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Davis v. Blue Arbor, Inc.

United States District Court, E.D. North Carolina, Eastern Division

March 1, 2019

CARL E. DAVIS, Plaintiff,



         This matter comes before the court on defendants' joint motion for summary judgment (DE 80). Plaintiff responded in opposition to the motion, and defendants replied. In this posture, the issues raised are ripe for ruling. For the reasons that follow, defendants' joint motion for summary judgment is granted.


         Plaintiff initiated this action on June 15, 2015, alleging defendants Blue Arbor, Inc. ("Blue Arbor"), TESI Screening, Inc. ("TESI Screening"), and BSH Home Appliances Corporation ("Bosch") unlawfully retaliated against him for engaged in protected activity, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2OOOe-3(a). Plaintiff seeks compensatory damages, punitive damages, costs, and reasonable attorney's fees.

         Defendants Blue Arbor and TESI Screening filed their answer to plaintiffs complaint on July 8, 2015. On July 16, 2015, defendant Bosch filed a motion to compel arbitration, which was denied by the court on January 14, 2016. On motion by defendant Bosch, the court granted relief to defendant Bosch and allowed it to refile its motion to amend on February 10, 2016. Defendant Bosch then filed an amended motion to compel arbitration and stay proceedings on February 24, 2016, which was granted by the court on May 18, 2016. The case remained stayed as to all defendants until July 11, 2017, when the court granted defendant Bosch's motion to confirm arbitrator's award and dismissed all plaintiffs claims against defendant Bosch.

         On August 14, 2017, the court entered its case management order. On February 13, 2018, with leave of court, plaintiff filed his amended complaint against defendants Blue Arbor and TESI Screening (hereinafter "defendants"). Defendants answered the amended complaint on March 2, 2018. Discovery in this matter concluded on August 31, 2018.

         On October 30, 2018, defendants timely filed the instant joint motion for summary judgment. Defendants argue that plaintiff cannot produce evidence that establishes a causal link between an adverse employment action and any purported discriminatory conduct; that defendant Blue Arbor knew of, or otherwise acquiesced in, discriminatory conduct; that defendants jointly employed plaintiff; that plaintiff was qualified for the employment sought with defendant Bosch; that defendants are employers subject to Title VII; or that liability for defendant Blue Arbor's acts or omissions could be imputed to defendant TESI Screening. Defendants also argue that they had legitimate, non-discriminatory reasons for why plaintiff was not offered a j ob with defendant Bosch.

         In support of defendants' motion, defendants filed a statement of material facts (DE 82), as well as an appendix of exhibits, including: plaintiffs employment records from defendant Bosch ("Personnel Action Form" (DE 83-1); "2011 Settlement Agreement" (DE 83-2); "Termination Letter" (DE 83-3)); the affidavit of Sadie Catherine Bell ("Bell") and supporting attachments ("Bell Aff" (DE 83-4); "TESI, Inc. Articles of Incorporation" (DE 83-5); "TESI, Inc. Articles of Amendment" (DE 83-6); "TESI Services, Inc. Articles of Incorporation (DE 83-7); "TESI Staffing Articles of Amendment" (DE 83-8); "Davis Log Entries" (DE 83-9); "Sample Doc BSH Availability" (DE 83-10); "Davis Blue Arbor Application" (DE 83-11); "Labor Order for Kin-Ro Construction" (DE 83-12); "Labor Order for Drahtzug Stein" (DE 83-13); "Labor Order for Chatsworth Products, Inc." (DE 83-14); "2013 EEOC Charge" (DE 83-15)); and excerpts from plaintiffs deposition ("Davis Dep." (DE 83-16)).

         On November 20, 2018, plaintiff filed his response in opposition, arguing that defendants are an employment agency not subject to the fifteen employee requirement of Title VII; that in any event defendants have more than fifteen employees; defendants are so intermingled that they should be treated as a single employer; and that several genuine issues of material fact preclude summary judgment.

         In support of plaintiff s argument, he submits an opposing statement of material facts (DE 85), as well as an appendix of exhibits, including: plaintiffs affidavit and excerpts from his deposition ("Davis Aff" (DE 88-2); "Davis Dep." (DE 88-11)); transcripts of plaintiff s phone conversations with Bell and Kathy Kline ("Kline") ("July 26, 2013 Phone Call" (DE 88-3); "August 27, 2013 Phone Call" (DE 88-4); "August 29, 2013" (DE 88-5)); portions of defendants' responses to requests for production ("Requests for Production" (DE 88-6)); copies of redacted labor orders ("Labor Orders" (DE 88-7)); records from the EEOC investigation of plaintiff s complaint ("April 29, 2014 Letter" (DE 88-8); "EEOC Investigator Notes" (DE 88-10, 88-19)); defendant Bosch's rehiring policy ("Rehire Policy" (DE 88-9)); excerpts from Bell's deposition ("Bell Dep." (DE 88-12)); resources providing a corporate profile of defendants ("Blue Arbor Corp. Report" (DE 88-13); "TESI Screening Corp. Report" (DE 88-14); "Blue Arbor Hoovers Report" (DE 88-15); "Reference USA Blue Arbor Description" (DE 88-16); "Blue Arbor Web Pages" (DE 88-17)); plaintiffs termination letter from defendant Bosch ("Termination Letter" (DE 88-18)); a chart outlining communications between plaintiff and Bell ("Communication Chart" (DE 88-20)); and a doctor's letter authorizing plaintiff to work without physical limitation ("Jan. 22, 2013 Doctors' Letter" (DE 88-22)).

