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CALDWELL v. SERVICEMASTER CORP.

June 12, 1997

MURIEL ANITA CALDWELL, et al., Plaintiffs,
v.
SERVICEMASTER CORPORATION, AND NORRELL TEMPORARY SERVICES, Defendants.



The opinion of the court was delivered by: GREEN

 Presently pending are the defendants' motions for summary judgment. For the reasons stated below, Norrell Temporary Services' motion will be granted and ServiceMaster Corporation's motion will be granted in part and denied in part.

 I. Background

 Except where otherwise noted, the following material facts are not in dispute. Plaintiffs, Muriel Anita Caldwell ("Caldwell"), Malika Haynes-Bey ("Haynes-Bey"), Tawanda Morris ("Morris") and Juanita Maria Nur ("Nur"), four African American women, have filed this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1994), and the Civil Rights Act of 1870, 42 U.S.C. § 1981 (1994), against Defendants ServiceMaster Corporation ("ServiceMaster") and Norrell Temporary Services ("Norrell"). In a 16-count Complaint, Plaintiffs allege that ServiceMaster discriminated against each of them in violation of Title VII based on their race and sex (Counts 1-4); that ServiceMaster's agents unlawfully retaliated against them (Counts 5-8); that Norrell discriminated against each of them by failing to correct the discriminatory environment that existed at ServiceMaster or to address the adverse actions taken against each Plaintiff by ServiceMaster and its agents (Counts 9-12); and that ServiceMaster discriminated against each Plaintiff in violation of 42 U.S.C. § 1981 (Counts 13-16). *fn1"

 On or about April 1, 1993, Defendant ServiceMaster was hired by the District of Columbia Public School system ("DCPS") to provide construction-related services. ServiceMaster opened an office in the District of Columbia, staffed its new office with managerial personnel and, on June 28, 1993, it entered into a contract with Defendant Norrell to obtain additional employees.

 Norrell provides personnel, recruiting and related employment services, and it agreed to do so for ServiceMaster based upon a "Payrolling Services Agreement." Under the terms of this agreement, Norrell would recruit and place employees with ServiceMaster and, using ServiceMaster's funds, would provide payroll services. The Payrolling Services Agreement provided, in relevant part:

 
The parties acknowledge that Norrell shall have responsibility to control all terms and conditions for the Payrolled Workers except those that are the responsibility of Client. Client shall have the responsibility to supervise, counsel, discipline, review and evaluate the Payrolled Workers. . . . The Client reserves the right to request the removal and/or replacement of any Payrolled Worker for any lawful reason.

 Payrolling Services Agreement at P5, attached to Norrell's MSJ at Ex. A (emphasis added).

 The relationship between ServiceMaster and Norrell is contractual. While ServiceMaster has an ownership interest in Norrell, that interest is only a minority interest (approximately 29 percent) and "each Company is completely separate with regard to operations." Plaintiffs' Opp. to ServiceMaster's MSJ at Ex. 10; Caldwell Dep. TR at 81, attached to Plaintiffs' Opp. to Norrell's MSJ at Ex. 1. The defendants do not share the same space or facility nor do they have the same managers or directors.

 Pursuant to the Payrolling Services Agreement, Norrell placed Plaintiffs with ServiceMaster. On July 6, 1993, Plaintiffs Caldwell and Morris were assigned to ServiceMaster to perform clerical and administrative services in connection with the DCPS project. On August 2, 1993, Plaintiff Nur was assigned to ServiceMaster to work at the DCPS project as a customer service representative. And, on August 3, 1993, Plaintiff Haynes-Bey was assigned by Norrell to work for ServiceMaster in connection with taking inventory at various schools and as a customer service representative on the DCPS project. Plaintiffs were told by both ServiceMaster and Norrell that they would be hired for a thirteen-week probationary period, after which, at the option of ServiceMaster, they could be hired as full-time employees in the same positions.

 The ServiceMaster manager at the DCPS worksite was Mr. Randy Ledbetter and the office manager was Ms. Bonnie McClun, both of whom exercised supervisory responsibilities over Plaintiffs Caldwell and Morris. Ledbetter appeared to have overall supervisory responsibility for all of the employees, including Plaintiffs. While Plaintiff Haynes-Bey performed inventory work at the schools, which comprised a substantial part of her work while with ServiceMaster (ten of fifteen work days), she generally worked under the direction of Ron Fisher, another ServiceMaster manager at the DCPS worksite. For the other five days of her fifteen-day tenure, Haynes-Bey worked at the ServiceMaster office site doing typing for Ron Fisher and under the supervision of McClun. (ServiceMaster disputes whether Haynes-Bey ever worked for McClun. For the purposes of these motions, such dispute is not material.)

