Miles v. Dell, Incorporated ( 2005 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KIMBERLY MILES, 
Plaintiff-Appellant,
v.
DELL, INCORPORATED,
Defendant-Appellee.  No. 04-2500
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Amicus Supporting Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(CA-03-1459-A)
Argued: September 21, 2005
Decided: November 22, 2005
Before LUTTIG, Circuit Judge, HAMILTON, Senior Circuit Judge,
and James C. DEVER, III, United States District Judge
for the Eastern District of North Carolina,
sitting by designation.
Affirmed in part, vacated in part, and remanded by published opinion.
Judge Luttig wrote the opinion, in which Senior Judge Hamilton and
Judge Dever joined.
2 MILES v. DELL, INC.
COUNSEL
ARGUED: Mona Lyons, Washington, D.C., for Appellant. Elizabeth
Ellen Theran, UNITED STATES EQUAL EMPLOYMENT OPPOR-
TUNITY COMMISSION, Washington, D.C., for Amicus Supporting
Appellant. Jonathan S. Franklin, HOGAN & HARTSON, L.L.P.,
Washington, D.C., for Appellee. ON BRIEF: Eric S. Dreiband, Gen-
eral Counsel, Carolyn L. Wheeler, Acting Associate General Counsel,
Vincent J. Blackwood, Assistant General Counsel, UNITED STATES
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Wash-
ington, D.C., for Amicus Supporting Appellant. Jessica L. Ellsworth,
HOGAN & HARTSON, L.L.P., Washington, D.C., for Appellee.
OPINION
LUTTIG, Circuit Judge:
Plaintiff-appellant Kimberly Miles, a former account manager at
Dell, Inc., sued Dell for sex discrimination, pregnancy discrimination,
and retaliation under Title VII. The district court granted Dell’s
motion for summary judgment as to all three claims, concluding that,
under governing circuit precedent, Miles failed to make out a prima
facie case of sex or pregnancy discrimination because she was
replaced by another female, and that Miles failed to exhaust her
administrative remedies with respect to her retaliation claim because
she did not allege retaliation in the charge she filed with the Equal
Employment Opportunity Commission. Because the district court did
not consider whether Miles’ case falls within the different-
decisionmaker exception to the fourth prong of the Title VII prima
facie case that we recognize today, we vacate the grant of summary
judgment with respect to Miles’ sex and pregnancy discrimination
claims. We affirm the grant of summary judgment with respect to
Miles’ retaliation claim.
I.
From January 1999 to June 2002, plaintiff-appellant Kimberly
Miles worked as an account manager for defendant-appellee Dell, Inc.1
1
Because Miles was the non-moving party, we view the facts, and
recite them here, in the light most favorable to her.
MILES v. DELL, INC. 3
J.A. 45, 240. From March 2001 until her dismissal, Miles’ supervisor
was James Glaze, a regional sales manager who oversaw Miles’ sales
team. Id. at 418, 439. On March 21, 2001, Miles informed Glaze that
she was pregnant. Id. at 430.
In April 2001, Glaze reduced Miles’ sales territory and reassigned
her key accounts in Northern Virginia, where she lived, to another
employee who had no prior sales experience and lived in Texas. Id.
at 422. Miles asked Glaze if he had reassigned her territory because
of her pregnancy, but he would not discuss the matter with her. Id.
at 425. Miles complained to one of Glaze’s superiors about her mis-
treatment and told Glaze that she had done so. Id.
In May 2001, Glaze increased Miles’ individual sales quotas and
told her that she would remain responsible for achieving those quotas
during any maternity leave she might take. Id. at 431, 442-43. Glaze
also reported (falsely, Miles says) to Dell’s human resources officer
that Miles had lied to him about the status of a contract with one of
Dell’s customers. Id. at 326. Glaze requested permission to terminate
Miles, but that request was refused. Id. On June 30, 2001, Miles gave
birth to her daughter. Id. at 427. After taking two weeks of maternity
leave, Miles returned to work. Id. at 169. Nine months later, on March
28, 2002, Glaze gave Miles an unsatisfactory rating for her perfor-
mance in 2001 and shortly thereafter placed her on a performance-
improvement plan ("PIP"). Id. at 200-06, 207-09. Miles again
informed Glaze that she intended to complain to his supervisor about
her mistreatment, and she did so. Id. at 425-26. Miles told Glaze’s
supervisor that Glaze had been hostile towards her from the time she
told him she was pregnant. Id.
