White v. Ameritel Corporation, No. 8:2010cv00929 - Document 53 (D. Md. 2011)
Court Description: MEMORANDUM OPINION (c/m to Plaintiff 12/28/11 sat). Signed by Chief Judge Deborah K. Chasanow on 12/28/11. (sat, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : GREGORY D. WHITE : v. : Civil Action No. DKC 10-0929 : AMERITEL CORPORATION : MEMORANDUM OPINION Presently pending and ready for review in this employment discrimination case are two motions: the motion for summary judgment filed by Defendant Ameritel Corporation (ECF No. 46), and the motion for inclusion filed by Plaintiff Gregory D. White (ECF No. 50).1 The issues have been fully briefed, and the court now rules, no hearing deemed necessary. Local Rule 105.6. For the following reasons, the motion for summary judgment will be granted, and the motion for inclusion will be denied. I. Background A. Factual Background The following facts are uncontroverted. Corporation companies in ( Ameritel ) the Canon Baltimore-Washington Kaufman Decl., ¶ 2). 1 delivers Defendant Ameritel office area. products (ECF No. to 46-4, During the relevant time period, Plaintiff Plaintiff submitted the motion for inclusion as part of his supplemental materials to his response to the motion for summary judgment. It is referred to on the docket as second supplement to response to motion for summary judgment. Gregory D. White was employed as a truck driver for Ameritel. (ECF No. 46-3, White Dep., at 3). Plaintiff s primary responsibilities related to the delivery of office products to various companies, including loading and unloading the truck at each delivery location. (Id.). On occasion, when there were not many deliveries to handle, Plaintiff would pitch in other places at the company, such as sweeping, pulling orders, and stocking shelves, even though those duties were not strictly part of a truck driver job. himself as a team player. 1. (Id. at 4-5). Plaintiff viewed (Id. at 5). The 2007 Settlement Agreement Plaintiff s claims in this case stem from a charge of racial discrimination that he filed against Ameritel in 2006 ( the 2006 EEOC charge ). Due to a muscle strain he suffered from picking up copiers, Plaintiff took two days off from work. (Id.). Plaintiff s supervisor, William Gillam, called Plaintiff s doctor to inquire about Plaintiff s absence. at 5-6). (Id. Plaintiff alleged that Gillam racially discriminated against him because Gillam never called other employees doctors about their absences. On January agreement ( the 4, (Id. at 7). 2007, Settlement the EEOC facilitated Agreement ) between Ameritel, which resolved the 2006 EEOC charge. Among other things, Ameritel agreed 2 not to a settlement Plaintiff and (ECF No. 2-3). discriminate or retaliate against Plaintiff underlying] charge. the Settlement as (Id. ¶ 4). Agreement a result of filing [the The parties acknowledged that constituted a full and final settlement of Plaintiff s then-pending EEO charge, that it may be specifically enforced in court by the EEOC or the parties, and that it may be used as evidence in a subsequent proceeding in which a breach of this agreement is alleged. 2. (Id. ¶¶ 5, 6). The September 2007 Incident According to another Charge of Discrimination that Plaintiff filed with the EEOC, on September 21, 2007, Plaintiff was subjected to verbal and mental abuse by Ameritel President David Kaufman ( the September 2007 incident ). 2; ECF No. 46-3, at 74).2 and Harold vehicle Dodd, that A dispute had arisen between Plaintiff another Plaintiff employee, was assigned regarding to the operate, apparently had sided with Dodd on the issue. 2; ECF No. 46-3, at 74). (ECF No. 2-5, at keys and to a Kaufman (ECF No. 2-5, at Kaufman allegedly told Plaintiff that he was sick and tired of [him] in a very high-pitched voice in front of a group of employees. 3, at 74). 2 (ECF No. 2-5, at 2; ECF No. 46- The Charge alleged that this incident occurred in Neither party provides a signed or dated copy of this Charge. 3 retaliation for the 2006 EEOC charge underlying the Settlement Agreement.3 3. Plaintiff s Reassignment In October 2007, Plaintiff was injured while on the job. (ECF No. 46-3, at 30-31). Plaintiff subsequently Worker s Compensation claim, which was granted. filed a (Id. at 33). He did not work for three months, during which time Ameritel replaced him with another driver. (Id. at 34-35). Plaintiff eventually returned to full-time work in January 2008. (Id.). When he returned, he was transferred to work in the warehouse. (Id. at 38). Ameritel did not reduce Plaintiff s pay or hours, nor did it take away any of his benefits like healthcare or leave. (Id. at 38-39). Plaintiff described his situation by saying that everything stayed the same. (Id. at 39). Although Plaintiff was assigned to work in the warehouse, he, as before, performed other non-related tasks. For example, in January 2008, he agreed to drive Bryan Carson4 for certain assignments because Carson had some medical issues. 