Anthony Harris v. The Home Sales Company

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1313
ANTHONY D. HARRIS,
Plaintiff - Appellant,
v.
THE HOME SALES COMPANY,
Defendant - Appellee,
and
THE MARYLAND HOME SALES COMPANY, INCORPORATED; APARTMENT
SERVICES, INCORPORATED,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:09-cv-01109-RDB)
Argued: September 20, 2012 Decided: December 14, 2012
Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: George Alphanso Rose, ROSE LAW FIRM LLC, Baltimore,
Maryland, for Appellant. Kelly Culp Lovett, KOLLMAN & SAUCIER,
PA, Timonium, Maryland, for Appellee. ON BRIEF: Peter S.
Saucier, KOLLMAN & SAUCIER, PA, Timonium, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Appellant Anthony Harris appeals the district court’s award
of summary judgment to Appellee Apartment Services, Inc. and its
corporate affiliates. Harris claims that Apartment Services
discriminated against him, wrongfully demoted him, and
wrongfully terminated his employment because of his race and in
retaliation for his complaints of discrimination. For the
reasons that follow, we affirm the district court’s grant of
summary judgment to Apartment Services.
I.
A.
The following facts are presented in the light most
favorable to Harris. See Howard v. Winter, 446 F.3d 559, 562
(4th Cir. 2006). Apartment Services, a property management
company, owns and manages more than forty apartment and townhome
communities in Maryland and Pennsylvania. Each property has an
on-site leasing and service staff headed by a full-time
supervisor. Apartment Services employed Harris, an African
American, from 1997 until his termination in May 2005. Harris
initially served as a maintenance technician for the company at
a number of properties. In 2000, he was promoted to maintenance
supervisor of the Rosalind Gardens property in Baltimore,
Maryland. During this time, Harris lived rent-free in a
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townhome supplied by Apartment Services on one of its
properties, McDonogh Village, which was a short drive away from
Rosalind. Harris remained at this job until April 2005 and
performed satisfactorily as Rosalind’s maintenance supervisor.
In reviews, however, his supervisor noted that Harris had issues
with punctuality and accessibility during work hours.
At some point in March 2005, Harris’s supervisor, Jeff
Steinhoff, informed Rosalind employees that a new property
management company, CT Management, would take over operation of
the property as of May 1, 2005. In return, Apartment Services
would assume management of Somerset Woods, one of CT
Management’s properties in Severn, Maryland. Steinhoff then
offered the employees the opportunity to stay with Apartment
Services at a different property, not necessarily Somerset, at
the same pay and benefits, or to remain at Rosalind as a CT
Management employee. All of the employees, including Harris,
chose to remain an Apartment Services employee at one of the
other properties.
Because Apartment Services planned to take over
responsibility for Somerset Woods on May 1, 2005, it needed to
fill the maintenance supervisor position and technician
positions for the property by that date. Steinhoff spoke with
Todd Hamlett, who was scheduled to become Somerset’s manager,
and Ray Wilkens, Apartment Services’s Vice President of
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Operations, regarding new positions for the Rosalind employees.
Based on Steinhoff’s recommendation, Hamlett agreed to offer
Harris the position of maintenance supervisor at Somerset.
Accordingly, either in March or early April, Steinhoff, on
Hamlett’s behalf, offered the position to Harris. At that time,
Harris indicated he was interested in the position, but he
expressed concerns, particularly about the increase in his
commute time, and sought additional pay and benefits. Indeed,
in mid-April Harris contacted Trudy Via, Director of Human
Resources for Apartment Services, seeking to discuss additional
pay and benefits. Harris nevertheless asserts he accepted the
offer without reservation.
At some point several weeks thereafter, Hamlett offered the
position to Mike King, a Caucasian supervisor in training.
Although King had worked for the company two years longer than
Harris, he had not previously held a supervisory position. King
promptly accepted the position. The record shows that Hamlett
(1) waited several weeks after Steinhoff offered the position to
Harris before offering it to King and (2) was unaware of
Harris’s willingness to work at Somerset when he offered the
position to King.
After work on Friday, April 29, 2005, Steinhoff instructed
Harris to report for work at Somerset on Monday, May 2, 2005.
Harris appeared for work at Somerset on May 2, 2005, five
5
minutes past his scheduled start time of 8:00 AM. Harris’s
medical records show that, before coming in to work on this
date, Harris went to a medical center for a pre-employment drug
test for Maryland Management Corporation, another property
management company.
After Harris arrived at the property, he greeted Mike King
in the leasing office and claims he overheard Hamlett on the
phone say to King, “Tell that nigger to get to work on time.”
