Price v. Thompson, Sec

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WILLIAM PRICE, 
Plaintiff-Appellant,
v.
TOMMY G. THOMPSON, SECRETARY,  No. 03-2184
UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, Senior District Judge.
(CA-02-3721-MJG)
Argued: May 5, 2004
Decided: August 18, 2004
Before WILKINS, Chief Judge, NIEMEYER, Circuit Judge, and
Pasco M. BOWMAN, Senior Circuit Judge of the United States
Court of Appeals for the Eighth Circuit, sitting by designation.
Affirmed by published opinion. Senior Judge Bowman wrote the
opinion, in which Chief Judge Wilkins and Judge Niemeyer joined.
COUNSEL
ARGUED: Leizer Zalman Goldsmith, Washington, D.C., for Appel-
lant. John Walter Sippel, Jr., Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
2 PRICE v. THOMPSON
Maryland, for Appellee. ON BRIEF: Thomas M. DiBiagio, United
States Attorney, Baltimore, Maryland, for Appellee.
OPINION
BOWMAN, Senior Circuit Judge:
In this failure-to-hire retaliation case, we must consider whether the
selecting official’s inconsistent statements are enough to satisfy the
plaintiff’s burden of proof as to the elements of his prima facie case
and as to pretext. The District Court determined that these inconsis-
tencies did not provide sufficient evidence of pretext and granted
summary judgment to the defendant. William Price, the plaintiff,
appeals. We affirm.
This case stems from Price’s unsuccessful attempts to gain employ-
ment at the National Institutes of Health (NIH). In 1995, Price applied
for a job as a Medical Equipment Repairer. Price was one of four can-
didates classified as highly qualified after an initial round of screen-
ing, and he was subsequently interviewed in early May by the
selecting official, Johnny Robbins. Ultimately, Robbins selected two
of the highly qualified applicants but not Price. In late August of
1995, after Robbins made his selections, Price ran into Robbins on the
NIH campus and they had a brief, friendly conversation about what
Price might do to be a more attractive candidate. In response to
Price’s questions, Robbins did offer some suggestions and, over the
next several months, Price followed through on some of those sugges-
tions. In January of 1996, Price learned that one of the individuals that
Robbins hired had, in Price’s estimation, inferior credentials. To con-
firm that this individual was in fact the one who was hired, Price
phoned him at NIH, ostensibly to congratulate him on getting the job
and to ask after any future openings at NIH. This individual later
informed Robbins about the call. On January 22, 1996, three days
after his phone call, Price filed an EEO complaint alleging that he had
been discriminated against in the hiring process. During the investiga-
tion, the EEO counselor spoke with Robbins about the complaint
twice, but for only approximately one minute each time. It was during
one of these brief conversations that Robbins related to the EEO
PRICE v. THOMPSON 3
counselor the fact of Price’s phone call to one of the successful candi-
dates. Eventually, the EEO counselor filed a report concluding there
had been no discrimination.