44; ECF No. 46-8 ¶ 5). According to Carson, (Id. at 43during these 3 On December 8, 2009, the Maryland Commission on Human Relations ( MCHR ) dismissed this Charge, determining that there was no probable cause to believe that Kaufman was retaliating against Plaintiff for having filed the 2006 EEOC charge. (ECF No. 2-6, at 2-3; ECF No. 46-9, at 3-4). 4 Carson was a color copier field technician at Ameritel. (ECF No. 46-8, Carson Decl., ¶ 1). 4 assignments, Plaintiff repeatedly spoke very negatively about Ameritel and [Kaufman]. (ECF No. 46-8 ¶ 6). As a result, Carson informed two of Plaintiff s supervisors, Gillam and Anita Stonebraker, about his behavior and requested that someone else be assigned to drive Carson around for his appointments. 8). On January 18, 2008, Gillam and Stonebraker (Id. ¶ sent a memorandum to Plaintiff, which warned him that his conduct in front of Carson was unacceptable. (ECF No. 46-3, at 76). That memorandum further read, in part: As you know, you have been counseled in the past for similar disruptive and insubordinate conduct toward your co-workers and management. Such behavior cannot and will not be tolerated in the workplace at Ameritel. You are on warning by this memo that any further company disparagement and/or insubordination of management will result in your immediate termination from the company. (Id.). Despite this warning memorandum, Plaintiff did not receive any decrease in pay or benefits, nor did his job change. (Id. at 56). 4. Plaintiff s Termination On March 31, 2008, Plaintiff came to work anticipating that he would be working in the warehouse, though he was really up for whatever the case may be. (Id. at 57). That morning, it was apparent that one of the truck drivers did not show up for work. (Id. at 58-59). When Plaintiff was initially asked to 5 take over for the missing driver, he refused because he had forgotten his driver s license at home. (Id. at 59). Kaufman directed Plaintiff to retrieve his license so that he could drive the truck that day. (Id. at 60). Plaintiff agreed to do so, but he also asked for reinstatement, in writing, as a driver so [he] would know [his] status quo on what [he ll] be doing. (Id. at 60-61). When Kaufman asked if Plaintiff was refusing to follow his order, Plaintiff stated that he was not refusing, but he also continued to insist on something in writing for [his] record reinstating him to his former driving position. (Id. at 61-62). Shortly thereafter, termination letter. he was being Kaufman (Id. at 62). terminated for, provided Plaintiff with a Plaintiff asked Kaufman what and Kaufman replied, You re terminated because you didn t you didn t do what was assigned for you to do. (Id.). More generally, the letter read, in part: This is to provide you notice that your employment with Ameritel has been terminated effective today, March 31, 2008. You[r] conduct this morning in refusing to undertake the duties I assigned you this morning is just the latest example of your insubordination toward me and other management here. You will recall that you were most recently formally counseled in writing about insubordination in January, and at that time it was made clear to you that any further insubordination would result in your immediate termination. As 6 you know, this company does not such behavior in the workplace. tolerate (Id. at 77). B. Procedural Background On March 18, 2010, Plaintiff, proceeding pro se, filed a complaint against Ameritel in the Circuit Court for Montgomery County, Maryland. After service, Ameritel timely removed to this court on the basis of federal question jurisdiction. No. 1). (ECF The original complaint was not a model of clarity. Accordingly, the court granted a motion to dismiss filed by Ameritel, but it did so without prejudice. (ECF Nos. 20, 21). In light of Plaintiff s pro se status, Plaintiff was afforded several opportunities to amend his complaint to state a proper claim, which he finally did on October 8, 2010, in what the court construed as a second amended complaint. (ECF No. 24). Ameritel s motion to dismiss the second amended complaint was denied, and two claims were deemed viable: one for breach of contract, and one for retaliation