Harris asserts that King then said, “Todd says to get to work on
time.” Both Hamlett and King deny making and hearing the
offensive remark, respectively. Deborah Baldauf, the property
leasing manager, was also present in the office and denies
hearing Hamlett’s derogatory remark.
Upon his arrival, Harris found out he had been assigned to
the position of a maintenance technician, although he was given
the same pay and benefits as his previous position. Harris also
discovered that the supervisory maintenance position had been
filled by a white employee. Upon learning this information,
Harris claims he became distraught. He reports that he asked to
speak to Hamlett about his concerns, but that Hamlett failed to
contact him. After working for three days at Somerset and
becoming increasingly anxious about the work situation and
racial epithet, Harris left early on May 5, 2005, to visit a
doctor about his anxiety. Harris faxed a letter to Apartment
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Services explaining his sick leave for three business days.
Harris’s doctor released him to return to work on May 10, 2005.
While on sick leave, Harris continued to take steps to
secure employment with Maryland Management. On May 9, 2005, he
completed employment paperwork at the company’s office. His
offer letter, dated May 9, 2005, indicated a start date of May
16, 2005. At his deposition, Harris claimed he felt he had to
seek alternative employment while on sick leave because he
feared for his job after his demotion.
Although his doctor released him to work on May 10, 2005,
Harris failed to report for work thereafter because he claims he
felt “emotionally sick” about his employment situation and had
not yet spoken with Hamlett. According to Harris, on May 11,
2005, he had a lawyer call Apartment Services concerning his
employment status. In response, Hamlett contacted Harris by
phone. However, Hamlett states that he spoke with Harris,
without prompt, by phone on May 10, 2005, or May 11, 2005, when
Harris failed to appear for work.
Harris and Hamlett provide conflicting descriptions of
their phone conversation. Harris concedes that Hamlett offered
to install Harris as a maintenance supervisor at another
property, Lawyers Hill. Harris also reports that he complained
at that time about Hamlett’s use of a racial epithet. Harris
contends that Hamlett told him to take the rest of week off on
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personal leave, and that Hamlett would contact him later in the
week about the Lawyers Hill position. When deposed, Hamlett
agreed that he offered Harris the position at Lawyers Hill but
noted that Harris did not accept the offer. Hamlett claims that
Harris stated he would get back to Hamlett with a final decision
on the opportunity. Hamlett denies instructing Harris to remain
at home for the remainder of the week.
On May 12, 2005, Harris faxed completed sign-in sheets to
Apartment Services showing the he was taking personal leave for
the remainder of the week. On the cover sheet, he asked to
speak with Trudy Via “about [his] employment and unfair job
treatment by a property [manager].” Although he addressed the
fax to Hamlett, he sent it to the payroll department, in which
Hamlett did not work. Hamlett claims that he did not see the
fax.
Hamlett testified that because he had not heard from Harris
by May 13, 2005, he concluded that Harris had abandoned his job.
Accordingly, Hamlett sent Harris a letter, dated May 13, 2005,
terminating his employment. Three days later, on May 16, 2005,
Harris began his new job at Maryland Management. On June 13,
2005, Hamlett hired Dante Logan, an African American, to replace
Harris as Somerset’s maintenance technician.
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B.
Harris brought suit in the United States District Court for
the District of Maryland, alleging that Apartment Services
demoted and terminated him because of his race and in
retaliation for his complaints about racial discrimination, in
violation Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-
2(a)(1) and 42 U.S.C. § 1981.
On March 7, 2011, the district court granted summary
judgment in favor of Apartment Services. The court determined
that Harris failed to put forth sufficient direct or
circumstantial evidence that his termination was based on race.
Additionally, the court determined that Harris failed to present
a prima facie case for discriminatory discharge because he was
replaced by another African American individual, and he
presented no evidence that could show that Apartment Services’s
legitimate proffered reason for firing Harris was disingenuous.
