Lettieri v. Equant Incorporated ( 2007 )

Filed: March 26, 2007
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1532
(CA-04-00838-JCC-LO)
LORRAINE LETTIERI,
Plaintiff - Appellant,
versus
EQUANT INCORPORATED,
Defendant - Appellee.
O R D E R
The court amends its opinion filed March 5, 2007, as follows:
On page 1, attorney information section, line 1, and page 2,
attorney information section, line 3 -- the name “ORLON” is
corrected to read “OBLON.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LORRAINE LETTIERI, 
Plaintiff-Appellant,
v.  No. 05-1532
EQUANT INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CA-04-00838-JCC-LO)
Argued: September 20, 2006
Decided: March 5, 2007
Before MICHAEL, Circuit Judge, and N. Carlton TILLEY, Jr.,
United States District Judge for the Middle District of North
Carolina, sitting by designation, and Thomas E. JOHNSTON,
United States District Judge for the Southern District of West
Virginia, sitting by designation.
Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Michael wrote the opinion, in which Judge Tilley and
Judge Johnston joined.
COUNSEL
ARGUED: Angela Hope France, ALBO & OBLON, L.L.P., Arling-
ton, Virginia, for Appellant. Beverly W. Garafolo, BROWN, RAYS-
2 LETTIERI v. EQUANT INC.
MAN, MILLSTEIN, FELDER & STEINER, L.L.P., Hartford,
Connecticut, for Appellee. ON BRIEF: Seth C. Berenzweig, ALBO
& OBLON, L.L.P., Arlington, Virginia, for Appellant. George L.
Washington, Jr., EQUANT, INC., Oak Hill, Virginia, for Appellee.
OPINION
MICHAEL, Circuit Judge:
The plaintiff, who appeals the summary judgment awarded to her
former employer, claims that she was fired because of her gender and
in retaliation for complaining of discrimination, all in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
The appeal centers on whether the plaintiff has established a prima
facie case on these claims. Based on our prior decision in Miles v.
Dell, Inc., 429 F.3d 480 (4th Cir. 2005), we hold that the plaintiff has
made out a prima facie case of sex discrimination even though she
was fired and her replacement was hired by different decisionmakers.
We also hold that she has made out a prima facie case of retaliation
because the evidence of her employer’s recurring retaliatory animus
is sufficient to establish a causal link between her complaint of dis-
crimination and her termination. The Title VII claims are therefore
remanded for further proceedings. Finally, the plaintiff also sues for
$50,000 in sales commissions under her employment contract, and we
affirm the district court’s award of summary judgment to the
employer on that claim.
I.
A.
Because the plaintiff, Lorraine Lettieri, was the non-moving party
in the summary judgment proceedings, we state the facts, with reason-
able inferences drawn, in the light most favorable to her. See Ander-
son v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Lettieri was
employed by Equant Inc. and its predecessor company, Global One,
from 1989 until July 2002. Both companies provided international
data and voice telecommunications services. In July 2001 Global One
LETTIERI v. EQUANT INC. 3
was acquired by, and merged into, Equant. Prior to the merger Global
One had been partly owned by Sprint International Inc. (Sprint) and
was the exclusive provider of certain telecommunications services to
Sprint. Equant expected that Sprint would continue to be a customer
after the merger.
Before the July 2001 merger Lettieri’s position at Global One was
Director of Alternate Sales Channel. During pre-merger planning,
however, Equant decided that the team of Global One sales employ-
ees that Lettieri supervised would be reorganized into a new Equant
unit called the Sprint Channel. The reorganization included the cre-
ation of a new management position, called Head of Sprint Channel.
The person chosen for this position would lead the unit and coordi-
nate the relationship between Equant and Sprint. In June 2001, a
month before the merger, Lettieri interviewed for the Head of Sprint
Channel position with Sean Parkinson, a Senior Vice President at
Equant. During the interview Parkinson asked Lettieri many personal
questions, including whether she had children, what her child care
responsibilities were, and how her family felt about her weekly com-
mute between Equant’s headquarters in Reston, Virginia, and the
family home in New York. Parkinson specifically asked Lettieri "how
[her] husband handled the fact that [she] was away from home so
much, not caring for the family." J.A. 423. Lettieri replied that she,
her husband, and their children "all helped each other" and worked
together to function as "a successful family." J.A. 424. Parkinson per-
sisted, saying that he had "a very difficult time" understanding why
any man would allow his wife to live away from home during the
work week. Id. After the interview Lettieri contacted her then-
supervisor, Jim Hamrick, to express her uneasiness about the gender
stereotyping evident in Parkinson’s questions and comments. Lettieri
was convinced, as she emphasized to Hamrick, that Parkinson was not
considering her professional qualifications.
