Petition for Writ of Certiorari — Holland v. Washington Homes, Inc., 128 S. Ct. 955 (2008) (No. 07-761)

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Su ure U.

Pia as

07-761NOV13 2007

ie OFRCE OF THE CLERK

IN THE

Supreme Court of the United States

DORN B. HOLLAND, PETITIONER

Vv.

WASHINGTON HOMES, INCORPORATED

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

DENNIS P. DERRICK

Counsel of Record

Seven Winthrop Street

Essex, MA‘01929-1203

(978)768-6610

CURRY & TAYLOR @ WASH O.C. @ (202) 393-4141 @ USSCINFO.COM

QUESTIONS PRESENTED

1. Where an employee proves a prima facie case of

discriminatory discharge on account of race and the

employer proffers two conflicting—and irreconcilable----

reasons for the dismissal, should a jury instead of a judge

decide whether the employer’s proffer is a pretext or

coverup for a racially motivated decision?

2. Does the decision below undermine both Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133(2000)

and Anderson v. Liberty Lobby, Inc., 477 U.S. 242(1986)

by allowing federal judges instead of a jury to decide

whether the employer’s proffer of two irreconcilable

reasons for discharging the petitioner belie a pretext or

coverup for a racially motivated decision?

TABLE OF CONTENTS

Page

gg | | eT SME N A Ae i

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RELEVANT PROVISIONS INVOLVED ..........ccssscsssssssssssecescesscoseeees 2

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REASONS FOR GRANTING THE PETITION ...........scscessessesessseseees 17

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APPENDIX

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TABLE OF AUTHORITIES

Page

CASES

ANDERSON V. LIBERTY LOBBY, INC., 477 U.S. 242, 255(1986)

siceiiiniieiiiaibiniatay -sngaksiGhiansatnicthdilinniisiniisinipnliogitiacasitanasintiitin 23

BLAKELY V. WASHINGTON, 542 U.S.296, 305-306(2004) ....... 25

CASTLEMAN V. ACME BOOT Co., 959 F.2D 1417, 1422(7™ CIR.

UND ashvesecienannieneninnctnnisninicinnnhaninnahideniannaytaaascnnenenapunaaninieitaaeis 22

COMMERCIALES S.A. V. ROGERS, 357 U.S. 197, 209(1958).... 26

CRAWFORD V. CITY OF FAIRBURN, GEORGIA, 482 F.3D

St I I Fa si scessasnicasoicon takai jibaebacaaaiiaaeen 28

DOMINGUEZ-CRUZ V. SUTTLE CARIBE, INC., 202 F.3D 424,

IEW isisisk< ccaiincipdessiiihcileilicadlatessaalamisuaneiscaeicaianatlcine 21

E.E.0.C. V. ETHAN ALLEN, INC. , 44 F.3D 116, 120(2"" CIR.

ee 22

FURNCO CONSTRUCTION CORP. V. WATERS, 438 U.S. 567,

SEES ee ee en ae mR OPER ETE ERMAN aT 18

THURMAN V. YELLOW FREIGHT SYS., INC., 90 F.3D 1160,

3 aga SAAR eee RPE RP OR ra 22

KOBRIN V. UNIVERSITY OF MINNESOTA, 34 F.3D 698, 703(8™

MARTINEZ V. UNITED STATES DEPT. OF ENERGY, 170 FED.

BA ae 0 Ne ras FOOD hecaisisesinacnis eccensndnstindiatitincbanatina 28

MCDONNELL DOUGLAS CORP. V. GREEN, 411 U.S. 792(1978)

EAS 1 ROVE NU Ole Oe EO ae eae ERT PERT NOE oe ae NEN 11, 18, 19

PATTERSON V. MCLEAN CREDIT UNION, 491 U.S. 164,

a clscdoemaiamadiomimunsiiaces 19

PEASE V. RATHBONE-JONES ENG. Co., 243 U.S. 273, 278-

| EUAN RON IA OREN Oe Ne NT aeRO OED! 25

REEVES V. SANDERSON PLUMBING PRODUCTS, INC., 530

is es SI sts ecisivsicecscohscasscaisehtaaancaiaeescia Sheminssdenlinacenioicies PASSIM

SHER V. U.S. DEPARTMENT OF VETERANS AFFAIRS, 488

FSD 6S, SO7-GORL 1 CUR. ZOGT) ....cccnsccsccscecscesesccransesarsasescnnes 28

ST. MARY;S HONOR CENTER V. HICKS, 509 U.S. 502,

REESE UE opener rE em et a nro 18, 19, 22

TEXAS DEPT. OF COMMUNITY AFFAIRS V. BURDINE, 450

Te I, BN iat cictnscesinssnccasisisaipssasannbinnaitiniitannins 18, 19

TOMASSO V. THE BOEING CoO., 445 F.3D 702, 707(3*” CIR.

I aiiisctaskchas acids hcaentindsasundaanpieienamatiabinadiieaainsediiaaie 28

WASHINGTON V. GARRETT, 10 F. 3D 1421,1434(9™ CIR. 1993)

sell stecdacta seid kansas shhcilaa in iacohdseoiaas cad sieekeaiadioataamnamaae uti 22

ZACCAGNINI V. CHAS. LEVY CIRCULATING CoO., 338 F.3D

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STATUTES

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I I se icntisnsscininsk sescccnisliihaecnaenssialamciaigcatian 3

Ee is I pale nsisinesinninsninxinssitasiiaseniesiiatshaniisadadasaiasindainas 10

Oe a ire I aii sissssecsessesdcp nities tenadelacanamaaiatdadaa 10

RULES

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es Bae rs Te NEED nicascosinscdinssissnsininahiinsiincicscnitnosdhaaindetenailagliaeeabaameae 5

OTHER AUTHORITIES

Arthur R. Miller, The Pretrial Rush to Judgment: Are the

“Litigation Explosion,” “Liability Crisis,” and Efficiency

Cliches Eroding Our Day In Court And Jury Trial

Commitments?, 78 N.Y.U. Law Rev. 982, 1064; 1066;1071-

ROTI A AES A vis scsnsicsieiinsiascnstnsccnnencncg sented 26

Rosenthal, Lawrence D., Motions for Summary Judgment

When Employers Offer Multiple Justifications for Adverse

Employment Actions: Why the Exceptions Should

Swallow the Rule, 2002 Utah Law. Rev. 335, 372-374....... 29

Hon. W.G. Young, Vanishing Trials—Vanishing Juries—

Vanishing Constitution, 40 Suffolk U. Law Rev. 67,

FOI sccasiivissindnsdctctepssledslandasiiiaaitaeldeaadinamsaame: amantadine 26

McGinley, Ann C., Credulous Courts and the Tortured

Trilogy: The Improper Use of Summary Judgment in

Title VII and ADEA Cases, 34 B.C. L. Rev. 2038, 229(1993).

OPINIONS BELOW

The published opinion of the United States

Court of Appeals for the Fourth Circuit in Dorn B.

Holland v. Washington Homes, Incorporated (C.A. No.

06-1309),decided May 25, 2007, and reported at 487 F.3d

208(4th Cir. 2007), affirming by a majority vote the

District Court’s order granting summary judgment to

the Respondent Washington Homes, Incorporated, is

set forth in the Appendix hereto(App. 1-82).

The unpublished Memorandum Opinion of the

United States District Court for the District of

Maryland, Southern Division, in Dorn B. Holland v.

Washington Homes, Incorporated (Civil Action No.

8:04-ev-03581-DKC), decided February 14, 2006,

granting summary judgment to the Respondent

Washington Homes, Incorporated, is set forth in the

Appendix hereto(App. 33-66).

The two unpublished orders of the United

States Court of Appeals for the Fourth Circuit in Dorn

B. Holland v. Washington Homes, Incorporated (C.A.

No. 06-1309), as corrected and filed on July 19, 2007,

denying the petitioner Dorn B. Holland’s timely filed

petition for rehearing and for rehearing en banc is set

forth in the Appendix hereto(App. 67-69).

JURISDICTION

The decision of a majority of the United States

Court of Appeals for the Fourth Circuit affirming the

District Court’s order granting summary judgment to

the respondent Washington Homes, Incorporated, was

entered on May 25, 2007; and its corrected order

denying the petitioner’s timely filed petition for

rehearing and for rehearing en banc was filed on July

19, 2007(App.1;67-69). On or about October 9, 2007, the

petitioner applied to Chief Justice Roberts of this Court

for an extension of time to file his petition for certiorari

until November 16, 2007(Docket No. 07A302). On

October 10, 2007, Chief Justice Roberts granted the

petitioner’s motion, extending the time to file this

petition for certiorari until November 16, 2007.

This petition for writ of certiorari is filed within

the time limits prescribed by Chief Justice Roberts’

order in Docket No. 07A302, allowing the petitioner’s

application for an extension of time to file this petition

_ until November 16, 2007.

The jurisdiction of this Court is invoked

pursuant to the provisions of 28 U.S.C. § 1254(1).

RELEVANT PROVISIONS INVOLVED

No person shall...be deprived of life, liberty, or

property, without due process of law....

United States Constitution, Amendment VII:

In Suits at common law, where the value in

controversy shall exceed twenty dollars, the

tight of trial by jury shall be preserved, and no

fact tried by a jury, shall be otherwise

reexamined in any Court of the United States,

than according to the rules of the common law.

United States Constitution, Amendment XIV,

Section IL:

No state shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any state

deprive any person of life, liberty, or property,

without due process of law; nor deny to any

person within its jurisdiction the equal

protection of the laws.

42 U.S.C. §§ 1981(a) and (c):

(a) Statement of equal rights

All persons within the jurisdiction of the United

States shall have the same right in every State

and Territory to make and enforce contracts, to

sue, be parties, give evidence, and to the full and

equal benefit of all laws and proceedings for the

security of persons and property as is enjoyed by

white citizens, and shall be subject to like

punishment, pains, penalties, taxes, licenses, and

exactions of every kind, and to no other.

The rights protected by this section are

protected against impairment by non-

governmental discrimination and impairment

under color of State law.

42 U.S.C. § 2000e-2(a) and (b):

UNLAWFUL EMPLOYMENT PRACTICES

(a) It shall be an unlawful employment practice

for an employer -

(1) to fail or refuse to hire or to discharge

any individual, or otherwise _ to

discriminate against any individual with

respect to his compensation, terms,

conditions, or privileges of employment,

because of such individual's race, color,

religion, sex, or national origin; or

(2) to limit, segregate, or classify his

employees or applicants for employment

in any way which would deprive or tend

to deprive any individual of employment

opportunities or otherwise adversely

affect his status as an employee, because

of such individual's race, color, religion,

sex, or national origin.

(b) It shall be an unlawful employment

practice for an employment agency to fail

or refuse to refer for employment, or

otherwise to discriminate against, any

individual because of his race, color,

religion, sex, or national origin, or to

classify or refer for employment any

individual on the basis of his race, color,

religion, sex, or national origin.

Maryland Code Annotated, Labor & Employment,

Section 8-1302:

Miscellaneous acts of employers.

An employer, its officer or agent, or

another person may not:

(1) knowingly make a false statement or

false representation or knowingly fail to disclose

a material fact to:

(i) prevent or reduce the payment

of a benefit to an individual who is entitled to the

benefit; -

(ii) avoid becoming or remaining

subject to this title; or

(iii) avoid or reduce any

contribution or other payment that is required

from an employer under this title; or

(2) willfully fail or refuse to:

(i) make a contribution or other

payment;

(ii) submit a report that is required

under this title;

(iii) produce records that are

required under this title; or

(iv) allow those records to be

copied and inspected.

Fed. R. Civ. P. 56(c):

The judgment sought shall be rendered

forthwith if the pleadings, depositions, answers

to interrogatories, and admissions on file,

together with the affidavits, if any, show that

there is no genuine issue as to any material fact

and that the moving party is entitled to a

judgment as a matter of law.

STATEMENT

On October 31, 1998, the respondent Washington

Homes, Incorporated (“the respondent” or

“Washington”) hired the petitioner Dorn B. Holland

(“the petitioner” or “Holland’’), then a thirty-four-old

African-American male, as one of its residential

community sales managers (“a CSM”) in the

Washington, D.C. area(App. 2;33). Holland was one of

ten (10) CSMs working for Washington, six (6) of which

were white and four (4) of which were African-

American. All of them worked under Washington’s

supervising sales manager for its southern Maryland

sales division, Ms. Dorothy Peck, a white female(App.

3334).

From October 31, 1998, until February of 2001,

Washington assigned Holland to sell residential

property in the Maryland subdivision known as

Fairfield Commons(App. 3;34). His annual income

initially consisted of a base salary of $15,000 together

with a one percent (1%) commission on each home

sold(App. 2;34). The marketability of the homes within

Fairfieid Commons development was qualified by its

location, its crime rate and the predominance of

African-American homeowners(App. 3;34). Washington

assigned other CSMs, mainly white, not to Fairfield

Commons but rather to more lucrative subdivisions in

better areas where the commissions and working

conditions were better than Fairfield Commons(App. 3-

4;35). Despite this disparate treatment by his employer

Washington, Holland sold 89 of the 91 homes in

Fairfield Commons and in doing so _ became

Washington’s “Rookie of the Year” in 2000(App. 3;34).

In March of 2000, the petitioner met with his

supervisor Peck and expressed some dissatisfaction

with her decision to transfer a white male CSM, Joseph

Macco, to his sales territory thereby allowing Macco to

“raid” customers whom he had under contract(App.

3334-35). In addition, Macco was disseminating false

information to Holland’s customers to undermine their

relationship with him. Peck disputed Holland’s claims,

told Holland to “pick [his] fights” and allowed Macco to

split commissions on Holland’s purchasers(App. 3;34).

In addition, she denied Holland’s request that he be

allowed to poach Macco’s customers and _ split

commissions on Macco’s customers in the same manner

as Macco was allowed to do with his customers(App.

3334).

When Peck subsequently reassigned Holland to

a new subdivision called Winterset in early 2001, she

refused him commissions on the two remaining homes

in Fairfield Commons he had sold, a privilege which she

nonetheless provided Macco when she reassigned him

from Penn Place-Suitland to Kingsview Single Family

Homes in Charles County(App. 34-35). In fact, white

male and female CSMs were regularly provided such

privileges and were also assigned better, “premium”

locations in Washington’s sales area with more

incentives and an opportunity to make larger

commissions while Holland was regularly denied these

opportunities on account of his race, a practice by

Washington which deliberately depressed his earnings

and diminished his sales status(App. 3-4;35).

From February through June of 2001, the

petitioner sold homes in the Winterset subdivision, a

development which Washington and Peck knew had

substantially less sales potential than those markets

regularly assigned white CSMs(App. 3;35). At the start,

Washington increased by $40,000 the price of the homes

there, a price increase which undercut Washington’s

own promotional discount campaign and>one which

Holland believed Washington deliberately employed in

order to depress his commissions and force him to quit,

all in retaliation for Holland questioning Peck about her

disparate treatment of him compared to white CSMs

and her refusal to assign him more lucrative sales

territories(App. 3;35). As a result of this price increase

by Washington, Holland sold no more than three (3)

properties at Winterset(App. 3;35).

From June of 2001 through September of 2003,

Peck assigned Holland to various other subdivisions

(Arbor West, Kingsview, Robinswood and Hamlin

Park), none of which Holland regarded as “premium”

assignments in Washington’s sales area(App. 3-4; 35-

37). Holland claimed that each such assignment was

continuing a racially discriminatory practice or pattern,

depriving him of a fair chance to sell homes and make a

living commensurate not only with his abilities but also

comparable to the living made by white CSMs(App. 3-

5335-37). In addition, he claimed that Washington had

unfairly denied him the opportunity to participate in a

company promotion, its president had made demeaning

statements to him in the workplace and Peck had

refused to sign him up for a course given by the

National Association of Home Builders in 2002(App.

4°36).

In September of 2008, Peck assigned Holland to

Hamlin Park, a development Holland believed was not

ready to be marketed, while she once again assigned

white CSMs to more lucrative subdivisions(App.4;36-

37). Holland then brought his claims of racial

discrimination to Washington’s human_resources

department(App. 5;37). An investigation ensued and

Holland eventually met with Washington’s president,

Hugo DeCesaris, on September 16, 2003(App.5;37-38).

DeCesaris told him that Peck’s decision assigning him

to Hamlin Park would not be changed because Holland

“knew those people” and had “sold that kind of

community before” (App. 5;37-38).

In October of 2003, Washington hired a new vice

president for sales in Maryland, Ms. Maura Arndt, a

white female(App. 5;38). In anticipation of taking over

some of Peck’s communities and having been assigned

the geographic area which included Hamlin Park,

Arndt met with Holland in mid October(App. 5;38).

Arndt claimed that during this meeting, Holland

vociferously expressed his displeasure with Peck and

her workplace assignments(App. 5-6;38). Arndt came

away from the meeting with the feeling that Holland

might present a physical danger to Peck if he was let go

and she informed Washington’s human _ resources

personnel that she had concerns about working with

him(App. 5). Arndt further informed Peck of Holland’s

threats and “warned her to be careful”(App. 5;38).