The district court concluded that no issue of material fact
existed with respect to pretext. The district court also
rejected Harris’s retaliation claim, finding that he failed to
show he engaged in protected activity as required to establish a
prima facie case of retaliation. However, the district court
failed to consider Harris’s protest of the racist remark in his
phone conversation with Hamlett when determining whether Harris
had engaged in protected conduct. Further, it appears that the
9
district court overlooked the issue of Harris’s demotion as a
distinct aspect of his discrimination claim. Harris timely
appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We review de novo the district court’s order of summary
judgment in favor of Apartment Services, applying the same
standard as the district court. See Holland v. Wash. Homes,
Inc., 487 F.3d 208, 213 (4th Cir. 2007). We affirm the order
only if, viewing the evidence and drawing all reasonable
inferences therefrom in favor of the nonmovant, there are no
disputed material facts and the moving party is entitled to
judgment as a matter of law. Henry v. Purnell, 652 F.3d 524,
531 (4th Cir. 2011) (en banc). However, “[t]he mere existence
of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment.” Merritt v. Old Dominion Freight Line, Inc., 601 F.3d
289, 300 (4th Cir. 2010) (alteration in original) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986))
(internal quotation marks omitted). Instead, “factual disputes
must be both material and genuine.” Id. “A mere ‘scintilla of
evidence’ is not sufficient to withstand a motion for summary
judgment.” Phillips v. CSX Transp., Inc., 190 F.3d 285, 287
(4th Cir. 1999) (per curiam). “Summary judgment will not lie if
10
the dispute about a material fact is ‘genuine,’ that is, if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson, 477 U.S. at 242.
III.
Harris contends that the district court erred when it
granted summary judgment to Apartment Services on his claims
that he was discriminated against because of his race when he
was demoted and ultimately terminated. Harris asserts his
claims under two federal statutes: Title VII and § 1981. These
statutes impose identical requirements to evaluate race
discrimination claims. See Love-Lane v. Martin, 355 F.3d 766,
786 (4th Cir. 2004). Therefore, the district court was correct
in analyzing the statutes together.
A.
A plaintiff may establish a claim of race discrimination in
one of two manners. First, he may do so “by demonstrating
through direct or circumstantial evidence that his race was a
motivating factor in the employer’s adverse employment action.”
Holland, 487 F.3d at 213. “The second method of averting
summary judgment is to proceed under a ‘pretext’ framework,
under which the employee, after establishing a prima facie case
of discrimination, demonstrates that the employer’s proffered
11
permissible reason for taking an adverse employment action is
actually a pretext for discrimination.” Id. (quoting Hill v.
Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th
Cir. 2004)(en banc)) (internal quotation marks omitted).
Harris seeks to use both avenues of proof. First, Harris
asserts that the district court erred because he produced
sufficient direct and circumstantial evidence that
discrimination led to his demotion and termination to establish
a case of race discrimination without applying the McDonnell
Douglas pretext framework. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Second, Harris asserts that even if
he failed to produce sufficient evidence to establish a claim of
race discrimination, he produced evidence sufficient to satisfy
the McDonnell Douglas burden shifting proof scheme. We will
address each argument in turn.
B.
Harris first contends that he has put forth sufficient
direct and circumstantial evidence of discrimination to survive
a motion for summary judgment. But, the only direct or
circumstantial evidence Harris has presented that his demotion
and termination were motivated by race is his claim that he
overheard Hamlett refer to him using a racial epithet. As an
initial matter, however, it is highly speculative that Hamlett
12
ever made the remark. Harris never claims any remark was made
to him: rather, Harris claims to have overheard Hamlett make the
comment through Mike King’s cell phone receiver, as Harris was
greeting him from the other side of the leasing office doorway.
Moreover, the only person who claims to have heard the remark is
Harris himself. Two other individuals were also present when
the comment was allegedly uttered -- King and a leasing manager
named Deborah Baldauf -- and both deny that the remark was ever
made.
In any event, even viewing this evidence in the light most
favorable to Harris, this evidence is not sufficiently probative
to raise a genuine issue of material fact on the issue of
whether Hamlett harbored discriminatory animus toward Harris
that actually resulted in his demotion and termination. To
survive summary judgment, Harris must produce evidence that
illustrates a nexus between the discriminatory remark and the
adverse employment action. See Brinkley v. Harbour Recreation
Club, 180 F.3d 598, 608 (4th Cir. 1999). In this case, Harris
has alleged only one isolated discriminatory statement, and has
failed to connect this statement with any of the incidents
concerning his demotion and termination. After all, Harris’s
demotion took place well before the alleged remark was even
made. And it was not until nearly two weeks after the remark
was supposedly made (by which point Harris had failed to show up
13
to work after the end of his sick leave) that Harris was
terminated. Again, we have made clear that “stray or isolated”
remarks are insufficient to prove discrimination, see, e.g.,
Merritt, 601 F.3d at 300, absent some actual relationship to the
adverse employment actions under challenge. For the reasons
explained herein, the totality of the record evidence fails to
raise any triable issue of fact that these actions were taken
out of discriminatory animus, and the district court’s grant of
summary judgment was accordingly warranted.
C.
