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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

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

a
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?

uv
TABLE OF CONTENTS

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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 isisiskone 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)

8
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

9

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

10

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.

11

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

12
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

13

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

14
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).

15

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

16

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

17

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

18

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

19

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

20

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

21

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,

22

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

23
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

24

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.

25

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).

26

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

27

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.

28

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

29

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

la
(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,
v.
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.

2a
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.

I.

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 - $

3a

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

4a

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.

5a

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

6a

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

Ta

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

8a

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

9a

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.

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.

B.

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.

C.

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
4.

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 b

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0361%3A1. Public record. Not legal advice.