DeCesaris, Peck and Gretchen Leftrict of

Washington’s human resources department claim they

met on the morning of October 30, 2003, to discuss

Holland’s complaints about the prices of homes in

Hamlin Park and DeCesaris decided that Holland must

be terminated for threatening Peck(App. 6;38). The

same day, Leftrict told Holland that Peck had filed

formal charges against him for making violent threats

and that he was being terminated immediately for

threatening to kill Peck(App. 6;38). Holland denied that

he had ever threatened Peck and claimed that he was

being discharged in retaliation for asserting his rights

to receive fair treatment and equal opportunity in the

workplace(App. 6;38).

Although Holland was discharged on October 30,

2003, Washington changed his termination date to

November 3, 2003(App. 6;64) . Moreover, it failed to

inform the Maryland Department of Labor, Licensing

and Regulation that Holland had been discharged for

threatening his supervisor Peck with violence, i.e.

“STOss misconduct”(App. 6-7;50-51). Rather,

Washington told the state agency that Holland had

been “laid off’ due to lack of work with no possibility of

returning(App. 6;50-51). Washington later claimed that

giving this false information to the Maryland agency

about the circumstances of Holland’s dismissal was

done so that he would receive unemployment

compensation; and it changed the date of his

termination from October 30, 2003, to November 3,

2003, so that his retirement benefits would vest(App. 6-

7;50-51;64).

On May 4, 2004, Holland timely filed a claim of

discrimination with the states Human Relations

Commission and the United States Equal Employment

Opportunity Commission(EEOC) (App. 7;39). Shortly

after the EEOC issued Holland a right to sue letter on

August 26, 2004, he brought a civil action against

Washington in the federal district court for the

southern division of the District of Maryland(App.

7;39). Positing jurisdiction under 28 U.S.C. §1343(a)(4)

and 42 U%S.C. §2000e-5(f), and seeking compensatory

and injunctive relief, Holland alleged that he was

discharged from his employment on the basis of his

race; that he was dismissed in retaliation for

complaining of racial discrimination in his workplace;

and that during the course of his employment, he was

denied opportunities on the basis of his race, all in

violation of Title VII of the Civil Rights Act of 1964 and

1991, as amended, 42 U.S.C. §2000e et seq.(App.

7;39;46). Holland requested a jury trial on all issues

which would warrant a jury’s consideration under Title

VII.

During discovery, Washington moved for

summary judgment in its favor as a matter of law under

Fed.. R. Civ. P. 56(c), contending that Holland could

adduce no direct proof of Washington’s discriminatory

animus in discharging him and that, in any event, under

the framework of proof outlined in McDonnell Douglas

Corp. v. Green, 411 U.S. 792(1973), Holland could not

prove a prima facie case either of discriminatory

discharge, a retaliatory discharge or a denial of

workplace opportunities based on race(App. 43-46).

The district judge first ruled that Holland could

establish a prima facie case of discriminatory

discharge, that Washington had met its burden of

presenting a legitimate, nondiscriminatory reason for

the discharge, i.e., its belief that Holland had

threatened Peck, but that Holland had failed to carry

his further burden of proof by showing through a

preponderance of evidence that Washington’s proffered

reason for his dismissal was not its true reason but

rather a pretext or coverup for its discriminatory

intent(App. 48-51). It therefore granted summary

judgment to Washington on Holland’s claim of

discriminatory discharge(App. 51).

In support of his argument that Washington’s

excuse for discharging him was a pretext, Holland had

cited his flat denials of ever threatening Peck (indeed, it

was contrary to common sense and his employment

security to do so), an assertion which should have been

taken as true on this summary judgment motion(App.

50). In addition, Holland relied on the fact that when

Washington reported his unemployment to the

Maryland Department of Labor, Licensing and

Regulation, it told this Maryland agency that Holland

had been “laid off’ due to lack of work, not for

threatening his supervisor, proof which created a jury

question (1) whether Washington was lying now about

the true reason(s) for Holland’s discharge and (2)

whether the allegations of making threats against Peck

were “manufactured” by the employer in an attempt to

coverup its discriminatory conduct(App. 50). Finally,

Holland had contended that no one at Washington ever

interviewed him about the threats he allegedly made to

Peck(App. 50).

The district judge concluded, however, that none

of this proof was enough to create an inference of

discriminatory animus sufficient for a jury’s

determination:

Even if [the petitioner] did not threaten Ms.

Peck, which the court must accept [as true] for

the purposes of this motion, [Holland] has come

forward with no evidence to show that Mr.

DeCesaris did not believe [Holland] had made

threats when Mr. DeCesaris decided to fire

[Holland]...

..... Holland] alleges that [Washington]

manufactured the threat allegations to cover up

[Washington’s] discriminatory conduct, but cites

no evidence in the record to support this

assertion. [Holland’s] final point, that

[Washington] fired [him] without interviewing

him first about the allegations, does not lead to

an inference of discrimination.

(App. 51). Thus because Holland had not adduced

sufficient evidence to show that Washington’s stated

reason for firing Holland was a _ pretext for

discrimination, summary judgment was granted to

Washington on this claim(App. 51). The district court

rejected Holland’s retaliation claim for the same

reason(App. 51-54). Finally, the district judge dismissed

Holland’s denial-of-opportunity claims because he could

not show an adverse employment action concerning his

transfer to Hamlin Park and because all the other

incidents were barred as untimely(App. 54-60).

Upon the petitioner’s appeal, a majority of the

Court of Appeals for the Fourth Circuit affirmed the

district court in a published opinion on May 25, 2007,

reported at 487 F.3d 208(4th Cir. 2007)(App. 1-32 ).

Like the district court, the majority agreed that under

McDonnell Douglas, Holland had presented a prima

facie case of racial discrimination and that Washington

had responded with a legitimate, nondiscriminatory

reason for his dismissal, i.e., DeCesaris believed that

Holland had made threats toward Peck(App. 9-10). This

showing by Washington shifted the burden of proof

back to Holland to show that this asserted reason was a

pretext for discrimination or, stated another way, that

its proffered explanation “is unworthy of

credence’(App. 10-11).

Like the district judge, the majority also

concluded that Holland had failed to put forward

enough evidence to show that Washington’s proffered

explanation was false(App. 12). It rejected the idea

that a triable fact issue concerning pretext was created

by Holland’s mere denials that he threatened

Peck(which it accepted as true), by Washington’s

changing the date of his termination to November 3,

2003, or by its reporting to the Maryland agency that

Holland was laid off instead of terminated for

cause(App. 12-13). As the majority saw it,

...Washington...claims it took these two steps to

be charitable to Holland. By pushing his

termination date a few days forward,

Washington...allowed Holland’s _ retirement

benefits to vest. Second, by reporting that

Holland was laid off [instead of discharged for

cause], [it] allowed Holland to _ seek

unemployment benefits from Maryland.

Regardless of whether this was “stupid” or

“criminal” under Maryland law..., it does nothing

to discredit DeCesaris’s statement that he fired

Holland because he (the decisionmaker) believed

that Holland had threatened his supervisor.

(App. 13;16)(emphasis supplied).

Believing Washington’s claim about why it lied

to the Maryland Department of Labor, Licensing and

Regulation concerning the reason for Holland’s

discharge, the majority found that Washington’s

actions in this regard showed “charity on the company’s

part” toward Holland, that there was nothing in the

record to show otherwise and that to disbelieve

Washington on this score would unfairly punish an

employer for trying to help out an employee discharged

for cause(App. 14;23). It characterized’ the

contradictory reasons proffered by Washington at

different times for Holland’s discharge as “a minor

discrepancy” and blamed Holland for not presenting

evidence sufficient for a trier of fact to find that any

other reason besides charity prompted Washington’s

reliance on two different reasons at different times for

Holland’s dismissal(App. 14;16).

For the same reasons, the majority affirmed the

dismissal of Holland’s’ claim of __ retaliatory

discharge(App. 16-18). It also affirmed the dismissal of

Holland’s denial-of-opportunity claims because he could

not show an adverse employment action concerning his

transfer to Hamlin Park and because all the other

alleged adverse workplace incidents were barred as

untimely(App. 18-22).

Circuit Judge King dissented and would have

reversed the entry of summary judgment on Holland’s

race-based termination and retaliation claims(App. 25-

32). As the judge saw it, Holland

has presented compelling evidence of a material

factual dispute, in that }Washington...provided

the Maryland Department of Labor, Licensing

and Regulation...with an entirely different basis

for Holland’s termination than it has espoused in

this case...[That is,] Holland has _ forecast

evidence that even though

Washington...informed him that he was being

terminated for misconduct, it thereafter

reported an entirely different reason for his

discharge to the Maryland Agency (which

contacted Washington when Holland applied for

unemployment benefits) asserting that Holland

had in fact been terminated for lack of work.

(App. 25;27). Adverting to decisional law holding that

an employer’s inconsistent justifications over the

course of litigation for an adverse employment action

are themselves probative of pretext and present a jury

question which survives summary judgment, Judge

King concluded that Holland “has presented sufficient

evidence of pretext in this case, showing that

Washington has, at different times, given contradictory

reasons for his termination”(App. 28-29).

The dissent further chastised the majority for

calling Washington’s two irreconcilable justifications

for firing Holland “a minor discrepancy;” and it

considered the majority’s willingness to find credible

Washington’s bald claim that its contradictory

responses were justified by notions of “charity” toward

Holland to be anathema to summary judgment

procedure(App. 29-30). As it wrote, “liJn adopting

Washington[‘s]...explanation on why it falsely advised

the Maryland agency with respect to Holland’s

termination, the majority is making a credibility

determination that is inappropriate in our assessment

of a summary judgment award....Put simply, it is for a

jury, not an appellate court, to decide whether

Washington...was being charitable or, instead, that its

conflicting positions constitute evidence of

discriminatory misconduct”(App. 29-30). In making this

point, the dissent observed in a footnote that it was

“immaterial” why Washington lied to the Maryland

agency; instead, the relevant issue is whether Holland

had established pretext by showing that his employer

gave two entirely inconsistent explanations for

terminating him(App. 31-32).

Noting that there were actually three different

stories put forth in this litigation about Holland’s

termination, one by Holland citing racial discrimination,

the second based on threats to his supervisor and the

third founded on a lack of work, Judge King observed

that Washington has admittedly lied about the last one

and, under settled principles, therefore did not deserve

to be believed about the second reason(App. 30-31).

Moreover, instead of viewing the evidence most

favorably to the non-movant Holland, as it should have,

the majority viewed all the conflicting evidence in

Washington’s favor, extending itself to find—like a

jury—that Washington was actually being charitable to

Holland by lying to the Maryland agency and that it is

being truthful now(App. 31). As the dissent concluded,

“we should not—on summary judgment review---credit

the position of an admitted liar’(App. 31)(emphasis

supplied).

On July 19, 2007, the Court of Appeals in a

corrected decision denied the petitioner’s timely filed

petition for rehearing and for rehearing en banc(App.

67-69). On or about October 9, 2007, the petitioner

applied to Chief Justice Roberts for an extension of

time to file his petition for certiorari until November

16, 2007(Docket No.07A302). On October 10, 2007, Chief

Justice Roberts granted the petitioner’s motion,

extending the time to file this petition for certiorari

until November 16, 2007.

REASONS FOR GRANTING THE PETITION

1. The Court of Appeals Misapplied the

McDonnell Douglas Framework of Proof, Wrongly

Determining The Fact Issue Of Pretext For Itself

Upon Summary Judgment, And Denied The

Petitioner A Jury Trial On His Proof That

Washington Unlawfully Discriminated When It

Discharged Him On October 30, 2003.

McDonnell Douglas “established an allocation of

the burden of production and an order for the

presentation of proof in...discriminatory treatment

cases” in the absence of direct proof of discrimination.

Reeves v. Sanderson Plumbing Products, Inc., 580 U.S.

133, 142(2000) quoting St. Mary’s Honor Center v.

Hicks, 509 U.S. 502, 506(1993). First, the petitioner

must establish a prima facie case of discrimination. Jd.

Texas Dept. of Community Affairs v. Burdine, 450 U.S.

248, 252-253(1981). The term “prima facie case” denotes

the establishment of a legally mandatory, rebuttable

presumption. Burdine, 450 U.S. at 254 n.7. The prima

facie case “raises an inference of discrimination only

because we presume [that] these acts, if otherwise

unexplained, are more likely than not based on the

consideration of impermissible factors.” Furnco

Construction Corp. v. Waters, 438 U.S. 567, 577(1978)

If the petitioner proves unlawful disparate

treatment by a preponderance of the evidence, he has

established his prima facie case which creates the

presumption that the employer has_ unlawfully

discriminated, proof which, if believed by a trier of fact

and if the employer is silent in the face of that

presumption, would warrant a judgment for the

petitioner because no issue of fact remains in the case.

Burdine, 450 U.S. at 254. Under McDonnell Douglas,

the employer is then given the opportunity to rebut the

petitioner’s prima facie case by adducing evidence that

the adverse employment action was accomplished for a

legitimate, nondiscriminatory purpose. Reeves, supra.

Burdine, supra. MeDonnell Douglas, 411 U.S. at 802. It

is a burden of production, not persuasion, and involves

no credibility assessment. /d. quoting Burdine, supra.

If the employer successfully carries its burden,

the presumption of discrimination---but mot the

petitioner’s evidence in support of this presumption—

disappears, the sole remaining issue becomes

discrimination vel non and the petitioner must prove by

a preponderance of the evidence that the reasons

offered by the employer were not its true reasons but

were a pretext for discrimination. Reeves, 530 U.S. at

148 citing Hicks, 509 U.S. at 507-508. That is, aided by

the same proof which established his prima facie case,

the petitioner may establish that he was the victim of

intentional discrimination by showing that a

discriminatory reason more likely motivated the

employer, Burdine, 450 U.S. at 256, or that its

presumptively valid reasons for disparate treatment

“were in fact a coverup for a racially discriminatory

decision.” McDonnell Douglas, 411 U.S. at 805. See

Hicks, 509 U.S. at 510.

Under the McDonnell Douglas framework, the

petitioner’s initial burden of establishing a prima facie

case of disparate treatment is “not onerous.” Patterson

v. McLean Credit Union, 491 U.S. 164, 186(1989).

Burdine, 450 U.S. at 253. The typical prima facie

showing of a discriminatory discharge of an employee

will focus on (1) the status of the plaintiff as a member

of a protected group; (2) his qualified status or that he

was meeting his employer’s expectations; (3) an

adverse employment action; and (4) following the

adverse employment action, his replacement by

someone in an unprotected class. Patterson, 491 U.S. at

186-187. Burdine, 450 U.S. at 253. McDonnell Douglas,

supra.

It was agreed that Holland made a prima facie

showing here. His summary judgment materials proved

that he was a middle-aged African-American who was

discharged from employment when his latest job

evaluation was more than satisfactory and that he was

subsequently replaced by a similarly qualified white

employee(App.10;48). Under the McDonnell Douglas

framework, Washington replied with proof that

Holland was discharged on October 30, 2003, for a

legitimate, non-discriminatory purpose, i.e., because he

had threatened his supervisor Peck.

The next inquiry wnder McDonnell Douglas is

whether Holland proved by a preponderance of the

evidence that the reason offered by the employer, i.e.,

Holland’s alleged threat of Peck, was not its true reason

for discharge but rather was a pretext for

discrimination. On this score, the summary judgment

materials showed that immediately after Holland’s

termination for this purported reason, Washington

represented to the Maryland Department of Labor,

Licensing and Regulation another reason for his

discharge, i.e., that Holland had been “laid off’ due to

lack of work, not terminated for threatening his

supervisor.

These two inconsistent—and _irreconcilable---

explanations put forth by Washington during this

litigation for terminating Holland do not amount to a

“minor discrepancy” which can be harmonized on this

motion for summary judgment. Instead, as Judge

King’s dissent suggests, these two contradictory

reasons given by Washington for discharging Holland

are so starkly incompatible-- indeed, they permit the

inference that Washington was lying either to the

Maryland agency or to the court---that they create a

genuine issue of material fact for a jury whether in

giving these two conflicting reasons for terminating

Holland, Washington was mounting a pretext or

coverup for its unlawful, discriminatory misconduct.

Holland therefore deserved a jury trial under the

McDonnell Douglas’ protocol of proof and the federal

courts below were wrong to conclude otherwise.

First, Holland’s evidence established a prima

facie showing that his discharge by Washington was

racially discriminatory. Second, in addition to Holland’s

prima facie proof, Washington’s_ contradictory

justifications for terminating Holland were themselves

a reason to infer that the articulated reason, i.e.,

threatening his supervisor, was a pretext or a coverup

for invidious discrimination. Reeves, 530 U.S. at 147-

149(a prima facie case by the employee together with

sufficient evidence to reject the employer’s explanation

may permit a finding of liability by the factfinder).

The federal courts of appeal uniformly follow

Reeves and hold that an employer’s shifting,

incompatible reasons for discharging an employee is

itself justification for denying summary judgment to

the employer in a workplace discrimination case and

permitting the issue of pretext to go to the jury. As the

court of appeals for the First Circuit explained,

[a] company may have several legitimate reasons

to dismiss an employee. But when a company, at

different times, gives different and arguably

inconsistent explanations, a jury may inter that

the articulated reasons are pretextual [for

purposes of the McDonnell Douglas framework].

Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424,

432(1st Cir. 2000). Accord, E.E.0.C. v. Ethan Allen,

Inc. , 44 F.3d 116, 120(2nd Cir. 1994); F.E.0.C. v. Sears,

Roebuck and Co. 243 F.3d 846, 853(4th Cir.1993);

Thurman v. Yellow Freight Sys.., Inc., 90 F.3d 1160,

1167(6th Cir.1996); Castleman v. Acme Boot Co., 959

F.2d 1417, 1422(7th Cir.1992); Kobrin v. University of

Minnesota, 34 F.3d 698, 703(8th Cir. 1994); Washington

v. Garrett, 10 F. 3d 1421,1434(9th Cir. 1993); Tyler v.

Re/Max Mountain States, Inc., 232 F.3d 808, 813(10th

Cir. 2000).

Indeed, the Hicks Court teaches that the fact

issue of discrimination should not be _ treated

differently than any other ultimate question of fact,

that whether an employer’s “obviously contrived”

reason for an employee’s discharge adds up to

discrimination “remains a question for the factfinder to

answer” and that

[t]he factfinders’ disbelief of the reasons put

forward by the [employer for discharging the

employee} (particularly if disbelief is

accompanied by a suspicion of mendacity) may,

together with the elements of the prima facie

case, suffice to show intentional discrimination.

Thus, rejection of the [employer’s] proffered

reasons, will permit the trier of fact to infer the

ultimate fact of intentional discrimination....

509 U.S. at 510-511;524(emphasis in original). Reeves,

530 U.S. at 147(“In appropriate circumstances, the trier

of fact can reasonably infer from the falsity of the

explanation that the employer is dissembling [in order]

to cover up a discriminatory purpose...Moreover, once

the employer’s justification has been eliminated,

discrimination may well be the most likely alternative

explanation, especially since the employer is in the best

position to put forth the actual reason for its decision.”).

Third, Holland adduced other evidence upon

Summary judgment which further buttresses the

inference that Washington’s explanations for his

discharge were pretextual: the employer changed the

time of his termination to later in the day on October

30, 2003, when in fact he was terminated by Gretchen

Leftrict earlier in the day without any meeting

involving DeCesaris having taken place; the employer

did not follow its own guidelines for addressing an

employee’s threat of violence to one of its supervisors,

the asserted reason for his discharge; the police were

never contacted nor was Holland ever confronted with

the charge of threatening a supervisor with violence;

the employer never even interviewed Holland about

the alleged threats; the date of his discharge was

unilaterally changed by the employer to November 3,

2003; and Holland had been a model employee with a

good record until these charges of making threats

against his supervisor surfaced on October 30, 2003.

Finally, as Reeves makes clear, the court of

appeals in reviewing the materials before it was

required to draw all inferences in favor of Holland, the

nonmoving party, and it could not make any credibility

determinations because this is a function of a jury, not

a judge. 530 U.S. at 150-151 citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255(1986). Contrary to this

law, the court of appeals wrongly believed and then

adopted Washington’s claim that it was being

“charitable” to Holland when, after discharging him for

making threats, it then changed its story and told the

Maryland Department of Labor, Licensing and

Regulation that Holland was laid off due to lack of

work.

Even more damaging, the lower court permitted

its unauthorized belief in Washington’s story about

changing its reasons for discharging Holland to infect

its assessment of the petitioner’s, evidence of

discriminatory discharge and retaliatory discharge,

nullifying his rights under the gMcDonnell Douglas

framework and denying him a jury trial through

summary judgment.

While Washington may have adduced evidence

from which a jury could reasonably infer that its

decision to fire Holland was not based upon

discriminatory animus, Washington produced no

evidence which required such a finding. Instead,

Holland put forth ample evidence under the McDonnell

Douglas framework which permitted a reasonable trier

of fact to reject either of Washington’s contrived,

conflicting reasons for discharging Holland and to find

more probably than not that its discharge of Holland

was the result of unlawful discriminatory animus. By

finding Washington’s evidence more credible than

Holland’s proof, the court of appeals distorted

summary judgment procedure, misapplied the

McDonnell Douglas framework, wrongly determined

the fact issue of pretext for itself and denied Holland a

jury trial on his claims of workplace discrimination.

2. The Federal Courts Are Abusing Summary

Judgment Procedure By Weighing Evidence and

Finding Facts In Order to _ Dispose of

Discrimination Claims, Denying Claimants The

Jury Trial Guaranteed Them By the Seventh

Amendment. |

The seventh amendment to the _ federal

constitution provides that in suits at common law, “the

right of trial by jury shall be preserved....” As Justice

Scalia observed in Blakely v. Washington, 542 U.S.296,

305-306(2004), the right to a jury trial in civil cases is no

mere procedural formality but rather a fundamental

“reservation of power in our constitutional structure,”

assuring the people’s ultimate control of the judiciary.

Id. citing 2 The Complete Anti-Federalist 315, 320(H.

Storing ed. 1981). This guaranty of a jury trial in the

Constitution and the common law traditions it

entrenches “do not admit the contention that facts are

better discovered by judicial inquisition than by

adversarial testing before a jury.”/d. at 313 citing 3

Blackstone, Commentaries, at 373-374; 379-381.

Since one of the fundamental duties of the jury

in civil cases is to resolve factual disputes bearing on

material issues in controversy, the summary judgment

procedure now contained in Fed. R. Civ. P. 56 does not

violate a party’s constitutional right to a jury trial

because it is presumed that if the entry of summary

judgment is appropriate, there are no genuine issues of

material fact for trial and therefore no right to a jury

trial is implicated. Fidelity & Deposit Co. v. United

States, 187 U.S. 315, 320(1902). See also Pease v.

Rathbone-Jones Eng. Co., 243 U.S. 273, 278-279(1917).

However, both federal jurists and _ legal

commentators have noted that federal trial judges

regularly overuse summary judgment in order to take

triable cases away from juries. Hon. W.G. Young,

Vanishing Trials—Vanishing Juries—Vanishing

Constitution, 40 Suffolk U. Law Rev. 67, 78(2006).

Arthur R. Miller, The Pretrial Rush to Judgment: Are

the “Litigation Explosion,” “Liability Crisis,” and

Efficiency Cliches Eroding Our Day In Court And

Jury Trial Commitments?, 78 N.Y.U. Law Rev. 982,

1064; 1066;1071-1072;1133-1134(2003).. As Professor

Miller observes, Rule 56's “paper trials” of crucial,

disputed fact issues

would be an unfortunate break with the past.

Our civil dispute resolution system has always

preferred adjudication based on oral testimony

in open court subject to cross

examination....[T]hey are considered aspects of

what often is referred to as a “day in court,” with

due process embracing notions of a fair trial

before an impartial tribunal.

Id. at 1072 & n. 476, citing Societe Internationale Pour

Participations Industrielles et Commerciales S.A. v.

Rogers, 357 US. 197, 209(1958)(“There are

constitutional limitations upon the power of courts,

even in aid of their own valid processes, to dismiss an

action without affording a party the opportunity for a

hearing on the merits of his case.”). See also Thomas,

Suja A., Why Summary Judgment Is Unconstitutional,

93 Va. L. Rev. 139, 143-144;158-160;177-178(2007).

This overuse of summary judgment in Title VII

and age discrimination cases in the workplace has been

documented. One scholar concludes that courts in these

cases routinely weigh evidence, draw inferences in

favor of the moving party (typically the employer-

defendant) and make credibility determinations.

McGinley, Ann C., Credulous Courts and the Tortured

Trilogy: The Improper Use of Summary Judgment in

Title VII and ADEA Cases, 34 B.C. L. Rev. 203,

229(1993). Likewise, it was found that courts often

reject the plaintiffs’ attempts to create inferences of

intent and motive through a totality of circumstantial

evidence, thereby creating a triable issue, by treating

the evidence in a piecemeal fashion, isolating and

rejecting as insufficient each of the discrete elements

of the plaintiffs’ evidence rather than considering their

cumulative effect. Jd. at 233-236.

Such is the case here. Instead of denying

Washington’s motion for summary judgment because of

the conflicting—indeed, irreconcilable—reasons it

proffered at two different times for discharging

Holland, the court of appeals improperly resolved this

crucial fact question of pretext by deciding that one of

Washington’s lies (to the Maryland state agency) was

justified by reason of “charity” to Holland, that

Washington was telling the truth when it claimed that

it terminated Holland for threatening his supervisor

and by then adopting it as a settled fact in this

litigation. In the process, it improperly drew every

inference from the parties’ proof against Holland,

accepting Washington’s contrived explanation for its

conduct as true and legally dispositive of the

petitioner’s claims. The court of appeals as well as the

district court thereby usurped the role of the jury by

making findings of fact about an event for which three

different justifications were offered by the evidence.

Holland deserved a jury trial on this crucial fact

question and denying him this opportunity is not only

unfair but also unconstitutional.

This abuse of Rule 56 procedure justifiably

invokes this Court’s power of superintendency over

the federal courts to reassert their proper role in

deciding summary judgment motions in employment

discrimination cases, i.e., reaffirming the thrust of

Reeves and Anderson which require them to draw all

inferences in favor of the nonmoving party and to

refrain absolutely from making any credibility

determinations in order to resolve material factual

disputes becaus@*this is a function of a jury, not a

judge.

Finally, to the extent that the decision below

requires that in order to prove pretext, the employee

must rebut directly each and every legitimate reason

proffered by the employer for the adverse employment

action, a question which has created a conflict among

the circuits, see, e.g., Sher v. U.S. Department of

Veterans Affairs, 488 F.3d 489, 507-508(1st Cir. 2007);

Crawford v. City of Fairburn, Georgia, 482 F.3d

1305(11th Cir. 2007); Tomasso v. The Boeing Co., 445

F.3d 702, 707(8rd Cir. 2006); Zaccagnini v. Chas. Levy

Circulating Co., 338 F.3d 672, 679-680(7th Cir. 2003);

Martinez v. United States Dept. of Energy, 170 Fed.

Appx. 517, 521(10th Cir. 2006), this Court should

resolve the conflict and extinguish any incentive such a

rule gives employers to put forth as many reasons as

possible for an adverse employment action in the hope

that the employee will not be able to rebut each one.

See Rosenthal, Lawrence D., Motions for Summary

Judgment When Employers Offer Multiple

Justifications for Adverse Employment Actions: Why

the Exceptions Should Swallow the Rule, 2002 Utah

Law. Rev. 335, 372-374.

CONCLUSION

For all of these reasons identified herein, a writ

of certiorari should issue to review the judgment and

decision of the United States Court of Appeals for the

Fourth Circuit or provide the petitioner with such

other relief as is fair and just in the circumstances.

Respectfully submitted,

Dennis P. Derrick

Counsel of Record

Seven Winthrop Street

Essex, MA 01929-1203

(978)768-6610

(Footnotes trail end of document)

487 F.3d 208;

No. 06-1309

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

DORN B. HOLLAND,

Plaintiff-Appellant,

WASHINGTON HOMES, INCORPORATED,

Defendant-Appellee.

March 16, 2007, Argued

May 25, 2007, Decided

COUNSEL: Edward Smith, Jr.. SMITH & GARRET,

P.A., Baltimore, Maryland, for Appellant.

Steven R. Semler, OGLETREE, DEAKINS, NASH,

SMOAK & STEWART, P.C., Washington, D.C., for

Appellee.

JUDGES: Before WILLIAMS, KING, and DUNCAN,

Circuit Judges. Judge Williams wrote the opinion, in

which Judge Duncan concurred. Judge King wrote a

separate opinion concurring in part and dissenting in

part.

OPINION BY: WILLIAMS

OPINION

WILLIAMS, Circuit Judge:

Appellant Dorn B. Holland appeals the district court's

award of summary judgment to Appellee Washington

Homes, Inc. Holland claims that Washington Homes

discriminated against him and wrongfully terminated

his employment because of his race and his complaints

of discrimination. Because Holland has failed to present

a genuine issue as to any material fact, we affirm the

district court's grant of summary judgment to

Washington Homes.

The following facts are presented in the light most

favorable to Holland. See, e.g., Howard v. Winter, 446

F.3d 559, 562 n.2 (4th Cir. 2006) ("When reviewing a

district court's grant of summary judgment, we

construe the facts in the light most favorable to the

nonmoving party, which in this case was [the

appellant].").

Holland is a black male who began working as a sales

manager for Washington Homes on October 31, 1998.

He sold homes in several subdivisions in the Maryland

suburbs of Washington, D.C. for five years before he

was terminated on October 30, 2003. Holland's

compensation consisted of a base salary plus a

commission of one percent for each home he sold. His

gross salaries for his years of employment with

Washington Homes were: 1998 - $ 4,614.88; 1999 - $

65,444.46; 2000 - $ 74,197.04; 2001 - $ 58,818.80; 2002 - $

40,430.73; 2008 - $ 131,520.77.

Holland's first assignment was to sell homes at

Fairfield Commons, where he worked until the early

months of 2001. Fairfield Commons is a predominately

African-American community with a substantial crime

rate. Holland was able to sell 89 of the 91 homes in

Fairfield Commons and was named "rookie of the year"

in 2000 due to his performance. At one point in March

2000, Holland met with his supervisor, Didi Peck, a

white female vice president, to complain that a white

male sales manager, Joseph Macco, was raiding his

customers that were under contract. Hollaad claims

that he was forced to share his commissions with

Macco, but Macco was not required to share his

commissions with Holland. Holland further alleges that

Macco was given other perks that Holland was not

given during this time period.

In February 2001, Peck assigned Holland to the

Winterset subdivision, where he worked until June

2001. Holland alleges that Peck transferred him to

Winterset because of his race. He further claims that

Washington Homes raised the sales prices of the homes

in Winterset by $ 40,000 around the time of his transfer,

thereby making it difficult for him to sell the homes.

Finally, he alleges that during this time period, Carla

Temple, a white female sales manager, was given

certain benefits that were denied to him.

In July 2001, Holland was reassigned to the Arbor

West subdivision, where he worked for a couple of

months. Holland claims that his assignment to Arbor

West was discriminatory because Cliff Martin, a white

male sales manager, was allowed to continue selling

homes at Arbor West for a week after Martin was

reassigned elsewhere.

In September 2001, Peck assigned Holland to the

Kingsview subdivision, which he felt was unfair

because it required him to increase his transportation

expenses. He also claimed that there were only nine

homes to sell in Kingsview and that he was denied the

opportunity to participate in a company promotion

during this period.

In January 2002, Holland was reassigned to the

Robinswood_ subdivision. He claims that this

assignment also was discriminatory because Peck had

tried to give the assignment to a white sales manager,

but that sales manager turned it down. Nevertheless,

he admitted that the assignment was "a big money

maker and... fast money." (J.A. at 228.)! Holland says

that during this period, Peck refused to sign him up for

a National Association of Home Builders class.

Moreover, on one occasion in March 2003, Hugo

DeCesaris, the president of Washington Homes, asked

Holland to make a pot of coffee. Holland claims that this

request was discriminatory based on his race.

In September 2003, Peck informed Holland that his

next assignment would be Hamlin Park. When Holland

told her that Hamlin Park was a blighted community

and a bad assignment, Peck assured him that Hamlin

Park was ready to be sold and that good money would

be made there. When Holland viewed Hamlin Park, it

was, in his opinion, not ready to be sold. Around the

same time, Peck assigned Macco to the allegedly more

desirable community of Winshire Estates.

On September 1, 2003, Holland went to see Edward

Kaplan, Washington Homes' human resources vice

president. Holland indicated that Peck might be

discriminating against him. Kaplan told Holland to

express his concerns to human resources manager

Gretchen Leftrict. The human_resources staff

attempted to investigate the matter and resolve the

conflict between Peck and Holland.

On September 16, 2003, Holland addressed his concerns

over the Hamlin Park assignment to DeCesaris.

Holland stated that DeCesaris told him that Holland

would have success there because Holland knew "those

people" and had "sold that kind of community before."

(J.A. at 265.) Holland believed that even though he was

enjoying his most successful year at Washington

Homes, this new assignment was part of a company

design to remove blacks from its workforce.

In late October 2003, Holland discussed his distaste of

Peck with Maura Arndt, a new vice president.

Thereafter, Arndt expressed concerns that Holland

might physically hurt Peck. According to Arndt,

Holland said, among other inflammatory things, that

Peck "was a crazy bitch" and that he was "gonna show

her!" (J.A. at 69.) Although Holland denies these

allegations, Arndt claimed that she was so frightened of

Holland and what he might do to Peck that she went to

Leftrict and stated that she did not want Holland

working for her because she was afraid of him. She also

went to Peck and warned her to be careful. Upon

reporting these allegations to management, Leftrict

was instructed to immediately begin an investigation.

During the investigation, Arndt verified her story, and

the allegations against Holland were corroborated by

Peck's assistant, Brenda West. Leftrict also learned

that Peck had previously sent Holland to anger

management class and that Holland had expressed his

hatred for Peck to others.

