Lettieri v. Equant Incorporated

Filed: March 26, 2007

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-1532

(CA-04-00838-JCC-LO)

LORRAINE LETTIERI,

Plaintiff - Appellant,

versus

EQUANT INCORPORATED,

Defendant - Appellee.

O R D E R

The court amends its opinion filed March 5, 2007, as follows:

On page 1, attorney information section, line 1, and page 2,

attorney information section, line 3 -- the name “ORLON” is

corrected to read “OBLON.”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LORRAINE LETTIERI, 

Plaintiff-Appellant,

v.  No. 05-1532

EQUANT INCORPORATED,

Defendant-Appellee.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Senior District Judge.

(CA-04-00838-JCC-LO)

Argued: September 20, 2006

Decided: March 5, 2007

Before MICHAEL, Circuit Judge, and N. Carlton TILLEY, Jr.,

United States District Judge for the Middle District of North

Carolina, sitting by designation, and Thomas E. JOHNSTON,

United States District Judge for the Southern District of West

Virginia, sitting by designation.

Affirmed in part, reversed in part, and remanded by published opin-

ion. Judge Michael wrote the opinion, in which Judge Tilley and

Judge Johnston joined.

COUNSEL

ARGUED: Angela Hope France, ALBO & OBLON, L.L.P., Arling-

ton, Virginia, for Appellant. Beverly W. Garafolo, BROWN, RAYS-

2 LETTIERI v. EQUANT INC.

MAN, MILLSTEIN, FELDER & STEINER, L.L.P., Hartford,

Connecticut, for Appellee. ON BRIEF: Seth C. Berenzweig, ALBO

& OBLON, L.L.P., Arlington, Virginia, for Appellant. George L.

Washington, Jr., EQUANT, INC., Oak Hill, Virginia, for Appellee.

OPINION

MICHAEL, Circuit Judge:

The plaintiff, who appeals the summary judgment awarded to her

former employer, claims that she was fired because of her gender and

in retaliation for complaining of discrimination, all in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

The appeal centers on whether the plaintiff has established a prima

facie case on these claims. Based on our prior decision in Miles v.

Dell, Inc., 429 F.3d 480 (4th Cir. 2005), we hold that the plaintiff has

made out a prima facie case of sex discrimination even though she

was fired and her replacement was hired by different decisionmakers.

We also hold that she has made out a prima facie case of retaliation

because the evidence of her employer’s recurring retaliatory animus

is sufficient to establish a causal link between her complaint of dis-

crimination and her termination. The Title VII claims are therefore

remanded for further proceedings. Finally, the plaintiff also sues for

$50,000 in sales commissions under her employment contract, and we

affirm the district court’s award of summary judgment to the

employer on that claim.

I.

A.

Because the plaintiff, Lorraine Lettieri, was the non-moving party

in the summary judgment proceedings, we state the facts, with reason-

able inferences drawn, in the light most favorable to her. See Ander-

son v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Lettieri was

employed by Equant Inc. and its predecessor company, Global One,

from 1989 until July 2002. Both companies provided international

data and voice telecommunications services. In July 2001 Global One

LETTIERI v. EQUANT INC. 3

was acquired by, and merged into, Equant. Prior to the merger Global

One had been partly owned by Sprint International Inc. (Sprint) and

was the exclusive provider of certain telecommunications services to

Sprint. Equant expected that Sprint would continue to be a customer

after the merger.

Before the July 2001 merger Lettieri’s position at Global One was

Director of Alternate Sales Channel. During pre-merger planning,

however, Equant decided that the team of Global One sales employ-

ees that Lettieri supervised would be reorganized into a new Equant

unit called the Sprint Channel. The reorganization included the cre-

ation of a new management position, called Head of Sprint Channel.