In early July 2001 Parkinson called Lettieri to tell her that the Head
of Sprint Channel job had been given to Equant employee Michael
Taylor. Parkinson told her that Taylor had experience she lacked in
running a freestanding, profit and loss organization, which might be
the new business model for Sprint Channel. Parkinson also informed
Lettieri that the key reason for Taylor’s selection was that Taylor’s
children, unlike hers, were already raised, and Taylor and his wife
4 LETTIERI v. EQUANT INC.
could make a committed move to Reston; Lettieri, on the other hand,
still had child care and other family responsibilities in New York.
Later in July 2001 Lettieri wrote a letter to and talked with Lauren
Stoll in Equant’s Human Resources Department about her interview
with Parkinson and his explanation of why Taylor had been chosen.
Lettieri told Stoll that she was shocked by Parkinson’s sexist pre-
sumptions and attitude; she did not ask for any specific action to be
taken, and none was.
When Taylor took over as Head of Sprint Channel, he directly
supervised two employees, Lettieri and Laure Travers, also a female
middle manager. Lettieri continued with the title of Director, super-
vising a nationwide sales team of approximately fourteen people. In
November or December of 2001, after working under Taylor for sev-
eral months, Lettieri again complained to Human Resources, this time
about Taylor’s intolerable treatment of her. Lettieri reported that Tay-
lor alternately screamed and cursed at her or gave her the "silent treat-
ment." J.A. 522. Human Resources took no action on this complaint
either.
Taylor’s other female subordinate, Travers (based in New York),
also had problems dealing with Taylor because of his sexist attitude
and biased treatment "based upon gender stereotypes." J.A. 251.
Although Travers was a managerial employee with an M.B.A., Taylor
told her that he wished she worked in Reston where she could do his
photocopying and that her only value was her ability to use her
French charms on male customers. Twice (once in the fall of 2001
and once in April 2002) Taylor referred to Travers and Lettieri as
"bitches" or "stupid bitches" in front of other Equant employees. J.A.
315, 687. Taylor’s sexist comments were not limited to Travers and
Lettieri. On as many as five or six occasions, in front of Lettieri and
others, Taylor talked about the "physical attributes" ("her figure, her
shape, [her] attractive[ness]") of Kimberly Wood, another female
employee. J.A. 312. Once, in Lettieri’s presence, Taylor said to Par-
kinson, "I’d like to get a piece of that [Kimberly Wood’s] ass." J.A.
314.
The relationship between Equant and Sprint began to deteriorate
following the merger. After a time Sprint requested that Equant’s
LETTIERI v. EQUANT INC. 5
Sprint Channel sales team stop the longstanding practice of interact-
ing directly with Sprint’s customers. Sprint also began looking to
other vendors when Equant did not meet certain pricing demands.
In mid-December 2001 Taylor e-mailed Lettieri a suggested
restructuring plan for the Sprint Channel unit that would have reduced
her supervisory responsibilities and reassigned her to the New York
office. This proposal came on the heels of Taylor’s repeated sugges-
tions to Lettieri that she should consider returning to New York to be
with her family. Under Taylor’s proposal Lettieri would no longer
manage a nationwide sales team, but would work on large accounts
in the New York area and serve as a coach to only two or three sales-
persons. Because the proposal called for her demotion, Lettieri imme-
diately (on December 17) contacted the Director of Human
Resources, Jill Hausner, to complain of discrimination in Taylor’s
plan and in the June 2001 interview with Parkinson. Lettieri also
made the broader complaint that there was a "major problem w[ith
the] way women are being perceived" in the organization and that the
"management structure is biased against women." J.A. 262. Hausner
immediately informed Taylor and Parkinson of Lettieri’s complaints,
but took no other action. Following Lettieri’s return from the Christ-
mas holidays, she met with Taylor to discuss the restructuring plan
and her complaints. Although Taylor agreed not to implement his pro-
posal, Lettieri described him as angry and red faced during the meet-
ing.
