Pascual v. Lowe's Home Centers, Inc. , 193 F. App'x 229 ( 2006 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 05-1847
    MATTHEW PASCUAL,
    Plaintiff - Appellant,
    versus
    LOWE’S HOME CENTERS, INCORPORATED,
    Defendant - Appellee.
    Appeal from the United States District Court for the Eastern
    District of Virginia, at Alexandria. Claude M. Hilton, District
    Judge. (CA-04-1440-1)
    Argued:   May 24, 2006                    Decided:   August 2, 2006
    Before KING and SHEDD, Circuit Judges, and Joseph R. GOODWIN,
    United States District Judge for the Southern District of West
    Virginia, sitting by designation.
    Affirmed by unpublished per curiam opinion.
    ARGUED: Todd Francis Sanders, SANDERS & KISSLER, Leesburg,
    Virginia, for Appellant.    Charles Randolph Sullivan, HUNTON &
    WILLIAMS, Richmond, Virginia, for Appellee. ON BRIEF: Douglas R.
    Kay, BRIGLIA & HUNDLEY, P.C., Fairfax, Virginia, for Appellant.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Matthew Pascual appeals the district court’s order granting
    summary judgment to his former employer, Lowe’s Home Centers, Inc.,
    on his Title VII retaliation claim.           We affirm.
    I.
    Pascual began working for Lowe’s in September 2002 as an
    assistant manager in Sterling, Virginia.            In February 2003, Lowe’s
    promoted    him    to   sales   manager    where   he   was   responsible   for
    recruiting, training, and managing sales specialists and overseeing
    commercial, installed, and special order sales.                     When Lowe’s
    promoted Pascual, it also hired Steve Rosko as the store manager.
    Rosko supervised Pascual.
    Beginning in January 2003, Eileen Duley and Chauncey Kopp, two
    of Pascual’s coworkers, began calling Pascual “Pretty Pants” and
    “Pretty.”     Other employees also had nicknames, including Big C,
    Kenny, Big Game, Captain America, and Rafy.                   Pascual at first
    laughed at the nicknames, but in February 2003 he asked Rosko to
    address the name-calling.          Pascual claims he talked with Rosko
    several    times   about   the   nicknames    but    that     the   name-calling
    continued.    Pascual did not explain to Rosko that he thought the
    nicknames constituted sexual harassment.1
    1
    Pascual also claims Duley “physically groped” him by pinching
    his nipples and grabbing his buttocks one evening after work at the
    Bongo and Billiards, a local bar. Pascual does not allege this
    2
    Pascual claims that during this same period Lowe’s required
    him to cover an excessive number of manager-on-duty (“MOD”) shifts.
    Lowe’s claims all managers were required to cover MOD shifts.
    On May 14, 2003, Rosko issued Pascual a written warning for
    poor job performance.      The warning stated that Pascual failed to
    complete payment documentation, a commercial sales action plan
    presentation, documentation of underperforming sales specialists,
    and repairs to the displays in the showroom.          Pascual signed the
    warning, agreed to resolve the issues stated in the warning by
    specified   dates,   and   agreed    to   “work   towards   having   better
    performance.”    J.A. 937–38.       Pascual later testified he did not
    take the warning “as seriously as maybe [he] should have.”           Id. at
    275.
    The record contains an additional evaluation dated May 20,
    2003, known as the “Matt sales manager walk” (“manager walk”).
    This document, signed by Rosko, sets forth a number of additional
    job deficiencies.    The parties dispute the validity of the manager
    walk document.
    On May 22, 2003, Pascual sent the following email message to
    Krishna Desai, the Sterling store’s human resources manager:
    It has come to my attention that there have been
    allegations of sexual harassment on several levels here
    at the store. I am concerned that we as a management
    team aren’t taking them seriously enough and in many
    conduct occurred during a work event or that he reported the
    conduct to management.
    3
    cases are condoning or participating in such action. As
    a measure of my concern for this and in order to preserve
    the friendly work environment of the store, I recommend
    that we review policy and procedure as a group. I know
    that being referred to as “Pretty Pants” or “pretty” can
    be construed as offensive and I think that management
    should refrain from using them when referring to other
    managers. We are a professional organization and we need
    not undermine people’s authority or speak of personal
    appearances when referring to another manager, especially
    in front of subordinates. Just concerned if this type of
    behavior goes unchecked, it will mushroom into something
    bad.
