Jones v. Constellation Energy Projects & Services Group, Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1090
CLINTON W. JONES,
Plaintiff - Appellant,
v.
CONSTELLATION ENERGY PROJECTS & SERVICES GROUP, INC., merged
with Constellation Newenergy, Inc.,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:13-cv-00850-RWT)
Submitted: September 29, 2015 Decided: October 22, 2015
Before NIEMEYER, SHEDD, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Barton David Moorstein, BLANK, MOORSTEIN, & LIPSHUTZ, LLP,
Rockville, Maryland, for Appellant. John M. Remy, Michael N.
Petkovich, JACKSON LEWIS P.C., Reston, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clinton W. Jones appeals the district court’s order
granting summary judgment to Constellation Energy Projects &
Services Group, Inc. (“CEPS”) on his (1) racial and age
discrimination claims under Title VII of the Civil Rights Act of
1964, see 42 U.S.C. §§ 2000e-2000e-17 (2012), 42 U.S.C. § 1981(2012), and the Age Discrimination in Employment Act (ADEA), see
29 U.S.C. §§ 621-634 (2012) (Counts 1, 3, 5); (2) retaliation
claims under Title VII and 42 U.S.C. § 1981 (Counts 2, 4); and
(3) various state law claims sounding in contract law (Counts 6-
10). On appeal, Jones argues that the district court erred in
holding that he failed to present direct or indirect evidence of
retaliation and that he failed to make out a prima facie case of
racial and age discrimination and of retaliation. 1 Finding no
error, we affirm.
“We review the district court’s grant of summary judgment
de novo, viewing the facts and the reasonable inferences
therefrom in the light most favorable to the nonmoving party.”
1
Although Jones’ opening brief mentions his state law
claims in passing, Jones presents no arguments regarding why the
district court’s order erred in granting summary judgment on
these claims. Accordingly, Jones has waived appellate review of
his state law claims in Counts 6-10 of his amended complaint.
See United States v. Bartko, 728 F.3d 327, 335 (4th Cir. 2013)
(holding that issue not raised in opening brief, as required by
Fed. R. App. P. 28(a)([8])(A), is waived).
2
Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011). “Summary
judgment is appropriate where there are no genuine issues of
material fact and the moving party is entitled to judgment as a
matter of law.” Hoschar v. Appalachian Power Co., 739 F.3d 163,
169 (4th Cir. 2014). Where the moving party makes an initial
showing that there is no genuine issue of material fact, the
nonmoving party must “go beyond the pleadings” and rely on
affidavits, depositions, answers to interrogatories, and
admissions on file to demonstrate that a genuine issue of
material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986). Finally, “[i]t is well established that [a] genuine
issue of material fact is not created where the only issue of
fact is to determine which of . . . two conflicting versions of
the plaintiff's testimony is correct.” S.P. v. City of Tacoma
Park, 134 F.3d 260, 274 n.12 (4th Cir. 1998) (internal quotation
marks omitted).
I.
A plaintiff may prove discrimination under Title VII, 42
U.S.C. § 1981, or the ADEA “either through direct and indirect
evidence of [discriminatory] animus, or through the burden-
shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792 . . . (1973).” Foster v. Univ. of Md.-Eastern Shore, 787
F.3d 243, 249 (4th Cir. 2015); see Love-Lane v. Martin, 355 F.3d
766, 786 (4th Cir. 2004) (holding that claims of racial
3
discrimination under § 1981 are evaluated under the Title VII
framework). On appeal, Jones alleges he made out a prima facie
case of discrimination under the McDonnell Douglas test. To
advance a discrimination claim beyond the summary judgment stage
under McDonnell Douglas, a plaintiff must put forth a prima
facie case by showing that (1) “he belongs to a protected
class;” (2) “he suffered an adverse employment action;” (3) “at
the time of the adverse action, he was performing his job at a
level that met employer’s legitimate expectations;” and (4) the
adverse employment action occurred under circumstances giving
rise to an inference of unlawful discrimination. Adams v. Trs.
of the Univ. of N.C.-Wilmington, 640 F.3d 550, 558 (4th Cir.
2011).
Jones, as an African-American in his 50s at the time of his
termination, is a member of two protected classes for purposes
of the first element. Regarding the second element, Jones
identifies four potential adverse employment actions: (1) CEPS
issuing him a “basic performance” performance review for 2009;
(2) CEPS placing him on a performance improvement plan (“PIP”);
(3) CEPS shortchanging him on commissions; and (4) CEPS
terminating his employment. “The requirement of an adverse
employment action seeks to differentiate those harms that work a
significant detriment on employees from those that are
relatively insubstantial or trivial.” Adams v. Anne Arundel
4
Cty. Pub. Sch., 789 F.3d 422, 431 (4th Cir. 2015) (internal
quotation marks omitted). Although “[c]onduct short of ultimate
employment decisions can constitute adverse employment action,”
James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375-76 (4th
Cir. 2004) (internal quotation marks omitted), “adverse
employment action . . . denotes some direct or indirect impact
on an individual’s employment as opposed to harms immaterially
related to it,” Anne Arundel Cty. Pub. Sch., 789 F.3d at 431.
Thus, the plaintiff must demonstrate “a significant change in
employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.” Hoyle v.
Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (internal
quotation marks omitted).
Jones has not demonstrated how his “basic performance”
evaluation or his placement on a PIP changed his employment
status or his compensation. Further, although shortfalls in
commissions do constitute the denial of compensation and could
qualify as an adverse employment action, the record supports
CEPS’ contention that it did not shortchange Jones on any of the
three commissions occurring after January 2009. 2 On appeal,
2
Although the “Statement of Issues” section in Jones’
opening brief identifies as an issue the district court’s ruling
that most of his commission claims were time-barred, the
(Continued)
5
Jones does not cite any evidence in the record that creates a
genuine issue of material fact regarding whether CEPS
shortchanged Jones on commissions. Accordingly, we conclude
that while Jones has satisfied the second element, only Jones’
termination qualifies as an adverse employment action.
Turning to the third element, whether an employee met his
employer’s legitimate expectations at the time of termination
depends on the “perception of the decision maker . . ., not the
self-assessment of the plaintiff.” Hawkins v. PepsiCo, Inc.,
203 F.3d 274, 280 (4th Cir. 2000). And because it is the
plaintiff’s burden to persuade the trier of fact that he met his
employer’s legitimate subjective employment expectations, at the
prima facie stage we must consider the employer’s “evidence that
the employee was not meeting those expectations.” Warch v. Ohio
Cas. Ins. Co., 435 F.3d 510, 515-16 (4th Cir. 2006). Having
reviewed the record, we conclude that Jones has not demonstrated
that he was satisfying CEPS’ legitimate job expectations.
argument section of the brief makes no reference to this issue.
Accordingly, Jones has waived appellate review of the district
court’s decision that the majority of his claims were time-
barred and only those claims after January 2009 can constitute
an adverse employment action for purposes of establishing a
prima facie case under 42 U.S.C. § 1981. See Eriline Co.
S.A. v. Johnson, 440 F.3d 648, 653 n.7 (4th Cir. 2006) (holding
one-sentence assignment of error in opening brief insufficient
to raise issue for purposes of appellate review).
6
Accordingly, Jones has not satisfied the third element of the
McDonnell Douglas test. Therefore, Jones has not made out a
prima facie case of racial or age discrimination, and the
district court properly granted summary judgment on Counts 1, 3,
and 5 of Jones’ amended complaint.
II.
A plaintiff bringing a retaliation claim under Title VII or
42 U.S.C. § 1981 can prove his claim “through direct and
indirect evidence of retaliatory animus, or through the burden-
shifting framework of McDonnell Douglas.” Foster, 787 F.3d at
249. On appeal, Jones argues that he presented direct and
indirect evidence of discriminatory animus and that he made out
a prima facie case of retaliation under the McDonnell Douglas
framework. We consider both arguments in turn.
A plaintiff seeking to use direct and indirect evidence to
establish a claim of retaliation following a complaint of racial
discrimination is required to present “evidence of conduct or
statements that both reflect directly the alleged discriminatory
attitude and that bear directly on the contested employment
decision.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d
562, 577-78 (4th Cir. 2015) (internal quotation marks omitted).
Even assuming that Jones created a genuine issue of fact
regarding whether there was a racially discriminatory attitude
at CEPS, this issue of fact is only material if Jones also
7
presented some evidence tying the racially discriminatory
attitude at CEPS to his termination.
Here, Jones alleges a temporal connection between his
protected activity of complaining internally about racial
discrimination and his termination. The record shows Jones
complained of racial discrimination in November 2009 and CEPS
terminated him nine months later, in August 2010. We conclude
that the significant lapse of time between the protected
activity engaged in by Jones and his termination does not
support an inference of retaliation. Cf. Foster, 787 F.3d at
257 (finding inference of causation where termination occurred
within one month of employee filing complaint); Pascual v.
Lowe’s Home Cntrs., Inc., 193 F. App’x 229, 233 (4th Cir. 2006)
(No. 05-1847) (finding no causal connection where three to four
months passed between claimed protected activities and
termination); King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir.
2003) (finding inference of causation where termination occurred
within two and a half months of employer receiving notice of
employee’s EEOC filing).
In an effort to overcome this temporal gap, Jones further
contends that he was placed under scrutiny by CEPS shortly after
his complaint. To establish a causal link between the alleged
animus and the adverse employment action, a plaintiff must
demonstrate that the individuals who expressed animus played a
8
role in the adverse employment action. Crockett v. Mission
Hosp., Inc., 717 F.3d 348, 356 (4th Cir. 2013). Here, the
record shows that the individuals responsible for overseeing
Jones’ performance and for Jones’ termination were Gregory
Jarosinski, CEPS’ President of Sales, and Walter Godleski, CEPS’
Director of Sales. Jones’ amended complaint raises no
allegations that Godleski made any statements exhibiting
discriminatory animus, and Jones conceded during his deposition
testimony Jarosinski made no such statements. Accordingly,
where Jones has not established any causal connection between
the alleged statements demonstrating racial animus and Jones’
termination, he has not presented sufficient direct and indirect
evidence of retaliation to survive summary judgment.
Turning to the elements of a prima facie retaliation claim
under the modified McDonnell Douglas framework, a plaintiff must
show (1) he engaged in a protected activity, (2) his employer
took an adverse action, and (3) there was a causal connection
between the two. Foster, 787 F.3d at 250. Jones’ failure to
present direct or indirect evidence of a causal connection
between his complaint, the discriminatory animus at CEPS, and
his termination, likewise renders Jones unable to satisfy the
third element of the modified McDonnell Douglas framework.
Therefore, we affirm the district court’s order granting
CEPS’ motion for summary judgment. We dispense with oral
9
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
10