in contravention of Title VII of the Civil Rights Act of 1964 ( Title VII ), 42 U.S.C. § 2000e et seq. 2007 (ECF No. 26). incident, Specifically, as alleged, the September Plaintiff s reassignment, and Plaintiff s termination potentially constituted breaches of the Settlement Agreement. And, as alleged, termination potentially Plaintiff s amounted 7 to reassignment retaliatory and adverse employment actions prohibited by Title VII. On December 21, 2010, Ameritel answered the second amended complaint (ECF No. 27), and on December 27, 2010, a scheduling order was entered (ECF No. 28). Over the next six months, discovery took place. Then, on June 20, 2011, Ameritel filed the pending motion for summary judgment. (ECF No. 46). In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court mailed a letter to Plaintiff on June 23, 2011, notifying him that Ameritel filed a dispositive motion and that summary judgment could be entered against him. (ECF No. 47). Plaintiff filed an opposition to Ameritel s motion on June 28, 2011. 14, 2011, Ameritel replied. Separately, when (ECF Nos. 48-50). On July (ECF No. 52). Plaintiff filed his opposition to the motion for summary judgment, he included a motion for inclusion, which seeks lawsuit. construed to add several (ECF No. 50). as one for individuals Accordingly, permissive as parties to the the motion will be joinder. Indeed, Ameritel interpreted the motion as such when responding to it on July 14, 2011. II. (ECF No. 51). Plaintiff did not file a reply. Motion for Permissive Joinder Plaintiff styles his motion as one for inclusion, which will be construed as one for permissive joinder. Because he seeks to add defendants more than twenty-one days after a motion 8 to dismiss was filed, Plaintiff must seek leave to amend the complaint under Federal Rule of Civil Procedure 15(a), and the joinder must also satisfy the requirements of Federal Rule of Civil Procedure 20(a)(2). Fontell v. MCGEO UFCW Local 1994, No. AW-09-2526, 2010 WL 3086498, at *19 (D.Md. Aug. 6, 2010); cf. Aleman v. Chugach Support Servs., Inc., 485 F.3d 206, 218 n.5 (4th Cir. 2007) (stating that the court should consider both the general principles of amendment provided by Rule 15(a) and also the more specific joinder provisions Plaintiff does not seek leave to amend. of Rule 20(a) ). Nevertheless, given his pro se status, Plaintiff s motion for inclusion will also be construed as a motion for leave to amend. Rule 15(a) provides that courts should freely give leave [to amend] when justice so requires. Leave should be granted [i]n the absence of . . . undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). Rule 20 introduces certain additional considerations. That rule would permit Plaintiff to join parties in a single action if (1) a right to relief is asserted against the defendants with respect to the same transaction or occurrence; and (2) a common 9 question of law or fact will arise in the action. Fed.R.Civ.P. 20(a)(2); see also Hinson v. Norwest Fin. S.C., Inc., 239 F.3d 611, 618 (4th discretion Cir. 2001). concerning the The rule permissive grants courts joinder of wide parties. Aleman, 485 F.3d at 218 n.5; accord Jeffcoat v. Blyth Eastman Paine Webber, Inc., Nos. 88-2084, 88-2671, 1990 WL 15556, at *3 (4th Cir. Feb. 8, 1990) ( The provisions for permissive joinder . . . are very broad and the court is given discretion to decide the scope of the civil action. (quotation marks and brackets omitted)). The permissive joinder rule is to be construed in view of its purposes to promote trial convenience and expedite the final determination of disputes. Aleman, 485 F.3d at 218 n.5 (quoting Saval v. BL, Ltd., 710 F.2d 1027, 1031 (4th Cir. 1983)). If the addition of parties would not promote these objectives - or if it would result in prejudice, expense, or delay the court may deny joinder. Here, Plaintiff seeks Gillam to the lawsuit. to Id. join Stonebraker, Kaufman, Plaintiff does not, however, set forth any reason why these individuals should be joined. did, however, amendment of the pleadings individuals as defendants would be futile. to Even if he join See Lissau v. S. Food Serv., Inc., 159 F.3d 177, 181 (4th Cir. 1998). to the breach of contract 10 claim, these First, Title VII claims apply only to employers, not individuals. as and none of the Second, three individuals were party to the Settlement Agreement in a personal capacity. David Kaufman did sign the contract, but he signed it on of behalf Ameritel only. His signature alone does not otherwise indicate that he intended to be bound by the contract