Next, Harris claims that the district court erred when it
concluded that he had failed to prove a prima facie case of
discriminatory termination under the McDonnell Douglas
framework. Harris also asserts that the district court erred
when it failed to consider his claim of discriminatory demotion
pursuant to the McDonnell Douglas.
Under McDonnell Douglas, a plaintiff demonstrates a prima
facie case of race discrimination by showing that (1) he is a
member of a protected class; (2) he suffered adverse employment
action; (3) he was performing his job duties at a level that met
his employer’s legitimate expectation at the time of the adverse
employment action; and (4) the position remained open or was
filled by similarly qualified applicants outside of the
14
protected class. See McDonnell Douglas, 411 U.S. at 802. If
Harris makes this showing, the burden shifts to Apartment
Services to produce evidence of legitimate, non-discriminatory
reasons for terminating or demoting him. See id. If Apartment
Services offers legitimate, non-discriminatory reasons for
demoting or terminating Harris, Harris must then prove that
Apartment Services’s proffered reasons for terminating or
demoting him are untrue and instead are a pretext for
discrimination. See id. at 804. Despite the intricacies of
this proof scheme, “[t]he ultimate question in every employment
discrimination case involving a claim of disparate treatment is
whether the plaintiff was the victim of intentional
discrimination.” Merritt, 601 F.3d at 295 (alteration in
original) (quoting Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 153 (2000)) (internal quotation marks omitted).
The district court correctly determined that Harris failed
to present a prima facie case with respect to his termination.
As an initial matter, it is undisputed that Harris, an African
American, is a member of a protected class. As the district
court noted, it is also uncontested that Apartment Services
ultimately hired an African American to fill the Somerset
maintenance technician position. Thus, Harris is unable show
that he was replaced by a person outside his protected class.
15
Therefore, Harris has failed to establish a prima facie case of
discriminatory termination.
D.
With respect to his discriminatory demotion, Harris has
demonstrated a prima facie case. To establish a prima facie
case for discriminatory demotion, a plaintiff must show that
“(1) []he is a member of a protected class; (2) []he was
qualified for [his] job and [his] performance was satisfactory;
(3) despite [his] qualifications, []he was removed from [his]
position and reassigned to a [lower-level] position,” and (4)
his original position “remained open” or was filled by a
similarly qualified applicant outside of the protected class.
Love-Lane, 355 F.3d at 787. It is acknowledged that Harris (1)
is African American (2) was qualified and performed the role of
maintenance supervisor in a satisfactory manner; and (3) was
demoted to a maintenance technician. As to the final element,
although his particular position at Rosalind disappeared, he was
offered a position at Somerset that was later filled by a person
outside of the protected class. In sum, Harris can establish
the four elements of a prima facie case of race discrimination
with respect to his demotion.
Because Harris has established a prima facie case of race
discrimination, the burden shifts to Apartment Services to offer
16
legitimate, non-discriminatory reasons for Harris’s demotion.
Apartment Services presented evidence that Harris was demoted
for a non-discriminatory reason, specifically because Hamlett
was not informed in a timely manner of Harris’s acceptance of
the new position. This explanation is sufficient to shift the
burden to Harris, who must show that “the legitimate reasons
offered by the defendant were not its true reasons, but were a
pretext for discrimination.” Tex. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981).
Harris fails to submit sufficient evidence of pretext.
Harris does not dispute that he never informed Hamlett directly
that he was willing to work at Somerset, but contends instead
that he told Steinhoff of his acceptance. Steinhoff, meanwhile,
acknowledges that Harris expressed some interest in the
position, but maintains that Harris did not commit until the
last week in April. It is admitted, therefore, that Hamlett (1)
waited several weeks after Steinhoff offered the position to
Harris before offering it to King and (2) was unaware of
Harris’s willingness to work at Somerset when he offered the
position to King. There is no genuine dispute that Hamlett, the
decisionmaker with respect to staffing, knew that Harris had
been offered the position of maintenance supervisor but believed
that Harris declined or had failed to accept it within a
reasonable time. Even if this belief arose due to a
17
miscommunication, “mere mistakes of fact are not evidence of
unlawful discrimination.” Price v. Thompson, 380 F.3d 209, 215
n.1 (4th Cir. 2004). Unfortunately for Harris, he has failed to
put forth sufficient evidence showing that Apartment Services’s
explanation for his demotion was false. Nothing in the record
supports an inference that Hamlett’s explanation was pretextual
or that Hamlett believed that Harris had accepted the position
when he offered the position to another employee.