Within weeks of Lettieri’s December 17th discrimination com-
plaints, Taylor took away significant aspects of her job responsibili-
ties. At a mid-January 2002 meeting of the entire Sprint Channel sales
team, Taylor announced that he was taking over Lettieri’s role of
leading the team. Specifically, Taylor said that he would be responsi-
ble for overall direction and strategy, he would be increasing his
direct interaction with team members, he would be making direct con-
tact with Equant’s clients at Sprint, and he would be assuming all of
Lettieri’s pricing authority. Lettieri had previously exercised final
pricing authority in over ninety percent of the deals Equant did with
Sprint. Lettieri did not report her loss of job responsibilities to Human
Resources because "no action was taken the first time [she] com-
plained, and that all it did was create an atmosphere of more hostil-
ity." J.A. 575-76.
6 LETTIERI v. EQUANT INC.
The Sprint Channel unit was generating lower than anticipated rev-
enues in the first part of 2002. In February or March 2002 Taylor and
Parkinson discussed terminating Lettieri. According to Parkinson, no
decision was made at that time, but Lettieri was singled out because
eliminating middle management would have been "the quickest way"
to reduce costs in response to the disappointing returns. J.A. 1092. In
April 2002 Parkinson, a Senior Vice President, left the company and
was replaced by Paul Radochia. As soon as Radochia arrived, Taylor
recommended cutting Lettieri’s and Travers’s positions. Taylor told
Radochia that "he ha[d] big issues with [Lettieri]" and that "her role
[was] not really needed." J.A. 264. The final decision to terminate
Lettieri and Travers was reached in the first part of June 2002, but
they were not told about it until July 8, 2002.
On June 14, 2002, after the decision to eliminate Lettieri’s position
had been made, Taylor e-mailed Radochia about a recently demoted
male employee, Tony Avino. Taylor wrote that he had "had [his] eye
on [Avino] as possible sales leadership replacement to LL [Lettieri]
for some time." J.A. 192. If Avino had no disqualifying factors in his
record, Taylor wanted to talk with Radochia about moving Avino into
Lettieri’s position. Radochia replied that Avino was a "poor per-
former" with other very negative attributes. Id. Radochia added, "we
have [Lettieri] on the redundant list . . . that means [she] can not be
‘replaced’ for at least 6 months. I thought you [Taylor] were going to
have all the sales people report to you and set up ‘unofficial’ team
leaders." Id. Taylor then retreated, telling Radochia that the plan
remained for the sales team to report to him (Taylor).
Lettieri was summoned to Equant’s New York office for a meeting
with Taylor on July 8, 2002. On that day a Human Resources repre-
sentative took Lettieri to a conference room where they waited for
Taylor. When Taylor arrived, he commented on Lettieri’s attire, say-
ing, "My don’t you look pretty in pink," and, "I like girls that are
dressed in pink." J.A. 626-27. The Human Resources representative
then told Lettieri that her position was being eliminated effective
immediately. Travers, the other female middle manager who reported
directly to Taylor, was discharged the same day. Although Equant
asserts that Lettieri’s and Travers’s positions were among hundreds
eliminated during the year following the merger with Global One,
LETTIERI v. EQUANT INC. 7
only Lettieri and Travers were targeted for termination in the Sprint
Channel unit during this period.
As Taylor was thwarted in his effort to replace Lettieri with Avino,
he assumed Lettieri’s role of supervising the Sprint Channel sales
team after she was fired in July 2002. Taylor thus performed his regu-
lar job as Head of Sprint Channel as well as the job of supervising
the sales team until Equant hired Barbara Wellons as Head of Sprint
Channel in February 2003. Wellons’s title, Head of Sprint Channel,
was the same as Taylor’s. Wellons, however, took over Taylor’s Head
of Sprint Channel responsibilities, relieving him of the pivotal author-
ity to set pricing for Sprint Channel products and services. Taylor was
thus effectively demoted and left with Lettieri’s former position of
supervising the Sprint Channel sales team.