On May 1, 2002, Glaze forwarded an e-mail from one of Miles’
disgruntled clients to Dell management, along with a request that
Miles be terminated. Id. at 214. Shortly thereafter, a member of Dell’s
human resources department contacted Glaze, advised him that she
agreed that termination was the right decision, and instructed him to
draft a termination letter. Id. at 148-49. Miles claims that the disgrun-
tled customer whose e-mail Glaze forwarded was one that she had
brought to his attention, and that Glaze had assured her she was han-
dling the situation appropriately and refused her request that he assign
extra help to that account. Id. at 251.
4 MILES v. DELL, INC.
On June 24, 2002, while she was on her way to the airport for a
business trip, Miles received a call from Glaze, who told her to meet
him at the airport Hilton to discuss her PIP. Id. at 240. When they
met, Glaze handed Miles her termination letter, demanded that she
surrender her company cell phone and laptop, and, according to
Miles, said: "So, what do you think of me now?" Id. Miles alleges that
throughout the time she worked under Glaze, she met Dell’s legiti-
mate expectations and indeed that she outperformed her male col-
leagues, who were not placed on PIPs or fired. Id. at 234. She claims
that the reasons for her dismissal stated in her termination letter were
inaccurate, inflated, or false, and that Glaze had told her all along that
she was doing fine, while in fact he was setting her up for failure. Id.
at 241-42.
In August 2002, Dell offered Miles’ position to Susan Patrick. Id.
at 366. Miles claims that Glaze first tried to fill her position with a
male, Michael McGill, but was vetoed by his superiors, who insisted
on hiring another female account manager. Id. at 289-90. Melissa
Phillips, an account executive under Glaze, submitted an affidavit in
which she testified:
After [Glaze] fired [Miles] in June, 2002, I talked with him
several times about his plans for hiring a new account man-
ager for the Navy sales team. [Glaze] told me, and others in
my presence, that he wanted to hire Mike McGill, a member
of Dell’s support staff. [Glaze] said he was pushing hard to
get Mike hired, and hoped and expected that he would get
approval to do so . . . . In August, 2002 . . . [Glaze] told me
that Mike had not been approved for the account manager
position. [Glaze] also told me that [Glaze’s boss] had
insisted that [Glaze] hire Susan Patrick because they needed
another female account manager. [Glaze] expressed disap-
pointment and frustration to me about having to hire Susan,
and told me he had no choice in the matter.
Id.
On November 13, 2002, Miles filed a charge with the EEOC. Id.
at 228-29. On her charge form, she checked the box for sex discrimi-
nation, but not the box for retaliation. Id. In her narrative explaining
MILES v. DELL, INC. 5
her charge, Miles stated that Glaze had been hostile to her after find-
ing out she was pregnant, that she complained of Glaze’s hostile atti-
tude to Glaze’s supervisor, and that, after firing her, Glaze refused to
answer her questions about why she was fired, but answered only,
"So, what do you think of me now?" Id. On April 16, 2003, Miles’
attorney sent a letter to the EEOC that explicitly alleged retaliation.
Id. at 483-86. That letter was not served on Dell.
On November 21, 2003, Miles filed a complaint against Dell in the
Eastern District of Virginia, alleging sex discrimination, pregnancy
discrimination, and retaliation. Id. at 7-14. The district court granted
Dell’s motion for summary judgment as to all three claims. Id. at 538.
The district court concluded that Miles’ sex and pregnancy discrimi-
nation claims failed as a matter of law "because she [did] not state a
prima facie case of discrimination since she was replaced by a mem-
ber of her protected class." Id. at 533. The district court held that
Miles’ retaliation claim failed because she did not exhaust her admin-
istrative remedies. Id. at 536-38. We examine each of Miles’ claims
in turn.
II.
In McDonnell Douglas Corp. v. Green, the Supreme Court held
that "[t]he complainant in a Title VII trial must carry the initial bur-
den under the statute of establishing a prima facie case" of discrimina-
tion. 411 U.S. 792, 802 (1973). The Fourth Circuit has held that,
under the McDonnell Douglas framework, a Title VII plaintiff relying
on indirect evidence must establish a prima facie case of discrimina-
tion by showing that "(1) she is a member of a protected class; (2) she
suffered adverse employment action; (3) she was performing her job
duties at a level that met her employer’s legitimate expectations at the
time of the adverse employment action; and (4) the position remained
open or was filled by similarly qualified applicants outside the pro-
tected class." Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277,
285 (4th Cir. 2004) (en banc). Because Miles was replaced by another
woman, the district court held that Miles could not satisfy prong four
of the prima facie case and that her sex and pregnancy discrimination
claims accordingly failed as a matter of law.