On October 30, 2003, DeCesaris met with Peck and

Leftrict to review Holland's complaints about his

assignment to Hamlin Park. At this meeting, DeCesaris

learned about Holland's physical threats toward Peck

and determined that Washington Homes "cannot keep

this guy around here if he is making these kinds of

threats." (J.A. at 59-60.) After DeCesaris expressed his

view that Holland must be terminated immediately,

Leftrict explained that she was scheduled to meet with

Holland later that day, and she would notify him of his

termination at that time. Shortly thereafter, Holland

met Leftrict in her office to get a copy of his personnel

file. At that time, Leftrict told Holland that Peck had

filed a formal charge against him and that he was being

terminated immediately. Holland denied threatening

Peck and claimed that his termination was retaliation.

Although Holland was fired on October 30, he was told

that his end date would be changed to’ November 3,

2003, so that his 401K plan would reach five-year

maturity. Washington Homes thereafter informed the

Maryland Department of Labor, Licensing, and

Regulation that Holland was dismissed because of lack

of work. Thus, the company failed to inform the state

agency that Holland was terminated for "gross

misconduct." Washington Homes contends this "was

done so as to not deprive appellant of unemployment

compensation," just as his discharge date was changed

to ensure that Holland's retirement benefits vested.

(Appellant's Br. at 26.)

On May 4, 2004, Holland filed a charge of discrimination

with the Prince George's County Human Relations

Commission and the United States Equal Employment

Opportunity Commission (EEOC). On August 26, 2004,

the EEOC issued a right to sue letter. On November 8,

2004, Holland filed a complaint against Washington

Homes in the District of Maryland pursuant to Title

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

(West 2003 & Supp. 2006). Holland alleged that he was

fired due to his race and as retaliation for complaining

of racial discrimination. He also claimed that during the

course of his employment, he was denied employment

opportunities because of his race.

On February 14, 2006, the district court entered

summary judgment in favor of Washington Homes. The

district court explained its judgment in a well-reasoned,

thirty-three page memorandum opinion. See Holland v.

Wash. Homes, Inc., No. 8:04-cv-03581-DKC, 2006 U.S.

Dist. LEXIS 96236 (D. Md. Feb. 14, 2006). First, the

district court determined that Holland could not show

that he was terminated based on his race because

Holland presented no evidence that DeCesaris did not

believe that Holland had threatened Peck. Because

Holland presented no evidence that could show that

DeCesaris's legitimate proffered reason for firing

Holland was disingenuous, the district court concluded

that no issue of fact existed with respect to pretext.

The district court also rejected his retaliation claim,

finding once again that Holland could not show pretext.

Finally, the district court rejected Holland's denial-of-

opportunity claims because he could not show an

adverse employment action with respect to his transfer

to Hamlin Park, and all other claimed incidents were

barred as untimely. Accordingly, the district court

granted summary judgment to Washington Homes.

Holland timely appealed. We have jurisdiction pursuant

to 28 U.S.C.A. § 1291 (West 2006).

Il.

We review de novo the district court's grant of

summary judgment in favor of Washington Homes,

applying the same standard as did the district court.

See Laber v. Harvey, 488 F.3d 404, 415 (4th Cir. 2006)

(en banc). Summary judgment is appropriate when "the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment

as a matter of law." Fed R. Civ. P. 56(c); see Celotex

Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L.

Ed. 2d 265 (1986). We must construe the facts in the

light most favorable to Holland, and we may not make

credibility determinations or weigh the evidence. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106

S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Edell & Assocs.,

P.C. v. Law Offices of Peter G. Angelos, 264 F.3d 424,

435 (4th Cir. 2001). But there must be "sufficient

evidence favoring the nonmoving party for a jury to

return a verdict for that party. If the evidence is

merely colorable, or is not significantly probative,

summary judgment may be granted." Anderson, 477

U.S. at 249-50 (internal citations omitted).

Title VII makes it "an unlawful employment practice

for an employer . .. to discharge . . . or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of

employment, because of such individual's race." 42

U.S.C.A. § 2000e-2(a)(1). Holland argues that he was

fired because of his race and because he complained of

racial discrimination. He further contends that

Washington Homes denied him certain workplace

opportunities because of his race. We will address each

argument in turn.

A plaintiff, generally may defeat summary judgment

and establish a claim for race discrimination through

one of two avenues of proof. First, a plaintiff may

establish a claim of race discrimination by

demonstrating through direct or _ circumstantial

evidence that his race was a motivating factor in the

employer's adverse employment action. See, e.g., Hill v.

Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277,

284 (4th Cir. 2004) (en banc). "The second method of

averting summary judgment is to proceed under a

‘pretext’ framework, under which the employee, after

establishing a prima facie case of discrimination,

demonstrates that the employer's proffered permissible

reason for taking an adverse employment action is

actually a pretext for discrimination." Jd. at 285.

On appeal, Holland confines his argument to the

pretext framework. Under the McDonnell Douglas

pretext framework, an employee demonstrates a prima

facie case of race discrimination by showing that (1) he

is amember of a protected class; (2) he suffered adverse

employment action; (3) he was performing his job duties

10a

at a level that met his einployer'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. See, e.g., McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

Both parties agree that Holland has made out a prima

facie case of discrimination. He is (1) a member of a

protected class; (2) he was fired; (3) his job evaluations

were satisfactory; and (4) his position was filled by a

similarly qualified white candidate.

Because Holland presented a prima facie case, "the

burden shifts to the employer to articulate a legitimate,

nondiscriminatory reason for the adverse employment

action." Hill, 354 F.3d at 285. This burden, however, is a

burden of production, not persuasion. Here,

Washington Homes met its burden by producing

affidavits and testimony demonstrating that Holland

was fired because DeCesaris believed that Holland

made threats toward Peck. As a result of Washington

Homes meeting its burden of production, "the

McDonnell Douglas framework -- with its

presumptions and burdens -- disappear|s], and the sole

remaining issue [is] discrimination vel non." Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142,

120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000) (internal

quotation marks and citations omitted). "In other

words, the burden shifts back to [Holland] to prove by a

preponderance of the evidence that the employer's

stated reasons 'were not its true reasons, but were a

pretext for discrimination.” All, 354 F.3d at 285

(quoting Reeves, 530 U.S. at 148).

lla

Accordingly, the burden to demonstrate pretext has

"merg[ed] with the ultimate burden of persuading the

court that [Holland] has been the victim of intentional

discrimination." Texas Dept of Cmty. Affairs v.

Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 67 L. Ed. 2d

207 (1981). In Reeves, the Supreme Court clarified how

a claimant can avoid summary judgment under the

McDonnell Douglas framework. Once the question

comes down to pretext, a plaintiff "must be afforded the

opportunity to prove by a preponderance of the

evidence that the legitimate reasons offered by the

defendant were not its true reasons, but were a pretext

for discrimination." Reeves, 530 U.S. at 143 (internal

quotation marks omitted). A plaintiff could accomplish

this goal "by showing that the employer's proffered

explanation is unworthy of credence." Burdine, 450 U.S.

at 256.

In Reeves, the company claimed that Reeves was fired

because he had failed at his responsibility of recording

worker attendance. Reeves, however, offered evidence

that he properly maintained the attendance records.

This evidence, the Supreme Court explained, combined

with the strong evidence supporting Reeves's prima

facie case, was enough to support a jury's verdict of

liability. Reeves, 530 U.S. at 146. Thus, the Supreme

Court held that "a plaintiffs prima facie case, combined

with sufficient evidence to find that the employer's

asserted justification is false, may permit the trier of

fact to conclude that the employer unlawfully

discriminated." Jd. at 148 (emphasis added). But the

Supreme Court cautioned that this will not always be

the case; for example, judgment as a matter of law may

be appropriate if a "plaintiff created only a weak issue

of fact as to whether the employer's reasons were

12a

untrue and there was abundant and uncontroverted

independent evidence that no discrimination had

occurred." Jd. Thus, a key factor for courts to consider

is “the probative value of the proof that the employer's

explanation is false." Jd. at 149.

Unfortunately for Holland, he has not put forth

sufficient evidence showing that Washington Homes'

proffered legitimate explanation was false. Aside from

his denials as to the threats (which we accept as true),

nothing in the record supports an inference that

DeCesaris's explanation was pretextual, or perhaps

more on point, that DeCesaris did not believe that

Holland had threatened Peck when he made the

decision to fire him.”

Holland makes a number of arguments against this

conclusion, but they are unavailing. First, Holland

contends that he was fired at 9:30 a.m. on October 30,

2004, which is flatly inconsistent with Washington

Homes' statements that the decision to fire Holland was

made during a meeting on the morning of October 30,

and Holland was not informed of the decision until that

afternoon. Holland contends that Washington Homes

"fudged" affidavits to conceal the fact that the rationale

to fire Holland was contrived after the real decision was

made.

This is a serious charge that, if true, would go far

beyond showing pretext on Washington Homes' part.

The trouble for Holland, however, is that there is no

evidence in the record that supports the contention that

his meeting with Leftrict occurred at 9:30 a.m. or was

scheduled at 9:30 a.m. There exists not even a scintilla

of evidence that Holland's meeting with Leftrict

13a

occurred before the termination decision was made by

DeCesaris. After being pressed at oral argument about

the lack of evidence, Holland eventually conceded as

much and abandoned the claim.’ Accordingly, Holland's

first contention is without merit.

Holland further alleges, and our good colleague in

dissent agrees, that an inference of pretext can be made

because Washington Homes changed the date of his

termination to November 3 and reported to a Maryland

state agency that Holland was laid off, as opposed to

terminated for cause. But Washington Homes cla as it

took these two steps to be charitable to Holland. By

pushing his termination date a few days forward,

Washington Homes allowed Holland's retirement

benefits to vest. Second, by reporting that Holland was

laid off, Washington Homes allowed Holland to seek

unemployment benefits from Maryland. Regardless of

whether this was "stupid" and "criminal" under

Maryland law (Reply Br. at 1), it does nothing to

discredit DeCesaris's statement that he fired Holland

because he (the decisionmaker) believed that Holland

had threatened his supervisor. Moreover, nothing in the

dissent even addresses how this could create an issue of

fact over DeCesaris's belief.

"Once an employer has provided a non-discriminatory

explanation for its decision, the plaintiff cannot seek to

expose that rationale as pretextual by focusing on

minor discrepancies that do not cast doubt on the

explanation's validity, or by raising points that are

wholly irrelevant to it. The former would not create a

‘genuine’ dispute, the latter would fail to be 'material."

Hux v. City of Newport News, 451 F.3d 311, 315 (4th

Cir. 2006) (internal citation omitted).

l4a

Washington Homes has put forth evidence that its

decisionmaker decided to fire Holland because he

believed that Holland threatened his supervisor.‘ That

Washington Homes, as part of its employment

reporting responsibilities, thereafter reported a

different reason and date of termination to a state

employment agency does not cast doubt on the

decisionmaker's proffered reason or create a genuine

and material issue of fact. Rather, it shows later charity

on the company's part,° and there is nothing in the

record to suggest otherwise. In fact, Holland has put

forth no evidence that contradicts Washington Homes'

assertion that it inaccurately reported his termination

date and reason solely to benefit Holland. Moreover,

Holland does not argue that the inaccurate reporting

somehow benefitted Washington Homes, or that the

company had some hidden motive.

It is difficult, then, to take seriously the dissent's point

on this matter. Where is the unresolved “conflict of

material fact?" Post at 21. The only reason we have

adopted "Washington Homes’ explanation on why it

falsely advised the Maryland Agency with respect to

Holland's termination," post at 21, is because Holland

has offered no contrary explanation. It takes two sides

to create a conflict. Again, Holland has put forth no

evidence that any other reason besides charity

contributed to the report. See, e.g., Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106

S. Ct. 1348, 89 L. Ed. 2d 538 (1986)("Where the record

taken as a whole could not lead a rational trier of fact to

find for the nonmoving party, there is no ‘genuine issue

for trial." (quoting Fed. R. Civ. P. 56(e))). Thus,

although a reasonable trier of fact would conclude that

Washington Homes reported a different reason and

15a

date, when combined with the company's innocuous

reasoning for these decisions and Holland's failure to

present any other evidence -- beyond baseless

speculation -- that DeCesaris's stated reason was

pretextual, that trier of fact "would be hard-pressed to

conclude that this established pretext." Price v.

Thompson, 380 F.3d 209, 216 (4th Cir. 2005) (affirming

district court's award of summary judgment to

company in Title VII case where evidence of pretext

was equivocal at best).

This conclusion fits nicely within our precedent.’ In

Tinsley v. First Union Nat'l Bank, for example, we

affirmed the district court's grant of summary

judgment to the Bank in a Title VII case because the

plaintiff ‘offerfed] no evidence that the events

recounted in [the decisionmaker's] affidavit are untrue

or that retaliation was the true reason for [the] firing."

155 F.3d 435, 444 (4th Cir. 1998). We explained that the

"uncontested evidence’ establishe[d] that [the

decisionmaker] honestly believed that Tinsley deserved

to be discharged." /d.

Here, the uncontested evidence established that

DeCesaris (the decisionmaker) honestly believed that

Holland deserved to be discharged for threatening

Peck, regardless of whether Holland did in fact issue

the threats. Thus, Holland's evidence failed to address

whether DeCesaris did not honestly believe that the

threats were made, and ultimately, “lijt is the

perception of the decisionmaker which is relevant." /d.;

see, e.g., Azimi v. Jordan's Meats, Inc., 456 F.3d 228,

246 (ist Cir. 2006) ("In assessing pretext, a court's focus

must be on the perception of the decisionmaker, that is,

16a

whether the employer believed its stated reason to be

credible." (internal quotation marks omitted)).

Accordingly, we agree with the district court's

treatment of the issue:

Even if [Holland] did not threaten Ms. Peck, which the

court must accept for purposes of this motion, Plaintiff

has come forward with no evidence to show that Mr.

DeCesaris did not believe [Holland] had made threats

when Mr. Decesaris decided to fire [him].(J.A. at 419.)

In short, on the evidence in the record, no reasonable

juror could conclude that Washington Homes'

“proffered explanation is unworthy of credence."

Burdine, 450 U.S. at 256. Beyond that, Holland has

failed to put forth sufficient evidence showing that

discrimination was the real reason behind Washington

Homes' decision. Accordingly, we affirm the district

court's judgment with respect to Holland's

discriminatory discharge claim.

Holland further contends that he was fired for

complaining about race discrimination. To state a prima

facie case of retaliation, Holland must show (1) that he

engaged in a protected activity; (2) Washington Homes

acted adversely against him; and (38) the protected

activity was causally connected to the adverse action.

See, e.g., Beall v. Abbott Labs., 130 F.3d 614, 619 (4th

Cir. 1997).

It is undisputed that Holland engaged in a protected

activity by complaining about disparate treatment and

that Washington Homes acted adversely against him by

17a

terminating his employment. The parties, however,

dispute whether the third element is satisfied.

To prove a causal connection, Holland must be able to

show that Washington Homes fired him "because the

plaintiff engaged in a protected activity." Dowe v. Total

Action Against Poverty in Roanoke Valley, 145 F.3d

653, 657 (4th Cir. 1998). The first thing Holland must

be able to prove, therefore, is DeCesaris's knowledge

that he engaged in a protected activity. Although the

evidence is unclear on this point, we assume that

DeCesaris knew of Holland's previous complaints and

that Holland has made out a prima facie case.

Because we assume a prima facie case exists, the

burden shifts to Washington Homes "to rebut the

presumption of retaliation by articulating a legitimate

nonretaliatory reason for its actions." Beall, 130 F.3d at

619. Washington Homes has offered DeCesaris's belief

in Holland's threats as the real reason for the discharge.

Accordingly, the burden shifts back to Holland to show

that the reason is "mere pretext for retaliation by

proving both that the reason was false, and that

discrimination was the real reason for the challenged

conduct." Jd. (internal quotation marks omitted).

Holland cannot show that the decision was mere

pretext for the same reasons that he could not make

that showing with respect to his discriminatory

discharge claim. He presented no evidence that

DeCesaris fired him to retaliate as opposed to

DeCesaris's belief that Holland threatened Peck. In

this context, it is once again "the perception of the

decisionmaker which is relevant not the self-assessment

of the plaintiff." Jd. (internal quotation marks omitted).

18a

Accordingly, we affirm the district court's grant of

summary judgment to Washington Homes on Holland's

retaliatory discharge claim.

Holland's remaining claims are best described as claims

that he was treated disparately because of his race.

Most significantly, he contends that white sales

managers similarly situated to him received better

opportunities with respect to commissions,

advancement, incentives, and training. Washington

Homes contends that the majority of Holland's claims

are time barred and that his remaining claim fails to

‘state a Title VII violation. We agree.

Title VII establishes two potential limitations periods

within which a discrimination charge may be filed with

the EEOC. See 42 U.S.C.A. § 2000e-5(e)(1). "The basic

limitations period is 180 days after the alleged unlawful

employment practice. However, the limitations period

is extended to 300 days when state law proscribes the

alleged employment practice and the charge has

initially been filed with a state deferral agency."

Tinsley, 155 F.3d at 439. Holland qualifies for the 300

days’ limit.

Holland contends that he was discriminated against

when Washington Homes assigned him to Hamlin Park.

That reassignment occurred within the 300 days'

period.