On April 10, 2003, two months after her arrival, Wellons asked for
and received Taylor’s resignation. Wellons hired Gregory DeMarco
four days later, and DeMarco took over the responsibilities that Tay-
lor had been most recently performing. DeMarco’s title was Director,
Sprint Channel Sales. Two Sprint Channel organizational charts, one
showing Lettieri’s role and one showing DeMarco’s, demonstrate that
DeMarco filled Lettieri’s old position. The charts show both as man-
agers of the Sprint Channel sales team and holding director-level
positions. Moreover, immediately after DeMarco was hired, he con-
tacted Lettieri because "he was told by his management that [she]
knew how to do [his] job better than anybody, and that he should
come talk with [her] and learn how to do the job from [her]." J.A.
640. Lettieri met with DeMarco in April 2003 and gave him advice
about discharging the responsibilities of her old position, the position
DeMarco had just assumed, called Director of Sprint Channel Sales.
B.
Lettieri’s termination prompted her to file charges of sex discrimi-
nation and retaliation with the EEOC, which issued a right to sue let-
ter. She then filed a timely action against Equant alleging Title VII
sex discrimination, Title VII retaliation, and breach of contract. The
last claim seeks $50,000 in unpaid commissions that Lettieri believes
were due to her under her employment agreement with Equant.
Equant moved for summary judgment on all three claims, and the
8 LETTIERI v. EQUANT INC.
motion was granted. The district court concluded that Lettieri’s gen-
der discrimination claim failed for two reasons: first, Lettieri’s alleged
replacement by DeMarco was not probative of discrimination because
he was hired by different decisionmakers than those who fired her,
and second, she did not proffer sufficient evidence to show that she
had been replaced at all. Lettieri v. Equant, Inc., 367 F. Supp. 2d 958,
965 (E.D. Va. 2005). Lettieri’s retaliation claim was rejected because
the court concluded that Lettieri could not show a causal connection
between her complaint of discrimination and her termination. Id. at
966. Finally, the court held that Lettieri’s breach of contract claim
failed because she had not shown that Equant had an obligation to pay
her the disputed commissions. Id. at 969. Lettieri appeals the three
summary judgment rulings.
II.
Lettieri seeks to avoid summary judgment and establish her claim
for Title VII sex discrimination by using the three-step, or burden
shifting, "pretext" method of proof laid out by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). At
the first step the plaintiff has the burden to establish a prima facie
case. A Title VII plaintiff using the standard formulation for the prima
facie case meets this burden by showing that: "(1) she is a member
of a protected class; (2) she suffered adverse employment action; (3)
she was performing her job duties at a level that met her employer’s
legitimate expectations at the time of the adverse employment action;
and (4) the position remained open or was filled by similarly qualified
applicants outside the protected class." Hill v. Lockheed Martin Logis-
tics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en banc). If the
plaintiff establishes her prima facie case, the burden shifts to the
employer at the second step "to articulate a legitimate, nondiscrimina-
tory reason for the adverse employment action." Id. At the third step
the burden returns to the plaintiff to show that "the employer’s prof-
fered permissible reason for taking an adverse employment action is
actually a pretext for discrimination." Id. Specifically, the plaintiff
must "prove by a preponderance of the evidence that the legitimate
reasons offered by the [employer] were not its true reasons, but were
a pretext for discrimination." Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 143 (2000) (quoting Tex. Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981)). At this last step "the burden
LETTIERI v. EQUANT INC. 9
to demonstrate pretext ‘merges with the ultimate burden of persuad-
ing the court that [the plaintiff] has been the victim of intentional dis-
crimination.’" Hill, 354 F.3d at 285 (quoting Burdine, 450 U.S. at
256).
A.