We conclude that, in appropriate cases, a Title VII plaintiff can
make out a prima facie case without satisfying prong four. Specifi-
6 MILES v. DELL, INC.
cally, we hold that, in cases where the plaintiff can show that the fir-
ing and replacement hiring decisions were made by different
decisionmakers, the plaintiff can make out a prima facie case without
showing replacement by someone outside the protected class.
This court’s requirement that Title VII plaintiffs show replacement
outside the protected class as part of their prima facie case is not dic-
tated by Supreme Court precedent. The fourth prong of the prima
facie case laid out by the Court in McDonnell Douglas, a refusal-to-
hire case, did not require the plaintiff to show that the individual ulti-
mately hired be outside the plaintiff’s protected class. 411 U.S. at 802
(requiring, under the fourth prong, that the plaintiff show only "that,
after his rejection, the position remained open and the employer con-
tinued to seek applicants from persons of complainant’s qualifica-
tions."). Indeed, the Supreme Court has never addressed the question
whether a Title VII plaintiff must show that she was replaced by
someone outside her protected class in order to make out a prima
facie case. Cf. O’Connor v. Consolidated Coin Caterers Corp., 517
U.S. 308, 312-13 (1996) (holding that, under the Age Discrimination
in Employment Act, an age discrimination plaintiff is not required to
show that he was replaced by someone outside the protected class).
Nevertheless, in Brown v. McLean, we held, relying on St. Mary’s
Honor Center v. Hicks, 509 U.S. 502 (1993),2 that "[i]n order to make
out a prima facie case of discriminatory termination, a plaintiff must
ordinarily show that the position ultimately was filled by someone not
a member of the protected class." 159 F.3d 898, 905 (4th Cir.
1998)(emphasis added); see also Lockheed Martin, 354 F.3d at 285;
King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003); Brinkley v. Har-
bour Recreation Club, 180 F.3d 598, 607 (4th Cir. 1999). As Dell
points out, this rule is so well-settled in this circuit that we have previ-
2
Hicks does not dictate the result we reached in Brown. In Hicks, the
Supreme Court did note that the defendant had not challenged the district
court’s finding that the plaintiff, who was black, had made out a prima
facie case by showing, among other things, "that the position remained
open and was ultimately filled by a white man." 509 U.S. 502, 506
(1993). But, of course, that is not to hold that Title VII plaintiffs must
show replacement outside the protected class as part of their prima facie
case.
MILES v. DELL, INC. 7
ously affirmed dismissals under prong four without even issuing pub-
lished decisions. See White v. South Carolina Dep’t of Social Servs.,
No. C/A 3:01-2926-24BC, 2003 WL 22989086, at *6 (D.S.C. Feb. 6,
2003) ("Plaintiffs fail to establish a prima facie case of discrimination
based on race because they fail to show the fourth prong of their
prima facie case [given that] the person selected was also a member
of the protected class."), aff’d, No. 03-1266, 2003 WL 21546032 (4th
Cir. July 10, 2003); Hill v. Wal-Mart Stores, Inc., No. 5:00CV425-
F(2), 2000 WL 33682673, at *4 (E.D.N.C. Sept. 26, 2000) ("Where,
as here, a male plaintiff is replaced by another man, a defendant’s
motion for summary judgment should be allowed in a gender discrim-
ination case."), aff’d, No. 00-2361, 2001 WL 293236 (4th Cir. Mar.
27, 2001).
It is thus clear that the law in this circuit is that, as a general rule,
Title VII plaintiffs must show that they were replaced by someone
outside their protected class in order to make out a prima facie case.