 The record paints a picture of an office in its infancy. Plaintiffs were hired shortly after ServiceMaster entered into the DCPS contract and shortly after it opened its office. According to Caldwell, at the outset, approximately 25 persons were assigned to one small office. Ledbetter was responsible for not only supervising ServiceMaster's performance under the new contract, but also for hiring personnel (through Norrell) and for supervising the remodeling and opening of the office at ServiceMaster's DCPS worksite. During this time period, the record reflects tension between ServiceMaster managers and Plaintiffs as well as between other ServiceMaster employees and Plaintiffs.

 Although the defendants reserved the right to contest the truth of the following allegations, for the purposes of the summary judgment motions, they are willing to assume, as will the Court, that the following allegations are true. See ServiceMaster's Statement of Material Facts as to Which There is No Genuine Dispute at 3 n.2.

 A. Haynes-Bey's allegations.

 During her fifteen-day tenure with ServiceMaster, Haynes-Bey contends that:

 
1. McClun called her "girl," "gal" and "rascal," rather than calling her by her name;
 
2. That she was called one of the "Uh Huh girls";
 
3. That other employees, an Asian male and two White males, were treated differently in that they were given company cars to travel from work to the schools while she was required to use her own car and in that she was reprimanded for being late, while the summer interns, *fn2" who were also late, were not reprimanded;
 
4. That while she was terminated for sleeping at the computer, another employee (a White male) was not, even though this was brought to McClun's attention;
 
5. That when she first arrived at the DCPS worksite, two ServiceMaster managers had difficulty pronouncing her name and she was asked why she did not have a normal name;
 
6. That while she was in her second week of work with ServiceMaster (and before she had worked in the office where McClun also worked) she attended a meeting between Ledbetter, Skoff, McClun and the other Plaintiffs regarding complaints about McClun's communication skills. Haynes-Bey testified at her deposition that she did not have a complaint at that time. *fn3" (In her deposition, Haynes-Bey testified that she could recall no one-on-one conversations with McClun and never had any discussions with Skoff.);
 
7. That she found Ron Fisher's dissatisfaction with her work performance (i.e., typing errors) objectionable ("I got offended because he said also that I don't understand why can't you do this without making any errors." Dep. at 82).

 See Haynes-Bey' EEOC Affidavit ("Aff.") (unsigned, bearing EEOC date stamp of Nov. 9, 1993), attached to Plaintiffs' Opp. to ServiceMaster's MSJ at Ex. 3; Haynes-Bey Deposition (May 23, 1996), attached to ServiceMaster's MSJ at Ex. A; Norrell's MSJ at Ex. G; Plaintiff's Opp. to Norrell's MSJ at Ex. 2; and Plaintiffs' Opp. to ServiceMaster's MSJ at Ex. 12.

 In her deposition, Haynes-Bey testified that, prior to her reassignment from ServiceMaster, she had never complained to Norrell staff regarding the allegations described above. Haynes-Bey Dep. TR at 144-45, attached to Norrell's MSJ at Ex. G. On or about August 24, 1993, after only fifteen work days of employment at the ServiceMaster site, she received a call from Jill Pierce at Norrell, advising her that while she was not being terminated by Norrell, she would no longer be needed at the ServiceMaster site. *fn4" Id. at 145-46. *fn5"

 After Haynes-Bey's termination, Norrell met with ServiceMaster staff to discuss the basis for the termination. See Pierce Dep. TR at 80-81. ServiceMaster reiterated its previous reasons. See Pierce Aff. P2, attached to Norrell's MSJ at Ex. N. Less than a week later, on August 30, 1993, Norrell placed Haynes-Bey at the World Bank in Washington, DC. Id. at 17. Haynes-Bey voluntarily left her assignment at the World Bank in September of 1993, less than a month after she was assigned, and she did not request further placement by Norrell. Id. at 25.

 On or about Nov. 9, 1993, Haynes-Bey filed a complaint with the EEOC alleging that she had been discriminated against by being discharged because of her race (Black), and retaliated against because she complained to the Divisional Manager, Randy Ledbetter (white) about practices that are unlawful under Title VII. EEOC Complaint, attached to Plaintiffs' Opp. to ServiceMaster's MSJ at Ex. 5; id. at Ex. 3 (EEOC Aff.). Following an investigation in which the EEOC concluded that the evidence did not prove her claim, she received her right-to-sue letter. See Ex. 2 to Haynes-Bey Dep. TR, attached to ServiceMaster's MSJ at Ex. A; ServiceMaster's Statement of Material Facts Not in Dispute at 4, P13; Plaintiffs' Response to ServiceMaster's Statement of Material Facts Not in Dispute ("Plaintiffs' Response") at 2, P13 ("Agreed.").

