Garrow v. Economos Properties, Inc. , 242 F. App'x 68 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1128
KATHLEEN GARROW,
Plaintiff - Appellant,
versus
ECONOMOS PROPERTIES, INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Walter D. Kelley, Jr.,
District Judge. (4:04-cv-00067-WDK)
Argued: May 24, 2007 Decided: July 11, 2007
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Ann Katherine Sullivan, CRENSHAW, WARE & MARTIN, P.L.C.,
Norfolk, Virginia, for Appellant. Kevin E. Martingayle, STALLINGS
& BISCHOFF, P.C., Virginia Beach, Virginia, for Appellee. ON
BRIEF: Melissa Morris Picco, CRENSHAW, WARE & MARTIN, P.L.C.,
Norfolk, Virginia, for Appellant. Cara L. Griffith, STALLINGS &
BISCHOFF, P.C., Virginia Beach, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This appeal arises from an employment discrimination action
brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000(e)) et seq. (“Title VII”). Plaintiff-Appellant Kathleen
Garrow (“Garrow”) alleges that her employer, the Omni Hotel of
Newport News (“Omni” or “hotel”), owned by Defendant-Appellee
Economos Properties (“Economos”), terminated her on the basis of
sex. Finding that Garrow fails to present a prima facie case of
discrimination, we affirm.
I.
As always on a motion for summary judgment, we recite the
facts in the light most favorable to Garrow, the non-movant. See
Nguyen v. CNA Corp., 44 F.3d 234, 237 (4th Cir. 1995). Nicholas
Economos (“Nick”) and his brother Dennis Economos (“Dennis”) are
the principal owners of Economos Properties. Garrow was employed
by Economos in several positions, beginning as the Sales Manager
for the Omni in Newport News, Virginia in 1994. She left the
company in 1997 but returned in 1999 as the Director of Sales and
Marketing. At that time, Garrow became a member of the hotel’s
executive team and reported directly to its General Manager. Nick
Economos resides in Florida and delegates the day-to-day operations
of the hotel to the General Manager. In 2001, Lee Severino
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(“Severino”) became General Manager and Garrow reported directly to
him.
Severino allegedly made a variety of hostile comments to and
about women during Garrow’s time under his management. For
example, he told Randy Kornegay, a male employee with no
housekeeping experience, who was promoted to Executive Housekeeper,
that “employees would respect a man before a woman.” J.A. 10, 260.
Severino also called women “cackling hens,” “whining women,” and
“balls and chains,” in a work context and during meetings. J.A.
10, 261, 270-74, 277, 287-88, 291, 553. He called one employee a
“tired old bat” and another a “lazy black bitch.” J.A. 10. He
also commented that only men could obtain business from women.
Despite these circumstances, it is undisputed that Garrow performed
at a high level during her tenure at Omni, as evidenced by the
revenue growth in her department and her promotion to the executive
team upon her return to the company.
The sequence of events that culminated in Garrow’s termination
began when her husband was given the opportunity by his employer to
transfer to Florida. Garrow discussed with Nick the possibility of
becoming the General Manager of one of the Florida hotels. To
facilitate such a transfer, Garrow began training as an “Assistant
General Manager” at the Omni in Virginia while continuing to
perform her duties as Director of Sales and Marketing at the same
time. She was never formally promoted, nor did she receive a raise
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in pay. Also during this period, Garrow trained a female employee
in the marketing department, Cheryl Johnson, in certain job skills
transferable to the Director of Sales and Marketing position.
In 2002 and 2003, Nick Economos became concerned about the
hotel’s financial performance, especially in light of the
increasing conflict in Iraq. The previous Iraq war in 1991 had
caused significant financial problems for the hotel. Nick had
conversations about reducing costs at the hotel with Dennis and
Severino, and Severino made several proposals regarding labor
costs. Nick instructed Severino, whose job description included
managing payroll and personnel matters, to “do whatever is
necessary at your discretion [to get] those numbers . . . in line.”
J.A. 241. On February 14, 2003, Nick directed Severino to take
certain personnel actions to cut costs, and a list of the personnel
to be affected was created. This list has since been destroyed.
Nick made the decision to terminate Garrow at this time, according
to his testimony, because he was aware that she was planning to
leave the hotel to follow her husband to Florida. On February 14,
immediately following the conference call with Nick, Severino
called Garrow to terminate her.