However, we have recognized that "there may be exceptions to this
rule in limited situations." Brown, 159 F.3d at 905 (citing, as possible
exceptions, cases where (1) an age discrimination plaintiff is replaced
by a much younger person within the same class, (2) a significant
lapse of time occurs between the adverse employment action and the
decision to hire another person, and (3) the employer’s hiring of
another person within the protected class is calculated to disguise its
act of discrimination). Moreover, every other circuit has held that a
Title VII plaintiff does not always have to show replacement outside
the protected class in order to make out a prima facie case.3 This is
3
See Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 155
(1st Cir. 1990) ("[I]n a case where an employee claims to have been dis-
charged in violation of Title VII, she can make out the fourth element of
her prima facie case without proving that her job was filled by a person
not possessing the protected attribute."); Meiri v. Dacon, 759 F.2d 989,
995-96 (2d Cir. 1985) (rejecting a requirement that Title VII plaintiffs
show replacement outside the protected class as part of their prima facie
case as "inappropriate and at odds with the policies underlying Title
VII"); Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 355 (3d Cir.
1999) (holding that it is error "to require a plaintiff to prove that she was
replaced by someone outside her class in order to make out a prima facie
case"); Williams v. Trader Publ’g Co., 218 F.3d 481, 485 (5th Cir. 2000)
8 MILES v. DELL, INC.
consistent with the Supreme Court’s recognition, beginning with
McDonnell Douglas itself, that McDonnell Douglas’ prima facie case
requirements are "not necessarily applicable in every respect to differ-
ing factual situations." 411 U.S. at 802 n.13; Furnco Constr. Corp. v.
Waters, 438 U.S. 567, 577 (1978) ("The method suggested in McDon-
nell Douglas for pursuing this inquiry . . . was never intended to be
rigid, mechanized, or ritualistic.").
("[I]t is well settled that, although replacement with a non-member of the
protected class is evidence of discriminatory intent, it is not essential to
the establishment of a prima facie case under Title VII."); Jackson v.
Richards Med. Co., 961 F.2d 575, 587 n.12 (6th Cir. 1992) ("Title VII
does not require that the plaintiff, as part of a prima facie case, show that
he or she was replaced by a person outside the protected class.") (internal
quotation marks omitted); Carson v. Bethlehem Steel Corp., 82 F.3d 157,
159 (7th Cir. 1996) ("That one’s replacement is of another race, sex, or
age may help to raise an inference of discrimination, but it is neither a
sufficient nor a necessary condition."); Walker v. St. Anthony’s Med.
Ctr., 881 F.2d 554, 558 (8th Cir. 1989) ("[T]he sex of [a Title VII plain-
tiff’s] replacement, although a relevant consideration, is not necessarily
a determinative factor in answer to either the initial inquiry of whether
she established a prima facie case or the ultimate inquiry of whether she
was the victim of discrimination."); Lyons v. England, 307 F.3d 1092,
1117 (9th Cir. 2002) ("[W]hether the employer filled any particular posi-
tion with a member of [plaintiff’s] protected class is more properly con-
sidered as evidence produced by the employer to rebut an inference of
discrimination rather than as evidence essential to [plaintiff’s] prima
facie case."); Kendrick v. Penske Transp. Servs., 220 F.3d 1220, 1229
(10th Cir. 2000) ("[A] plaintiff alleging discriminatory discharge ordinar-
ily need not show that a person outside of the protected class was hired
to fill his former position in order to make out a prima facie case of dis-
crimination."); Howard v. Roadway Express, Inc., 726 F.2d 1529, 1534
(11th Cir. 1984) ("[P]roof that the employer replaced the fired minority
employee with a non-minority employee is not the only way" for a Title
VII plaintiff to establish a prima facie case) (quoting Jones v. Western
Geophysical Co. of America, 669 F.2d 280, 284 (5th Cir. 1982)); Stella
v. Mineta, 284 F.3d 135, 146 (D.C. Cir. 2002) ("[A] plaintiff in a dis-
crimination case need not demonstrate that she was replaced by a person
outside her protected class in order to carry her burden of establishing a
prima facie case under McDonnell Douglas.").