In July of 1996, Price applied for a Biomedical Engineering Tech-
nician position at NIH, for which Robbins was also the selecting offi-
cial. Price was again included on the list of highly qualified
applicants, was again interviewed (in October), but was again not
selected. Thereafter, Price filed another EEO complaint that raised
several charges of discrimination as well as a charge of retaliation
based on his prior EEO complaint. Price dropped his discrimination
claims and his retaliation charge was heard by an EEOC administra-
tive law judge who, after a full hearing, ruled there had been no retali-
ation for Price’s prior protected activity. Price then filed this suit in
federal court alleging that Robbins violated 42 U.S.C. § 2000e-3
(2000) when he retaliated against Price by refusing to select him on
account of his prior EEO complaint. The District Court concluded
that Price could not prove his prima facie case because Price was
unable to demonstrate that Robbins knew Price had filed the EEO
complaint and, even assuming the existence of a prima facie case,
because Price was unable to show Robbins’s reasons for not selecting
him were pretextual. We review the District Court’s summary judg-
ment decision de novo, reading the record in the light most favorable
to Price, the non-moving party. Dugan v. Albemarle County Sch. Bd.,
293 F.3d 716, 720 (4th Cir. 2002).
A plaintiff lacking direct evidence of retaliation may utilize the
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), framework
to prove a claim of retaliation. Williams v. Cerberonics, Inc., 871 F.2d
452, 457 (4th Cir. 1989). In the McDonnell Douglas framework, the
plaintiff must first establish a prima facie case of retaliation, where-
upon the burden shifts to the employer to establish a legitimate non-
retaliatory reason for the action. If the employer sets forth a legiti-
mate, non-retaliatory explanation for the action, the plaintiff then
must show that the employer’s proffered reasons are pretextual or his
claim will fail. More specifically, the plaintiff can prove pretext by
showing that the "explanation is ‘unworthy of credence’ or by offer-
ing other forms of circumstantial evidence sufficiently probative of
[retaliation]." Mereish v. Walker, 359 F.3d 330, 336 (4th Cir. 2004)
(quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
4 PRICE v. THOMPSON
(1981)). We turn now to the first part of the McDonnell Douglas test,
the prima facie case.
To establish his prima facie case of relatiation, Price must show
that he engaged in protected activity, that Robbins took adverse action
against him, and that a causal relationship existed between the pro-
tected activity and the adverse employment activity. King v.
Rumsfeld, 328 F.3d 145, 150-51 (4th Cir.), cert. denied, 124 S. Ct.
922 (2003). The parties agree that Price can satisfy the first two ele-
ments of his prima facie case: Price’s EEO complaint is protected
activity, and the later decision not to hire him is an adverse action.
For its part, the District Court concluded that Price was unable to
demonstrate a causal connection between his EEO complaint and
Robbins’s decision not to hire him because Price could not show that
Robbins knew Price was the individual who filed the complaint.
Viewing the record, however, in the light most favorable to Price, we
conclude that a reasonable trier of fact could find that Robbins knew
Price was the individual who filed the EEO complaint based on the
circumstantial evidence that Price has presented. First, as Price points
out, the pool of possible complainants was small: there were only two
highly qualified applicants who were not selected. Second, the August
meeting between Price and Robbins, though cordial, could have
alerted Robbins to Price’s doubts about the decision not to hire him,
especially in light of the EEO investigation. Third, Robbins knew that
Price called one of the hirees; Robbins subsequently relayed this
information to the EEO counselor. It is also the case that Robbins tes-
tified that he did not know Price was the complainant and that the
EEO counselor testified that she did not tell Robbins who the com-
plainant was and that she had no reason to believe that Robbins knew
who the complainant was. Still, a reasonable factfinder could elect not
to credit fully the testimony supportive of Robbins in favor of the cir-
cumstantial evidence tending to show that Robbins knew or strongly
suspected that Price was the complainant.
Knowledge alone, however, does not establish a causal connection
between Price’s protected activity and Robbins’s decision not to hire
him. Previously, this Court has held that a causal connection for pur-
poses of demonstrating a prima facie case exists where the employer
takes adverse employment action against an employee shortly after
learning of the protected activity. Cerberonics, Inc., 871 F.2d at 457.
PRICE v. THOMPSON 5
We assume, without deciding, that in the failure-to-hire context, the
employer’s knowledge coupled with an adverse action taken at the
first opportunity satisfies the causal connection element of the prima
facie case. Cf. Williams v. The Nashville Network, 132 F.3d 1123,
1132 (6th Cir. 1997) (finding causal connection where secretary for-
warded plaintiff’s applications for further consideration prior to
EEOC complaint, but did not forward subsequent applications). We
are also mindful, however, of the fact that generally the passage of
time (nine to ten months in this case) tends to negate the inference of
discrimination. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268,
273-74 (2001) (per curiam) (citing cases); Dowe v. Total Action
Against Poverty, 145 F.3d 653, 657 (4th Cir. 1998). Though we
regard it as a very close question, we conclude that Price has estab-
lished a prima facie case of discrimination because a reasonable trier
of fact could conclude that Robbins knew of the protected activity and
because Robbins, at the first available opportunity, declined to hire
Price.
Price urges that the District Court erred when it concluded that he
was unable to show that Robbins’s explanations for refusing to hire
him were pretextual. Specifically, he contends that he has rebutted the
legitimate non-retaliatory explanations that were offered by showing
inconsistencies in Robbins’s testimony and by eliciting admissions
regarding these explanations. Thus, he claims that under Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), he is not
required to provide additional evidence of discrimination and is enti-
tled to survive summary judgment.