    Id. at 756.   Pascual claims the “sexual harassment” he complained
    of referred to the name-calling and the harassment of Nicole
    Kleean, another manager in the store, who had reported harassing
    conduct to a Lowe’s official on May 4, 2003.2     On May 23, Bill
    Irving, the regional human resources director, met with Pascual.
    Pascual later testified that he discussed Kleean’s harassment
    during the meeting.
    On May 30, 2003, Lowe’s required the store’s management staff
    to attend sexual harassment training in which, among other topics,
    the use of nicknames was addressed.     Pascual acknowledged that
    Lowe’s response to his email message was appropriate and that the
    use of nicknames ceased after the training.
    On August 9, 2003, Lowe’s issued Pascual a “Final Notice,”
    which stated:
    2
    Lowe’s transferred Kleean’s alleged harasser to another store
    during the investigation of Kleean’s harassment and terminated the
    alleged harasser’s employment on May 25, 2003.
    4
    During the past 45 days Matt performance has not met the
    requirements set forth in his last documentation on
    5/14/2003 and has declined furthermore.    Examples are
    tardiness on 7/27 & 7/28, not working his required time
    during the week of 7/26/2003. Not performing required
    MOD responsibilities such as 7/25/2003 no unlock report
    or MR’s Performed. Very poor compliance on safety walks
    during his MOD shifts. Not attending required training
    on 8/7/2003 commercial sale action plan not executed,
    required training for regional program not being
    completed, and nine specialist vacancies in his dept.
    Id. at 770.   The Final Notice also stated, “[a]ny violation or
    decline in performance or failure to complete [the work plan] by
    8/22/2003 will result in termination.”    Id.   Pascual refused to
    discuss, read, or sign the final notice.     He testified that he
    responded to the Final Notice in this manner because of his store’s
    strong sales performance.
    On September 4, 2003, Lowe’s terminated Pascual’s employment.
    The termination document stated:
    During the previous four months Matt has been documented
    on his job performance.    As of August 4th issues are
    outstanding, Matt did not attend 2:00 teleconference on
    August 4th, left work early on August 3rd in the middle
    of a staff meeting, previous seven days no refund
    verification.   Commercial sales action plan still not
    being executed.    No safety walks performed on Matt’s
    opening or closing shift. Regional training still not
    being executed. Six specialist positions open with no
    active recruiting plan in place.     Matt still is not
    executing his Sales Manager best practices and job
    description to the required level of execution.
    Id. at 771.   No record evidence contradicts the content of the
    termination document.
    On October 13, 2003, Pascual filed an EEOC complaint.      The
    EEOC dismissed his charge and issued a right to sue letter.
    5
    Pascual subsequently filed a civil action alleging claims of Title
    VII retaliation.   The district court granted summary judgment in
    favor of Lowe’s because Pascual did not engage in a protected
    activity, he failed to prove a causal relationship between a
    protected activity and the termination of his employment, and he
    failed to provide any substantiated evidence of pretext.    Pascual
    appealed the district court’s decision.     We affirm because no
    factual issue exists as to whether Lowe’s termination of Pascual’s
    employment was causally connected to a protected activity.
    II.
    We review the grant of summary judgment de novo, viewing the
    facts in the light most favorable to the nonmoving party.    Spriggs
    v. Diamond Auto Glass, 
    242 F.3d 179
    , 183 (4th Cir. 2001).   A moving
    party is entitled to summary judgment if the evidence shows no
    genuine issue of material fact exists and that the moving party is
    entitled to judgment as a matter of law.   Fed. R. Civ. P. 56(c).
    III.
    Title VII’s retaliation provision prohibits an employer from
    “discriminating against” an employee “because he has opposed any
    practice made an unlawful employment practice” by Title VII.     42
    U.S.C. § 2000e-3(a) (2000).   We use a variation of the McDonnell
    Douglas burden-shifting test to evaluate retaliation claims.    See
    6
    Munday v. Waste Mgmt. of N. Am., Inc., 
    126 F.3d 239
    , 242 (4th Cir.
    1997).   The plaintiff first must establish a prima facie case of
    retaliation by showing:    (1) he engaged in a protected activity;
    (2) the employer took an adverse employment action against him; and
    (3) a causal connection existed between the protected activity and
    the asserted adverse action.3   Laughlin v. Metro. Wash. Airports
    Auth., 
    149 F.3d 253
    , 258 (4th Cir. 1998).    Once a plaintiff has
    established a prima facie case of retaliation, an employer may
    rebut this initial showing by articulating a nondiscriminatory
    reason for the adverse employment action.     