individually. See Ace Dev. Co. v. Harrison, 196 Md. 357, 366 (1950) ( [W]hen an official or agent signs a contract for his corporation it is simply a corporate act. It is not the personal act of the individual, and he is not personally liable for the corporate contract unless the matter is tainted by fraud . . . . ); see also Curtis G. Testerman Co. v. Buck, 340 Md. 569, 578 (1995) ( [A]n officer is not personally liable on an agreement when there is no evidence in the officer intended to assume the obligation. ). Plaintiff s Kaufman, or claims could Gillam. be maintained Because of this record that the Thus, neither of against Stonebraker, futility, Plaintiff s motion for inclusion, interpreted as both a motion for leave to amend and a motion for permissive joinder, will be denied. III. Motion for Summary Judgment A. Standard of Review A court may enter summary judgment only if there is no genuine issue as to any material fact and the moving party is entitled 56(a); to judgment Celotex Corp. as a matter v. Catrett, of 477 law. U.S. See 317, Fed.R.Civ.P. 322 Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). 11 (1986); Summary judgment is inappropriate if any material factual issue may reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). A party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of [his] pleadings, but rather must set forth specific showing that there is a genuine issue for trial. facts Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed.R.Civ.P. 56(e)). proof . . . will not suffice to prevent A mere scintilla of summary judgment. Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. 249 50 (citations omitted). construe the favorable to facts the that party Liberty Lobby, 477 U.S. at At the same time, the court must are presented opposing the in motion. the light See most Scott v. Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297. B. Analysis 1. Title VII Retaliation Plaintiff alleges that Ameritel retaliated against him for engaging in protected activity in violation of Title VII. To survive summary judgment on this claim, Plaintiff must produce 12 either direct evidence of retaliation or make use of the test outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Because he does not possess direct evidence, Plaintiff must employ the McDonnell Douglas approach. 380 F.3d 209, 212 (4th Cir. 2004). Price v. Thompson, Under this approach, Plaintiff would need to demonstrate three elements: (1) he engaged in protected activity; (2) the agency took an adverse employment action connection against between employment action. the him; and protected (3) there activity was and a the causal adverse See Davis v. Dimensions Health Corp., 639 F.Supp.2d 610, 616 (D.Md. 2009); accord Holland v. Wash. Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007). Once that challenge is met, Ameritel must provide a non-discriminatory explanation for the adverse action. The burden would then shift back to Plaintiff to show the reason is pretextual. In its December 9, Plaintiff s viable claims. Title VII retaliation 2010, court delineated (ECF No. 26, at 2-3). The only claims order, allowed the to proceed related to Plaintiff s reassignment and termination as potential adverse employment actions taken in retaliation for him having filed the 2006 EEOC charge. The parties agree that Plaintiff has satisfactorily shown the first element of a prima facie case of retaliation; the 2006 EEOC complaint is protected activity. 42 U.S.C. § 2000e-3(a). 13 See As to the second element, Ameritel persuasively argues that Plaintiff cannot show action.5 employment that An his reassignment action will was an adverse constitute an adverse employment action if a reasonable employee would have found the challenged action materially adverse. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). job duties is not automatically [R]eassignment of actionable. Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and should be judged from the perspective position, of considering a reasonable all the person in circumstances. the plaintiff s Id. at 71. According to the United States Court of Appeals for the Fourth Circuit, absent any decrease in compensation, job title, level of responsibility, or opportunity for promotion, reassignment to a new position commensurate with one s salary level does not constitute an adverse employment action even if the new job does cause some modest stress not present in the old position. Boone v. Goldin, 178 F.3d 253, 256-57 (4th Cir. 1999) (defining an adverse employment action in both the discrimination and retaliation contexts). 