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No Discriminatory Discharge Of Plaintiff Who Was Not Employee

An employee cannot be discharged from a position he never held.  That is the simple takeaway from a recent decision from the United States District Court for the District of Maryland.  Mance v. Owings Mills Autos, LLC, Civil No. JKB-17-2222 (D. Md. Apr. 19, 2018).

The plaintiff alleged that he had worked for Northwest Honda as a car salesman and then as a Used Car Manager.  In 2016, Owings Mills Autos (“OMA”) purchased Northwest Honda.  The plaintiff alleged that he completed an employment application for OMA and that he was told he would remain employed with the purchasing company.  He also alleged that he was fired the day after the sale was finalized.  OMA submitted in affidavit stating that the plaintiff never actually submitted an application, and that he was the only salesperson not to do so.

The plaintiff argued that he automatically became an OMA employee after the sale and that he was unlawfully fired because of his race.  The complaint also included a hostile work environment claim.

The court rejected the discriminatory discharge claim, because the plaintiff’s actions — namely, completing an employment application — and the terms of the asset purchase agreement between Northwest and OMA showed that the plaintiff never was an OMA employee.  In addressing the plaintiff’s claim, the court recognized that the complaint could be construed as a failure to hire case, because he alleged that he submitted an application and, unlike most of the other employees who applied, was not hired.  The plaintiff, however, adamantly argued that he was not bringing a failure to hire claim.  The court, therefore, analyzed the claim as asserting unlawful termination.  The complaint contained insufficient factual allegations that he was an OMA employee.  Indeed, while the plaintiff attached a number of documents to his opposition to the defendant’s motion to dismiss, he did not include an employment contract, pay stub, or other documentation showing that he worked for OMA.  Thus, the entire discharge claim rested on the allegation that he automatically became OMA’s employee when it acquired his former employer.

The agreement of sale, however, stated, that OMA “shall have the right, but not the obligation, to employ any or all of Seller’s employees related to the Business, and shall have no obligation to retain any Retained Employees for a specific time period following Closing.”  Thus, the court held, the plaintiff could not automatically become an OMA employee.  In the court’s words, the plaintiff’s “inconsistent actions in terms of filling out an employment application, and the consistent purported statements of those familiar with the deal do not overcome that simple fact. Therefore, there is no genuine dispute of fact as to whether Plaintiff was ever employed by Defendant, and there is no need for resolution of this issue by a jury.”

The hostile work environment claim failed for the same reason — the plaintiff did not present a genuine dispute of material fact as to whether he was an OMA employee.  Moreover, the allegations of harassment — that the plaintiff was twice told something to the effect of “they just don’t want you as a manager” — was insufficient under Fourth Circuit precedent.  In the court’s words, “[i]t is hard to imagine a hostile work environment, replete with ‘severe and pervasive’ unwelcome conduct, when a plaintiff did not work in the environment.”

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