    Id.
       If an employer
    articulates such a reason, the burden shifts back to the plaintiff
    to show that the explanation for the action was a pretext for
    intentional retaliation.    Reeves v. Sanderson Plumbing Prods.,
    Inc., 
    530 U.S. 133
    , 147-48 (2000).
    IV.
    Pascual claims his email message to human resources, his
    interview with human resources personnel, and his complaints to
    Rosko about being called “Pretty” and “Pretty Pants” constituted
    protected activities.   He further contends the termination of his
    3
    In Burlington Northern & Santa Fe Railway Co. v. White, 
    2006 WL 1698953
     (June 22, 2006), the Supreme Court recently resolved a
    circuit split over the scope of employer actions considered to
    “discriminate against” an employee.      Because Lowe’s concedes
    Pascual suffered an “adverse employment action,” we need not
    examine the implications of Burlington Northern in this case.
    7
    employment, which Lowe’s concedes was an adverse employment action,
    was   causally    connected       to   those   activities.4      Even   assuming
    Pascual’s actions constituted protected activities, we hold the
    district court properly granted summary judgment because Pascual
    failed to provide sufficient evidence of a causal link between the
    claimed protected activities and Lowe’s decision to terminate his
    employment.
    In support of his claim that a causal connection exists,
    Pascual relies on:          (1) claims of Rosko’s dishonesty; (2) high
    sales volume; and (3) the temporal proximity between the claimed
    protected activities and his termination.
    We first examine Pascual’s claim related to the store’s sales
    performance.       Although Pascual offers evidence of the store’s
    strong sales performance, the job deficiencies listed on Pascual’s
    written warnings include issues related to documentation, safety,
    and staffing that are largely unrelated to the store’s financial
    success.       We therefore find that evidence of the store’s sales
    volume    is    unrelated    to    Lowe’s      criticisms   of   Pascual’s   job
    4
    Pascual also asserts that Rosko retaliated against him by
    assigning him additional MOD shifts.        Other than conclusory
    statements, however, Pascual failed to present any evidence showing
    he was assigned a disproportionate number of MOD shifts.         We
    therefore find Pascual has not satisfied his evidentiary burden on
    this issue. See Evans v. Tech. Applications & Serv. Co., 
    80 F.3d 954
    ,   960   (4th  Cir.   1996)   (finding   that   an   employee’s
    unsubstantiated allegations and bald assertions fail to show
    discrimination).
    8
    performance and does not diminish the evidentiary value of the
    written warnings.
    Pascual’s argument that Rosko’s alleged dishonesty undermines
    the   reliability    of    the    written     warnings   is   also   unavailing.
    Pascual claims Rosko was dishonest, and therefore, his written
    warnings are unreliable and should not be considered at the summary
    judgment stage.     Pascual, however, failed to provide any evidence,
    other than his own unsubstantiated allegations, that shows the
    written warnings were inaccurate.             See Mackey v. Shalala, 
    360 F.3d 463
    , 469–70 (4th Cir. 2004) (finding a plaintiff’s self-serving
    opinions are insufficient to establish a prima facie case of
    discrimination).      We therefore find that Pascual’s claims of
    Rosko’s dishonesty do not render the written warnings unreliable.
    Thus, Pascual’s only evidence of a causal link is the temporal
    proximity of the events at issue.                “[A] causal connection for
    purposes of demonstrating a prima facie case exists where the
    employer   takes    adverse      employment     action   against     an   employee
    shortly after learning of the protected activity.”                        Price v.
    Thompson, 
    380 F.3d 209
    , 213 (4th Cir. 2004).                Generally speaking,
    however,   the   passage     of    time   alone    cannot     provide     proof   of
    causation unless the “temporal proximity between an employer’s
    knowledge of protected activity and an adverse employment action”
    was “very close.”         Clark County Sch. Dist. v. Breeden, 
    532 U.S. 268
    , 273 (2001) (per curiam).         In this case, at least three to four
    9
    months separated the termination of Pascual’s employment and the
    claimed protected activities. We find that this time period is too
    long to establish a causal connection by temporal proximity alone.
    V.
    Because Pascual failed to meet the evidentiary burden required
    to show a causal connection, he did not establish a prima facie
    case of retaliation.    Accordingly, the district court properly
    granted summary judgment to Lowe’s.
    AFFIRMED
    10