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Adolphus March v. Abm Security

June 10, 2011

ADOLPHUS MARCH,
PLAINTIFF,
v.
ABM SECURITY SERVICES, F.K.A. AMERICAN COMMERCIAL SECURITY SERVICES, INC.; AND ABM INDUSTRIES, INC., DEFENDANTS.



The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Defendant ABM Security Services, Inc. ("ABM") moves for summary judgment on each claim alleged in the First Amended Complaint ("FAC"). Plaintiff Adolphus March opposes the motion. For the reasons set forth below, the court grants the motion for summary judgment on all claims in favor of ABM and against Plaintiff. The Clerk of Court is instructed to close the file.

BACKGROUND

Two days after filing the original complaint, Plaintiff filed the FAC on July 30, 2009, alleging three claims for employment discrimination: wrongful termination in violation of Title VII of the Civil Rights Act of 1964, retaliation in violation of Title VII, and violation of Section 12940 of Cal. Government Code. On January 7, 2010, this action was transferred to this court from the Southern District of Texas, Houston Division.

Plaintiff's Employment with ABM

Plaintiff March is a 50-year-old African-American male who commenced his employment with ABM on December 4, 2001 as a private security officer. (FAR ¶7; March 45:7-8). Plaintiff worked as a security officer for ABM at the Harbor Club in San Diego, California, until his termination on October 24, 2006. Throughout his five years of employment, Plaintiff reported to Michael Cockerham, an African-American man employed by ABM as the site supervisor at the Harbor Club. (Cockerham Decl. ¶2-3, 7).

Plaintiff's Employment Related Complaints

On June 27, 2006 Plaintiff called ABM's harassment hotline to complain about an issue relating to a vacation request. The complaint did not allege any form of harassment or discrimination concerning race. Rather, Plaintiff complained about a denied vacation request. (March 59:11-23).

At some unspecified period of time, Plaintiff also testified that he heard another security officer, Neil Thomas, say that "the only good Mexican he ever saw was a dead Mexican" (March 81:1-25). No one else heard the comment nor did March report the comment to his supervisor, Michael Cockerham. Plaintiff testified that this was the only time he heard Neil Thomas make any racially offensive comment. (March 85:1-86:11).

During his five years of employment with ABM, Plaintiff states that he heard two derogatory comments about African-Americans. On the first occasion, another African-American security officer, Joel Nelson, told Plaintiff that he heard another security officer use the word s "house nigger" in reference to Cockerham. (March 101:5-13). Plaintiff advised Joel Nelson to inform Cockerham of the reference but does not know if Nelson ever did so. Plaintiff does not remember in what year he heard the statement from Nelson. Plaintiff never informed Cockerham of this racial slur.

The only other occasion occurred in August 2006 when another security officer, Paul Delgado, told Plaintiff that he heard Gerald Steed refer to Plaintiff as a "whiny black ass nigger." (March 108:20-23). Plaintiff testified that he never heard Steed use the N word in his presence nor did he talk to him about the use of the racial slur.*fn1 Plaintiff did, however, report to Cockerham that Steed "had a nasty attitude and that he had been using racial slurs." Plaintiff did not tell Cockerham the specific comment, when the comment occurred, or the content of the alleged comment. (March 121:5-10).

Cockerham testified that Plaintiff told him that Steed was talking behind his back. (Cockerham Decl. ¶6). Plaintiff did not say anything about using the N word. If he had, Cockerham would have terminated Steed. (Cockerham Decl. ¶7). When Cockerham spoke with Steed about the incident (i.e. talking behind Plaintiff's back), he thought it was a "simple personality conflict." (Cockerham Decl.¶8). After Cockerham spoke to Steed, Plaintiff never reported any further instances of any racial comments or other problems with Steed or anyone else. Plaintiff testified that throughout his employment with ABM, he never personally heard anyone use the N word. (March 115:5-8).

Besides these incidents, Plaintiff never heard any racially offensive comments.

Plaintiff's Termination During his employment with ABM, Plaintiff had several conflicts with Neil Thomas. They often had disagreements when Thomas was the swing shift supervisor and Plaintiff the graveyard shift supervisor. Before September 2006, Thomas became the assistant shift supervisor. (Cockerham Decl. ¶10). On September 2, 2006 Thomas and Plaintiff engaged in a heated exchange concerning a personnel decision made by Thomas concerning a trainee employee. (Cockerham Decl. ¶10). Plaintiff explains that the two individuals had different employee disciplinary approaches and that Thomas would "stick his nose" in Plaintiff's business. (March 64:23-65:7). Thomas reported the incident to Cockerham.

Because of the tension between Plaintiff and Thomas, on September 8, 2006, Cockerham discussed the matter with Plaintiff and directed him to report to ABM's branch office for more formal counseling. (Cockerham Decl. ¶¶10-11; March 129:3-9). Plaintiff told Cockerham that he would go as soon as possible. (March 129:3-6). March did not go to ABM's office, located a couple miles from the Harbor Club. (March 129:18-19).

On September 29, 2006, the operations manager for ABM, Esvin Lopez, told Plaintiff that he needed to come to the office for counseling related to the altercation he had with Thomas on September 2, 2006. (Lopez Decl. ΒΆ7). Lopez informed Plaintiff that he could "be subject to further action if he did not report as directed. Mr. March then stated that he wanted to be paid to come into the office. . . . Mr. March did not say anything about any alleged racial slurs or inappropriate comments at the Harbor ...


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