The person chosen for this position would lead the unit and coordi-

nate the relationship between Equant and Sprint. In June 2001, a

month before the merger, Lettieri interviewed for the Head of Sprint

Channel position with Sean Parkinson, a Senior Vice President at

Equant. During the interview Parkinson asked Lettieri many personal

questions, including whether she had children, what her child care

responsibilities were, and how her family felt about her weekly com-

mute between Equant’s headquarters in Reston, Virginia, and the

family home in New York. Parkinson specifically asked Lettieri "how

[her] husband handled the fact that [she] was away from home so

much, not caring for the family." J.A. 423. Lettieri replied that she,

her husband, and their children "all helped each other" and worked

together to function as "a successful family." J.A. 424. Parkinson per-

sisted, saying that he had "a very difficult time" understanding why

any man would allow his wife to live away from home during the

work week. Id. After the interview Lettieri contacted her then-

supervisor, Jim Hamrick, to express her uneasiness about the gender

stereotyping evident in Parkinson’s questions and comments. Lettieri

was convinced, as she emphasized to Hamrick, that Parkinson was not

considering her professional qualifications.

In early July 2001 Parkinson called Lettieri to tell her that the Head

of Sprint Channel job had been given to Equant employee Michael

Taylor. Parkinson told her that Taylor had experience she lacked in

running a freestanding, profit and loss organization, which might be

the new business model for Sprint Channel. Parkinson also informed

Lettieri that the key reason for Taylor’s selection was that Taylor’s

children, unlike hers, were already raised, and Taylor and his wife

4 LETTIERI v. EQUANT INC.

could make a committed move to Reston; Lettieri, on the other hand,

still had child care and other family responsibilities in New York.

Later in July 2001 Lettieri wrote a letter to and talked with Lauren

Stoll in Equant’s Human Resources Department about her interview

with Parkinson and his explanation of why Taylor had been chosen.

Lettieri told Stoll that she was shocked by Parkinson’s sexist pre-

sumptions and attitude; she did not ask for any specific action to be

taken, and none was.

When Taylor took over as Head of Sprint Channel, he directly

supervised two employees, Lettieri and Laure Travers, also a female

middle manager. Lettieri continued with the title of Director, super-

vising a nationwide sales team of approximately fourteen people. In

November or December of 2001, after working under Taylor for sev-

eral months, Lettieri again complained to Human Resources, this time

about Taylor’s intolerable treatment of her. Lettieri reported that Tay-

lor alternately screamed and cursed at her or gave her the "silent treat-

ment." J.A. 522. Human Resources took no action on this complaint

either.

Taylor’s other female subordinate, Travers (based in New York),

also had problems dealing with Taylor because of his sexist attitude

and biased treatment "based upon gender stereotypes." J.A. 251.

Although Travers was a managerial employee with an M.B.A., Taylor

told her that he wished she worked in Reston where she could do his

photocopying and that her only value was her ability to use her

French charms on male customers. Twice (once in the fall of 2001

and once in April 2002) Taylor referred to Travers and Lettieri as

"bitches" or "stupid bitches" in front of other Equant employees. J.A.

315, 687. Taylor’s sexist comments were not limited to Travers and

Lettieri. On as many as five or six occasions, in front of Lettieri and

others, Taylor talked about the "physical attributes" ("her figure, her

shape, [her] attractive[ness]") of Kimberly Wood, another female

employee. J.A. 312. Once, in Lettieri’s presence, Taylor said to Par-

kinson, "I’d like to get a piece of that [Kimberly Wood’s] ass." J.A.

314.

The relationship between Equant and Sprint began to deteriorate

following the merger. After a time Sprint requested that Equant’s

LETTIERI v. EQUANT INC. 5

Sprint Channel sales team stop the longstanding practice of interact-

ing directly with Sprint’s customers. Sprint also began looking to

other vendors when Equant did not meet certain pricing demands.

In mid-December 2001 Taylor e-mailed Lettieri a suggested

restructuring plan for the Sprint Channel unit that would have reduced

her supervisory responsibilities and reassigned her to the New York

office. This proposal came on the heels of Taylor’s repeated sugges-

tions to Lettieri that she should consider returning to New York to be

with her family. Under Taylor’s proposal Lettieri would no longer

manage a nationwide sales team, but would work on large accounts

in the New York area and serve as a coach to only two or three sales-

persons. Because the proposal called for her demotion, Lettieri imme-

diately (on December 17) contacted the Director of Human

Resources, Jill Hausner, to complain of discrimination in Taylor’s

plan and in the June 2001 interview with Parkinson. Lettieri also

made the broader complaint that there was a "major problem w[ith

the] way women are being perceived" in the organization and that the

"management structure is biased against women." J.A. 262. Hausner

immediately informed Taylor and Parkinson of Lettieri’s complaints,

but took no other action. Following Lettieri’s return from the Christ-

mas holidays, she met with Taylor to discuss the restructuring plan

and her complaints. Although Taylor agreed not to implement his pro-

posal, Lettieri described him as angry and red faced during the meet-

ing.