To prevail on a Title VII claim, "the existence of some

adverse employment action is required." James v. Booz-

Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir.

19a

2004). An adverse employment action is a

discriminatory act that "adversely affect[s] the terms,

conditions, or benefits of the plaintiff's employment."

Id. Gnternal quotation marks omitted). "The mere fact

that a new job assignment is less appealing to the

employee, however, does not constitute adverse

- employment action." Jd. at 376. There must be some

significant detrimental effect and “absent any decrease

in compensation, job title, level of responsibility, or

opportunity for promotion, reassignment to a new

position commensurate with one's salary level does not

constitute an adverse employment action even if the

new job does cause some modest stress not present in

the old position." Boone v. Goldin, 178 F.3d 253, 256-57

(4th Cir. 1999).

Holland claims that selling homes in Hamlin Park

would have been more difficult because the area was

blighted, and thus, presumably, his compensation would

have decreased. Beyond Holland's bald assertion,

however, he has put forth no evidence demonstrating

that his compensation would have been adversely

affected by the reassignment. He did not identify where

the neighborhood is located, the type of home being

sold, the crime rate, or information about the home

values in the surrounding area. In short, he has

provided no evidence to support his assertion that he

would have been adversely affected by the move.

"[S}peculation about the future adverse consequences of

a reassignment may not rise to the level of a genuine

dispute [because] we are left to guesswork and

conjecture as to what [Holland's] prospects would have

been." James, 368 F.3d at 377. Accordingly, Holland

cannot show that he suffered an adverse effect because

of his reassignment to Hamlin Park.

20a

Holland further contends that even if the Hamlin Park

assignment was not discriminatory in violation of Title

VII, Washington Homes committed other discrete

discriminatory acts. Although he concedes that these

other acts occurred outside of the 300 days' parameter,

Holland argues we should nevertheless consider them

under the "continuing violation" theory.

The continuing violation theory allows for consideration

of incidents that occurred outside the time bar when

those incidents are part of a single, ongoing pattern of

discrimination, i.e., when the incidents make up part of

a hostile work environment claim. See Natl R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 118, 122 S.

Ct. 2061, 153 L. Ed. 2d 106 (2002) ("Given . . . that the

incidents constituting a hostile work environment are

part of one unlawful employment practice, the

employer may be liable for all acts that are part of this

single claim. In order for the charge to be timely, the

employee need only file a charge within 180 or 300 days

of any act that is part of the hostile work

environment.").

Holland, however, cannot benefit from the continuing

violations theory because he has alleged discrete

violations. Although Holland claims that he was denied

benefits by Washington Homes that were given to

whites because of "his race and the application of [the

company's] institutionalized policy," we, along with

other courts, "have declined to extend the limitations

periods for discrete acts of discrimination merely

because the plaintiff asserts that such discrete acts

occurred as part of a policy of discrimination." Williams

v. Giant Food, Inc., 370 F.3d 423, 429 (4th Cir. 2004); see

also Cherosky v. Henderson, 330 F.3d 1248, 1248 (9th

Z2la

Cir. 2003) ("[I]f the mere existence of a policy is

sufficient to constitute a continuing violation, it is

difficult to conceive of a circumstance in which a

plaintiff's claim of an unlawful employment policy could

be untimely." (internal quotation marks omitted and

citation omitted)). _

Holland "can only file a charge to cover discrete acts

that ‘occurred' within the appropriate time period."

Morgan, 536 U.S. at 114. Simply put, "discrete

discriminatory acts are not actionable if time barred,

even when they are related to acts alleged in timely

filed charges." Jd. at 113. Aside from the Hamlin Park

assignment and Holland's termination, all other alleged

acts occurred outside the 300 days' period. That

Holland claims that these time-barred acts against him

were related to Washington Homes' overarching policy

of discrimination is of no consequence. We therefore

hold that because the Hamlin Park reassignment does

not constitute a violation of Title VII, and that is his

only claim within the 300 days' time period, summary

judgment was proper on Holland's remaining claims.

Ill.

Washington Homes has put forth uncontested evidence

that it terminated Holland because its decisionmaker

believed that Holland was making physical threats

toward his supervisor. Whether Holland actually made

these threats is irrelevant in this context because it is

uncontested that the decisionmaker believed that he

did. Title VII endeavors to eliminate workplace

discrimination, but the statute was not designed to

strip employers of discretion when making legitimate,

necessary personnel decisions, such as the decision to

22a

terminate an employee when an_ investigation

determines that employee made physical threats

against a supervisor. Because Holland failed to put

forth sufficient evidence that the decisionmaker had

some other illegitimate motive in firing him, we must

affirm the district court's award of summary judgment

to Washington Homes.

AFFIRMED

Footnotes

1Citations to the "J.A." refer to the joint appendix filed

with this appeal.

For example, Holland claims that DeCasaris could not

have believed that Holland threatened Peck "for

countless reasons of common sense." (Reply Br. at 1.)

Such bald assertions are unhelpful and do nothing to

present a triable issue of fact.

’Prior to oral argument, Washington Homes filed a

Local Rule 28(j) letter alerting the Court to the Fifth

Circuit's recent decision in Jenkins v. Methodist Hosps.

of Dallas, Inc., 478 F.3d 255 (5th Cir. 2007), where the

court affirmed the district court's imposition of

sanctions against plaintiff's counsel for misquoting the

record. Jd. at 266. That case, however, is irrelevant as

no sanctions were imposed by the district court in this

case. Washington Homes also attempts to call our

attention to Local Rule 46(g)(1), which addresses this

court's power to discipline attorney misconduct. We are

aware of our sanctioning powers and choose not to

invoke them in this instance.

23a

‘This case does not present the question of whether an

employer may be liable under Title VII when an

employee is dismissed as the result of the

discriminatory actions of a coworker who was not the

ultimate decisionmaker, but nevertheless exercised

some substantial level of influence over the ultimate

decisionmaker. See Hill v. Lockheed Martin Logistics

Mgmt., Inc., 354 F.3d 277, 291 (4th Cir. 2004) (en banc)

(declining to hold that "a biased subordinate who has no

supervisory or disciplinary authority and who does not

make the final or formal employment decision

become[s] a decisionmaker simply because he had a

substantial influence on the ultimate decision or

because he has played a role, even a significant one, in

the adverse employment decision"). Rather, Holland

argues that the actual decisionmaker (and the company

as a whole) had a discriminatory motive.

‘If the company had followed Holland's and the

dissent’s proposed route, Holland would have not only

lost a job, but his 401K plan would have failed to reach

maturity by a few days, and he would have been denied

state unemployment benefits. Of course, the message to

employers is clear: Do no favors for those you terminate

for cause, for the risk is a Title VII discrimination suit

and a dissent in the Federal Reporters labeling you "an

admitted liar." Post at 23. The old adage, no good deed

goes unpunished, has never rung so true.

6It is important to note that these clerical decisions

were not made by DeCesaris, the decisionmaker who

decided to fire Holland.

Oddly, the dissent seems unconcerned with the change

in Holland's termination date. Perhaps the dissent

24a

agrees that action could only have been charitable. Why

it presents a different situation than the report to the

state agency, however, is anyone's guess.

"The precedents cited by our good dissenting colleague,

however, are inapposite. In #.E.0.C. v. Sears Roebuck

& Co., for example, Sears continually changed its story

during the course of discovery. 243 F.3d 846, 849-50 (4th

Cir. 2001). Likewise, in Alvarado v. Board of Trustees,

Alvarado "was told he was terminated because there

was a lack of work at the College." 928 F.2d 118, 122

(4th Cir. 1991). The College thereafter claimed that

Alvarado was fired for "unsatisfactory job

performance." Jd. at 123. Sears and Alvarado stand for

the proposition that when a company changes its story

after it cannot support its initial story, there is an

obvious issue of pretext. Here, on the other hand,

Washington Homes never changed its story. It did not

give Holland one justification and the courts another.

Washington Homes’ explanation has been consistent

from the moment it informed Holland he was being

terminated -- he was being fired because he threatened

to kill his supervisor, the same explanation Washington

Homes gave the courts. Nevertheless, to show charity

to Holland in an aspect completely unrelated to the

course of this litigation, the company told a state

agency he was laid off. According to our precedents,

this is not the stuff of which pretext is made.

CONCUR BY: KING (In Part)

DISSENT BY: KING (In Part)

DISSENT

25a

KING, Circuit Judge, concurring in part and dissenting

in part: .

This appeal is controlled by a simple principle: Where

the defendant employer in a race-based termination and

retaliation action has tendered multiple, contradictory

explanations for its termination of the plaintiff -- and

has admitted that one of those explanations was a lie --

a jury must decide whether the employer's court-

proffered explanation for the termination is pretextual.

That straightforward precept is compelled both by our

precedent and by fundamental principles of evidence,

and should be entirely uncontroversial. Yet the

majority rejects it, instead holding that such a

mendacious defendant can be found credible as a

matter of law.

Accordingly, although I concur in the portion of the

majority's opinion ruling that Dorn Holland's claims of

pre-termination disparate treatment are time barred

(Part II.C), I respectfully dissent from the majority's

affirmance of summary judgment on Holland's race-

based termination and retaliation claims (Part IT.A and

.B). To the contrary, Holland has presented sufficient

evidence to demonstrate that Washington Homes'

asserted nondiscriminatory reason for terminating

Holland was pretextual. More specifically, Holland has

presented compelling evidence of a material factual

dispute, in that Washington Homes provided the

Maryland Department of Labor, Licensing, and

Regulation (the "Maryland Agency") with an entirely

different basis for Holland's termination than that it

has espoused in this case. As explained below,

Washington Homes’ false statement in this regard

26a

warrants a trial on Holland's race-based termination

and retaliation claims.

As spelled out in the majority's opinion, Holland has

pursued his discriminatory termination and retaliation

claims against Washington Homes under the burden-

shifting framework of McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668

(1973). Under this standard, once a plaintiff has

established a prima facie case of unlawful

discrimination or retaliation, "the burden shifts to the

employer to articulate a legitimate, nondiscriminatory

reason for the adverse employment action." Hill v.

Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277,

285 (4th Cir. 2004) (en banc). Here, as properly

recognized by the majority, Holland has established

prima facie race-based termination and retaliation

claims, and Washington Homes has responded with its

asserted nondiscriminatory reason for the termination.

Specifically, Washington Homes contends in this

proceeding that Holland was terminated because its

President believed Holland had made threatening

statements against his supervisor. Because Washington

Homes articulated a nondiscriminatory reason for firing

__Holland, "the burden shifts back to [Holland] to prove

by a preponderance of the evidence that [Washington

Homes'] stated reasons ‘were not its true reasons, but

were a pretext for discrimination." Hill, 354 F.3d at 285

(quoting Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 143, 120 S. Ct. 2097, 147 L. Ed. 2d 105

(2000)). Holland is entitled to establish such a pretext

"py showing that the employer's proffered explanation

is unworthy of credence." Reeves, 530 U.S. at 148

(internal quotation marks omitted). My disagreement

with the majority centers on the evidence of pretext.

27a

On appeal, Holland contends that the evidence creates a

genuine issue of material fact on whether Washington

Homes' proffered explanation for his termination was

false. Holland has forecast evidence that, even though

Washington Homes informed him that he was being

terminated for misconduct, it thereafter reported an

entirely different reason for his discharge to the

Maryland Agency (which contacted Washington Homes

when Holland applied for unemployment benefits),

asserting that Holland had in fact been terminated for

lack of work.

The majority acknowledges that Washington Homes

reported a conflicting reason for Holland's termination

to the Maryland Agency, but concludes that this

evidence does not discredit Washington Homes'

contention that it terminated Holland for threatening

his supervisor. The majority sees this conflict as simply

a minor discrepancy, concluding that Holland has failed

to demonstrate that Washington Homes' court-

proffered explanation is pretextual. In so ruling, the

majority relies on Hux v. City of Newport News, 451

F.3d 311, 315 (4th Cir. 2006), which recognized that a

"plaintiff cannot seek to expose [an employer's]

rationale as_ pretextual by focusing on minor

discrepancies that do not cast doubt on the

explanation's validity." In Hux, a decision in which I

joined, the plaintiff had sought to rebut the employer's

proffered reason of inferior job qualifications by

comparing “herself to other employees on the basis of a

single evaluative factor artificially severed from the

employer's focus on multiple factors in combination."

451 F.3d at 315.

28a

The Hux case, however, is materially different from the

situation here. Holland is not seeking to demonstrate

pretext by focusing on a single factor severed from a

combination of other factors. Instead, he shows pretext

by focusing on the fact that Washington Homes has

provided two contradictory explanations for his

termination, a proposition supported by our precedent

in EEOC v. Sears Roebuck & Co., 243 F.3d 846 (4th Cir.

2001), and Alvarado v. Board of Trustees, 928 F.2d 118

(4th Cir. 1991).

In the Sears case, the plaintiff had presented evidence

that Sears had, over the course of the litigation,

provided a variety of legitimate, nondiscriminatory

explanations for its failure to hire him. 243 F.3d at 852-

53. In evaluating whether this evidence was sufficient

to demonstrate pretext, we concluded that it was, and

the fact that Sears offered multiple, inconsistent

justifications for its adverse employment action was, “in

and of itself, probative of pretext." Jd. at 853. In

Alvarado, we ruled that the plaintiff had presented

sufficient evidence of pretext by showing that his

employer first asserted he was being fired for lack of

work, and then later alleged that he was fired for

unsatisfactory job performance. 928 F.2d at 122-23; see

also Reeves, 530 U.S. at 147 ("Proof that the defendant's

explanation is unworthy of credence is simply one form

of circumstantial evidence that is. probative of

intentional discrimination, and it may be quite

persuasive."); Dennis v. Columbia Colleton Med. Ctr.,

Inc., 290 F.3d 639, 647 (4th Cir. 2002) ("The fact that an

employer has offered inconsistent post-hoc explanations

for its employment decisions is probative of pretext . . .

."); Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424,

432 (Ist Cir. 2000) ([W]hen a company, at different

29a

times, gives different and arguably inconsistent

explanations, a jury may infer that the articulated

reasons are pretextual."); Thurman v. Yellow Freight

Sys., Inc., 90 F.3d 1160, 1167 (6th Cir. 1996) ("An

employer's changing rationale for making an adverse

employment decision can be evidence of pretext.");

EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir.

1994) (concluding that reasonable juror could infer that

employer's inconsistent explanations were evidence of

pretext). Based on the relevant precedent, Holland has

presented sufficient evidence of pretext in this case,

showing that Washington Homes has, at different

times, given contradictory reasons for his termination.

In order to counter Holland's evidence that Washington

Homes has made two conflicting -- and irreconcilable --

explanations for his termination, the majority concludes

that its reporting of a different termination reason to

the Maryland Agency fails, as a matter of law, to cast

doubt on its position in this case. In so doing, the

majority relies on Washington Homes' explanation that,

in making its false statement to the Maryland Agency,

it was simply acting out of charity. The majority is

incorrect in this regard, however, because it is thereby

impermissibly resolving a conflict of material fact. In

adopting Washington Homes' explanation on why it

falsely advised the Maryland Agency with respect to

Holland's termination, the majority is making a

credibility determination that is inappropriate in our

assessment of a summary judgment award. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106

S. Ct. 2505, 91 L. Ed. 2d 202 (1986) ("Credibility

determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts are jury

functions, not those of a judge... ."). Put simply, it is

30a

for a jury, not an appellate court, to decide whether

Washington Homes was being charitable or, instead,

that its conflicting positions constitute evidence of

discriminatory misconduct. See id.!

The majority apparently fails to recognize that there

were, under this evidence, three different stories

presented concerning Holland's termination. First,

Holland contends that he was terminated because of his

race and his previous complaints of. discrimination.

Washington Homes, by contrast, maintains in this

proceeding that Holland was terminated because he

threatened his supervisor. The third story is the one

Washington Homes asserted to the Maryland Agency:

that Holland was terminated for lack of work. Because

Washington Homes admittedly lied to the Maryland

Agency, a jury, under settled evidentiary principles,

including the maxim of falsus in uno, falsus in omnibus

("false in one thing, false in all"), would be entitled to

disregard all of its evidence concerning Holland's

termination. See Black's Law Dictionary 491 (7th ed.

1999) (describing maxim as "[t]he principle that if the

jury believes that a witness's testimony on a material

issue is intentionally deceitful, the jury may disregard

all of that witness's testimony"); see also Kevin F.

O'Malley et al., Federal Jury Practice and Instructions

§ 15.06 (5th ed. 2000) (spelling out time-honored jury

instruction that "“[iJf a person is shown to have

knowingly testified falsely concerning any important or

material matter, you obviously have a right to distrust

the testimony of such an individual concerning other

matters"); Edward J. Devitt et al., Federal Jury

Practice and Instructions § 73.04 (4th ed. 1987)

(spelling out similar jury instruction that "[i]f a witness

is shown knowingly to have testified falsely concerning

3la

any material matter, you have a right to distrust such

witness's testimony in other particulars and you may

reject all the testimony of that witness or give it such

credibility as you may think it deserves").’