5 Ameritel also asserts that the September 2007 incident was not an adverse employment action. That incident was not, however, one of the potentially retaliatory actions that the court identified in the December 9, 2010, order as giving rise to a viable Title VII claim. 14 Here, Plaintiff has proffered no evidence that his salary, benefits, or responsibilities decreased when he was reassigned to the warehouse. In fact, he readily admitted that his benefits and pay remained steady despite his reassignment. As to his changed responsibilities, Plaintiff effectively conceded that the culture at Ameritel was a fairly collaborative one in which employees often took on work that was not strictly within their job nominally descriptions. to the Thus, Warehouse, despite Plaintiff being found reassigned himself being considered for and taking on driving tasks as he had been in his position prior to his transfer. Between the warehouse and the driving, Plaintiff s responsibilities appeared to remain largely the same. At best, it can be inferred from Plaintiff s requests to have a written reinstatement to his previous position that he was dissatisfied with the lack of predictability on the job. The mere fact, however, that Plaintiff found his reassigned position less appealing does not render the new job assignment an adverse employment action. Thus, the only potentially adverse action suffered was his termination on March 31, 2008. Plaintiff As to his termination, Ameritel contends that Plaintiff s prima facie case still fails because he has not established the third element a causal connection activity. between his termination and his protected In response, Plaintiff provides no argument. 15 At best, he may be relying on the sequence of events as suggesting a causal connection. Where there is evidence that the alleged adverse action occurred shortly after the employer became aware of the protected activity, the less onerous burden of making a prima facie case of causa[tion] is satisfied. Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998) omitted). employer (alteration in original) (internal quotations At the same time, a lengthy time lapse between the becoming aware of the protected activity and the alleged adverse employment action . . . negates any inference that a causal connection exists between the two. Id. Here, Plaintiff s protected activity took place in 2006, though the precise date is unknown. For present purposes, it can be assumed that this EEOC complaint was filed no later than January 4, 2007, which was the date of the Settlement Agreement. Plaintiff s termination occurred nearly fifteen months after the fact. Without more, fifteen months is too long a period of time to show that Ameritel fired Plaintiff because of Plaintiff s filing of the 2006 EEOC charge. See, e.g., Elries v. Denny s, Inc., 179 F.Supp.2d 590, 599 (D.Md. 2002) (holding that a sixmonth period is insufficient to show a causal nexus); Church v. 16 Maryland, 180 F.Supp.2d 708, 745-46 (D.Md. 2002) (fourteen-month period insufficient).6 Even if Plaintiff had set forth sufficient evidence to satisfy the first step of the McDonnell Douglas test, that would only shift the burden to Ameritel to provide evidence legitimate, non-discriminatory reason for its actions. done so here. of a It has Specifically, Ameritel explains that Plaintiff was fired because he exhibited consistent insubordination on the job.7 The burden thus shifts back to Plaintiff to show that Ameritel s reasons were pretextual, but Plaintiff has simply not offered a sufficient basis to doubt those reasons. Although key decisionmakers were aware of Plaintiff s filing of the 2006 EEOC charge, that fact alone does not show pretext. Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989) ( [M]ere knowledge on the part of an employer that an employee it is about to sufficient fire has evidence filed of a discrimination retaliation to charge counter is not substantial evidence of legitimate reasons for discharging that employee. ). 6 Similarly, even if Plaintiff s reassignment had constituted an adverse employment action, Plaintiff cannot show causality based solely on temporal proximity. The reassignment took place roughly one year after the filing of the 2006 EEOC complaint, which is not close enough in time to find a causal connection. 7 Ameritel even afforded Plaintiff notice that continued misconduct would result in termination in the January 18, 2008, warning memorandum. 