Within weeks of Lettieri’s December 17th discrimination com-

plaints, Taylor took away significant aspects of her job responsibili-

ties. At a mid-January 2002 meeting of the entire Sprint Channel sales

team, Taylor announced that he was taking over Lettieri’s role of

leading the team. Specifically, Taylor said that he would be responsi-

ble for overall direction and strategy, he would be increasing his

direct interaction with team members, he would be making direct con-

tact with Equant’s clients at Sprint, and he would be assuming all of

Lettieri’s pricing authority. Lettieri had previously exercised final

pricing authority in over ninety percent of the deals Equant did with

Sprint. Lettieri did not report her loss of job responsibilities to Human

Resources because "no action was taken the first time [she] com-

plained, and that all it did was create an atmosphere of more hostil-

ity." J.A. 575-76.

6 LETTIERI v. EQUANT INC.

The Sprint Channel unit was generating lower than anticipated rev-

enues in the first part of 2002. In February or March 2002 Taylor and

Parkinson discussed terminating Lettieri. According to Parkinson, no

decision was made at that time, but Lettieri was singled out because

eliminating middle management would have been "the quickest way"

to reduce costs in response to the disappointing returns. J.A. 1092. In

April 2002 Parkinson, a Senior Vice President, left the company and

was replaced by Paul Radochia. As soon as Radochia arrived, Taylor

recommended cutting Lettieri’s and Travers’s positions. Taylor told

Radochia that "he ha[d] big issues with [Lettieri]" and that "her role

[was] not really needed." J.A. 264. The final decision to terminate

Lettieri and Travers was reached in the first part of June 2002, but

they were not told about it until July 8, 2002.

On June 14, 2002, after the decision to eliminate Lettieri’s position

had been made, Taylor e-mailed Radochia about a recently demoted

male employee, Tony Avino. Taylor wrote that he had "had [his] eye

on [Avino] as possible sales leadership replacement to LL [Lettieri]

for some time." J.A. 192. If Avino had no disqualifying factors in his

record, Taylor wanted to talk with Radochia about moving Avino into

Lettieri’s position. Radochia replied that Avino was a "poor per-

former" with other very negative attributes. Id. Radochia added, "we

have [Lettieri] on the redundant list . . . that means [she] can not be

‘replaced’ for at least 6 months. I thought you [Taylor] were going to

have all the sales people report to you and set up ‘unofficial’ team

leaders." Id. Taylor then retreated, telling Radochia that the plan

remained for the sales team to report to him (Taylor).

Lettieri was summoned to Equant’s New York office for a meeting

with Taylor on July 8, 2002. On that day a Human Resources repre-

sentative took Lettieri to a conference room where they waited for

Taylor. When Taylor arrived, he commented on Lettieri’s attire, say-

ing, "My don’t you look pretty in pink," and, "I like girls that are

dressed in pink." J.A. 626-27. The Human Resources representative

then told Lettieri that her position was being eliminated effective

immediately. Travers, the other female middle manager who reported

directly to Taylor, was discharged the same day. Although Equant

asserts that Lettieri’s and Travers’s positions were among hundreds

eliminated during the year following the merger with Global One,

LETTIERI v. EQUANT INC. 7

only Lettieri and Travers were targeted for termination in the Sprint

Channel unit during this period.

As Taylor was thwarted in his effort to replace Lettieri with Avino,

he assumed Lettieri’s role of supervising the Sprint Channel sales

team after she was fired in July 2002. Taylor thus performed his regu-

lar job as Head of Sprint Channel as well as the job of supervising

the sales team until Equant hired Barbara Wellons as Head of Sprint

Channel in February 2003. Wellons’s title, Head of Sprint Channel,

was the same as Taylor’s. Wellons, however, took over Taylor’s Head

of Sprint Channel responsibilities, relieving him of the pivotal author-

ity to set pricing for Sprint Channel products and services. Taylor was

thus effectively demoted and left with Lettieri’s former position of

supervising the Sprint Channel sales team.