Finally, the majority has failed to view the evidence in

the proper light, that is, in the light most favorable to

Holland, as the non-moving party. See Seabulk

Offshore, Ltd. v. Am. Home Assurance Co., 377 F.3d

408, 418 (4th Cir. 2004) (recognizing that courts must

view "the facts and inferences drawn therefrom in the

light most favorable to the’ non-moving party" in

reviewing summary judgment award). Instead, the

majority has viewed the conflicting evidence in the

light most favorable to the defendant, concluding that

Washington Homes was being charitable to Holland in

providing false information to the Maryland Agency

and that it is being truthful now.’ On the contrary, we

should -- for summary judgment purposes -- conclude

that Washington Homes terminated Holland because of

race and his previous complaints of discrimination, and

that it is not being truthful when it asserts that Holland

was terminated for threatening his supervisor. Put

simply, we should not -- on summary judgment review

credit the position of an admitted liar.

I would reverse the award of summary judgment to

Washington Homes on_ Holland's _ race-based

termination and retaliation claims. I therefore

respectfully dissent.

Footnotes

'It is immaterial that Washington Homes, in connection

with its admitted false statement to the Maryland

32a

Agency, changed Holland's termination date so that his

401(k) plan would mature. That circumstance does not

at all explain Washington Homes' admission that it lied

at least once concerning its reason for terminating

Holland. In fact, the relevant issue is not why

Washington Homes lied, but whether Holland has

established pretext by demonstrating that Washington

Homes gave two entirely inconsistent explanations for

Holland's termination. See Sears, 243 F.8d at 853;

Alvarado, 928 F.2d at 122-23.

“Holland has no obligation -- under the McDonnell

Douglas burden shifting standard -- to further counter

Washington Homes' evidence that it lied only to the

Maryland Agency (proof that Washington Homes gave

two inconsistent exvlanations is sufficient).

’Under Maryland law, Washington Homes could, on the

basis of its present position, be subject to prosecution

for a misdemeanor, because "an employer, its officer or

agent, or another person" may not "knowingly make-a

false statement or fact representation or knowingly fail

to disclose a material fact" to "avoid becoming or

remaining subject" to Maryland's labor and

employment laws. Md. Code Ann., Lab. & Empl. § 8-

1302 (West 2007).

33a

Civil Action No. DKC 2004-3581

UNITED STATES DISTRICT

COURT FOR THE DISTRICT

OF MARYLAND

DORN B. HOLLAND v.

WASHINGTON HOMES, INC.

February 14, 2006, Filed

COUNSEL: For Dorn B. Holland, Plaintiff: Edward

Smith, Jr, LEAD ATTORNEY, Law Office of Edward

Smith Jr, Baltimore, MD.

For Washington Homes, Inc., Defendant: Steven

Robert Semler, Ogletree Deakins Nash Smoak and

Stewart PC, Washington, DC.

JUDGES: DEBORAH K. CHASANOW, United

States District Judge.

OPINION BY: DEBORAH K. CHASANOW

OPINION

MEMORANDUM OPINION

Presently pending and ready for resolution in this

Title VII discrimination case are: (1) Defendant's

motion for summary judgment (paper 14); (2) Plaintiff's

motion for an extension of time to complete discovery

(paper 16); (3) Plaintiffs motion for leave to file an

amended complaint (paper 23); and (4) Defendant's

34a

motions to strike (papers 29, 30, and 34). The issues are

fully briefed and the court now rules pursuant to Local

Rule 105.6, no hearing being deemed necessary. For the

reasons that follow, the court will grant Defendant's

motion for summary judgment, deny Plaintiff's motion

to extend the discovery deadline, deny Plaintiff's

motion for leave to file an amended complaint, and deny

two of Defendant's motions to strike as moot, but grant

the third.

I. Background

The following facts are undisputed except where

noted, and are presented in the light most favorable to

Plaintiff. Plaintiff Dorn B. Holland is an African-

American male who worked as a community sales

manager for Defendant Washington Homes, Inc., from

October 31, 1998, until he was terminated on or about

October 30, 2003. Plaintiff's income consisted of a base

salary plus a commission of one percent for each sale.

Plaintiffs first assignment was to sell homes at

Fairfield Commons; he worked there through January

or February of 2001. Fairfield Commons is a

predominately African-American community with a

stigma for crime. He sold 89 of 91 homes and was

chosen as Rookie of the Year in 2000 due to his success.

In March 2000, Plaintiff met with his supervisor,

Didi Peck, a Caucasian company vice president, to

complain about a Caucasian community sales manager,

Joseph Macco, "raiding" his customers who were under

contract. Around that time, Plaintiff was forced to split

his commissions with Mr. Macco, but was denied the

same opportunity when he requested a commission split

on Mr. Macco's sales. In January or February of 2001,

35a

he was told he could not put a lock box on two Fairfield

Commons units, which would allow him to earn

commissions when the units were sold, but learned that

Mr. Macco was allowed to use lock boxes.

Plaintiff was next assigned to Winterset, where he

worked from February 2001 to June 2001. In his

deposition, Plaintiff testified that Ms. Peck transferred

him to Winterset because of his race. Moreover, about

the time of his transfer, Defendant raised Winterset's

home sales prices by $ 40,000. Plaintiff stated that Ms.

Peck placed him at Winterset knowing it would be

difficult to sell the homes with the $ 40,000 increase. He

also stated that the builder was offering a discount

promotional program that initially was not made

available to him. Plaintiff further contends that Ms.

Peck gave Carla Temple, the Caucasian community

sales manager who replaced him at Winterset,

incentives that he did not receive.

She gave me a set amount of homes to sell

and only specific home sites. She increased

the sales price $ 40,000 on day one, but she

offered Ms. Temple 25, at least $ 2,500 more

in closing monies. She allowed Ms. Temple

to take offers on homes, as she had not

allowed me. And she allowed Ms. Temple to

sell the homes at random, from all of the

home sites that were available.

(Paper 14, ex. 1, Holland dep., 86).

Plaintiffs next assignment was Arbor West, where

he worked from Ju'y 2001 to September 2001. He

testified that the Arbor West assignment was

discriminatory because a Caucasian sales manager, Cliff

36a

Martin, who had been transferred from Arbor West to

Perrywood, was allowed to continue selling at Arbor

West for a week after the assignment. Plaintiff said he

asked to go to Perrywood, a more lucrative community,

while Mr.’ Martin continued to sell homes at Arbor

West, but was denied the opportunity. !

In September 2001, Plaintiff was assigned to

Kingsview, which he felt was not a _ favorable

assignment because it required more out-of-pocket

expenses in terms of transportation, was not as

lucrative, and had only nine homes left to sell. In

November 2001, Plaintiff sought to participate in a

sales incentive in which employees could win a free trip

if they sold enough homes. Plaintiff said he was denied

the trip even though he sold eight homes, two more

than the minimum number Ms. Peck told him he needed

to sell.

In January 2002, Plaintiff learned his next

assignment would be Robinswood. He maintains this

assignment was discriminatory because Ms. Peck had

tried several times to give the Robinswood assignment

to a Caucasian sales manager, Ruby James, who turned

down the assignment. In April 2002, Ms. Peck refused

to sign Plaintiff up for a class offered by the National

Association of Home Builders; Plaintiff asked another

vice president to sign him up. ? Plaintiff also testified to

an incident in March 2003 in which Hugo DeCesaris, the

president of Washington Homes, walked into the lunch

room and asked him to make a pot of coffee in front of

his co-workers.

In early September 2003, Ms. Peck told Plaintiff his

next assignment would be Hamlin Park. Plaintiff

‘37a

expressed concern that Hamlin Park was a blighted

community. Ms. Peck assured him Hamlin Park was

ready to be sold, it was "quick money," and his next

community would be Forestville. When Plaintiff went

to view Hamlin Park, the community was not ready or

open. Around the same time, Ms. Peck assigned Mr.

Macco to Winshire Estates, which Plaintiff believed

was a more attractive assignment. Plaintiff believed

Ms. Peck had used "subterfuge" to give Mr. Macco

Winshire Estates and to give him Hamlin Park.

On September 1, 2003, Plaintiff met with Edward

Kaplan, human resources vice president, to discuss his

problems with Ms. Peck. Plaintiff questioned whether

he was experiencing racial discrimination. On

September 3, 2003, Plaintitf met with Human

Resources Manager Gretchen Leftrict to discuss his

concerns about racial discrimination. On September 8,

2003, Plaintiff, Ms. Peck, and Ms. Leftrict held a

meeting, which ended with Ms. Leftrict telling Plaintiff

and Ms. Peck to go to Hamlin Park together so Ms.

Peck could show Plaintiff why the community was

ready to sell and would be lucrative.

On September 16, 2003, Plaintiff met with Mr.

DeCesaris. Plaintiff expressed concern that Hamlin

Park was blighted and overpriced and that his salary

was "being depressed." Plaintiff testified that Mr.

DeCesaris gave this response:

[W]ell, go - look, 1 mean, you know those

people. You sold that kind of community

before. And I said I know those people,

what do you mean by I know those people?

Like I said, you've sold that type of

community before, you had Fairfield, you

38a

did well there. And I said, are you saying

that the Winshire Estate opportunity was

never available to me? He said, well, look,

we put Joe where we put Joe, because we

envision him being there. We put you where

we put you, because that's what we had for

you.

(Paper 14, ex. 1, Holland dep., 169).

On October 30, 2003, Plaintiff met with Ms. Leftrict

to look at his personnel file and to make copies. During

the meeting, Ms. Leftrict told Plaintiff that Ms. Peck

had filed a formal charge against him alleging that he

had made violent threats against her, and therefore he

was being terminated immediately. Plaintiff denied

threatening Ms. Peck and said this was retaliation. *

With respect to Plaintiffs termination, Defendant

contends that Plaintiff was fired because he made

threatening remarks about Ms. Peck. ‘ Ms. Leftrict

began an investigation on October 24, 2003, after Maura

Arndt, another vice president, expressed concerns

about Ms. Peck's safety. During the investigation, Ms.

Leftrict obtained sworn statements from Ms. Arndt and

Brenda West, Ms. Peck's administrative assistant, in

. which they stated that Plaintiff had made threatening

statements about Ms. Peck. ° Mr. DeCesaris stated in

an affidavit that he decided to fire Plaintiff during an

October 30, 2003, meeting after learning of the threat

allegation and hearing about Ms. _Leftrict’s

investigation.

39a

Plaintiff filed a charge of discrimination with the

Prince George's County Human Relations Commission

~ and the United States Equal Employment Opportunity

Commission ("EEOC"). On August 26, 2004, the EEOC

issued a right-to-sue letter. Plaintiff filed a lawsuit

against Washington Homes, Inc/K. Hovnanian

Company on November 8, 2004, pursuant to Title VII of

the Civil Rights Act of 1964 and 1991, 42 U.S.C. § 2000e

et seq. °

II. Motion to Extend the Discovery Deadline and

Motion For Leave to File an Amended Complaint

On May 6, 2005, Plaintiff filed a motion to extend the

discovery deadline until July 6, 2005. (Paper 16).

Defendant opposed the motion, arguing that the

request is out of time based on the Scheduling Order.

(Paper 18). Similarly, on May 13, 2005, Plaintiff filed a

motion for leave to amend his original complaint,

asserting lack of knowledge of certain facts when he

filed his complaint. (Paper 23). Defendant opposed this

motion as well on the basis that the motion is time

barred. (Paper 25).

A. Motion to Extend the Discovery Deadline

The Scheduling Order set April 20, 2005, as the

deadline for discovery. (Paper 9). Plaintiff requested an

extension stating that "[a]s of the writing of this Motion

counsel for the Plaintiff has not received the Scheduling

Order, electronically or via mail." (Paper 16, at 2). He

further stated that an extension would not prejudice

Defendant. Jd.

Plaintiff's request implicates Federal Rule of Civil

Procedure 16(b), which states "[a] schedule shall not be

40a

modified except upon a showing of good cause and by

leave of the district judge ... ." Rule 16(b)'s "good

cause" standard focuses on the timeliness of the

amendment and the reasons for its tardy submission.

Because a court's Scheduling Order "is not a frivolous

piece of paper, idly entered, which can be cavalierly

disregarded by counsel without peril," Potomac Elec.

Power Co. v. Elec. Motor Supply, Inc., 190 F.R.D. 372,

375-76 (D.Md. 1999) (quoting Gestetner v. Case Equip.

Co., 108 F.R.D. 138, 141 (D.Me. 1985)), a movant must

demonstrate that the reasons for the tardiness of this

motion justify a departure from the rules set by the

court in its Scheduling Order.

The primary consideration for the Rule 16(b)'s

"good cause" standard is the movant's diligence. Lack of

diligence and carelessness are "hallmarks of failure to

meet the good cause standard." W. Va. Hous. Dev.

Fund v. Ocwen Tech. Xchange, Inc., 200 F.R.D. 564, 567

(S.D.W.Va. 2001). "[T]he focus of the inquiry is upon the

moving party's reasons for seeking modification. If that

party was not diligent, the inquiry should end."

Marcum v. Zimmer, 163 F.R.D. 250, 254 (S.D.W.Va.

1995).

Plaintiff contended that he did not receive the

Scheduling Order. Rule V.A of the Electronic Filing

Requirements and Procedures manual states that

"{eJlectronic filing by the court or court personnel of

any orders, decrees, judgments or proceedings of the

court shall constitute entry on the docket as well as

notice to and service on registered users in the case,

under the Federal Rules of Civil Procedure." Electronic

Filing Requirements and Procedures (Aug. 11, 2003),

available at www.mdd.uscourts.gov. By registering to

use electronic filing, Plaintiff's counsel consented to

4la

receiving electronic service. See id. at IJ.A.3. Plaintiff's

assertion - some six months after he filed his complaint

- that he did not receive the Scheduling Order despite

the fact that it was docketed December 6, 2004, shows a

lack of diligence, and consequently a lack of good cause.

Accordingly, the court will deny Plaintiff's motion to

extend the discovery deadline.

B. Motion to Amend the Pleading Deadline

The Scheduling Order set January 20, 2005, as the

deadline for amendment of pleadings. (Paper 9).

Plaintiffs motion for leave to amend his complaint

triggers both Federal Rule of Civil Procedure 15(a),

governing amendments to pleadings, and Rule 16(b). *

The standards for satisfying the rules are at odds. Rule

15(a) states in pertinent part that "leave shall be freely

given when justice so requires," while Rule 16(b) states

that "[a] schedule shall not be modified except upon a

showing of good cause and by leave of the district judge

Neither the Fourth Circuit nor the Supreme Court

have dealt decisively with the interplay of these two

rules when the plaintiff seeks a motion to amend its

complaint after the Scheduling Order's deadline has

passed. However, one district court in the Fourth

Circuit set up a two-step analysis:

Once the scheduling order's deadline for

amendment of the pleadings has passed, a

moving party first must satisfy the good

cause standards of Rule 16(b). If the moving

party satisfies Rule 16(b), the movant then

must pass the tests for amendment under

15(a).

2 42a

Marcum v. Zimmer, 163 F.R.D. 250, 254 (S.D.W.Va.

1995); see also Johnson v. Mammoth Recreations, Inc.,

975 F.2d 604, 607-08 (9th Cir. 1992) (applying two-step

analysis to deny motion to amend for lack of good

cause).

As discussed previously, Rule 16(b)'s "good cause"

standard focuses on the timeliness of the amendment

and the diligence of the moving party. Plaintiff has not

specifically requested a modification of the Scheduling

Order. Instead, Plaintiff has filed a motion to amend his

complaint in which he asserts: "At the time plaintiffs

[sic] complaint was filed, plaintiff Holland was ignorant

of certain relevant facts that are important to enable

plaintiff Holland to maintain plaintiffs complaint.

Because the facts came into possession after the filing

of the complaint, plaintiff Holland was unable to allege

them in plaintiff's original complaint." (Paper 23, at P 2).

Plaintiff also asserts that "the new facts contained in

plaintiff's amended complaint are necessary to enable

plaintiff to prove plaintiffs cause, and therefore the

amendment sought is in furtherance of justice.” /d. at P

Plaintiffs motion does not establish good cause.

Plaintiff has not stated what new information has -

surfaced, when the information surfaced, or why the

information was not available to Plaintiff sooner.

Plaintiff also fails to address why he filed the motion

more than three months after the Scheduling Order

deadline passed and after Defendant filed its motion for

summary judgment. Accordingly, Plaintiff's motion for

leave to amend will be denied. See Rassoull v.

Maximus, Inc., 209 F.R.D. 372, 374 (D.Md. 2002)

(denying the plaintiffs motion for leave to amend her

complaint when the plaintiff failed to provide reasons

43a

for her tardiness and stating "it would behoove Plaintiff

to provide the Court with some basis on which to judge

good cause"); see also Odyssey Travel Center, Inc. v. Ro

Cruises, Inc., 262 F.Supp.2d 618, 632 (D.Md. 2003).