17 The lack of any evidence of pretext ultimately proves fatal to Plaintiff s retaliation claim. Accordingly, summary judgment will be entered for Ameritel on Plaintiff s Title VII retaliation claim. 2. Breach of Contract To succeed in a claim for breach of contract under Maryland law, a party must prove that the opposing party owed a contractual obligation and that the opposing party breached that obligation. (2001). gave Taylor v. NationsBank, N.A., 365 Md. 175 Here, it is undisputed that the Settlement Agreement rise Plaintiff to a contractual alleges that obligation Ameritel between breached September 2007 incident to the the Agreement when it reassigned and terminated him. the 166, parties. Settlement He adds that the list of contractual identify which portion violations as well. While Plaintiff does not of the Settlement Agreement is at issue, it appears that the following provision applies: [Ameritel] agrees that there shall be no discrimination or retaliation of any kind against [Plaintiff] as a result of filing this charge or against any person because of opposition to any practice deemed illegal under Title VII . . . , as a result of filing this charge, or for giving testimony, assistance or participating in any manner in an investigation, proceeding or a hearing under the aforementioned Act[]. 18 (ECF No. 2-3 ¶ 4). The Settlement Agreement does not clarify the definitions of the key terms of this provision, but both parties appear to agree that this provision was intended to incorporate Title VII principles and reduce the anti-retaliation mandate of Title VII to a contractual obligation. 24 ( Plaintiff agreed not to institute a (See ECF No. lawsuit against Defendant and the EEOC agreed not to use Plaintiff s charge as the jurisdictional basis for a civil action under federal antidiscrimination provisions. ); ECF No. 46-1, at 22-23 (referring to lack of temporal proximity as destroying a causal connection and Plaintiff s reassignment as a potential adverse employment action )).8 As discussed earlier, Plaintiff cannot establish a prima facie case of retaliation with respect to his reassignment or his termination. Thus, Plaintiff may rely only on the September 8 Even if the Settlement Agreement were construed to extend beyond retaliation to general discrimination under Title VII, Plaintiff still does not advance sufficient evidence to defeat summary judgment. Because Plaintiff lacks direct evidence of discrimination, under McDonnell Douglas he must first establish a prima facie case of discrimination by showing: (1) he is a member of a protected class, (2) his job performance was satisfactory, (3) he suffered an adverse employment action, and (4) he was treated differently from similarly situated employees outside his protected class. See Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010). Here, Plaintiff fails to establish at least the second and fourth elements. Therefore, to the extent the Settlement Agreement barred disparate treatment, Plaintiff would not be able to make a basic prima facie showing. 19 2007 incident as potentially supporting a breach of contract claim. As a matter of law, however, this argument is of no avail. Kaufman s alleged comment to Plaintiff on September 27, 2007, does not constitute an adverse employment action under Title VII. An employment action is adverse if it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. 548 U.S. at 68. of Title VII annoyances, Burlington N. & Santa Fe Ry. Co., In contrast, [t]he anti-retaliation provision does and not simple protect lack against of good petty slights, manners. minor Geist Gill/Kardash P ship, 671 F.Supp.2d 729, 738 (D.Md. 2009). v. Here, Kaufman s lone comment that he was sick and tired of Plaintiff is little more than an innocuous remark that is unactionable under Title VII. Tellingly, the September 2007 incident was not so materially adverse so as to dissuade Plaintiff from filing another administrative charge complaining of Kaufman s conduct. Therefore, the September 2007 incident cannot prop up a prima facie case of retaliation either. Having failed to show a violation of Title VII, Plaintiff likewise has failed to show a breach of the Settlement Agreement. Accordingly, judgment must be entered in Ameritel s favor on this claim. 20 IV. Conclusion For the foregoing reasons, the motion for summary judgment filed by Defendant Ameritel Corporation will be granted, and the motion for inclusion, construed as both a motion for leave to amend and a motion for permissive joinder, will be denied. separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 21 A
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