Ge Zhang v. Promontory Interfinancial Network, LLC , 597 F. App'x 724 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1544
GE ZHANG, a/k/a Emily Zhang,
Plaintiff - Appellant,
v.
PROMONTORY INTERFINANCIAL NETWORK, LLC,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:13-cv-01309-LO-JFA)
Submitted: December 8, 2014 Decided: January 7, 2015
Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas F. Hennessy, VIRGINIA EMPLOYMENT AND FAMILY LAW OFFICE,
Fairfax, Virginia, for Appellant. Thomas S. Williamson, Jr.,
Eli K. Best, COVINGTON & BURLING LLP, Washington, D.C., for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ge Zhang (Zhang), an individual of Chinese national origin,
appeals the district court’s dismissal of her amended complaint.
We affirm.
Zhang worked at Promontory Interfinancial Network, LLC
(PIN) as a “Senior User Experience Consultant” for approximately
four months. (J.A. 79). She was not employed directly by PIN,
but worked there through PIN’s contract with TrustedQA, a
staffing and placement agency. Zhang was terminated by PIN on
February 25, 2013. 1
On March 18, 2013, Zhang filed a pro se complaint in
Virginia state court against PIN and three of PIN’s employees.
The complaint stated causes of action for discrimination and
harassment in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e-2000e-17, and Virginia state law claims
of conspiracy and fraud. PIN removed the state court action to
the United States District Court for the Eastern District of
Virginia and moved to dismiss the complaint. On June 17, 2013,
the district court granted Zhang’s motion to voluntarily dismiss
her complaint without prejudice.
1
Following her termination, PIN paid Zhang one month of
severance pay.
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On October 17, 2013, with the help of counsel, Zhang filed
a complaint against PIN in the United States District Court for
the Eastern District of Virginia. In this complaint, Zhang
pressed three causes of action: (1) retaliatory termination in
violation of Title VII; (2) retaliatory termination in violation
of 42 U.S.C. § 1981; and (3) tortious interference with
contract. Of note, this complaint did not assert any claims for
discrimination or harassment, nor did it assert any retaliation
claim other than an alleged retaliatory termination following a
mid-February 2013 complaint to PIN’s Human Resources Director, a
complaint lodged only after Zhang had been counseled about her
conduct and told that PIN was not prepared to offer her
permanent employment. PIN moved to dismiss this complaint, and,
following a hearing, the district court dismissed the tortious
interference claim with prejudice, but dismissed the retaliatory
termination claims without prejudice, granting Zhang leave to
amend these two claims within thirty days.
On February 14, 2014, just days after terminating her
attorney, but within the thirty-day window set by the district
court, Zhang filed a pro se amended complaint against PIN. The
amended complaint contained five claims and a host of new
factual allegations, many of which were inconsistent with
factual allegations contained in Zhang’s previous complaints.
In addition to the retaliatory termination claims which the
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district court allowed Zhang to amend, Zhang pressed three new
claims: (1) national origin discrimination under Title VII; (2)
national origin discrimination under § 1981; and (3) hostile
work environment under Title VII.
On March 4, 2014, PIN moved to dismiss Zhang’s amended
complaint and moved to strike the new claims and allegations.
Shortly thereafter, Zhang retained counsel, and such counsel
sought leave to amend Zhang’s amended complaint. 2
On May 9, 2014, the district court held a hearing on PIN’s
motion to dismiss and Zhang’s motion for leave to amend. 3 At the
conclusion of the hearing, the district court granted the motion
to dismiss, expressing understandable frustration that many of
Zhang’s new factual allegations were inconsistent with the
allegations she had made in her previous complaints:
I have bent over backwards to allow Ms. Zhang the
opportunity to come forward with anything beyond pure
speculation . . . and to demonstrate that there was
retaliation or harassment.
She was pro se when she started, then she had counsel.
We went over it with counsel. And instead of
counseling, which would have demonstrated that she did
not have anything but pure speculation, she instead
decides to perpetrate an outrageous fraud upon the
court by adding what are inherently unbelievable
2
Zhang’s proposed second amended complaint contained
essentially the same allegations of her first amended complaint.
3
Also before the district court were motions for sanctions
filed by the parties. These motions were denied by the district
court, and these rulings are not challenged on appeal.
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allegations to support claims which were implausible
to begin with. And it’s an affront to the court.
* * *
Ms. Zhang has attempted to perpetrate a fraud on the
court. It’s about as serious a matter as you are
going to get in a courtroom. And I am going to grant
the defendant’s motion to dismiss the claims with
prejudice in their entirety.
(J.A. 194-95).
On May 29, 2014, the district court entered a written
order, which granted the motion to dismiss for the “reasons
stated in open court” and as put forth in the order. (J.A.
196). In its order, the district court opined that the national
origin discrimination claims and the hostile work environment
claim were untimely because the district court only granted
leave to amend the retaliatory termination claims and did not
grant leave to add additional claims of discrimination. With
respect to the retaliatory termination claims, the district
court opined that Zhang’s allegations were insufficient to
establish a good faith belief that the practices she opposed
were unlawful and discriminatory. In this regard, the district
court was extremely troubled by Zhang’s new, inconsistent
allegations and the timing of these allegations. The district
court further opined that Zhang failed to satisfactorily plead
that her alleged protected activity was the but for cause of her
termination.
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Zhang appeals the district court’s dismissal of her
complaint. We have reviewed the parties’ submissions, the
district court’s order, and the applicable law, and affirm
substantially on the reasoning of the district court’s order.
Zhang v. Promontory Interfinancial Network, LLC, Civil Action
No. 1:13-cv-01309 (E.D. Va. May 29, 2014). Like the district
court, we are equally troubled by Zhang’s untimely attempt to
add new claims buttressed by material facts that are
inconsistent with previous factual allegations, and conclude the
district court correctly dismissed Zhang’s amended complaint
with prejudice. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before us and oral argument would not aid the
decisional process.
AFFIRMED
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