III. Standard of Review For the Motion for

Summary Judgment

It is well established that a motion for summary

judgment will be granted only if there exists no genuine

issue as to any material fact and the moving party is

entitled to judgment as a matter of law. See

Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202

(1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106

S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In other words, if

there clearly exist factual issues "that properly can be

resolved only by a finder of fact because they may

reasonably be resolved in favor of either party," then

summary judgment is inappropriate. Anderson, 477

U.S. at 250; see also Pulliam Inv. Co. v. Cameo Props.,

810 F.2d 1282, 1286 (4th Cir. 1987); Morrison v. Nissan

Motor Co., 601 F.2d 139, 141 (4th Cir. 1987). The

moving party bears the burden of showing that there is

no genuine issue as to any material fact and that he is

entitled to judgment as a matter of law. See

Fed.R.Civ.P. 56(c); Catawba Indian Tribe of S.C. v.

South Carolina, 978 F.2d 1334, 1339 (4th Cir. 1992),

cert. denied, 507 U.S. 972, 118 S. Ct. 1415, 122 L. Ed. 2d

785 (1993).

When ruling on a motion for summary judgment,

the court must construe the facts alleged in the light

most favorable to the party opposing the motion. See

United States v. Diebold, 369 U.S. 654, 655, 82 S. Ct.

993, 8 L. Ed. 2d 176 (1962); Gill v. Rollins Protective

44a

Servs. Co., 773 F.2d 592, 595 (4th Cir. 1985). A party

who bears the burden of proof on a particular claim

must factually support each element of his or her claim.

"[A} complete failure of proof concerning an essential

element . . . necessarily renders all other facts

immaterial." Celotex Corp., 477 U.S. at 323. Thus, on

those issues on which the nonmoving party will have

the burden of proof, it is his or her responsibility to

confront the motion for summary judgment with an

affidavit or other similar evidence in order to show the

existence of a genuine issue for trial. See Anderson, 477

U.S. at 256; Celotex Corp., 477 U.S. at 324. However,

[a] mere scintilla of evidence in support of the

nonmovant's position will not defeat a motion for

summary judgment." Detrick v. Panalpina, Inc., 108

F.3d 529, 586 (4th Cir.), cert. denied, 522 U.S. 810, 118

S. Ct. 52, 189 L. Ed. 2d 17 (1997). There must be

"sufficient evidence favoring the nonmoving party for a

jury to return a verdict for that party. If the evidence is

merely colorable, or is not significantly probative,

summary judgment may be granted." Anderson, 477

U.S. at 249-50 (citations omitted).

IV. Analysis

There are two methods for proving intentional

discrimination in employment: (1) through direct or

indirect evidence of intentional discrimination, or (2)

through circumstantial evidence under the three-step,

burden-shifting scheme set forth by the Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-05, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). For the

first method, an employee may utilize "ordinary

principles of proof using any direct or indirect evidence

relevant to and sufficiently probative of the issue."

45a

Rhoads v. F.D.I.C., 257 F.8d 373, 391 (4th Cir. 2001)

(internal quotation omitted), cert. denied, 585 U.S. 9383,

122 S. Ct. 1809, 152 L. Ed. 2d 219 (2002). In order to

overcome a Summary judgment motion based upon this

method of proof, the plaintiff "must produce direct

evidence of a stated purpose to discriminate and/or

[indirect] evidence of sufficient probative force to

reflect a genuine issue of material fact." Jd. (internal

quotation omitted). More specifically, the plaintiff must

provide "evidence of conduct or statements that both

reflect directly the alleged discriminatory attitude and

that bear directly on the contested employment

decision." Id. at 391-92 (internal quotation omitted). If

such evidence is lacking, the plaintiff nevertheless may

proceed under McDonnell Douglas. See Thompson v.

Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.

2002).

Under the McDonnell Douglas framework, the

plaintiff first must establish a prima facie case of

discrimination. See McDonnell Douglas Corp., 411 U.S.

at 802. Once a plaintiff establishes a prima facie case of

discrimination, the burden of production shifts to the

defendant to present a legitimate, nondiscriminatory

reason for the adverse employment action alleged. See

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 142, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000) (citing

Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248,

253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)). If the

defendant succeeds in doing so, that will rebut the

presumption of discrimination raised by the plaintiff's

prima facie case. See Stokes v. Westinghouse Savannah

River Co., 206 F.3d 420, 429 (4th Cir. 2000) (citing

Burdine, 450 U.S. at 255 n.10). The plaintiff then must

"prove by a preponderance of the evidence that the

46a

legitimate reasons offered by the defendant were not

its true reasons, but were a pretext for discrimination."

Burdine, 450 U.S. at 253. In the end, "[tJhe plaintiff

always bears the ultimate burden of proving that the

employer intentionally discriminated against her."

Evans v. Tech. Applications & Serv. Co., 80 F.3d 954,

959 (4th Cir. 1996) (citing Burdine, 450 U.S. at 253).

Plaintiff's complaint alleges two types of race-based

discrimination: (1) discriminatory discharge with

respect to his termination and (2) discrimination with

respect to denial of opportunities.

A. Plaintiff's Termination

Plaintiff argues he was fired to due to his race

(paper 24, at 5) and in retaliation for complaining to

Defendant's managers about his sales assignments

(paper 24, at 9).

1. Plaintiff's Firing Due to His Race

Plaintiff asserts he has direct evidence of

discriminatory intent regarding his termination. (Paper

24, at 3). The evidence includes Mr. DeCesaris'

statement to Plaintiff that "you know those people. You

sold that kind of community before;" the incident in

which Mr. DeCesaris asked Plaintiff to make coffee in

front of other employees; the fact that Mr. DeCesaris

supported Ms. Peck and had a condescending manner

during their meeting; Ms. Peck's decision to assign

Plaintiff to minority areas to sell homes; Ms. Peck's

decision to assign more lucrative communities to

Caucasian community sales managers; unequal

treatment with respect to the raiding of customers,

splitting commissions, using lock boxes, and offering

47a

certain incentives and sales prices; and an income

discrepancy between Plaintiff and Mr. Martin.

None of Plaintiffs evidence bears directly on

Plaintiffs termination. First, Plaintiff points to Mr.

DeCesaris' comment that Plaintiff "knows those

people." However, this single remark is unrelated to

Mr. DeCesaris' decision to fire Plaintiff. See Brinkley v.

Harbour Recreation Club, 180 F.3d 598, 608 (4th Cir.

1999) ("{T]o prove discriminatory animus, the

derogatory remark cannot be stray or isolated and

‘{uJnless the remarks upon which plaintiff relies were

related to the employment decision in question, they

cannot be evidence of [discrimination]. (quoting

McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 686

(7th Cir. 1991))). Second, many of the incidents Plaintiff

relies on (e.g., the raid of Plaintiff's customers, the

commission splits, the use of lock boxes, incidents at

Winterset) occurred more than two years before

Plaintiff's termination and Plaintiff has presented no

evidence connecting these incidents to Defendant's

decision to fire him. See Brinkley, 180 F.3d at 608-09.

There are two ways to analyze Plaintiff's claim of

discriminatory discharge based on race and/or

retaliation. First, if Plaintiff was treated more harshly

than others outside his protected class for comparable

misconduct, the disciplinary termination could be

discriminatory. Second, the termination could be

discriminatory if Defendant's purported reason (that

Plaintiff allegedly made threats) was mere pretext for

intentional discrimination based on race or retaliation.

Based on the evidence Plaintiff has provided, Plaintiff

has proffered insufficient facts to support either theory.

a. Discriminatory Discipline

48a

To establish a prima facie case of discriminatory »

discipline under McDonald Douglas, the plaintiff must

show "(1) he is a member of a protected class; (2) he was

qualified for his job and his performance was

satisfactory; (3) he was fired; and (4) other employees

who are not members of the protected class were

retained under apparently similar circumstances."

Bryant v. Bell Atlantic Md., 288 F.8d 124, 133 (4th Cir.

2002). Plaintiff has presented no evidence whatsoever

regarding the discipline of other employees who

engaged in conduct similar to the threats he allegedly

made, and therefore he cannot establish a prima facie

case of discriminatory discipline.

b. Discriminatory Discharge

To establish a prima facie case of intentional

discrimination based on race under McDonnell

Douglas, the plaintiff must show: (1) he is a member of

a protected class; (2) he suffered from an adverse

employment action; (3) when the employer took the

adverse employment action, the plaintiff was

performing at a level that met his employer's legitimate

expectations; and (4) the position remained open or was

filled by a similarly qualified applicant outside the

protected class. See Hill v. Lockheed Martin Logistics

Mgmt., Inc., 354 F.8d 277, 285 (4th Cir. 2004); King v.

Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003).

Plaintiff can establish a prima facie case. First,

Plaintiff, an African-American male, is a member of a

protected class. Second, Plaintiff suffered an adverse

employment action when he was fired. Third, Plaintiff

presented his last evaluation, dated September 25,

2003, a month before his firing, in which he received

satisfactory marks. (Paper 24, ex. 7). Fourth, Plaintiff

49a

was replaced by a Caucasian male, Mr. Martin. (Paper

14, ex. 4, P 9).

Defendant has presented a legitimate,

nondiscriminatory reason for firing Plaintiff. Defendant

asserts that the termination decision was based on

Defendant's belief that Plaintiff had threatened Ms.

Peck. (Paper 14, exs. 4-8). Defendant has met its burden

of production, and therefore the "presumption of

discrimination ‘drops out of the picture.'’ Reeves, 530

U.S. at 143 (quoting St. Mary's Honor Center v. Hicks,

509 U.S. 502, 507-08, 118 S. Ct. 2742, 125 L. Ed. 2d 407

(1993)). Plaintiff must then prove by a preponderance

of the evidence that Defendant's proffered reason is not

its true reason, but instead a pretext for discrimination.

Burdine, 450 U.S. at 253.

In Reeves, the Supreme Court clarified the

plaintiff's burden at this stage. Reeves, 530 U.S. at 146-

47. The court stated:

The factfinder's rejection of the

[defendant's] legitimate nondiscriminatory

reason for its action does not compel

judgment for the plaintiff. [Hicks,] 509 U.S.,

at 511 113 S.Ct. 2742. The ultimate question

is whether the [defendant] intentionally

discriminated, and proof that ‘the

[defendant's] proffered reason is

unpersuasive, or even obviously contrived,

does not necessarily establish that plaintiff's

proffered reason .. . is correct." Jd. at 524,

113 S.Ct. 2742. In other words, “[i]t is not

enough . . . to disbelieve the [defendant]; the

factfinder must believe the plaintiff's

50a

explanation of intentional discrimination."

Id. at 519, 113 S.Ct. 2742.

Reeves, 580 U.S. at 146-47 (emphasis in original). The

Court noted that in some cases it may be permissible to

infer discrimination from the falsity of the defendant's

reason. Id. at 147. In those cases, if a plaintiff produces

evidence sufficient to establish a prima facie case and

that the defendant's legitimate nondiscriminatory

reason is false, the plaintiff may not be required to

present additional evidence of discriminat.on in order to

withstand summary judgment. See id. The court

nevertheless emphasized that this sort of showing by a

plaintiff may not always be adequate. The court stated:

"Certainly there will be instances where, although the

plaintiff has established a prima facie case and set forth

sufficient evidence to _ reject the defendant's

explanation, no rational factfinder could conclude that

the action was discriminatory." /d. at 148.

Plaintiff argues that Defendant's reason is

pretextual because Plaintiff denied threatening Ms.

Peck. In addition, when Defendant reported Plaintiff's

unemployment to state officials, Defendant cited "lack

of work" as the reason. (Paper 24, ex. 6). Plaintiff

asserts that the threat allegations were "manufactured

by defendant" to cover up Defendant's discriminatory

conduct. (Paper 24, at 8). Finally, Plaintiff points out

that Defendant never interviewed Plaintiff about the

alleged threats.

Even if Plaintiff did not threaten Ms. Peck, which

the court must accept for purposes of this motion,

Plaintiff has come forward with no evidence to show

that Mr. DeCesaris did not believe Plaintiff had made

threats when Mr. DeCesaris decided to fire Plaintiff.

5la

See Connor v. Giant Food, Inc., 187 F.Supp.2d 494, 498

(D.Md. 2002) (stating that even though the plaintiff

denied threatening his manager, “he presents no

evidence that Giant did not actually believe the threats

had taken place"); Tinsley v. First Union Nat'l Bank,

155 F.8d 485, 444 (4th Cir. 1998) (stating that "[t]he

uncontested evidence establishes that Morris honestly

believed that [the plaintiff] deserved to be discharged").

Although Defendant told state officials that Plaintiff

was fired due to "lack of work," this inconsistency "does

not necessarily establish that the plaintiff's proffered

reason ... is correct." ® Reeves, 530 U.S. at 146-47.

Plaintiff must assert facts to show that Defendant had a

discriminatory intent. Plaintiff alleges that Defendant

manufactured the threat allegations to cover up

Defendant's discriminatory conduct, but cites no

evidence in the record to support this assertion.

Plaintiffs final point, that Defendant fired Plaintiff

without interviewing him first about the allegations,

does not lead to an inference of discrimination. Because

Plaintiff has not provided sufficient evidence to

demonstrate that Defendant's stated reason for his

firing was a pretext for discrimination, the court will

grant summary judgment to Defendant on Plaintiff's

claim that he was fired due to his race.

2. Retaliatory Firing

Plaintiff contends that he was fired in retaliation for

complaining to Ms. Peck, Mr. Kaplan, Mr. DeCesaris,

and Ms. Leftrict about disparate treatment in his sales

assignments. (Paper 24, at 9). Defendant responds that

it fired Plaintiff because he threatened Ms. Peck.

(Paper 15, at 20).

52a

To state a prima facie case of retaliation, the

plaintiff must show (1) the plaintiff engaged in a

protected activity; (2) the employer acted adversely

against the plaintiff; and (3) the protected activity was

causally connected to that adverse action. Beall v.

Abbott Labs., 180 F.3d 614, 619 (4th Cir. 1997). With

respect to the third element, "the employer must have

taken the adverse employment action because the

plaintiff engaged in a protected activity." Dowe v. Total

Action Against Poverty in Roanoke Valley, 145 F.3d

658, 657 (4th Cir. 1998). Thus, "the employer's

knowledge that the plaintiff engaged in a protected

activity is absolutely necessary to establish the third

element of a prima facie case." Jd. Courts also look to

the length of time between the employer's awareness of

the protected activity and the alleged adverse

employment action. See, e.g., Causey v. Balog, 162 F.8d

795, 803 (4th Cir. 1998) (stating that a thirteen-month

lapse negated any inference of a causal connection);

Dowe, 145 F.8d at 657 (finding no retaliation where

there was a three-year time lapse).

Plaintiff can show the first two prongs that he had

engaged in a protected activity by complaining about

disparate treatment and that Defendant took an

adverse action by firing Plaintiff. Regarding the third

element, the record is unclear as to whether Mr.

DeCesaris knew Plaintiff had complained of racial

discrimination. Defendant argues that when Plaintiff

met with Mr. DeCesaris to discuss the Hamlin Park

assignment, Plaintiff did not discuss the issue of race.

Even if Mr. DeCesaris was not aware of Plaintiff's

complaint based on this meeting, another portion of

Plaintiff's testimony indicates that Mr. DeCesaris may

have known. * Viewing this evidence in the light most

53a

favorable to Plaintiff, the court will assume that Mr.

DeCesaris was aware of Plaintiff's discrimination

complaints. Plaintiff was terminated two months after

he complained to Mr. Kaplan and a month and a half

after his meeting with Mr. DeCesaris.

Defendant has rebutted the presumption of

retaliation by stating that Plaintiff was fired because

Mr. DeCesaris believed he threatened Ms. Peck's life.

In response, Plaintiff asserts that he did not make any

threats, and that the real reason was retaliation for his

complaints. In support, Plaintiff asserts: (1) he was not

fired until he complained to management; (2) nothing in

the record shows that Plaintiff had been a "problem

employee" or had assaulted others before Defendant

fired him; and (38) Ms. Leftrict conducted her

investigation into the alleged threats without Mr.

DeCesaris' approval, which was against company

policy.’® (Paper 24, at 9-10).

Accepting Plaintiffs contentions as true for

purposes of this motion, Plaintiff has not produced

sufficient evidence to show he was discharged in

retaliation for his complaint. First, Plaintiff relies on

the timing of his discharge - the fact that Defendant did

not fire Plaintiff until after he complained in early

September about racial discrimination. This fact, taken

alone, is not sufficient to show Defendant fired Plaintiff

because of his complaint and not because Defendant

believed he had made threats. In fact, the timing of

Plaintiff's termination - about a week after Ms. Leftrict

began investigating possible threats - more directly

supports Defendant's position. Plaintiff also appears to

argue that Defendant's reason for termination cannot

be believed because there were no prior allegations of

54a

Plaintiff making threats. However, the court will not

second-guess Defendant's decision to fire Plaintiff

under these circumstances. Beall, 130 F.8d at 620

("Without evidence of pretext for retaliation, this Court

will not act as a superpersonnel department that

reexamines an entity's business decisions" (internal

quotation marks omitted)); see also Tinsley, 155 F.3d at

444 ("[T]he fact that [the plaintiff] had a good track

record before she worked for Morris does not establish

that Morris's criticisms of [the plaintiffs] later

performance were false or that the real reason for

Morris firing [the plaintiff] was retaliation."). Plaintiff

simply has provided no evidence that Defendant

engaged in retaliatory conduct, for instance, by

providing evidence that Defendant's managers

harbored animus toward Plaintiff because he had

complained of racial discrimination. See Smith v. First

Union Nat'l Bank, 202 F.3d 2384, 249 (4th Cir. 2000)

(observing that the plaintiff “advances no evidence...

that Hutto or anyone else at First Union harbored

animus against her for complaining about Scoggins or

for filing a Complaint with the EEOC"). Accordingly,

Plaintiff has failed to demonstrate that Defendant's

proffered reason was mere pretext for retaliation, and

the court will grant summary judgment on Plaintiff's

claim that he was fired in retaliation for complaining

about racial discrimination.