On April 10, 2003, two months after her arrival, Wellons asked for

and received Taylor’s resignation. Wellons hired Gregory DeMarco

four days later, and DeMarco took over the responsibilities that Tay-

lor had been most recently performing. DeMarco’s title was Director,

Sprint Channel Sales. Two Sprint Channel organizational charts, one

showing Lettieri’s role and one showing DeMarco’s, demonstrate that

DeMarco filled Lettieri’s old position. The charts show both as man-

agers of the Sprint Channel sales team and holding director-level

positions. Moreover, immediately after DeMarco was hired, he con-

tacted Lettieri because "he was told by his management that [she]

knew how to do [his] job better than anybody, and that he should

come talk with [her] and learn how to do the job from [her]." J.A.

640. Lettieri met with DeMarco in April 2003 and gave him advice

about discharging the responsibilities of her old position, the position

DeMarco had just assumed, called Director of Sprint Channel Sales.

B.

Lettieri’s termination prompted her to file charges of sex discrimi-

nation and retaliation with the EEOC, which issued a right to sue let-

ter. She then filed a timely action against Equant alleging Title VII

sex discrimination, Title VII retaliation, and breach of contract. The

last claim seeks $50,000 in unpaid commissions that Lettieri believes

were due to her under her employment agreement with Equant.

Equant moved for summary judgment on all three claims, and the

8 LETTIERI v. EQUANT INC.

motion was granted. The district court concluded that Lettieri’s gen-

der discrimination claim failed for two reasons: first, Lettieri’s alleged

replacement by DeMarco was not probative of discrimination because

he was hired by different decisionmakers than those who fired her,

and second, she did not proffer sufficient evidence to show that she

had been replaced at all. Lettieri v. Equant, Inc., 367 F. Supp. 2d 958,

965 (E.D. Va. 2005). Lettieri’s retaliation claim was rejected because

the court concluded that Lettieri could not show a causal connection

between her complaint of discrimination and her termination. Id. at

966. Finally, the court held that Lettieri’s breach of contract claim

failed because she had not shown that Equant had an obligation to pay

her the disputed commissions. Id. at 969. Lettieri appeals the three

summary judgment rulings.

II.

Lettieri seeks to avoid summary judgment and establish her claim

for Title VII sex discrimination by using the three-step, or burden

shifting, "pretext" method of proof laid out by the Supreme Court in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). At

the first step the plaintiff has the burden to establish a prima facie

case. A Title VII plaintiff using the standard formulation for the prima

facie case meets this burden by showing that: "(1) she is a member

of a protected class; (2) she suffered adverse employment action; (3)

she was performing her job duties at a level that met her employer’s

legitimate expectations at the time of the adverse employment action;

and (4) the position remained open or was filled by similarly qualified

applicants outside the protected class." Hill v. Lockheed Martin Logis-

tics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en banc). If the

plaintiff establishes her prima facie case, the burden shifts to the

employer at the second step "to articulate a legitimate, nondiscrimina-

tory reason for the adverse employment action." Id. At the third step

the burden returns to the plaintiff to show that "the employer’s prof-

fered permissible reason for taking an adverse employment action is

actually a pretext for discrimination." Id. Specifically, the plaintiff

must "prove by a preponderance of the evidence that the legitimate

reasons offered by the [employer] were not its true reasons, but were

a pretext for discrimination." Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 143 (2000) (quoting Tex. Dep’t of Cmty. Affairs

v. Burdine, 450 U.S. 248, 253 (1981)). At this last step "the burden

LETTIERI v. EQUANT INC. 9

to demonstrate pretext ‘merges with the ultimate burden of persuad-

ing the court that [the plaintiff] has been the victim of intentional dis-

crimination.’" Hill, 354 F.3d at 285 (quoting Burdine, 450 U.S. at

256).

A.

Lettieri carried her burden on the first three elements of the prima

facie case, but the district court held that she failed on the fourth ele-

ment to show that she was replaced by someone outside of her pro-

tected class. Lettieri, 367 F. Supp. 2d at 964-65. The district court

concluded that Lettieri could not satisfy this last element of the prima

facie case for two reasons. First, "[b]ecause a completely different

management team hired DeMarco, the subsequent action by these dif-

ferent decision-makers cannot be imputed back" to Taylor and anyone

else who decided to fire Lettieri. Lettieri, 367 F. Supp. 2d at 965. Sec-

ond, the district court did not believe that Lettieri’s evidence showed

that she was actually replaced by DeMarco. The court brushed aside

the fact that Lettieri and DeMarco both held the title of Director, con-

cluding that "Lettieri provides no evidence of DeMarco’s daily duties

at Equant so she has not shown that he replaced her." Id.