MILES v. DELL, INC. 9
The district court recognized that there may be exceptions to prong
four, but concluded that they were limited to the three mentioned in
Brown. See J.A. at 534-35. We reject this understanding. Nothing in
Brown or in logic suggests that Brown’s list of possible exceptions is
exhaustive. Miles urges us to the opposite extreme, asking us to hold
that a plaintiff may bypass prong four whenever the totality of her
evidence gives rise to an inference of discrimination. We also reject
this position. To adopt Miles’ position would be essentially to read
prong four out of the prima facie case, which this panel is not at lib-
erty to do given the clear rule in this circuit that Title VII plaintiffs
must ordinarily show replacement outside the protected class.4
Although we are without the authority to dispense with the fourth
prong altogether whenever the plaintiff’s evidence could be said to
give rise to an inference of discrimination, we do believe, though, that
it is permissible for a panel of the court to recognize exceptions to
prong four for categories of cases that call for an exception. In order
to determine whether an exception to the fourth prong is warranted of
course, we must consider the purpose of that prong. Although neither
Brown nor any other decision of this court of which we are aware pro-
vides a justification for prong four, it seems evident to us that a plain-
tiff must ordinarily show that she was replaced by someone outside
her protected class because, when someone within her protected class
is hired as a replacement, that fact ordinarily gives rise to an inference
that the defendant did not fire the plaintiff because of her protected
status. For example, when a female plaintiff is fired and the employer
replaces her with another woman, that fact at least tends to show that
4
The EEOC argues that this court has in fact already adopted Miles’
position. It cites EEOC v. Sears Roebuck & Co., in which we noted that
"[w]hat is critical with respect to the fourth element is that the plaintiff
demonstrate he was not hired (or fired or not promoted, etc.) ‘under cir-
cumstances which give rise to an inference of unlawful discrimination.’"
243 F.3d 846, 851 n.2 (4th Cir. 2001) (quoting Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981)). However, this statement
does not prove that this court has adopted Miles’ totality-of-the-
circumstances test. Sears Roebuck is not inconsistent with Brown’s rule
that plaintiffs must ordinarily show replacement outside the protected
class. Brown simply recognizes that a plaintiff who was replaced by
another member of her protected class will not ordinarily be able to show
that she was discharged under circumstances that give rise to an infer-
ence of discrimination.
10 MILES v. DELL, INC.
the employer’s motivation for firing the plaintiff was not her sex,
because an employer is unlikely to hire a female replacement if its
reason for firing the plaintiff was that she was female. In other words,
replacement within the protected class gives rise to an inference of
non-discrimination with respect to the protected status. The fourth
prong requires plaintiffs, as part of their prima facie case, to eliminate
this inference of non-discrimination.5
5
At times by way of shorthand but frequently out of misunderstanding,
it is often said that satisfaction of the prima facie case gives rise to an
actual inference of discrimination. However, this is incorrect. The prima
facie case serves as a screen for cases whose facts give rise to an infer-
ence of non-discrimination — screening those cases out — rather than
as a test the satisfaction of which affirmatively establishes an actual
inference of discrimination. The Supreme Court could not have been any
clearer in Texas Department of Community Affairs v. Burdine: "The
prima facie case serves an important function in the litigation: it elimi-
nates the most common nondiscriminatory reasons for the plaintiff’s
rejection." 450 U.S. 248, 253-54 (1981).
In Burdine, the Court also explained the distinction between an actual
inference of discrimination and the presumptive inference to which the
prima facie case gives rise: "As [we] explained in Furnco Construction
Corp. v. Waters, 438 U.S. 567, 577 (1978), the prima facie case ‘raises
an inference of discrimination only because we presume these acts, if
otherwise unexplained, are more likely than not based on the consider-
ation of impermissible factors.’" 450 U.S. at 254 (emphasis added); see
also id. at 254-55, 255 n.10 (stating that "[e]stablishment of the prima
facie case in effect creates a presumption that the employer unlawfully
discriminated against the employee" and that, "[i]f the defendant carries
[its] burden of production, the presumption raised by the prima facie case
is rebutted" and "drops from the case"). In fact, attempting to clarify the
confusion that had arisen from its earlier statements that satisfaction of
the prima facie case does give rise to an inference of discrimination, the
Court acknowledged that in McDonnell Douglas it "should have made it
apparent that in the Title VII context we use ‘prima facie case’" in the
sense only "of a legally mandatory, rebuttable presumption," not in the
sense of "enough evidence to permit the trier of fact to infer the fact at
issue." Id. at 254 n.7. And post-Burdine, the Court has been careful not
to say (or at least not to say without cross-reference to its limiting expla-
nation in Burdine) that satisfaction of the prima facie case affirmatively
gives rise to an actual inference of discrimination, as opposed to a mere
(and rebuttable) presumption of such.