Lettieri carried her burden on the first three elements of the prima
facie case, but the district court held that she failed on the fourth ele-
ment to show that she was replaced by someone outside of her pro-
tected class. Lettieri, 367 F. Supp. 2d at 964-65. The district court
concluded that Lettieri could not satisfy this last element of the prima
facie case for two reasons. First, "[b]ecause a completely different
management team hired DeMarco, the subsequent action by these dif-
ferent decision-makers cannot be imputed back" to Taylor and anyone
else who decided to fire Lettieri. Lettieri, 367 F. Supp. 2d at 965. Sec-
ond, the district court did not believe that Lettieri’s evidence showed
that she was actually replaced by DeMarco. The court brushed aside
the fact that Lettieri and DeMarco both held the title of Director, con-
cluding that "Lettieri provides no evidence of DeMarco’s daily duties
at Equant so she has not shown that he replaced her." Id.On appeal Lettieri argues that the district court erred in concluding
that she failed to proffer sufficient evidence to allow a trier of fact to
find that she was ultimately replaced by DeMarco. More fundamen-
tally, however, she argues that the district court erred in requiring her
to make this showing as part of her prima facie case. According to
Lettieri, our holding in Miles v. Dell, Inc., 429 F.3d 480 (4th Cir.
2005), relieves her of the requirement to show replacement outside of
her protected class in order to make out a prima facie case. We agree
with Lettieri, as we explain below.
In Miles the female Title VII plaintiff, who asserted that she was
fired because of her sex, was replaced by a female hired by a different
decisionmaker. The district court granted summary judgment to the
employer, holding that the plaintiff had failed to establish the fourth
element of her prima facie case because she was replaced by a female.
We reversed, establishing what we called "the different-
decisionmaker exception to the fourth prong of the Title VII prima
facie case" — an exception that allowed the plaintiff to establish a
10 LETTIERI v. EQUANT INC.
prima facie case, even though one manager fired her and another
hired her female replacement. Id. at 483.
We noted in Miles that "in order to make out a prima facie case of
discriminatory termination, a plaintiff must ordinarily show that the
position ultimately was filled by someone not a member of the pro-
tected class." Id. at 486 (quoting Brown v. McLean, 159 F.3d 898, 905
(4th Cir. 1998) (emphasis added in Miles). There are "exceptions to
this rule in limited situations." Brown, 159 F.3d at 905. "One clear
[exception] is when the defendant hires someone from within the
plaintiff’s protected class in order ‘to disguise its own act of discrimi-
nation toward the plaintiff.’" Miles, 429 F.3d at 488 (quoting Brown,
159 F.3d at 905-06). We recognized another exception in Miles for
the case "wherein the firing and replacement hiring decisions are
made by different decisionmakers." Id. at 489. In such a case, we said,
"the second individual’s hiring decision has no probative value what-
soever as to whether the first individual’s firing decision was moti-
vated by the plaintiff’s protected status." Id. In other words, even if
the female plaintiff could have shown that the second decisionmaker
hired a male to replace her, the replacement hiring decision would not
have contributed to a presumption of gender discrimination on the
part of the first decisionmaker, who fired the plaintiff. See id. The
solution, we held, was simply to relieve the plaintiff of the burden to
"show as part of her prima facie case that she was replaced by some-
one outside her protected class" when "the firing and hiring decisions
were made by different decisionmakers." Id.
In light of our reasoning in Miles, the district court in this case was
correct in its implicit understanding that the sex (here, male) of the
person chosen by a second decisionmaker to fill the female plaintiff’s
vacant position does not assist in creating a presumption of gender
bias on the part of the first decisionmaker, who fired the plaintiff. The
district court nevertheless erred in failing to apply the exception cre-
ated in Miles, which relieves a plaintiff like Lettieri of the burden to
show replacement outside of her protected class as part of the prima
facie case. Because it is uncontested that Lettieri has satisfied the first
three elements of the prima facie case, and Miles relieves her of
LETTIERI v. EQUANT INC. 11
showing the traditional fourth element, we conclude that she has met
her burden at the first step of the McDonnell Douglas analysis.1
B.
Because Lettieri has made out a prima facie case and established
a "legally mandatory, rebuttable presumption" of unlawful discrimi-
nation, the burden shifts to Equant to assert a nondiscriminatory
explanation for Lettieri’s termination. Burdine, 450 U.S. at 254 n.7.
Equant has met its burden of production by proffering evidence that
Lettieri was terminated because her position was "not really needed"
and was therefore eliminated to provide a quick antidote for revenue
shortfalls. J.A. 264. With this explanation the burden shifts back to
Lettieri to show that Equant’s stated reasons for her termination "were
not its true reasons, but were a pretext for discrimination." Burdine,
450 U.S. at 253. In order to show pretext at this third step of the
McDonnell Douglas framework, Lettieri must proffer sufficient evi-
dence to allow a trier of fact to find that she was replaced, and thus
her position was not eliminated, as Equant claimed.