On appeal Lettieri argues that the district court erred in concluding

that she failed to proffer sufficient evidence to allow a trier of fact to

find that she was ultimately replaced by DeMarco. More fundamen-

tally, however, she argues that the district court erred in requiring her

to make this showing as part of her prima facie case. According to

Lettieri, our holding in Miles v. Dell, Inc., 429 F.3d 480 (4th Cir.

2005), relieves her of the requirement to show replacement outside of

her protected class in order to make out a prima facie case. We agree

with Lettieri, as we explain below.

In Miles the female Title VII plaintiff, who asserted that she was

fired because of her sex, was replaced by a female hired by a different

decisionmaker. The district court granted summary judgment to the

employer, holding that the plaintiff had failed to establish the fourth

element of her prima facie case because she was replaced by a female.

We reversed, establishing what we called "the different-

decisionmaker exception to the fourth prong of the Title VII prima

facie case" — an exception that allowed the plaintiff to establish a

10 LETTIERI v. EQUANT INC.

prima facie case, even though one manager fired her and another

hired her female replacement. Id. at 483.

We noted in Miles that "in order to make out a prima facie case of

discriminatory termination, a plaintiff must ordinarily show that the

position ultimately was filled by someone not a member of the pro-

tected class." Id. at 486 (quoting Brown v. McLean, 159 F.3d 898, 905

(4th Cir. 1998) (emphasis added in Miles). There are "exceptions to

this rule in limited situations." Brown, 159 F.3d at 905. "One clear

[exception] is when the defendant hires someone from within the

plaintiff’s protected class in order ‘to disguise its own act of discrimi-

nation toward the plaintiff.’" Miles, 429 F.3d at 488 (quoting Brown,

159 F.3d at 905-06). We recognized another exception in Miles for

the case "wherein the firing and replacement hiring decisions are

made by different decisionmakers." Id. at 489. In such a case, we said,

"the second individual’s hiring decision has no probative value what-

soever as to whether the first individual’s firing decision was moti-

vated by the plaintiff’s protected status." Id. In other words, even if

the female plaintiff could have shown that the second decisionmaker

hired a male to replace her, the replacement hiring decision would not

have contributed to a presumption of gender discrimination on the

part of the first decisionmaker, who fired the plaintiff. See id. The

solution, we held, was simply to relieve the plaintiff of the burden to

"show as part of her prima facie case that she was replaced by some-

one outside her protected class" when "the firing and hiring decisions

were made by different decisionmakers." Id.

In light of our reasoning in Miles, the district court in this case was

correct in its implicit understanding that the sex (here, male) of the

person chosen by a second decisionmaker to fill the female plaintiff’s

vacant position does not assist in creating a presumption of gender

bias on the part of the first decisionmaker, who fired the plaintiff. The

district court nevertheless erred in failing to apply the exception cre-

ated in Miles, which relieves a plaintiff like Lettieri of the burden to

show replacement outside of her protected class as part of the prima

facie case. Because it is uncontested that Lettieri has satisfied the first

three elements of the prima facie case, and Miles relieves her of

LETTIERI v. EQUANT INC. 11

showing the traditional fourth element, we conclude that she has met

her burden at the first step of the McDonnell Douglas analysis.1

B.

Because Lettieri has made out a prima facie case and established

a "legally mandatory, rebuttable presumption" of unlawful discrimi-

nation, the burden shifts to Equant to assert a nondiscriminatory

explanation for Lettieri’s termination. Burdine, 450 U.S. at 254 n.7.

Equant has met its burden of production by proffering evidence that

Lettieri was terminated because her position was "not really needed"

and was therefore eliminated to provide a quick antidote for revenue

shortfalls. J.A. 264. With this explanation the burden shifts back to

Lettieri to show that Equant’s stated reasons for her termination "were

not its true reasons, but were a pretext for discrimination." Burdine,

450 U.S. at 253. In order to show pretext at this third step of the

McDonnell Douglas framework, Lettieri must proffer sufficient evi-

dence to allow a trier of fact to find that she was replaced, and thus

her position was not eliminated, as Equant claimed.