In Reeves and its predecessor, St. Mary’s Honor Center v. Hicks,
509 U.S. 502 (1993), the Supreme Court had occasion to consider
what showing a plaintiff had to make regarding pretext and, specifi-
cally, whether a plaintiff could satisfy his or her burden by merely
rebutting the defendant’s explanation for the action. In doing so, the
Court held that "a plaintiff’s prima facie case, combined with suffi-
cient evidence to find that the employer’s asserted justification is
false, may permit the trier of fact to conclude that the employer
unlawfully discriminated." Reeves, 530 U.S. at 148. This Court has
applied the Reeves formulation and has explained that it operates
based on "the strength of the prima facie evidence in creating an
inference of discrimination, and ‘the general principle of evidence law
6 PRICE v. THOMPSON
that the factfinder is entitled to consider a party’s dishonesty about a
material fact as affirmative evidence of guilt.’" Dennis v. Columbia
Colleton Med. Ctr., Inc., 290 F.3d 639, 648 (4th Cir. 2002) (quoting
Reeves, 530 U.S. at 147). A prima facie case coupled with probative
evidence "that the employer’s explanation is false," Reeves, 530 U.S.
at 149, would counsel against granting the employer summary judg-
ment unless the employer presented other strong evidence from which
"no reasonable factfinder could conclude" that there was discrimina-
tion. Id. at 148. More generally, Reeves states:
Whether judgment as a matter of law is appropriate in any
particular case will depend on a number of factors. Those
include the strength of the plaintiff’s prima facie case, the
probative value of the proof that the employer’s explanation
is false, and any other evidence that supports the employer’s
case and that properly may be considered on a motion for
judgment as a matter of law.
Id. at 148-49.
As a matter of fact, when this Court has applied the Reeves meth-
odology to sustain a verdict or to allow a plaintiff to survive summary
judgment, it appears to have done so only in cases where the plaintiff
had a substantially stronger case than Price has in the case at bar.
Compare Dennis, 290 F.3d at 649-50 (affirming jury verdict for plain-
tiff) with Mereish, 359 F.3d at 336-37 (holding that stray comments
regarding generational change were insufficient evidence of pretext in
ADEA claim) and Rowe v. Marley Co., 233 F.3d 825, 830-31 (4th
Cir. 2000) (affirming grant of summary judgment and concluding
plaintiff had not "forecast any evidence that casts doubt on the verac-
ity of [the employer’s] proffered explanation for his termination."). In
EEOC v. Sears Roebuck & Co., for instance, this Court reversed a
grant of summary judgment in favor of the employer after applying
the Reeves formulation. 243 F.3d 846 (4th Cir. 2001). The Court con-
cluded that "the EEOC made out a strong prima facie case of national
origin discrimination and offered ample evidence to discredit Sears’s
proffered non-discriminatory reason for its failure to hire Santana."
Id. at 854. In that case, the Court emphasized the fact that the plaintiff
presented uncontroverted evidence of a strong prima facie
case—despite his repeated applications, his superb qualifi-
PRICE v. THOMPSON 7
cations, and his expressed willingness to accept any avail-
able position, Sears refused to hire him . . . and instead hired
a Caucasian woman who, Sears itself concedes, was less
qualified than [the plaintiff].
Id. at 852. Moreover, the Court concluded, and the employer largely
conceded, that the proffered non-discriminatory reasons were incon-
sistent over time, false, and in some instances based on mistakes of
fact on the employer’s part.1 In those circumstances, the plaintiff was
entitled to survive summary judgment. In short, the Court found a
strong prima facie case and a strong showing of pretext. Id. at 857
("[T]here is a clear prima facie case of employment discrimination,
a good deal of evidence of pretext casting serious doubt on the
employer’s proffered justification for its job action, and nothing to
prevent a rational fact-finder from finding that the employer was
motivated by discriminatory reasons."). The present case is demon-
strably different.
Here, as we already have suggested, Price has not put forward a
particularly strong prima facie case of retaliation. Fatal to his attempt
to invoke Reeves is that his showing of pretext is equivocal at best.
In his EEOC investigation affidavit, Robbins offered essentially four
reasons for not hiring Price for the second position: that Price was less
experienced (especially with laboratory equipment); that Price was
not certified; that Price was not currently working in the field, had
experienced a break in service, and might require extra training; and
that Price wanted to redefine the position. Price asserts that he has
demonstrated that these reasons were pretext for retaliation because
the reasons are based on mistakes of fact or because Robbins has
taken inconsistent positions regarding them. We disagree.