B. Denial of Opportunity Due to Race

Plaintiff alleges that due to his race he was denied

benefits that Caucasian community sales managers

received, including lucrative commissions,

advancement, incentives, and training. (Paper 1, at P

21). Defendant contends Plaintiff suffered no adverse

55a

job action when it assigned Plaintiff to Hamlin Park in

September 2003 and that Plaintiff's remaining claims

regarding commissions, incentives, and training are

statutorily time barred. (Paper 15, at 21, 25).

1. The Decision to Transfer Plaintiff to Hamlin Park

Defendant asserts that Plaintiffs assignment to

Hamlin Park was not an adverse employment action.

Whether the plaintiff has direct or indirect evidence of

discrimination, "the existence of some adverse

employment action is required." Sterling v. Tenet, 416

F.3d 338, 345 (4th Cir. 2005) (quoting James v. Booz-

Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir.

2004)). The Fourth Circuit has defined an adverse

employment action as "a discriminatory act which

adversely affect[s] the terms, conditions, or benefits of

the plaintiff's employment." Booz-Allen, 368 F.3d at 375

(quoting Gunten v. Maryland, 243 F.3d 858, 865 (4th

Cir. 2001) (internal quotation marks omitted)). In Booz-

Allen, the court addressed the issue of job

reassignments in detail:

The mere fact that a new job assignment is

less appealing to the employee, however,

does not constitute adverse employment

action. Gunten, 243 F.8d at 868 A

"reassignment can only form the basis of a

valid Title VII claim if the plaintiff can show

that the reassignment had some significant

detrimental effect." Boone v. Goldin, 178

F.3d 258, 256 (4th Cir. 1999). "[A]bsent any

decrease in compensation, job title, level of

responsibility, or opportunity for promotion,

reassignment to a new _ position

56a

commensurate with one's salary level does

not constitute an adverse employment

action even if the new job does cause some

modest stress not present in the old

position." Id. at 256-57; see also Taylor v.

Virginia Dep't of Corrs., 177 F.Supp.2d 497,

504-05 (E.D.Va. 2001).

Id. at 376.

In Booze-Allen, the plaintiff was an African-

American male who worked for the defendant Booze-

Allen & Hamilton, Inc., as a project manager for the

company's contract with the Washington Metropolitan

Area Transit Authority ("WMTA"). Booz-Allen, 368

F.3d at 372-73. Due to conflicts with the client, the

defendant reassigned the plaintiff to a job that allowed

him to focus on his pre-existing marketing and business

development duties, but he was no longer in a

managerial role. He continued to work as a staff

member on the WMTA contract. Jd. at 374.

In order to determine whether the plaintiff had

suffered a "significant detrimental effect" on his

opportunities for promotion and __ professional

development, the Fourth Circuit considered whether

there was “a decrease in compensation, job title, level of

responsibility, or opportunity for promotion." Booz-

Allen, 368 F.3d at 376 (quoting Boone, 178 F.3d at 256).

The Fourth Circuit agreed with the district court that

the plaintiff continued to receive the same pay,

benefits, and other employment terms and conditions.

The court concluded that:

[AJn employee's dissatisfaction with this

or that aspect of work does not mean an

57a

employer has committed an actionable

adverse action. And speculation about the

future adverse consequences of a

reassignment may not rise to the level of a

genuine dispute. Inasmuch as James

departed the company before he even came

up for a promotion, we are left to guesswork

and conjecture as to what his prospects

would have been. James' speculations about

the impact of his reassignment on his

opportunity for professional development

are merely that - stark assertions that are

not sufficient to survive summary judgment.

Id. at 377.

Here, there is no evidence that Plaintiffs income

changed as a result of the assignment, or that his

responsibilities, position, or title changed. Although

Plaintiff questions the method Ms. Peck used for

making assignments, | he has not directly addressed

Defendant's assertion that the Hamlin Park assignment

was not an adverse employment action that affected the

terms, conditions or benefits of his employment.

Presumably, Plaintiff believes the assignment was less

favorable because selling homes at Hamlin Park would

be difficult. In his deposition, Plaintiff described the

community as "blighted" (paper 14, ex. 1, Holland dep.,

140) and stated that the community was not ready or

open, 7d. at 140-41. He also expressed concern that the

starting price of the homes - $ 200,000 - was too high for

the community, id. at 168, and he questioned the

adequacy of the incentive package, id. at 170. Plaintiff

has not, however, proffered any evidence to support

these opinions. For instance, Plaintiff has provided no

58a

information on where the neighborhood is or the type of

home being sold, or provided support for his assertion

that the neighborhood was priced higher than the

surrounding community. Plaintiff's contention that

working in Hamlin Park would have depressed his

income is conjecture that is insufficient to survive

summary judgment. See Booz-Allen, 368 F.3d at 377.

2. Time Bar

Defendant asserts that the remaining events upon

which Plaintiff sues are time barred because they

occurred more than 300 days before Plaintiff filed his

EEOC charge. Plaintiff filed his EEOC charge on May

4, 2004. Based on Defendant's argument, events

occurring before July 9, 2003, are time barred. They

include: (1) incidents involving split commissions, denial

of lock boxes, and efforts to raid Plaintiffs customers;

(2) assignments before July 2003; (3) restrictions on lots

Plaintiff could sell; (4) incidents involving sales

incentives; (5) increases in home sale prices to depress

Plaintiff's sales; (6) denial of a contest trip in 2001; and

(7) denial of the CSP designation on his business card in

2002. (Paper 15, at 25-26). Plaintiff argues that because

he was denied favorable assignments and other

opportunities throughout his employment’ with

Defendant, Plaintiff's claims are not statutorily time

barred because the incidents constitute a continuing

violation.

To pursue a Title VII claim, Plaintiff "must have

filed a complaint with the EEOC within 180 days of the

incident or within 300 days of the incident if state or

local proceedings are initiated." Beall, 130 F.3d at 620

(citing 42 U.S.C. §$ 2000e-5(e)(1)). Incidents that

occurred beyond these deadlines are time barred unless

59a

they are related to a timely incident as a "series of

separate but related acts' amounting to a continuing

violation." Beall, 130 F.8d at 620 (quoting Jenkins v.

Home Ins. Co., 635 F.2d 310, 312 (4th Cir. 1980)).

Assuming arguendo that each incident Plaintiff

relies on is related, "the court must first conclude that

there was a present violation." Tinsley, 155 F.3d at 442.

In Hill v. AT&T Techs., Inc., the Fourth Circuit stated

that:

[T]he "critical question" in every

discrimination case, whether there is a

charge of "continuing violation" or not, is

"whether any present violation exists" and

not "merely continuity,” "present violation"

being one occurring within 180 days of the

filing of a charge on account of such violation

with the EEOC. ... [W]e had occasion

recently to examine this continuing violation

theory and we held that in order to apply

this theory that there must be a "present

violation" within the required time period.

Woodard v. Lehman, 717 F.2d 909, 914-15

(4th Cir. 1983). In that case we said: "It is

only where an actual violation has occurred

within that requisite time period [i.e, within

the period of 180 days before the filing of a

charge with the EEOC] that under any

possible circumstances the theory of

continuing violation is sustainable."

731 F.2d 175, 180 (4th Cir. 1984) (internal citation

omitted).

60a

To assert his continuing violations theory, Plaintiff

relies on several cases. See, e.g., Sabree v. United Bhd.

of Carpenters & Joiners Local No. 33, 921 F.2d 396 (1st

Cir. 1990); Chung v. Pomona Valley Cmty. Hosp., 667

F.2d 788 (9th Cir. 1982); Jenkins v. Home Ins. Co., 635

F.2d 310 (4th Cir. 1980); and Elliott v. Sperry Rand

Corp., 79 F.R.D. 580 (D.Minn. 1978). The cases Plaintiff

cites are consistent with the Fourth Circuit's position.

See Sabree, 921 F.2d at 400 ("In order for the violation

to be actionable, at least one act in the series must fall

within the limitations period."); Elliott, 79 F.R.D. at 585

("An employee may challenge a series of events, all of

which are alleged to have been discriminatory, but only

one of which occurred within the relevant time period."

Plaintiffs own argument recognizes this rule when he

states that "although there must be a discriminatory

act within the charge-filing ‘period, if the serial

violations are adequately related, each is actionable...

." (Paper 24, at 16) (emphasis added).

Plaintiffs assignment to Hamlin Park is the only

claim within the 300-day time limit. Because Plaintiff

has failed to provide sufficient evidence to withstand

summary judgment on that claim, Plaintiff's remaining

claims regarding denial of opportunities occurring

before July 2003 are time barred.

3. Denial of Opportunity Due to Pattern or Practice

Plaintiff alleges in his complaint that Defendant has

an “institutionalized policy" under which Caucasian

community sales managers received opportunities that

he did not receive. (Paper 1, at P 21). The allegation is

based on the "system of providing Caucasian sales

managers assignments in premium locations" (emphasis

in original), and the creation of programs for

6la

communities assigned to Caucasian sales managers "to

effectuate an accelerated sales pace and higher

commissions, thereby deliberately depressing the

earnings of the plaintiff and diminishing his sales

status." (Paper 24, at 10-11).

It is unclear whether Plaintiff seeks to bring a

pattern or practice claim, or whether he seeks to invoke

pattern or practice to support his burden of proof under

McDonnell Douglas. To the extent that plaintiff seeks

to bring a separate claim, the Fourth Circuit has held

that "individuals do not have a private, non-class cause

of action for pattern or practice discrimination under $§

1981 or Title VII." Lowery v. Circuit City Stores, Inc.,

158 F.3d 742, 759 (4th Cir. 1998): See also Williams v.

Giant Food Inc., 370 F.3d 423, 430 n.8 (4th Cir.

2004)("Lowery . . . held that an individual plaintiff (as

opposed to a class action plaintiff) cannot pursue a

cause of action based on a pattern or practice of

discrimination or invoke the proof scheme described in

International Brotherhood of Teamsters v. United

States . . . ." (nternal citation omitted)). In the

alternative, to the extent that Plaintiff seeks to use

pattern or practice to support his burden under

McDonnell Douglas, as discussed previously, Plaintiff's

argument cannot succeed because he cannot show a

present violation within the statute of limitations.

V. Motions to Strike

Defendant filed three motions to strike various

papers submitted by Plaintiff: first, Defendant received

a paper on or about May 25, 2005, styled Amended

Answer, but no such paper was ever filed with the

court. Accordingly, that motion, paper 29, is denied as

moot. Second, Defendant moved in paper 30 to strike

62a

Plaintiffs reply, which is paper 27. The court already

disabled the link to paper 27, see entry 28, so this

motion is also moot. Finally, Defendant moves in paper

34 to strike Plaintiffs response in paper 33, as an

unpermitted surreply. Plaintiff opposes this motion,

reciting that paper 33 is merely a legible, electronic

version of earlier papers. The court has referred to

paper 24 as Plaintiff's opposition to the motion for

summary judgment, and has no need to refer to paper

33. Accordingly, Defendant's motion to strike paper 33

is granted.

VI. Conclusion

For the reasons stated, the court will grant

Defendant's motion for summary judgment, deny

Plaintiffs motion to extend the discovery deadline,

deny Plaintiffs motion for leave to file an amended

complaint, and deny Defendant's two of motions to

strike as moot, but grant the third. A separate Order

will follow.

DEBORAH K. CHASANOW

United States District Judge

ORDER

For the reasons stated in the _ foregoing

Memorandum Opinion, it is this 14<th> day of

February, 2006, by the United States District Court for

the District of Maryland, ORDERED that:

1. The motion of Defendant Washington Homes,

Inc., for summary judgment (paper 14), BE, and the

same hereby IS, GRANTED;

63a

2. The motions of Plaintiff Dorn B. Holland for an

extension of time to complete discovery (paper 16) and

for leave to file an amended complaint (paper 23) BE,

and the same hereby ARE, DENIED;

3. The motions of Defendant (papers 29 and 30) to

strike Plaintiff's papers BE, and the same hereby ARE

DENIED as moot, but the motion to strike paper 33

(paper 34) BE, and the same hereby IS, GRANTED;

4. Judgment BE, and the same hereby IS,

ENTERED in favor of Washington Homes, Inc., and

against Dorn Holland on all claims; and

5. The Clerk will transmit copies of the

Memorandum Opinion and this Order to counsel for the

parties and CLOSE this case.

DEBORAH K. CHASANOW

United States District Judge

64a

Footnotes

'From the testimony, it appears Plaintiff was unable

to sell homes during that week.

*Plaintiff alleged in his complaint that after he

completed the class, Ms. Peck refused to allow him

to put the CSP designation on his business cards,

but allowed Caucasian sales managers to do so.

(Paper 1, P 11). Plaintiff has offered no evidence

with respect to this allegation.

30n November 3, 2003, he was told that his end date

was changed to November 3 so that his 401K plan

would reach maturity When Defendant fired Plaintiff,

he was one day short of his five-year anniversary.

‘Although disputed facts are viewed in the light most

favorable to Plaintiff, the court provides Defendant's

version for purposes of analysis.

*Defendant did not provide the original statements in

its motion for summary judgment. Instead, Defendant

provided “summary statements" that were dated

August 2004, after Plaintiff was fired. (Paper 14, ex. 6).

On December 8, 2004, the parties stipulated that the

claims against "K. Hovnanian Company" be dismissed.

‘Even if Plaintiff's first attempt to amend his complaint

on May 9, 2005, had been successful, the motion would

still have been filed after the Scheduling Order's

deadline.

65a

®Ms. Leftrict stated in a supplemental affidavit that she

decided not to enter a "gross misconduct" disqualifying

entry on Plaintiffs application for unemployment

compensation because of the circumstances of his

termination. (Paper 22, ex. 1).

*Plaintiff testified that Ms. Leftrict had told him that

"Ed Kaplan with Didi Peck stormed her office to get

information out of her so they could strategize. She said

she told Hugo DeCesaris and Didi Peck that if I was to

go to any lawyer outside the company, they better

handle this, because they would see this as racial

discrimination." (Paper 14, ex. 1, Holland dep., 150).

For the third assertion, Plaintiff relies on Defendant's

Associate Manual. However, the manual does not

support Plaintiff's assertion that Ms. Leftrict conducted

the investigation improperly by not notifying Mr.

DeCesaris. In any event, it is unclear what this

assertion has to do with Plaintiff's retaliation claim.

‘Plaintiff claims that he was told the factors Ms. Peck

used included education and performance. (Paper 14,

ex. 1, Holland dep., 36). At one point, Ms. Peck also told

him that the first person done with a project

automatically got the next project no matter what the

assignment was or where it was. /d. at 37-38. Because

Plaintiff cannot show that he suffered an adverse

employment action, the question of how Ms. Peck made

assignment decisions (i.e. whether the decision was

based on education and performance, or whether the

decision was based on who finished a project) becomes

an immaterial fact.

66a

l2Plaintiff asserts that he has other incidents within the

300 days, including being moved to another location

“with little or nothing to do" and his transfer to another

location at his work site. (Paper 24, at 12). However, the

court cannot determine the dates on which these events

occurred because Plaintiff has neither provided dates

nor provided citations to the record.

In light of the foregoing, the court need not address

Defendant's argument that the incidents are discrete

separate events and therefore are not subject to the

continuing violation theory.

67a

Filed 7/18/07

No. 06-1309

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

DORN B. HOLLAND,

Plaintiff-Appellant,

WASHINGTON HOMES, INCORPORATED,

Defendant-Appellee.

On petition for Rehearing and Rehearing En Banc

Appellant filed a petition for rehearing and rehearing

en banc.

Judge King voted to grant panel rehearing. Chief

Judge Williams and Judge Duncan voted to deny.

A member of the Court requested a poll on the petition

for rehearing en banc. The poll failed to produce a

majority of the judges in active service in favor of

rehearing en banc.

The Court denies the petition for rehearing and

rehearing en banc.

68a

Entered at the directions of Chief Judge Williams for

the Court.

69a

Filed 7/19/07

No. 06-1309

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

DORN B. HOLLAND,

Plaintiff-Appellant,

WASHINGTON HOMES, INCORPORATED,

Defendant-Appellee.

Corrected Order On petition for Rehearing and

Rehearing En Banc

Appellant filed a petition for rehearing and rehearing

en banc.

Judge King voted to grant panel rehearing. Chief Judge

Williams and Judge Duncan voted to deny.

No member of the Court requested a poll on the

petition for rehearing en banc.

The Court denies the petition for rehearing and

rehearing en banc.

Entered at the direction of Chief Judge Williams for the

Court.

70a

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