A month after her termination, Garrow filed a charge with the
EEOC. After completing the administrative process, she sued
Economos in June 2004 in the Eastern District of Virginia for
violating Title VII. The district court dismissed her suit for
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failure to establish a prima facie case of discrimination. It is
her timely appeal that is before us.
II.
We turn now to the question of whether the district court
properly granted summary judgment to Economos on Garrow’s
discrimination claim. Summary judgment is appropriate only when
“there is no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986). Summary judgment will be granted if the nonmoving party
“fails to make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
We review a grant of summary judgment de novo. Nguyen, 44 F.3d at
236.
We evaluate Title VII discrimination cases under a unique
framework at the summary judgment stage. A plaintiff may prove her
case in one of two ways: (1) by offering direct evidence of
discrimination under the ordinary standards of proof, or (2) under
the system of shifting evidentiary burdens established by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973). See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
5310, 318 (4th Cir. 2005). Because Garrow does not proffer direct
evidence of discrimination, we utilize the McDonnell Douglas
paradigm.
The parameters of the McDonnell Douglas framework vary
somewhat depending on the type of discrimination that is alleged,
but all plaintiffs must first allege a prima facie case of
discrimination. To do so, a plaintiff must show that: (1) she is
a member of a protected class; (2) she suffered an adverse
employment action; (3) her performance met the employer’s
legitimate expectations at the time of the alleged adverse action;
and (4) the position in question either remained open or “was
filled by [a] similarly qualified applicant[] outside the protected
class.” Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, 285
(4th Cir. 2004).
Here, it is uncontested that Garrow satisfies the first three
elements of the prima facie case. First, she is a woman, and
therefore a member of a protected class. Second, she clearly
suffered an adverse employment action when she was terminated from
her job at Economos. Third, Economos does not contest that Garrow
was an exemplary performer. It is the fourth and final prong of
the prima facie case, that the position remain open or be filled by
an individual outside the protected class, that prevents us from
allowing this case to proceed.
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It is uncontested that Garrow’s position of Director of Sales
and Marketing was filled by Cheryl Johnson after Garrow was
terminated.1 It is correct, as Garrow argues, that Johnson was not
officially promoted until after Garrow filed suit against Economos.
However, Johnson had been trained to fulfill the responsibilities
of the Director of Sales and Marketing position before Garrow left
the company. Johnson also began performing the duties of the
Director of Sales and Marketing position before she was officially
promoted. Garrow’s position therefore neither remained open nor
was filled by a person outside the protected class. Because Garrow
cannot present a prima facie case of discrimination, we need not
1
The district court assumed that Garrow’s position was the
Assistant General Manager position and based its analysis on this
fact. The Assistant General Manager position was not filled after
Garrow left the company. Even assuming that Garrow was not the
Assistant General Manager, as she argues, and was the Director of
Sales and Marketing, as we accept above, she still is not able to
satisfy the prima facie case.
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reach her allegations of pretext.2 Therefore, we hold that summary
judgment was properly granted to Economos on this claim.
III.
Because Garrow fails to make a prima facie case of
discrimination, the district court’s grant of summary judgment is
AFFIRMED.
2
Out of an apparent abundance of caution, the district court
analyzed Garrow’s dismissal as occurring as part of a reduction in
force (“RIF”) at the hotel, and Garrow argues this point on appeal.
This is significant because if we are confronted with allegations
of discrimination within the context of a reduction in force, we do
not apply the McDonnell Douglas framework as articulated in Hill,
354 F.3d at 285. In the RIF context, our framework for analysis is
modified. See Dugan v. Albemarle County School Bd., 293 F.3d 716(4th Cir. 2002).
We decline, however, to pursue this line of analysis, for two
reasons. First, the focus of Garrow’s complaint is on her
individual claim. Although she refers to the treatment of other
women by Severino, she appears to do so in the context of alleging
that Economos’s reasons for terminating her were pretextual. As
noted above, because Garrow fails to set forth a prima facie case,
we do not reach the question of pretext. Further, we find there to
be insufficient evidence that Garrow’s termination occurred as part
of a RIF. It is clear that Nick and Severino were both aware that
Garrow’s husband had accepted a job in Florida, and Garrow herself
had asked about the possibility of transferring to another hotel.
There is no evidence that Garrow’s termination was connected to any
of the other personnel actions taken by Economos, other than the
fact that they shared the common goal of reducing costs at the
hotel. The fact that Garrow was named on a “list” that also
included the demotions of other employees is not sufficient to
allege a RIF.
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