MILES v. DELL, INC. 11
However, replacement within the protected class does not always
give rise to an inference of non-discrimination. One clear example of
this is when the defendant hires someone from within the plaintiff’s
protected class in order "to disguise its act of discrimination toward
the plaintiff." See Brown, 159 F.3d at 905-06. The Seventh Circuit has
provided another example:
Suppose an employer evaluates its staff yearly and retains
black workers who are in the top quarter of its labor force,
but keeps any white in the top half. A black employee ran-
ked in the 60th percentile of the staff according to supervi-
sors’ evaluations is let go, while all white employees
similarly situated are retained. This is race discrimination,
which the employer cannot purge by hiring another person
of the same race later.
Carson v. Bethlehem Steel Corp., 82 F.3d 157, 158 (7th Cir. 1996).
In cases like these, whether because of the particular circumstances
surrounding the firing decision or because of the particular circum-
stances surrounding the replacement hiring decision, the employer’s
decision to hire someone of the plaintiff’s protected class as a replace-
ment does not give rise to an inference of non-discrimination with
respect to the decision to fire the plaintiff. In such cases, the fourth
prong of the prima facie case ought to give way. Cf. Consolidated
Coin, 517 U.S. at 312 (concluding that a showing of replacement out-
side the protected class is not required in age discrimination cases
because such replacement "lacks probative value" as to the defen-
dant’s discriminatory intent).
We believe that another such category of cases is that wherein the
firing and replacement hiring decisions are made by different deci-
sionmakers. In such cases, we are convinced that the replacement hir-
ing decision simply does not give rise to an inference of non-
discrimination with respect to the firing decision. That is, when one
individual makes the decision to fire the plaintiff and another makes
the replacement hiring decision, the second individual’s hiring deci-
sion has no probative value whatsoever as to whether the first individ-
ual’s firing decision was motivated by the plaintiff’s protected status.
We accordingly hold that, when a Title VII plaintiff can show that the
firing and hiring decisions were made by different decisionmakers,
12 MILES v. DELL, INC.
she need not show as part of her prima facie case that she was
replaced by someone outside her protected class.
The record before us suggests that such may have been the case
here. Miles’ evidence suggests that Glaze was principally responsible
for firing her, but that his superiors made the decision to hire Susan
Patrick, overruling his preference to hire a male. However, the record
has not been sufficiently developed with respect to this issue. We
accordingly vacate the district court’s grant of summary judgment as
to Miles’ sex and pregnancy discrimination claims and remand this
case to the district court for a determination whether Miles has estab-
lished a genuine issue of material fact as to whether the decision to
fire her was made by a decisionmaker different from the one that
hired Susan Patrick. See Lockheed Martin, 354 F.3d at 286-98 (con-
sidering at length the question who is a decisionmaker for purposes
of discrimination actions brought under Title VII). If so, then Miles
can establish a prima facie case of sex and pregnancy discrimination
despite the fact that she was replaced by a woman.6
III.
The district court granted Dell’s motion for summary judgment as
to Miles’ pregnancy discrimination claim for the same reason that it
granted the motion with respect to her sex discrimination claim —
namely, that Miles had not shown that she was replaced by someone
outside her protected class. See J.A. at 535 ("Because Ms. Miles was
not replaced by a person outside her protected class . . . her sex and
pregnancy discrimination claims fail."). As we have already con-
cluded, Miles is not required to show that she was replaced by some-
one outside her protected class if she can establish on remand a
genuine issue of material fact as to whether the decision to fire her
was made by a decisionmaker different from the one that hired Susan
Patrick.
6
Dell argues that Miles also failed to make out a prima facie case
because she did not establish a genuine issue of material fact as to
whether she was meeting its legitimate expectations. We express no view
on this matter and leave it to be adjudicated in the first instance by the
district court.
MILES v. DELL, INC. 13
Even if Miles cannot make the different-decisionmaker showing on
remand and must therefore satisfy the fourth prong of the prima facie
case, she has done so with respect to her pregnancy discrimination
claim. As even Dell conceded at oral argument, for purposes of estab-
lishing a prima facie case of pregnancy discrimination, the protected
class is pregnant women, not all women.7 See Gleklen v. Democratic
Congressional Campaign Comm., Inc., 199 F.3d 1365, 1368 (D.C.
Cir. 2000); Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d
716, 726 (7th Cir. 1998); Bergstrom-Ek v. Best Oil Co., 153 F.3d 851,
858 (8th Cir. 1998); Cumpiano, 902 F.2d at 154. Because Susan Pat-
rick was not pregnant when Dell hired her, Miles has shown, with
respect to her pregnancy discrimination claim, that she was replaced
by someone outside her protected class.
