Pascual v. Lowe's Home Centers, Inc.

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.
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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
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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).
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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
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