Not Precedential

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
___________
No. 13-4143
___________
THORNTON CARROLL,
Appellant
v.
ABM JANITORIAL SERVICES-MID ATLANTIC INC.
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil Action No. 1-11-cv-01041)
District Judge: Honorable Leonard P. Stark
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 16, 2014
Before: JORDAN, COWEN and BARRY, Circuit Judges
(Opinion filed: June 17, 2014)
___________
OPINION
___________
PER CURIAM
Thornton Carroll, proceeding pro se, appeals from the District Courts September
18, 2013, order entering summary judgment in favor of ABM Janitorial Services-Mid
Atlantic Inc. (ABM). We will affirm.
I.
The facts being well-known to the parties, we set forth only those most pertinent
to this appeal. Carroll, a cleaner, worked for Brandywine Building Services, Inc., and
continued in that capacity after the company was acquired by ABM Janitorial ServicesMid Atlantic, Inc. (ABM) on January 1, 2006. He received ABMs Information for
Employees and signed a Statement of Acknowledgement. Among other things, the
document stated that employees were not permitted to punch anothers time card and that
doing so would result in immediate termination with cause. He also received and signed
ABMs Work Rules, which stated that tampering with attendance records was cause for
termination.
Carroll was assigned to the Bank of America (BOA) site as a supervisor, along
with another ABM employee, Gary Cooper, who was a shift manager. They worked the
evening shift, Monday through Friday, from 5:00 p.m. to 1:00 a.m., as lateral supervisors.
Their direct supervisors were two project managers, who in turn reported to a district
manager. Carrolls duties included supervising a staff of cleaners at several BOA
buildings. He was responsible for overseeing the performance, attendance, and
punctuality of staff, and for hiring and firing employees, subject to approval from one of
the project managers. Carroll could also call a project manager if a problem occurred
during his shift.
2
On the evening of July 3, 2009, Carroll and Cooper were on duty. Around 9:30
p.m., Carroll observed employees leaving early. They were not clocking out, and he did
not try to stop them. Instead, he went to other buildings under his supervision to
determine why they were leaving early. At some point, he called Cooper, who told him
that it was common practice to allow employees to leave early on the evening before a
holiday and to clock out the entire staff at the shift end. Carroll v. ABM Janitorial
Servs.-MID Atl., Inc., 970 F. Supp. 2d 292, 296 (D. Del. 2013). Carroll did not notify the
project managers or the district manager about the early departures. He left early, at
10:30 p.m., and Cooper signed off on the time sheets that reflected that the employees
had worked a full shift.
ABMs project managers learned about the early departures in August 2009.
Carroll and Cooper then met with a project manager and the district manager. They
explained that they made the decision to dismiss the employees at 10:30 p.m. instead of
midnight, the usual shift ending time, because the building was fairly empty that day and
it was a holiday weekend. They also admitted their responsibility for the decision to
allow the early shift end. Id. at 297. A report prepared after the meeting recommended
suspensions for Cooper and Carroll and warned them that another violation would result
in immediate termination. Carroll then requested a second, and private, meeting with the
district manager. He told them that the employees actually left at 9:30 p.m., not 10:30
p.m., and that he didnt report the early departures because he didnt want to have a
conflict with Cooper.
According to a subsequent series of internal ABM emails, the district manager was
authorized to terminate Cooper and Carroll on August 6, 2009. Carroll was then advised
that his employment was terminated effective August 10, 2009, for violation of company
policies and procedures, due to his actions on July 3, 2009. Specifically, he was told that
he was terminated for allowing employees to leave two hours early with pay. Cooper
was also terminated.
Carroll filed a complaint against ABM alleging employment discrimination,
violations of his civil rights, defamation, race discrimination, and retaliation. Following
discovery, the parties cross-moved for summary judgment. Carroll moved for summary
judgment on all of his claims and argued that he was not terminated for just cause. ABM
moved for summary judgment on the grounds that Carrolls claims failed as a matter of
law, and that he was an at-will employee who could not maintain a claim for wrongful
termination. The District Court granted ABMs motion and denied Carrolls. He timely
appealed.
II.