Conceding this point, Dell asserts an alternate ground for affirming
the district court’s grant of summary judgment in its favor on Miles’
pregnancy discrimination claim. Dell argues that, because Miles was
not fired until almost a year after she gave birth, any causal connec-
tion between her pregnancy and her termination is so attenuated that
her claim must fail as a matter of law. Dell cites us to two Fourth Cir-
cuit Title VII retaliation cases in which we have stated that a lengthy
time lapse between the employer becoming aware of the protected
activity and the alleged adverse employment action negates any infer-
7
As noted, supra note 5, Title VII’s prima facie case functions to
screen out cases whose facts give rise to an inference of non-
discrimination, rather than to establish an actual inference of discrimina-
tion. See Burdine, 450 U.S. at 253-54 ("The prima facie case serves an
important function in the litigation: it eliminates the most common non-
discriminatory reasons for the plaintiff’s rejection."). The fact that an
employer hires a non-pregnant person, male or female, to replace a preg-
nant woman does not establish an affirmative inference that the employer
fired the pregnant woman because of her pregnancy. However, the
replacement of a pregnant woman with another pregnant woman estab-
lishes an inference that the dismissal of the first woman was unrelated
to her pregnancy. We thus require plaintiffs to exclude this inference of
non-discrimination as part of their prima facie case. We do not, however,
require that a pregnant woman show that she was replaced by a male
because replacement by a non-pregnant female, just as replacement by
a male, does not establish an inference of non-discrimination with
respect to pregnancy.
14 MILES v. DELL, INC.
ence that a causal connection exists between the two. See Causey v.
Balog, 162 F.3d 795, 803 (4th Cir. 1998) ("A thirteen month interval
between the charge and termination is too long to establish causation
absent other evidence of retaliation."); Dowe v. Total Action Against
Poverty, 145 F.3d 653, 657 (4th Cir. 1998) (holding that a lapse of
three years between the protected activity and the adverse employ-
ment action negated the inference of causation).8 These cases do not
dictate the outcome Dell seeks here. First, these were retaliation
cases, in which plaintiffs must show a causal connection between the
retaliation and the protected activity as part of their prima facie case,
see id. at 656, and no such showing is required as part of the preg-
nancy discrimination prima facie case. Second, in Dowe, the
"lengthy" time lapse that we held negated the causal inference was
over three years, significantly longer than the time lapse here. Id. at
657. Third, Causey’s determination that a thirteen month interval was
sufficient to negate the causal inference depended on the absence of
other evidence of retaliation. 162 F.3d at 803.
Here, despite the year lapse between Miles’ pregnancy and her ter-
mination, we are persuaded, viewing the evidence in the light most
favorable to Miles, that she has introduced sufficient evidence for a
rational jury to conclude that there was a causal connection between
the two. First, it is uncontested that in May 2001, while Miles was
still pregnant, Glaze unsuccessfully tried to get authorization to fire
her. A jury could rationally conclude that Glaze wanted to fire Miles
because of her pregnancy but was rebuffed in his first attempt and
simply bided his time until he could convince management to let him
fire her, all the while harboring a discriminatory animus. Second, a
rational jury could conclude that Glaze reduced Miles’ sales territory
and increased her quotas because she was pregnant and that those
actions set her up for the failures that he later used to make the case
for her termination to management. If a jury believed either of these
scenarios, it could rationally conclude that there was a causal connec-
tion between Miles’ pregnancy and her termination. Therefore, it
8
Dell also cites Hooven-Lewis v. Caldera, 249 F.3d 259, 278 (4th Cir.
2001), which states that "[a] six month lag is sufficient to negate any
inference of causation." That case, however, was not even a Title VII
case, and the statement Dell relies on was dicta because in Hooven-
Lewis, as in Causey, there was no evidence of causation. Id.
MILES v. DELL, INC. 15
would be inappropriate to hold that the causation element of Miles’
pregnancy discrimination claim — and thus her entire claim — fails
as a matter of law because of the lapse of time. Whether Miles’ preg-
nancy motivated or otherwise resulted in Dell’s decision to fire her is
a question properly left to the jury.
IV.