With respect to the candidates’ experience level, Price points out
that Robbins later admitted that Price was "quite equal as far as expe-
rience" to the candidates who were hired. EEOC Admin. Tr. at 58
(Dec. 8, 1998). Consequently, he argues, Robbins’s earlier claim that
he was not as experienced must have been pretext. We agree that a
1
We note that mere mistakes of fact are not evidence of unlawful dis-
crimination. See, e.g., Jordan v. Summers, 205 F.3d 337, 344 (7th Cir.
2000) ("Pretext is a lie, not merely a mistake.").
8 PRICE v. THOMPSON
thorough review of Price’s application reveals a great deal of experi-
ence with laboratory and patient-care equipment. Still, it was Rob-
bins’s testimony that this information struck him later, only after he
"read the applications several times . . . to make sure that there wasn’t
something that I perhaps overlooked." Id. at 60. This answer squares
with our own review of Price’s application, which highlights his
experience with patient-care equipment as opposed to purely labora-
tory equipment. For instance, the OF 612 form that Price filled out,
which lists his last two jobs, speaks largely in terms of familiarity
with medical equipment and mentions laboratory equipment almost as
an afterthought: "[M]y primary responsibility was to test, calibrate,
maintain, install, and repair biomedical instrumentation such as porta-
ble xray units, patient monitors, gas lasers, ultrasound imagers, blood
gas analyzers, surgical devices, and laboratory equipment." Joint App.
at 150. Price’s other application materials also list and discuss his
familiarity with medical equipment before discussing his familiarity
with laboratory equipment. Similarly, although his performance rat-
ings were outstanding, his supervisor discussed his work on medical,
not laboratory, equipment. Id. at 152 ("Mr. Price demonstrated excel-
lent performance in his knowledge and technical ability to affect [sic]
repairs on medical equipment and systems. His skills were instrumen-
tal in keeping all major X-Ray Systems and medical equipment in
Urology functioning."). Nor is it the case, as it was in Sears Roebuck,
that the candidates who were hired were demonstrably less qualified
than Price. In these circumstances, we cannot say that Robbins’s reas-
sessment of Price’s experience bespeaks pretext.
As for Robbins’s claim that the hirees were certified and that Price
was not, this appears to be incorrect and could be evidence of pretext.
Still, this evidence does not hint greatly of pretext because Price has
not adduced other substantial evidence of pretext or evidence of men-
dacity to support an inference that the incorrect reason was not merely
the honest mistake that Robbins suggests explains his inconsistencies.
See EEOC Tr. at 62.2 More to the point, the only evidence in the
2
Robbins’s testimony at the EEOC hearing includes the following:
Q: [Plaintiff’s Counsel] And why is your testimony different
today?
A: [Robbins] I don’t think it’s different. I just think that I’m just
in a position sometimes to supply some additional information.
PRICE v. THOMPSON 9
record suggests that Robbins believed the two hirees were certified
because they brought this fact to his attention. In contrast, Price
apparently never highlighted to Robbins the fact that he was certified.3
Q: So you couldn’t have supplied that information to me at the
time? Is that right? At the deposition?
A: I was very nervous at the time and I still am today.
EEOC Tr. at 62. Robbins explained other of the inconsistencies saying:
Okay. This is my first time dealing with an EEO complaint and
sometimes when you’re dealing with something for the first
time, some of the things you do forget. Sometimes if you’re
asked the same question several months later or a year later you
will remember different things. And this is what happened in this
particular situation here is that there was [sic] quite a few ques-
tions during that first deposition that I just could not remember
what took place on that particular day in your office. Id. at 58.
3
A: [Robbins] I do recall Mr. Gantt was saying that he had
been a biomedical engineering technician for maybe six or
eight months and . . . Mr. Baron, he had proof of his certifi-
cation with his application.
Q: [Plaintiff’s Counsel] I’m sorry. You said Mr. Gantt had what
as far as certification?
A: He had - - I believe he said he had been working as a
biomedical engineering technician for I guess at that time from
six to eight months.
****
Q: What organization or organizations certifies biomedical engi-
neering techs?
A: I do not know.
Q: So why did you use the term certified on your affidavit?
A: It was a requirement from my supervisor at the time.
Q: Your supervisor said you had to sign an affidavit that said
something about certification?
A: No. The requirement was in the PD [position description?].
And so when I wrote the affidavit, I put that in there.
10 PRICE v. THOMPSON
A reasonable trier of fact could easily conclude that Robbins was
wrong about Price’s certification status but would be hard-pressed to
conclude that this established pretext.