Lettieri has made this showing. Immediately after the decision to
fire Lettieri was made in early June 2002, Taylor, in an e-mail to
Radochia, sought to replace Lettieri with a male. Radochia, however,
advised Taylor that he could not replace Lettieri for at least six
months because she was "on the redundant list." J.A. 192. Taylor was
thus forced to take on Lettieri’s job duties in addition to his own from
July 2002, when Lettieri was fired, until February 2003, when Wel-
lons replaced Taylor. At that point, Wellons assumed Taylor’s upper-
level management responsibilities and effectively demoted Taylor,
who continued to perform Lettieri’s mid-level management position
of supervising the Sprint Channel sales team. In short, Lettieri’s job
re-emerged as a separate position when Wellons arrived. Lettieri was
thus replaced, temporarily by Taylor in February 2003 and ultimately
by DeMarco in April 2003 when he was hired as Director of Sprint
Channel Sales. Organizational charts showed that DeMarco and Let-
tieri had the same position because they were both at the director level
and supervised the Sprint Channel sales team. Finally, when DeMarco
1
At the last step of McDonnell Douglas Lettieri will still be required
to proffer sufficient evidence to show that she was replaced.
12 LETTIERI v. EQUANT INC.
was hired, he immediately contacted Lettieri because "he was told by
his management that [she] knew how to do [his] job better than any-
body, and that he should come talk with [her] and learn how to do the
job from [her]." J.A. 640. Lettieri met with DeMarco and gave him
advice about fulfilling his responsibilities as her successor. These
facts are sufficient to allow a trier of fact to find that Lettieri was
replaced and to reject Equant’s explanation that Lettieri was fired
because her position was eliminated.
To this point, Lettieri has made out a prima facie case of sex dis-
crimination and offered ample evidence to discredit Equant’s prof-
fered nondiscriminatory reason for her termination. Because Equant
has not offered "uncontroverted independent evidence that no dis-
crimination [ ] occurred," Lettieri’s showing is sufficient to permit a
"trier of fact to infer the ultimate fact of [intentional] discrimination
from the falsity of the employer’s explanation." Reeves, 530 U.S. at
147-48. Lettieri, however, relies on more than her prima facie case
and the falsity of Equant’s explanation in attempting to establish that
she was the victim of discrimination.
Lettieri also puts forward the kind of evidence that we have deter-
mined to be sufficient to defeat an employer’s motion for summary
judgment: "evidence that clearly indicates a discriminatory attitude at
the workplace and . . . illustrate[s] a nexus between that negative atti-
tude and the employment action." Brinkley v. Harbour Rec. Club, 180
F.3d 598, 608 (4th Cir. 1999). There is powerful evidence showing
a discriminatory attitude at Equant toward female managers — partic-
ularly female managers who have children at home and commute long
distances. This evidence would allow a trier of fact to conclude that
these discriminatory attitudes led to Lettieri’s ultimate termination.
Senior Vice President Parkinson rejected Lettieri for the Head of
Sprint Channel position in large part because he believed that women
should not live away from home during the work week and that Let-
tieri should work close to her home in New York and not in Equant’s
headquarters in Reston, Virginia. Taylor, who was chosen to head up
the Sprint Channel unit, agreed with Parkinson. As Lettieri’s direct
supervisor, Taylor repeatedly suggested to her that she should con-
sider returning to New York to be with her family. Eventually, Taylor
attempted to demote Lettieri and transfer her to New York. After
Human Resources informed Taylor of Lettieri’s complaint of sex dis-
LETTIERI v. EQUANT INC. 13
crimination by him and Parkinson, he gave up on his plan to transfer
her, but within weeks stripped her of significant job responsibilities.
Taylor and Parkinson, who was also aware of Lettieri’s allegations,
then began discussions regarding her termination. Taylor claimed that
Lettieri’s role was not needed but nonetheless tried to replace her with
a man. In due course, Taylor summoned Lettieri to her firing, where
she was told that she "look[ed] pretty in pink" and that her job was
being eliminated. J.A. 626. As we have already indicated, Lettieri has
proffered sufficient evidence to show that the job elimination expla-
nation was simply a cover for discrimination.