The district court granted Dell’s motion for summary judgment as
to Miles’ retaliation claim on the grounds that she failed to exhaust
her administrative remedies. J.A. 536-38. "Before a plaintiff has
standing to file suit under Title VII, he must exhaust his administra-
tive remedies by filing a charge with the EEOC." Bryant v. Bell
Atlantic Maryland, Inc., 288 F.3d 124, 132 (4th Cir. 2002). The
exhaustion requirement ensures that the employer is put on notice of
the alleged violations so that the matter can be resolved out of court
if possible. See EEOC v. American Nat’l Bank, 652 F.2d 1176, 1186
(4th Cir. 1981). While "[t]he EEOC charge defines the scope of the
plaintiff’s right to institute a civil suit," "[a]n administrative charge of
discrimination does not strictly limit a Title VII suit which may fol-
low; rather, the scope of the civil action is confined only by the scope
of the administrative investigation that can reasonably be expected to
follow the charge of discrimination." Bryant, 288 F.3d at 132 (quoting
Chisholm v. United States Postal Serv., 665 F.2d 482, 491 (4th Cir.
1981)). In other words, "[i]f a plaintiff’s claims in her judicial com-
plaint are reasonably related to her EEOC charge and can be expected
to follow from a reasonable administrative investigation, the plaintiff
may advance such claims in her subsequent civil suit." Smith v. First
Union Nat’l Bank, 202 F.3d 234, 247-48 (4th Cir. 2000).
The question in this case is thus whether Miles’ claim that she was
retaliated against for complaining about discriminatory treatment is
reasonably related to her EEOC charge such that it would have rea-
sonably been expected to follow from an administrative investigation
of that charge. The district court concluded that it is not. We agree.
Miles did not check the retaliation box on her charge form, and the
narrative explaining her charge made no mention of retaliation. See
J.A. 228-29 ("I believe that I was discriminated against due to my sex
(female) and (pregnancy).") The EEOC points out that Miles stated
in her charge that she had complained to Glaze’s supervisor and that
16 MILES v. DELL, INC.
Glaze told her, "So, what do you think of me now?" when he fired
her. These facts, the EEOC argues, establish that Miles’ retaliation
claim is reasonably related to her sex and pregnancy discrimination
claims and would have followed from an investigation of those claims.9
We are unpersuaded. Although Miles’ narrative states that she
complained to Glaze’s supervisor, it does not state that she com-
plained to him about discrimination. Id. at 228 (stating only that
Miles "discussed the issue of the hostile attitude of Mr. Glaze"). Nor
does it state that Glaze was aware that Miles had complained to his
supervisor. And Glaze’s alleged statement to Miles does not necessar-
ily imply that Glaze was motivated by a retaliatory impulse. In short,
Miles’ charge does not remotely allege that Glaze retaliated against
her because she had complained of his discriminatory conduct to his
supervisor, and it does not otherwise allege facts that would have put
Dell or the EEOC on notice that she was charging Dell with retalia-
tion. We thus agree with the district court that Miles’ retaliation claim
is not reasonably related to her charge such that it would have been
expected to follow from an investigation of Miles’ sex and pregnancy
discrimination claims. Cf. Bryant, 288 F.3d at 133 ("Administrative
investigation of retaliation . . . could not reasonably be expected to
occur in light of Bryant’s sole charge of race discrimination, and the
investigation of the complaint did not touch on any matters other than
race discrimination.").
Miles claims that, in determining whether she exhausted her
administrative remedies, we should consider not only her charge, but
also a letter she later sent to the EEOC that explicitly alleged retalia-
tion. That letter, which was sent five months after Miles filed her
charge and was not served on Dell, does not cure her failure to allege
retaliation in the charge and is insufficient to meet the administrative
exhaustion requirement. See Sloop v. Memorial Mission Hosp., Inc.,
198 F.3d 147, 149 (4th Cir. 1999) ("[I]t would be objectively illogical
to view a private letter from a complaining party to the EEOC as con-
structively amending a formal charge, given that one of the purposes
9
The EEOC’s assertion that Miles’ retaliation claim was one that
would reasonably have been expected to follow from its investigation is
belied by the fact that the EEOC did not investigate retaliation in
response to Miles’ charge.
MILES v. DELL, INC. 17
of requiring a party to file charges with the EEOC is to put the
charged party on notice of the claims raised against it.").
CONCLUSION
For the foregoing reasons, the judgment of the district court as to
Miles’ sex and pregnancy discrimination claims is vacated and the
case remanded for further proceedings not inconsistent with this opin-
ion. The judgment of the district court as to Miles’ retaliation claim
is affirmed.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED