayburn v. Gen. Conference of Seventh-Day Adventists,
In this case, though BHC is a religious institution, it is plain that the Plaintiff is not one of its ministers. His primary duties — maintenance, custodial, and janitorial work — were entirely secular. He has no religious training or title, and had no decision-making authority with regard to religious matters. The kosher supervisor in Shaliehsabou and the music director in Roman Catholic Diocese of Raleigh, whose primary duties involved religious matters, stand in stark contrast to the Plaintiff in this case. The only arguably ministerial activity by Davis— when he instructed students in BHC’s religious school about the significance of a religious object such as the Sukkah after he set it up — was a limited and infrequent exception to his primary function as Facilities Manager. While these occasional lessons, based on Davis’s “limited knowledge,”
II. Defendant’s Motion
In its Motion to Dismiss or, in the Alternative, for Summary Judgment, the Defendant argues for dismissal of Counts II, III, VII, and VIII, and for a grant of summary judgment on Counts I, IV, and VI. For the following reasons, this Court will treat the entire Motion as one for summary judgment.
A district court, in its discretion, may consider matters outside the pleadings and thereby convert a motion to dismiss made pursuant to Rule 12(b)(6) into one for summary judgment. Fed.R.Civ.P. 12(d); Hart v. Lew,
Rule 12(d) also requires that, if a Rule 12(b)(6) motion is treated as one for summary judgment under Rule 56, “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d). While the discovery deadline has not yet expired in this case, ECF No. 9, several depositions have been taken and attached to both parties’ submissions, and there has been a reasonable opportunity for discovery. See ECF Nos. 14-2, 14-3, 14-5; 15-2, 15-3, 15-7. The Plaintiff has not filed an affidavit pursuant to Rule 56(d) indicating any “specified reasons [he] cannot present facts essential to justify [his] opposition.” Fed.R.Civ.P. 56(d); O’Brien v. Bray, No. ELH-11-2357,
Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A material fact is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc.,
In undertaking this inquiry, this Court must consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris,
A. Section 1981 & Title YII Claims
1. Statute of Limitations
The Defendant argues that certain facts alleged by the Plaintiff may not
Davis filed his EEOC charge on March 16, 2010. ECF No. 14-1 at 21; ECF No. 15-1 at 7. Accordingly, counting back 300 days from the Plaintiffs EEOC charge filing, the earliest date within the limitations period is May 20, 2009. Thus, only acts by the Defendant since May 20, 2009, such as Davis’s termination on October 5, 2009, can form the basis of his Title VII claim. See Nat’l R.R. Passenger Corp. v. Morgan,
The Plaintiff also alleges that, between one year and eighteen months before his termination, he once overheard a non-employee congregant refer to African-American employees as “darkies.” Compl. ¶ 14; Davis Dep. 260-61. This allegation is time-barred under Morgan,
In his Opposition, the Plaintiff argues that all acts alleged in his Complaint are actionable because they were part of a hostile work environment. He has failed to connect the allegations concerning serving lunch to administrative staff and the name-calling incident to his discharge or any other allegedly discriminatory acts to show the level of pervasive conduct necessary to establish a hostile work environment claim. EEOC v. Cent. Wholesalers, Inc.,
2. McDonnell Douglas Framework
In a Title VII case such as this, where the record contains no direct evidence of discrimination, a plaintiffs claims must be analyzed under the burden-shifting scheme established in McDonnell Douglas Corp. v. Green,
While the Plaintiff is in the protected class of African-Americans and he suffered the adverse employment action of being terminated, he has failed to meet the other two elements of a prima facie case. Davis acknowledges that his job performance was unsatisfactory, including that he failed to address facilities issues that were his responsibility. Davis Dep. 196-203. In addition, while he alleges that BHC “wanted to fill his position with a White/Jewish person,” this allegation is based only on Davis’s assumption the Defendant did so. Davis testified that he “assumed” that he was replaced with an unidentified individual who was working at BHC before Davis was terminated. Davis Dep. 237-38. Windman testified that Davis’s replacement, Mark Hucks, was not interviewed or hired until after Davis was fired, and the Plaintiff cites no evidence as to Hucks’s race or religion. Windman Dep. 56-57. The Plaintiffs conclusory allegations cannot create a genuine issue of material fact on this point.
Moreover, even if Davis could make a prima facie case, he cannot meet his ultimate burden to prove that he has been the victim of intentional discrimination. He concedes that he was terminated for legitimate non-discriminatory reasons. ECF No. 15-1 at 8. Thus, the burden shifts back to him to show that those reasons were merely a pretext for a discriminatory purpose. St. Mary’s Honor Ctr.,
B. Section 1983 Claim
In Count II, the Plaintiff asserts a claim pursuant to 42 U.S.C. § 1983 for a deprivation of equal protection of the laws under the Fourteenth Amendment. Section 1983 prohibits “state action” or “action under color of state law” that deprives Constitutional or federal statutory rights. Philips v. Pitt Cnty. Mem’l Hosp.,
C. Section 1982 Claim
In Count III, the Plaintiff asserts that the Defendant discriminated on the basis of race with regard to a property interest in his employment with BHC, in violation of 42 U.S.C. § 1982. Section 1982 of Title 42 states that “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” 42 U.S.C. § 1982. Section 1982 was enacted through the Civil Rights Acts of 1866 and 1870, to enable enforcement of the Thirteenth and Fourteenth Amendments to the Constitution. Evans v. Chesapeake & Potomac Tel. Co. of Md.,
In this case, Davis was an “at will” employee who could be terminated at any time with or without cause. Balt. Hebrew Congregation Employee Handbook, ECF No. 1-3 at 19. Because he had no guarantee of continued employment, and thus no property interest protected under § 1982, his claim fails as a matter of law.
D. Americans with Disabilities Act Claim
The Plaintiff alleges in Count VI that the Defendant violated the Americans with Disabilities Act by discharging him on the basis of disability and failing to make reasonable accommodations. Under either theory, the Plaintiffs claim fails.
To establish a prima facie case of disparate treatment based on discriminatory discharge under the ADA, a plaintiff must show that (1) he was a qualified individual with a disability; (2) he was discharged; (3) he was fulfilling his employer’s legitimate expectations at the time of discharge; and (4) the circumstances of his discharge raise a reasonable inference of unlawful discrimination. Rohan v. Networks Presentations LLC,
To establish a prima facie failure to accommodate claim, a plaintiff must show that: (1) he was a qualified individual with a disability; (2) the employer had notice of his disability; (3) with the reasonable accommodation he could perform the essential functions of his position; and (4) that the employer refused to make such accommodation. Wilson v. Dollar Gen. Corp.,
Second, this Court has previously noted that the Americans with Disabilities Act “does not require an employer to hire an additional person to perform an essential function of a disabled employee’s position.” See Wyatt v. Md. Inst., No. RDB-10-2584,
E. Breach of Contract Claim
In Count VII, the Plaintiff asserts a state law claim for breach of contract based on violations of the terms of the Employee Handbook. This Court has supplemental jurisdiction over the Plaintiffs state law claims because they “form part of the same case or controversy” as his federal law claims. 28 U.S.C. § 1367. A breach of contract action requires a contractual obligation in the first instance. Chubb & Son v. C & C Complete Servs., LLC,
F. Wrongful Discharge Claim
In Count VIII, the Plaintiff asserts a claim for the tort of wrongful discharge. The Plaintiff incorporates the allegations contained in the rest of the Complaint, but does not refer to any statute or other source of law that he alleges has been violated. Adler v. Am. Standard Corp.,
The Plaintiffs claim in Count VIII could also be construed as alleging wrongful discharge in retaliation for filing a Workers’ Compensation claim, in contravention of a clear mandate of Maryland public policy. Munoz v. Balt. Cnty., Md., No. RDB-11-2693,
G. Attorneys’ Fees and Costs
Finally, the Defendant moves for an award of attorneys’ fees and costs pursuant to Title VII, 42 U.S.C. § 2000e-5(k), and the ADA, 42 U.S.C. § 12205. “[A] district court may in its discretion award attorneys’ fees to a prevailing defendant in a Title VII ease upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Christiansburg Garment Co. v. EEOC,
CONCLUSION
For the reasons stated above, the Defendant’s Motion for Summary Judgment as a matter of law (ECF No. 14) is GRANTED,
A separate Order follows.
ORDER
For the reasons stated in the foregoing Memorandum Opinion, it is hereby ordered this 27th day of November, 2013 that:
1. Defendant’s Motion for Summary Judgment (EOF No. 14) is GRANTED;
2. Judgment is entered in the Defendant’s favor on all Counts in the Complaint;
3. Defendant’s request for attorneys’ fees and costs is DENIED;
4. The Clerk of the Court transmit copies of this Order and accompanying Memorandum Opinion to counsel for the parties;
5. The Clerk of the Court CLOSE THIS CASE.
Notes
. According to Windman, the Jewish High Holidays, or High Holy Days, are Rosh Hashanah, Yom Kippur, Sukkot, and Simchat Torah. Windman Dep. 51. The dates of these observances follow the Jewish calendar, but usually fall in September and October. Id.
. The Plaintiff's claims are numbered I, II, III, V, VI, VII, and VIII, omitting IV. This Court will refer to each Count as numbered in the Complaint.
. Davis is not Jewish. Compl. ¶ 14. Although the religious affiliation of the alleged minister is not dispositive, it is a relevant factor in analyzing the circumstances. See Roman Catholic Diocese of Raleigh,
. While the cited cases concerned alleged property interests in public employment, there appears to be no reason for the standard to be different for a private employee. Other courts that have directly analyzed this question have held that there is no protected property interest in private employment. See, e.g., Schirmer v. Eastman Kodak Co., No. 86-3533,
. Moreover, the Plaintiff has failed to raise a genuine issue of material fact as to whether BHC acted with any discriminatory animus, which is required to survive summary judgment on a § 1982 claim. Antonio v. Security Servs. of Am., LLC,