Thus, we agree with the district court’s conclusion that
Harris failed to prove a case of discriminatory termination, and
affirm the district court’s grant of summary judgment on the
discriminatory termination claim. In light of our de novo
review, we also affirm the grant of summary judgment on the
discriminatory demotion claim despite the district court’s
failure to separately analyze the issue of discriminatory
demotion.
IV.
Harris further contends that he was terminated in
retaliation for complaining about unfair treatment in violation
of Title VII and § 1981. Specifically, Harris claims he was
fired for complaining about his discriminatory demotion and
about Hamlett’s racist remark. To state a prima facie case of
retaliation, Harris must show that (1) he engaged in a protected
18
activity; (2) Apartment Services acted adversely against him;
and (3) the protected activity was causally connected to the
adverse action. See Holland, 487 F.3d at 218.
Harris claims that he engaged in protected activity on May
12, 2005, the day before he was terminated, when he faxed a note
to Trudy Via complaining of “unfair treatment.” Further, Harris
claims that he protested the discriminatory demotion and
Hamlett’s racist remark when speaking with Hamlett on the phone.
The district court found that Harris did not engage in protected
opposition activity because, in his note seeking to speak with
Trudy Via, he complained only of “unfair treatment,” not
discrimination. See Barber v. CSX Distrib. Servs., 68 F.3d 694,
701–02 (3d Cir. 1995) (concluding that a letter complaining
“about unfair treatment in general” is not protected activity).
The district court, however, ignored Harris’s claim that he
protested the alleged discriminatory demotion and Hamlett’s
racist remark when speaking with Hamlett on the phone. Taking
these facts into account, Harris has shown that he engaged in
protected activity and that Apartment Services acted adversely
against him by terminating his employment.
To prove a causal connection, Harris must be able to prove
that Apartment Services fired him because he engaged in
protected activity. See Holland, 487 F.3d at 218. Harris can
show this by proving that Hamlett had knowledge of the protected
19
activity. The evidence on this point, namely the phone
conversation with Hamlett, shows that Hamlett knew of Harris’s
complaints. Thus, Harris has made out a prima facie case of
retaliatory discharge.
Because Harris has made out a prima facie case, the burden
shifts to Apartment Services to articulate a legitimate
nonretaliatory reason for his termination to rebut the inference
of retaliation. See McDonnell Douglas, 411 U.S. at 802.
Apartment Services has offered that Harris was fired for job
abandonment because Hamlett believed that Harris failed to show
for work for several days without a justification for his
absence. Consequently, the burden shifts back to Harris to show
that the reason proffered is “mere pretext for retaliation by
proving both that the reason was false, and that discrimination
was the real reason for the challenged conduct.” Holland, 487
F.3d at 218 (quoting Beall v. Abbott Labs., 130 F.3d 614, 619
(4th Cir. 1997)) (internal quotation marks omitted).
Harris has failed to make this showing. He is unable to
prove that Hamlett fired him as retaliation as opposed to firing
him for job abandonment. Harris concedes that he was released
to work on May 10, 2005, but that he failed to report to work
thereafter and never alerted his immediate supervisor, Mike
King, of his absence. Nevertheless, Harris contends that he
cannot be fired for job abandonment because Hamlett told him to
20
take the rest of the week off, and because he was merely
awaiting Hamlett’s call about the Lawyers Hill opportunity.
Harris, however, has failed to reconcile an inconsistency within
his own statements and conduct. At the same time he testified
he was expecting Hamlett’s call to begin work at Lawyers Hill on
May 16, 2005, he acknowledged that he had already completed
paperwork to begin work for Maryland Management on May 16, 2005.
Although we do not make credibility determinations at the
summary judgment phase, we should also not find a genuine
dispute of material fact based solely on Harris’s self-serving
testimony. See Williams v. Giant Food Inc., 370 F.3d 423, 433
(4th Cir. 2004) (“[A] self-serving opinion . . . cannot, absent
objective corroboration, defeat summary judgment.”).
In light of the uncontroverted evidence regarding Harris’s
absences and his new employment, we agree with the district
court that no reasonable jury could find for Harris on the
ultimate issue: whether he was terminated in retaliation for
protected conduct. See Anderson, 477 U.S. at 242. Accordingly,
we affirm the district court’s grant of summary judgment in
favor of Apartment Services on Harris’s retaliation claims.
V.
Harris has presented only a scintilla of evidence from
which it may be possible to conclude that race played a factor
21
in his termination and demotion. Harris has failed to raise a
genuine issue of material fact showing that he was terminated or
demoted because of his race or that Apartment Services
retaliated against him because of his complaint of racial
discrimination. Therefore, we affirm the district court’s grant
of summary judgment to Apartment Services in all respects.
AFFIRMED
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