 B. Morris' allegations.

 During her tenure with ServiceMaster from July 6, 1993, to August 25, 1993, Morris performed general secretarial work. From July 6, 1993 until approximately August 2nd, she worked under the supervision of Ledbetter and thereafter under the supervision of McClun and Skoff. Morris alleges the following:

 
1. That after Skoff took a phone call from his sister informing him that she was pregnant, Morris overheard him say that he "could not understand how these young ladies could get knocked up and not get married to these men." Morris Dep. TR at 115, attached to ServiceMaster's MSJ at Ex. B. Morris testified that Skoff did not know that Plaintiff Morris was pregnant, id. at 116, and that he was not directing this comment to her or anyone else in specific. Id. at 118;
 
2. That she overheard a white male employee ask Plaintiff Caldwell if she brought fried chicken to eat with her watermelon. Morris Dep. TR at 133;
 
3. That she was struck by a door opened by Skoff, who did not know she was behind the door when he opened it. Morris Dep. TR at 159-60;
 
4. That she was called "rascal," "girl," "gal," by McClun, rather than being called by her name. Morris Dep. TR at 142 & 181;
 
5. That McClun "was not used to working with black people." Morris Dep. TR at 142;
 
6. That Plaintiffs were called "you people." Morris Dep. TR at 182.
 
7. That McClun did not "make [her] do more difficult tasks than non Blacks because of [her] race," Morris Dep. TR at 143, but that she was treated more harshly than non-Black employees by being required to sign a timesheet. Morris Dep. TR at 143-44.
 
8. That she overheard racial comments regarding her name, that a white male had stated that Blacks have rhythm, and that a summer employee had laughed when the other Plaintiffs were called the "Uh Huh girls." EEOC Aff. at 2, attached to Plaintiffs' Opp. to ServiceMaster's MSJ at Ex. 4;
 
9. That at a meeting where Plaintiffs raised the issue of McClun's actions, Skoff became angry and hit his fist on the table, refusing to address the "race problem." Morris Dep. TR at 119;
 
10. That "another reason [she] believe[s] [she] was fired [was] because [she] complained to Eddie Edwards (Black) the day before, 8/24/93, about the way [she] was being treated." EEOC Aff. at 2.

 As did Haynes-Bey, Morris testified that during her tenure with ServiceMaster, she never complained to Norrell about the allegations detailed above. Morris Dep. TR at 217, attached to Norrell's MSJ at Ex. H. On August 25, 1993, she was terminated. Jill Pierce testified that she was advised that Skoff terminated Morris due to performance and insubordination. Ex. 4 to Pierce Dep., attached to Norrell's MSJ at Ex. D; see Morris Dep. TR at 219-20, attached to Norrell's MSJ at Ex. H; Morris Dep. TR at 176, attached to Plaintiffs' Opp. to Norrell's MSJ at Ex. 3.

 While the parties do not dispute that Morris took issue with the specific points identified by Skoff to justify her termination, they do dispute whether Morris complained to Norrell of discrimination when Pierce spoke with her on or about August 25, 1993. *fn6" Compare Norrell's Statement of Undisputed Facts (citing Morris Dep. TR at 217-20) with Plaintiffs' Opp. to Norrell's MSJ at 5 (citing Caldwell Dep. TR at 122-24 and 205-08).

 On October 4, 1993, Morris filed a complaint with the EEOC, contending that she had been discriminated against because she was Black and pregnant, and she claimed that she had been retaliated against because she opposed unlawful practices under Title VII. See Complaint of Discrimination, attached to Plaintiffs' Opp. to ServiceMaster's MSJ at Ex. 8; id. at Ex. 4 (EEOC Aff.). Following its investigation, the EEOC found no discrimination. See Morris Dep. TR at 197, attached to ServiceMaster's MSJ at Ex. B.; ServiceMaster's Statement of Material Facts Not in Dispute at 6, P11; Plaintiffs' Response at 3, P11 ("Agreed.").

 C. Nur's allegations.

 Plaintiff Nur was employed at the ServiceMaster site from August 2, 1993, until September 29, 1993, in the capacity as a customer service representative. Nur alleges the following:

 
1. That when she inquired whether she would be provided with a company car, she was told by a ServiceMaster manager: "What do you people expect me to do about?" Nur Dep. TR at 93-94, attached to ServiceMaster's MSJ at Ex. C.
 
2. Bonnie McClun referred to Plaintiffs as "girls and gals." Nur Dep. TR at 84, attached to ServiceMaster's MSJ at Ex. C.
 
3. That because her name was Juanita, McClun asked her whether she was Spanish. Nur Dep. TR at 84, attached to ServiceMaster's MSJ at Ex. C;
 
4. That when McClun came out of a meeting in which Nur mediated for McClun and Plaintiff ...

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