We have jurisdiction pursuant to 28 U.S.C. 1291.1 We exercise plenary review
over a district courts grant of summary judgment. Fraser v. Nationwide Mut. Ins. Co.,
The District Court had jurisdiction pursuant to 28 U.S.C. 1331 and 1367(a).
4
352 F.3d 107, 111 (3d Cir. 2003). Summary judgment is appropriate if, viewing the
record in the light most favorable to the non-moving party, there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a).
The only issue Carroll raises on appeal is that the District Court improperly
granted summary judgment in ABMs favor on his wrongful termination claim. He
concedes that he was an at-will employee, and argues that ABMs decision to terminate
its at-will employee should have been made in good faith, but was not, in violation of
Delawares implied covenant of good faith and fair dealing. (Appellants Br. pp. 7, 9.)
He claims that ABM fabricated the charges against him. Specifically, he asserts that the
project managers manufactured false allegations to support their grounds to terminate
[him] on August 10, 2009. (Id. p. 10.) In response, ABM argues that Carroll was an atwill employee who could be terminated at any time, with or without cause, and that it did
not manufacture false grounds for his termination. (Appellees Br. pp. 22-24.)
In Delaware, an implied covenant of good fair and fair dealing is read into every
employment contract. See Freebery v. Coons, 589 F. Supp. 2d 409, 423 (D. Del. 2008).
The employment-at-will doctrine generally permits the dismissal of employees without
cause and regardless of motive. E.I. DuPont de Nemours & Co. v. Pressman, 679 A.2d
436, 437 (Del. 1996). Yet the covenant of good faith and fair dealing permits a cause of
action against an employer for the deceitful acts of its agent in manufacturing materially
5
false grounds to cause an employees dismissal. Id. The Delaware Supreme Court has
cautioned, however, that where the employment at-will doctrine is broad, the covenant of
good faith and fair dealing is narrow and carefully crafted, and Delaware courts have
found it breached in extremely limited circumstances. See id. at 438, 443-44; see also
Freebery, 589 F. Supp. 2d at 423-24 (D. Del. 2008).
The District Court determined that Carroll was terminated for violation of
timekeeping procedures. Carroll, 970 F. Supp. 2d at 301. It also concluded that the
record does not reflect that any employee manufactured false allegations against him.2
Id. The issue before us, then, is whether Carroll provided enough evidence to create a
genuine issue of material fact as to whether ABM falsely accused him of the timekeeping
violations that occurred on July 3, 2009.
Carroll testified that he knew employees left early on July 3, 2009. (Appellees
App. p. 46.) He also testified that the employees failed to punch out and that he failed to
secure approval for their unauthorized early departures. (Id. pp. 36-38, 41.) He also
admitted that he left early. (Id. p. 39.) Finally, he testified that he did not report the early
departures to the project managers, as required, and failed to ensure that the early
departing employees punched out to prevent them from being paid for hours not worked.
(Id. pp. 40-41.)
The District Court also determined that the other exceptions to the at-will employment
doctrine are inapplicable. Carroll, 970 F. Supp. 2d at 302. Carroll does not dispute that
conclusion.
6
The record supports the District Courts conclusion that Carroll was terminated for
violating ABMs timekeeping procedures. We understand that Carroll disputes some of
the events that occurred on July 3, 2009, and in the time leading up to his termination.
(Appellants Br. pp. 15-17.) That alone is not enough to overcome the District Courts
conclusion that ABM did not manufacture false allegations against him. Carroll offers no
evidence that would create a genuine issue of material fact on that key issue. Carroll was
an at-will employee, and, absent any evidence of false allegations, ABM was legally
permitted to terminate him with or without cause. We perceive no error in the District
Courts conclusion that Carrolls wrongful termination claim failed as a matter of law.3
We will, therefore, affirm its September 17, 2013, order entering summary judgment in
ABMs favor.
The District Court also granted summary judgment to ABM on Carrolls defamation,
civil rights, and race discrimination claims. Carroll has not raised those issues on appeal.
Therefore, we consider them waived. See United States v. Pelullo, 399 F.3d 197, 222 (3d
Cir. 2005).
7

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