JOSEPH R. McCROREY, United States Magistrate Judge.
Pro se plaintiff, Llewellyn Dunbar ("Dunbar"), filed his complaint on February 21, 2006, alleging that his former employer, Food Lion, terminated him because of his race in violation of Title VII.
Standard for Summary Judgment
A party's failure to respond does not automatically entitle the moving party to summary judgment. As the Fourth Circuit stated in Custer v. Pan American Life Ins. Co., 12 F.3d 410, 416 (4th Cir.1993),
Under this standard, the court is required to conduct an independent examination of the record to ascertain the existence, or absence, of genuine issues of material facts. Campbell v. Hewitt, Coleman & Assoc., Inc., 21 F.3d 52 (4th Cir. 1994). In this regard, the court must review the "record of filed depositions, answers to interrogatories, admissions, and
1. Dunbar is African-American.
2. Dunbar began working as a meat-cutter at Food Lion store no. 245 in Aiken, South Carolina in 1999.
3. In 2002, Dunbar became the "Market Manager" of the meat department.
4. An ice storm hit Aiken in early 2004 causing a four-day power outage at the store resulting in an $80,000 loss of produce in the meat market.
5. Dunbar's store manager and another store manager in Aiken were terminated or permitted to resign because of losses from the ice storm. Both were white.
6. Keith Ladun ("Ladun") became store manager in January 2004. He is white.
7. In May 2004, a meat-cutter supervised by Dunbar quit leaving Dunbar as the only regular meat-cutter in the store.
8. Dunbar was scheduled to be off for the weekend of May 15 and 16, 2004. Ladun advised Dunbar that he was responsible to provide coverage for the meat department for the weekend.
9. Craig Wacker ("Wacker"), a part-time meat-cutter, was scheduled to work for the weekend.
10. Dunbar could not find a meat-cutter from another store to work for the weekend.
11. Dunbar chose not to work and Wacker was forced to work the entire weekend with no help.
12. Luden terminated Dunbar when he returned on May 17, 2004. The discharge notice stated that Dunbar "did not have coverage for dept., knowing that the Meat Cutter quit. Since [Dunbar] failed to cover his department this created excess shrink and loss of sales, and put an unqualified associate in the dept. creating a change for injury." (Pl. Dep., Ex. 22).
13. Food Lion hired Edward Brown ("Brown"), an African-American to replace Dunbar. (Eagle Aff., ¶ 3).
14. On February 28, 2005, Dunbar filed a charge of discrimination. (Pl. Dep., Ex. 9).
15. The EEOC mailed Dunbar a right to sue letter on November 14, 2005. (Pl. Dep., Ex. 11).
16. Dunbar received the right to sue letter within three or four days of the mailing. (Pl. Dep., p. 30).
17. Dunbar filed this action on February 21, 2006.
A. Race Claim
Dunbar asserts that he was terminated by Food Lion because of his race. Food Lion argues that Dunbar failed to timely file his case, and even if it were timely filed, he cannot establish a prima facie case of race discrimination. Dunbar has not responded to Food Lion's arguments.
1. Procedural Bar
A Title VII plaintiff must file his judicial complaint "within ninety days after the giving of ... notice" by the right to sue letter. 42 U.S.C. § 2000e-5(f)(1). The ninety day period begins to run with the receipt of the notice. Shehadeh v. Chesapeake and Potomac Telephone Co. of Maryland, 595 F.2d 711 (D.C.Cir.1978). When the actual date of plaintiff's receipt
In the present case, Dunbar testified that he received the letter within three or four days of mailing on November 14, 2005. Assuming four days for delivery, receipt occurred on November 18, 2005. Dunbar filed his case on February 21, 2006, ninety-five days after receipt under his testimony. The filing violated the statute, and Dunbar has suggested no reason to justify the delay.
2. Prima Facie Case
Plaintiff alleges that he was discharged from his position as Market Manager, due to his race in violation of 42 U.S.C. § 2000e-2(a). That statute provides:
This is a disparate treatment case and plaintiff must prove that "but for" his race, he would not have been terminated. Holmes v. Bevilacqua, 794 F.2d 142 (4th Cir.1986). Plaintiff can prove defendant's motive to discriminate by two methods. First, the "plaintiff may meet this burden under the ordinary standards of proof by direct and indirect evidence relevant to and sufficiently probative of the issue.
To overcome a motion for summary judgment, under the ordinary standards of proof, plaintiff is required to "produce direct evidence of a stated purpose to discriminate on the basis of race and/or circumstantial evidence of a stated purpose to discriminate of sufficient probative force to reflect a genuine issue of material fact." Goldberg v. B. Green and Co., Inc., 836 F.2d 845 (4th Cir.1988). In the absence of direct or indirect proof plaintiff can employ the McDonnell Douglas scheme to establish a prima facie case of discrimination by offering proof that:
EEOC v. Clay Printing Co., at 941.
If a plaintiff establishes a prima facie case, a rebuttable presumption is created that the discharge was due to unlawful discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 504, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The defendant must then come forward with a legitimate non-discriminatory explanation for its action. When the defendant does so, the presumption of discrimination evaporates, and plaintiff must prove that the defendants' proffered reason is pretextual and that the discharge was due to unlawful discrimination. Id.
Dunbar has not established a prima facie case of discrimination based on his race. The only evidence in the record is that Dunbar was replaced by an African-American.
B. Contract Claims
Dunbar alleges that his termination breached a contract between him and Food Lion and that such breach was accompanied by a fraudulent act. The record contains no evidence of a contract between Dunbar and Food Lion. During his deposition, Dunbar disavowed the existence of a contract. (Pl. Dep. 95). Thus, his contract claims must fail.
After reviewing the record, the undersigned concludes that plaintiff has not produced evidence of race discrimination or of a contract between him and defendant. It is, therefore, ordered that defendant's motion for summary judgment is granted.
AND IT IS SO ORDERED.