Lettieri has made this showing. Immediately after the decision to

fire Lettieri was made in early June 2002, Taylor, in an e-mail to

Radochia, sought to replace Lettieri with a male. Radochia, however,

advised Taylor that he could not replace Lettieri for at least six

months because she was "on the redundant list." J.A. 192. Taylor was

thus forced to take on Lettieri’s job duties in addition to his own from

July 2002, when Lettieri was fired, until February 2003, when Wel-

lons replaced Taylor. At that point, Wellons assumed Taylor’s upper-

level management responsibilities and effectively demoted Taylor,

who continued to perform Lettieri’s mid-level management position

of supervising the Sprint Channel sales team. In short, Lettieri’s job

re-emerged as a separate position when Wellons arrived. Lettieri was

thus replaced, temporarily by Taylor in February 2003 and ultimately

by DeMarco in April 2003 when he was hired as Director of Sprint

Channel Sales. Organizational charts showed that DeMarco and Let-

tieri had the same position because they were both at the director level

and supervised the Sprint Channel sales team. Finally, when DeMarco

1

At the last step of McDonnell Douglas Lettieri will still be required

to proffer sufficient evidence to show that she was replaced.

12 LETTIERI v. EQUANT INC.

was hired, he immediately contacted Lettieri because "he was told by

his management that [she] knew how to do [his] job better than any-

body, and that he should come talk with [her] and learn how to do the

job from [her]." J.A. 640. Lettieri met with DeMarco and gave him

advice about fulfilling his responsibilities as her successor. These

facts are sufficient to allow a trier of fact to find that Lettieri was

replaced and to reject Equant’s explanation that Lettieri was fired

because her position was eliminated.

To this point, Lettieri has made out a prima facie case of sex dis-

crimination and offered ample evidence to discredit Equant’s prof-

fered nondiscriminatory reason for her termination. Because Equant

has not offered "uncontroverted independent evidence that no dis-

crimination [ ] occurred," Lettieri’s showing is sufficient to permit a

"trier of fact to infer the ultimate fact of [intentional] discrimination

from the falsity of the employer’s explanation." Reeves, 530 U.S. at

147-48. Lettieri, however, relies on more than her prima facie case

and the falsity of Equant’s explanation in attempting to establish that

she was the victim of discrimination.

Lettieri also puts forward the kind of evidence that we have deter-

mined to be sufficient to defeat an employer’s motion for summary

judgment: "evidence that clearly indicates a discriminatory attitude at

the workplace and . . . illustrate[s] a nexus between that negative atti-

tude and the employment action." Brinkley v. Harbour Rec. Club, 180

F.3d 598, 608 (4th Cir. 1999). There is powerful evidence showing

a discriminatory attitude at Equant toward female managers — partic-

ularly female managers who have children at home and commute long

distances. This evidence would allow a trier of fact to conclude that

these discriminatory attitudes led to Lettieri’s ultimate termination.

Senior Vice President Parkinson rejected Lettieri for the Head of

Sprint Channel position in large part because he believed that women

should not live away from home during the work week and that Let-

tieri should work close to her home in New York and not in Equant’s

headquarters in Reston, Virginia. Taylor, who was chosen to head up

the Sprint Channel unit, agreed with Parkinson. As Lettieri’s direct

supervisor, Taylor repeatedly suggested to her that she should con-

sider returning to New York to be with her family. Eventually, Taylor

attempted to demote Lettieri and transfer her to New York. After

Human Resources informed Taylor of Lettieri’s complaint of sex dis-

LETTIERI v. EQUANT INC. 13

crimination by him and Parkinson, he gave up on his plan to transfer

her, but within weeks stripped her of significant job responsibilities.

Taylor and Parkinson, who was also aware of Lettieri’s allegations,

then began discussions regarding her termination. Taylor claimed that

Lettieri’s role was not needed but nonetheless tried to replace her with

a man. In due course, Taylor summoned Lettieri to her firing, where

she was told that she "look[ed] pretty in pink" and that her job was

being eliminated. J.A. 626. As we have already indicated, Lettieri has

proffered sufficient evidence to show that the job elimination expla-

nation was simply a cover for discrimination.