There is sufficient evidence in this case for a trier of fact to con-
clude that Lettieri was the victim of illegal gender discrimination.
Accordingly, the district court erred in granting summary judgment to
Equant on Lettieri’s Title VII sex discrimination claim.
III.
Lettieri next contends that the district court erred in granting sum-
mary judgment to Equant on her claim of Title VII retaliation. We
also evaluate this claim under the McDonnell Douglas burden-shifting
framework. See Thompson v. Potomac Elec. Power Co., 312 F.3d
645, 650 (4th Cir. 2002). At the time the district court considered
Equant’s motion, establishing a prima facie case of retaliation in this
circuit required a plaintiff to show that: "(1) she [had] engaged in pro-
tected activity; (2) the employer took adverse employment action
against her; and (3) a causal connection existed between the protected
activity and the asserted adverse action." von Gunten v. Maryland,
243 F.3d 858, 863 (4th Cir. 2001).2 Equant contested only the third
2
Recently, in Burlington N. & Sante Fe Ry. Co. v. White, 126 S. Ct.
2405 (2006), the Supreme Court rejected our circuit’s formulation of the
second element of the prima facie case. The Court held that "the anti-
retaliation provision . . . is not limited to discriminatory actions that
affect the terms and conditions of employment." Id. at 2412-13. The anti-
retaliation provision, the Court said, "protects an individual not from all
retaliation, but from retaliation that produces an injury or harm." Id. at
2414. Thus, "a plaintiff must show that a reasonable employee would
have found the challenged action materially adverse, which in this con-
text means it well might have dissuaded a reasonable worker from mak-
14 LETTIERI v. EQUANT INC.
(causation) element in the summary judgment proceedings, and the
district court held that Lettieri’s evidence was too speculative to show
a causal connection between her December 2001 discrimination com-
plaint to Human Resources and her July 2002 termination. We con-
clude, however, that Lettieri proffers sufficient probative evidence to
satisfy the causation element of her prima facie case.
Equant argues that Lettieri cannot rely on mere temporal proximity
to establish a causal connection between her complaint and her termi-
nation because of the passage of seven months between these two
events. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001) ("The cases that accept mere temporal proximity between an
employer’s knowledge of protected activity and an adverse employ-
ment action as sufficient evidence of causality to establish a prima
facie case uniformly hold that the temporal proximity must be very
close[.]") (internal quotation marks and citation omitted). Equant
nonetheless acknowledges that other relevant evidence may be used
to establish causation. See Causey v. Balog, 162 F.3d 795, 803 (4th
Cir. 1998). In cases where "temporal proximity between protected
activity and allegedly retaliatory conduct is missing, courts may look
to the intervening period for other evidence of retaliatory animus."
Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000)
(internal quotation omitted). Specifically, evidence of recurring retal-
iatory animus during the intervening period can be sufficient to satisfy
the element of causation. Id.; see also Miles, 429 F.3d at 490 (noting
that our "determination [in Causey] that a thirteen month interval was
sufficient to negate the causal inference depended on the absence of
other evidence of retaliation"). In this case Lettieri does not rely on
temporal proximity; rather, to establish causation, she points to con-
tinuing retaliatory conduct and animus directed at her by Taylor and
Parkinson in the seven-month period between her complaint and her
termination.
ing or supporting a charge of discrimination." Id. at 2415 (quotation
marks and citations omitted). Burlington Northern does not affect our
analysis because the second element is not an issue in this appeal. Let-
tieri was fired and thus satisfied the stricter "adverse employment action"
formulation rejected by the Supreme Court.