Price next argues that he can show pretext in Robbins’s claim that
he (Price) would require extra training. Specifically, Price claims that
Robbins’s explanation that the hirees were preferable because they
were already working in the field (and would not require training) is
false because when asked what extra training Price might require,
Robbins stated that "I do not know [why this would be a problem]."
Id. at 67. But Price can create this seeming inconsistency only by tak-
ing Robbins’s testimony out of context. We note that seven lines later,
in response to the question, "[W]hat was the connection between the
break in service and Mr. Price not being selected?", Robbins
explained that the connection was "the changes in technology. If
there’s a break in service and whatnot. A lots [sic] of changes take
place within two to three years." Id.; see also id. at 61 ("Mr. Price had
been out of the field for a few years and Mr. Gantt and Mr. Baron
[were] currently working in that particular field, I think across the
board, Mr. Price would require some additional training."). We see no
inconsistency in Robbins’s explanation and cannot conclude that a
Q: You put in there that Mr. Gantt had certification; yes? Yes or
no?
A: And Mr. Baron, I believe.
Q: But in fact, you don’t know if Mr. Gantt is certified at all. Is
that right?
A: Only what he told me, that he had been working as a biomedi-
cal engineering technician for six to eight months.
Q: How long had Mr. Price been working as a biomedical engi-
neer at that time?
A: As I recall, I’m thinking maybe seven or eight years.
Q: Was Mr. Price certified?
A: Yes.
EEOC Tr. at 62-64.
PRICE v. THOMPSON 11
reasonable trier of fact could find this reason was pretextual.
With respect to Robbins’s claim that Price suggested he wanted to
redefine the position, we see no evidence of pretext whatsoever. In his
EEOC affidavit and in his testimony, Robbins consistently explained
that because Price mentioned that "he could also see [the job] as
someone acting as a liaison between me and the engineering staff and
the administrative staff," Robbins concluded that Price wanted to
redefine the position. Id. at 65-66. As Robbins further explained,
being a liaison "was not a requirement of that position description,"
id. at 66, and reflected unfavorably on Price’s candidacy.4 At most,
Price earned an admission that this was a somewhat intangible factor
and that Robbins was unsure precisely what weight it played in the
hiring decision. Id. at 67. We conclude that a reasonable trier of fact
could not find that Robbins’s cryptic concession about the weight that
Price’s desire to redefine the position played in Robbins’s decision
not to hire Price is evidence from which a reasonable trier of fact
could find pretext.
At most, therefore, Price can demonstrate that Robbins was wrong
about one reason (certification) and was misled by Price’s own appli-
cation as to Price’s level of experience. As for the other two nondis-
criminatory reasons (Price’s need for extra training and that Price
wanted to redefine the position), the plaintiff has not shown pretext.
In these circumstances, there is insufficient probative evidence of pre-
text to permit a court to send this case to the jury under Reeves. While
"it is permissible for the trier of fact to infer the ultimate fact of [retal-
iation] from the falsity of the employer’s explanation," Reeves, 530
U.S. at 147, it is axiomatic that the plaintiff must in fact provide suffi-
cient evidence from which a reasonable trier of fact could find falsity.
Here, Price has failed to come forward with that sort of evidence.
4
Q: [Plaintiff’s Counsel] Did you consider Mr. Price’s
remark to you in that regard about being a liaison as unfa-
vorably reflecting on his candicacy?
A: [Robbins] Well, yes, if he wants to — if he’s trying in some
way to redefine what that particular position was all about or is
all about.
Id. at 66.
12 PRICE v. THOMPSON
Accordingly, the District Court did not err when it granted the defen-
dant summary judgment.5
For the foregoing reasons, the judgment of the District Court is
affirmed.
AFFIRMED
5
We pause here to emphasize that although Reeves will allow a plain-
tiff to survive summary judgment without presenting independent evi-
dence of discrimination (or retaliation), it will permit this only where the
other evidence of discrimination is sufficiently strong to ensure that the
employer is held liable for unlawful discrimination and not merely for
inconsistent statements that arise from reading applications hastily or
from being nervous during depositions. This is a crucial point because
our laws impose liability only when "the employer’s action was the prod-
uct of unlawful discrimination" and do not impose liability simply
because "the employer’s explanation of its action was not believable."
Hicks, 509 U.S. at 514, 515.