There is sufficient evidence in this case for a trier of fact to con-

clude that Lettieri was the victim of illegal gender discrimination.

Accordingly, the district court erred in granting summary judgment to

Equant on Lettieri’s Title VII sex discrimination claim.

III.

Lettieri next contends that the district court erred in granting sum-

mary judgment to Equant on her claim of Title VII retaliation. We

also evaluate this claim under the McDonnell Douglas burden-shifting

framework. See Thompson v. Potomac Elec. Power Co., 312 F.3d

645, 650 (4th Cir. 2002). At the time the district court considered

Equant’s motion, establishing a prima facie case of retaliation in this

circuit required a plaintiff to show that: "(1) she [had] engaged in pro-

tected activity; (2) the employer took adverse employment action

against her; and (3) a causal connection existed between the protected

activity and the asserted adverse action." von Gunten v. Maryland,

243 F.3d 858, 863 (4th Cir. 2001).2 Equant contested only the third

2

Recently, in Burlington N. & Sante Fe Ry. Co. v. White, 126 S. Ct.

2405 (2006), the Supreme Court rejected our circuit’s formulation of the

second element of the prima facie case. The Court held that "the anti-

retaliation provision . . . is not limited to discriminatory actions that

affect the terms and conditions of employment." Id. at 2412-13. The anti-

retaliation provision, the Court said, "protects an individual not from all

retaliation, but from retaliation that produces an injury or harm." Id. at

2414. Thus, "a plaintiff must show that a reasonable employee would

have found the challenged action materially adverse, which in this con-

text means it well might have dissuaded a reasonable worker from mak-

14 LETTIERI v. EQUANT INC.

(causation) element in the summary judgment proceedings, and the

district court held that Lettieri’s evidence was too speculative to show

a causal connection between her December 2001 discrimination com-

plaint to Human Resources and her July 2002 termination. We con-

clude, however, that Lettieri proffers sufficient probative evidence to

satisfy the causation element of her prima facie case.

Equant argues that Lettieri cannot rely on mere temporal proximity

to establish a causal connection between her complaint and her termi-

nation because of the passage of seven months between these two

events. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273

(2001) ("The cases that accept mere temporal proximity between an

employer’s knowledge of protected activity and an adverse employ-

ment action as sufficient evidence of causality to establish a prima

facie case uniformly hold that the temporal proximity must be very

close[.]") (internal quotation marks and citation omitted). Equant

nonetheless acknowledges that other relevant evidence may be used

to establish causation. See Causey v. Balog, 162 F.3d 795, 803 (4th

Cir. 1998). In cases where "temporal proximity between protected

activity and allegedly retaliatory conduct is missing, courts may look

to the intervening period for other evidence of retaliatory animus."

Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000)

(internal quotation omitted). Specifically, evidence of recurring retal-

iatory animus during the intervening period can be sufficient to satisfy

the element of causation. Id.; see also Miles, 429 F.3d at 490 (noting

that our "determination [in Causey] that a thirteen month interval was

sufficient to negate the causal inference depended on the absence of

other evidence of retaliation"). In this case Lettieri does not rely on

temporal proximity; rather, to establish causation, she points to con-

tinuing retaliatory conduct and animus directed at her by Taylor and

Parkinson in the seven-month period between her complaint and her

termination.

ing or supporting a charge of discrimination." Id. at 2415 (quotation

marks and citations omitted). Burlington Northern does not affect our

analysis because the second element is not an issue in this appeal. Let-

tieri was fired and thus satisfied the stricter "adverse employment action"

formulation rejected by the Supreme Court.

LETTIERI v. EQUANT INC. 15

Lettieri contacted Hausner in Human Resources on December 17,

2001, to report gender discrimination by Taylor and Parkinson. Over

the next two days Hausner conveyed Lettieri’s complaints to the two

men. After Lettieri lodged her complaint, Taylor gave up on his plan

to transfer her to New York. But the very next month (January 2002)

Taylor stripped Lettieri of significant job responsibilities. He reduced

her supervisory responsibilities over the sales team and took away her

authority to set prices and meet directly with Sprint clients. These

steps made it easier for Taylor to take the position later that Lettieri

was not needed and should be terminated. Before long, in February

or March 2002, Taylor and Parkinson began discussions about firing

Lettieri. This was well before Equant asked managers such as Taylor

to look for positions that could be eliminated. Right after Radochia

took over Parkinson’s role in April 2002, Taylor informed Radochia

that he had "big issues with [Lettieri]" and that "her role [was] not

really needed." J.A. 264. After the decision was made to terminate

Lettieri in June of 2002 because her position was supposedly redun-

dant, Taylor immediately sought approval to hire a replacement for

Lettieri.