LETTIERI v. EQUANT INC. 15
Lettieri contacted Hausner in Human Resources on December 17,
2001, to report gender discrimination by Taylor and Parkinson. Over
the next two days Hausner conveyed Lettieri’s complaints to the two
men. After Lettieri lodged her complaint, Taylor gave up on his plan
to transfer her to New York. But the very next month (January 2002)
Taylor stripped Lettieri of significant job responsibilities. He reduced
her supervisory responsibilities over the sales team and took away her
authority to set prices and meet directly with Sprint clients. These
steps made it easier for Taylor to take the position later that Lettieri
was not needed and should be terminated. Before long, in February
or March 2002, Taylor and Parkinson began discussions about firing
Lettieri. This was well before Equant asked managers such as Taylor
to look for positions that could be eliminated. Right after Radochia
took over Parkinson’s role in April 2002, Taylor informed Radochia
that he had "big issues with [Lettieri]" and that "her role [was] not
really needed." J.A. 264. After the decision was made to terminate
Lettieri in June of 2002 because her position was supposedly redun-
dant, Taylor immediately sought approval to hire a replacement for
Lettieri.
These intervening events — which occurred regularly after Let-
tieri’s complaint and can reasonably be viewed as exhibiting retalia-
tory animus on the part of Taylor and Parkinson — are sufficient to
show a causal link between Lettieri’s complaint and her termination.
See Farrell, 206 F.3d at 281. Accordingly, we hold that Lettieri has
established a prima facie case of retaliation.
The remainder of the McDonnell Douglas analysis for Lettieri’s
retaliation claim proceeds as it did under her discrimination claim.
We therefore conclude, for the reasons stated in part II.B, supra, that
there is sufficient evidence for a trier of fact to conclude that Lettieri
was the victim of illegal retaliation when she was fired. As a result,
the district court also erred in granting summary judgment to Equant
on Lettieri’s Title VII retaliation claim.3
3
At oral argument Lettieri advanced a new theory of retaliation pur-
portedly based on the Supreme Court’s Burlington Northern decision,
which was issued after the conclusion of briefing in this appeal. Lettieri
argues that Burlington Northern makes clear that Taylor’s decision to
16 LETTIERI v. EQUANT INC.
IV.
Finally, Lettieri challenges the district court’s grant of summary
judgment to Equant on her breach of contract claim for $50,000 in
sales commissions. Lettieri alleges that she and one of her subordi-
nates won a contract with United Parcel Service (UPS) that was worth
$3.5 million to Equant. It is undisputed, however, that Lettieri’s sub-
ordinate who was responsible for the UPS account failed to report any
new UPS order to Equant, and no such order was shown on Equant’s
order tracking system. The district court thus concluded that there was
no reported UPS order that entitled Lettieri to the commissions
claimed. Lettieri attempts to circumvent the undisputed facts on
appeal by arguing that the district court’s decision on her contract
claim is contrary to the law of the case doctrine.
Prior to the summary judgment proceedings before the district
judge, a magistrate judge denied Equant’s motion to amend its answer
to assert as an affirmative defense Lettieri’s failure to fulfill a condi-
tion precedent with respect to her contract claim. The condition was
that "the salesperson managing the account [must] timely submit
order information to Equant so that commissions could be calcu-
lated." J.A. 68. Equant’s motion to amend was denied without written
opinion. As Lettieri essentially concedes in her reply brief, the law of
the case doctrine does not prevent a district judge from implicitly
reconsidering a magistrate judge’s earlier ruling in the same case. See
Hill v. BASF Wyandotte Corp., 696 F.2d 287, 290 n.3 (4th Cir. 1982)
(stating that the law of the case doctrine is "not a matter of rigid legal
rule, but more a matter of proper judicial administration"). In all
events, Lettieri had ample opportunity, but failed, on summary judg-
ment to rebut Equant’s position that her subordinate had not submit-
ted any record of a new UPS order. Thus, the district court was
correct in granting summary judgment to Equant on Lettieri’s contract
strip her of major job responsibilities in mid-January 2002 was a separate
act of retaliation outlawed by Title VII. Because Lettieri has proffered
sufficient evidence to make out a prima facie case under her original
claim that her termination was the retaliatory act, we leave it to the dis-
trict court to consider on remand whether Lettieri may proceed under this
additional theory.
LETTIERI v. EQUANT INC. 17
claim on the ground that "[n]o reasonable juror could conclude that
Equant was required to pay the [commissions] that Lettieri now
seeks." Lettieri, 367 F. Supp. 2d at 969.
V.
In sum, we affirm the district court’s order granting summary judg-
ment to Equant on Lettieri’s breach of contract claim. We vacate the
order granting summary judgment to the company on the Title VII
claims and remand for further proceedings on those claims.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED