An assistant manager for a storage-unit business wins $150,730.19 in back pay in his Title VII religious bias suit for his retaliatory termination after repeatedly stating to his manager that his Seventh-Day Adventist faith meant he could not work on Saturdays, his church’s Sabbath day.
Plaintiff failed to establish a prima facie case that his reclassification as a floater among several stores was an actionable retaliatory act, as he retained the same salary and benefits and he has not presented sufficient evidence that this was an adverse action. Plaintiff argues the transition to floater status was adverse because he 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 these factors were mere inconveniences and do not rise to the standard in Boone v. Goldin, 178 F.3d 253 (4th Cir. 1999).
Plaintiff has, however, demonstrated retaliatory termination. He engaged in three acts of protected activity, when he met twice with management in August and sent an email to his supervisor in October, all asserting his request to be excused from Saturday work schedules. Although three months is not sufficiently close to establishing temporal proximity, causation is established through his supervisor’s inconsistent reasons for her decision to fire plaintiff.
On Jan. 31, 2011, the supervisor told plaintiff he was terminated for “productivity” and “inconsistency” issues. Later that day, she sent an email to the company HR manager and stated plaintiff 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 the company CEO/CFO, dated March 25, 2014, the supervisor 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.” On her fourth opportunity to explain her actions, during her deposition on Nov. 18, 2014, the sole reason she gave, yet again, was performance issues. Nonetheless, while testifying during trial she cited performance and renewed her “lack of work” excuse.
Although plaintiff has not presented evidence that his position was subsequently filled, he has put forth evidence that the supervisor hired full-time store employees during the same time frame she was tasked with staffing her stores down. Defendant’s inconsistency in citing the reasons for plaintiff’s termination is sufficient to establish causation.
Despite nearly 10 years of experience in a managerial role with defendant, nine of which she spent as an area manager for more than 15 stores, the supervisor 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. The court finds it incredible that the supervisor had not seen the employee handbook and did not know whether the progressive discipline policy she followed for nearly 10 years was the same policy found in the employee handbook she never bothered to read.
There is no evidence that prior to August 2010, the earliest date of his protected activity, the supervisor or any store managers plaintiff worked with, counseled him or expressed dissatisfaction with his performance such that he was in danger of termination. All 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 court finds plaintiff mitigated his damages by taking part-time positions as a nightclub doorman and front desk staff at a hotel, which reduces his back pay amount by $9,600 to $72,816.52. His back pay is compounded for 53 months between the date of his termination and this order. The court orders a back pay award of $150,730.19. The court finds there is insufficient basis for an award of front pay. The court also declines to award compensatory or punitive damages, but claimant is entitled to reasonable attorney’s fees and costs.
Mohammed v. Central Driving Mini Storage Inc. (Jackson) No. 2:13cv469, June 5, 2015; USDC at Norfolk, Va. VLW 015-3-292, 35 pp.