These intervening events — which occurred regularly after Let-

tieri’s complaint and can reasonably be viewed as exhibiting retalia-

tory animus on the part of Taylor and Parkinson — are sufficient to

show a causal link between Lettieri’s complaint and her termination.

See Farrell, 206 F.3d at 281. Accordingly, we hold that Lettieri has

established a prima facie case of retaliation.

The remainder of the McDonnell Douglas analysis for Lettieri’s

retaliation claim proceeds as it did under her discrimination claim.

We therefore conclude, for the reasons stated in part II.B, supra, that

there is sufficient evidence for a trier of fact to conclude that Lettieri

was the victim of illegal retaliation when she was fired. As a result,

the district court also erred in granting summary judgment to Equant

on Lettieri’s Title VII retaliation claim.3

3

At oral argument Lettieri advanced a new theory of retaliation pur-

portedly based on the Supreme Court’s Burlington Northern decision,

which was issued after the conclusion of briefing in this appeal. Lettieri

argues that Burlington Northern makes clear that Taylor’s decision to

16 LETTIERI v. EQUANT INC.

IV.

Finally, Lettieri challenges the district court’s grant of summary

judgment to Equant on her breach of contract claim for $50,000 in

sales commissions. Lettieri alleges that she and one of her subordi-

nates won a contract with United Parcel Service (UPS) that was worth

$3.5 million to Equant. It is undisputed, however, that Lettieri’s sub-

ordinate who was responsible for the UPS account failed to report any

new UPS order to Equant, and no such order was shown on Equant’s

order tracking system. The district court thus concluded that there was

no reported UPS order that entitled Lettieri to the commissions

claimed. Lettieri attempts to circumvent the undisputed facts on

appeal by arguing that the district court’s decision on her contract

claim is contrary to the law of the case doctrine.

Prior to the summary judgment proceedings before the district

judge, a magistrate judge denied Equant’s motion to amend its answer

to assert as an affirmative defense Lettieri’s failure to fulfill a condi-

tion precedent with respect to her contract claim. The condition was

that "the salesperson managing the account [must] timely submit

order information to Equant so that commissions could be calcu-

lated." J.A. 68. Equant’s motion to amend was denied without written

opinion. As Lettieri essentially concedes in her reply brief, the law of

the case doctrine does not prevent a district judge from implicitly

reconsidering a magistrate judge’s earlier ruling in the same case. See

Hill v. BASF Wyandotte Corp., 696 F.2d 287, 290 n.3 (4th Cir. 1982)

(stating that the law of the case doctrine is "not a matter of rigid legal

rule, but more a matter of proper judicial administration"). In all

events, Lettieri had ample opportunity, but failed, on summary judg-

ment to rebut Equant’s position that her subordinate had not submit-

ted any record of a new UPS order. Thus, the district court was

correct in granting summary judgment to Equant on Lettieri’s contract

strip her of major job responsibilities in mid-January 2002 was a separate

act of retaliation outlawed by Title VII. Because Lettieri has proffered

sufficient evidence to make out a prima facie case under her original

claim that her termination was the retaliatory act, we leave it to the dis-

trict court to consider on remand whether Lettieri may proceed under this

additional theory.

LETTIERI v. EQUANT INC. 17

claim on the ground that "[n]o reasonable juror could conclude that

Equant was required to pay the [commissions] that Lettieri now

seeks." Lettieri, 367 F. Supp. 2d at 969.

V.

In sum, we affirm the district court’s order granting summary judg-

ment to Equant on Lettieri’s breach of contract claim. We vacate the

order granting summary judgment to the company on the Title VII

claims and remand for further proceedings on those claims.

AFFIRMED IN PART,

REVERSED IN PART,

AND REMANDED