         Defendants replied, reasserting their argument that Bell had no knowledge of defendant Bosch's alleged misconduct, and therefore they could not be held liable for such conduct.


         The undisputed facts for purposes of the instant motion may be summarized as follows.

         A. Plaintiff s Employment With Defendant Bosch

         On August 11, 2003, defendant Bosch hired plaintiff as a setter in its fabrication department. (Statement of Facts (DE 82, 85) ¶ 28). Plaintiff continued to work in this position until 2005, at which point he was terminated for allegedly failing to return to work from jury duty. (Statement of Facts (DE 82, 85) ¶ 29). Plaintiff, who believed the stated reason to be pretext, filed a charge of discrimination with the EEOC ("2006 EEOC Charge"), alleging that his termination was a form of racially motivated discrimination in violation of Title VII. (Statement of Facts (DE 82, 85) ¶ 30; Davis Dep. (DE 83-16) 47:11-15). Plaintiff asserted that he was subpoenaed for two separate criminal cases, that he was required to take personal leave time in one of the two actions because he was a defendant, and that defendant Bosch's Human Resource Director Chuck Dail altered his vacation/leave request form by erasing his supervisor's signature approving time off. (Statement of Facts (DE 82, 85) ¶¶ 33-35; see Davis Dep. (DE 83-16) 48:20-50:18, 51:13-52:5). Ultimately, the 2006 EEOC Charge was resolved when defendant Bosch agreed to reinstate plaintiff and provide him with back pay for the time spent out of work. (Statement of Facts (DE 82, 85) ¶ 36; Davis Dep. (DE 83-16) 55:12-25). Plaintiff testified that, as part of the settlement agreement, he executed a confidentiality agreement prohibiting him from discussing the 2006 EEOC Charge with anyone, including defendant Blue Arbor. (See Statement of Facts (DE 82, 85); Davis Dep. (DE 83-16) 87:20-88:7)).

         On December 13, 2007, plaintiff sustained a laceration to his right forearm while working with a piece of sheet metal at defendant Bosch. (See Statement of Facts (DE 82, 85) ¶¶ 3 8, 41; 2011 Settlement Agreement (DE 83-2) at 1). Defendant Bosch and its insurance carrier, CNA Insurance Company, provided plaintiff with workers' compensation benefits. (See Statement of Facts (DE 82, 85) ¶ 39; 2011 Settlement Agreement (DE 83-2) at 7). On March 12, 2008, plaintiff was permitted to return to light-duty, part-time, desk work with no use of the right upper extremity, which defendant Bosch could not accommodate. (See Statement of Facts (DE 82, 85) ¶ 40; 2011 Settlement Agreement (DE 83-2) at 2; Davis Dep. (DE 83-16) 65:15-23). On September 18, 2008, defendant Bosch advised plaintiff that he exceeded the 6 month disability leave permitted by company policy, and as a result his employment was terminated. (Statement of Facts (DE 82, 85) ¶ 41; Termination Letter (DE 83-3, 88-18)). Plaintiff never returned to work for defendant Bosch, but continued to receive workers' compensation benefits until November 18, 2011, when he settled the claim for $290, 000.00. (Statement of Facts (DE 82, 85) ¶ 42; 2011 Settlement Agreement (DE 83-2) at 11).

         B. Plaintiff Applies for Work With Defendants Blue Arbor and TESI Screening

         Defendants Blue Arbor and TESI Screening are North Carolina companies that collectively provide employee placement and screening services. (See Statement of Facts (DE 82, 85) ¶¶ 1-6). The companies have the same corporate officers, and share the same office address and telephone numbers in New Bern. (See Blue Arbor Corp. Report (DE 88-13) at 1-2; TESI Screening Corp. Report (DE 88-14) at 1-2). Defendant Blue Arbor advertises that it provides screening and testing services and that it manages TESI Screening. (See Blue Arbor Web Pages (DE 88-17) at 1-3, 6).

         Defendant Blue Arbor's New Bern office receives between 30-50 employment seeking candidates each week. (Statement of Facts (DE 82, 85) ¶ 7; Bell Aff (DE 83-4) ¶ 12). When an employment candidate approaches defendant Blue Arbor, he completes an application, takes a skills assessment, and is interviewed by a staffing specialist. (Statement of Facts (DE 82, 85) ¶ 7; Bell Aff. (DE83-4)¶ 13). During the interview, each candidate advises defendant Blue Arbor as to what types of assignments he is interested in, the hours he is available, whether he is capable of part-time and/or full-time assignments, and whether he will accept temporary and/or temporary-to-hire assignments. (Statement of Facts (DE 82, 85) ¶ 8; Bell Aff. (DE 83-4) ¶ 13). After preliminary evaluations are ...

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