Miriam Grice v. Baltimore County, Maryland

Filing 920091203

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-1047

MIRIAM GRICE, Plaintiff - Appellant, v. BALTIMORE COUNTY, MARYLAND; FRED HOMAN, Individually and in his official capacity; SUZANNE BERGER, Individually and in her official capacity, Defendants - Appellees.

Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, District Judge. (1:07-cv-01701-JFM)

Argued:

October 28, 2009

Decided:

December 3, 2009

Before TRAXLER, Judges.

Chief

Judge,

and

DUNCAN

and

AGEE,

Circuit

Affirmed by unpublished per curiam opinion.

ARGUED: Kathleen Mary Cahill, LAW OFFICES OF KATHLEEN CAHILL, Towson, Maryland, for Appellant. Jeffrey Grant Cook, BALTIMORE COUNTY OFFICE OF LAW, Towson, Maryland, for Appellees. ON BRIEF: John E. Beverungen, County Attorney, BALTIMORE COUNTY OFFICE OF LAW, Towson, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: I. FACTS

The appellant, Miriam Grice, worked as a claims manager for Baltimore County, Maryland ("the County") from March 1998 until August 2005, when her position was converted from a part-time classification to one within the County's merit system. During

the relevant timeframe, co-defendant Fred Homan was a senior administrator with the County and co-defendant Suzanne Berger was employed as an attorney with the County. Before

transitioning to the County's merit system in 2005, Grice held the title of "Claims Manager" and was responsible for handling workers' compensation claims for the County. As required during the transition to the merit system, the County reclassified and "posted" the job of Claims Manager for competitive application. 1 with the County's the Co-defendants Homan and Berger, along Administrator, Despite Grice's as the Bob rating best she Behler, by the

Insurance

interviewed County's applicant
1

candidates. 2 resources to the

human prior

department candidates'

qualified was not

interviews,

To avoid confusion due to the pre- and post-merit system job titles of "Claims Manager," we will refer to the merit system position as that of "Claims Manager" and to Grice's former job as her "former position." The County's procedure in hiring for a "posted" position was to interview the top three candidates.
2

2

hired. no

Instead, the County hired Kent Underwood, a male who had experience years handling as claims government manager claims and but who had

prior

twenty-three

assistant

vice-

president at a large private insurer. Grice was appointed Assistant Claims Manager, in which she remained the supervisor of workers' compensation claims for the County and reported to Underwood. Grice viewed this position as

a demotion because the salary was less than her salary prior to the transition to the merit system. 3 Her salary was, however,

the highest allowed for her pay grade under the legislatively enacted pay scale applicable to the merit system and, unlike her former position, had additional benefits including a property interest in her employment. A month after taking the job as Assistant Claims Manager Grice complained to the County Executive that she had been the

The County contends that the Claims Manager position under the merit system was, in fact, Behler's former job (previously titled Insurance Administrator) which supervised not only workers' compensation claims but also all the general liability claims involving the County. As such, the County insists the Claims Manager position would have been a promotion for Grice. Grice insists the Claims Manager position was, in fact, her "old" position supervising the unit handling worker's compensation claims. We do not consider this factual dispute important, however, because if the County unlawfully discriminated against Grice in the selection process, it is immaterial whether the job was the same or would have been a promotion. Nonetheless, the County's position appears to be correct.

3

3

victim of sex discrimination due to Underwood's selection for the Claims Manager position. She also filed a complaint with As a result of the supervisor and

the Equal Employment Opportunity Commission. charges, Homan removed himself as

Grice's

appointed another employee, Keith Dorsey, to supervise Grice. In response to a complaint from a co-worker that Grice had been harassing her for information about Underwood, Dorsey placed

Grice on paid leave pending the outcome of an investigation. Grice was subsequently issued a written reprimand. As a result,

Grice amended her EEOC charge to allege a claim of retaliation. On June 13, 2007, Grice was called to a meeting with Dorsey and Mary Ellen (and Niles, who had replaced Underwood as When Claims Grice

Manager

thus

became

Grice's

supervisor).

arrived she saw disciplinary papers on the desk and immediately asked that her lawyer be present for the meeting, as Dorsey had previously directed allowed. 4 to take Dorsey the acquiesced to this demand her but for

Grice

disciplinary

papers

with

review in preparation for the meeting -- an order Grice refused. For disobeying his order to take the papers, Dorsey suspended

The papers included "Supervisor's Notes on Oral Counseling" and a Written Reprimand which documented various incidents of sanctionable behavior by Grice between May 22, 2007 and June 13, 2007.

4

4

Grice

and,

the

next

day,

terminated

her

employment

for

insubordination. 5 Two weeks after her discharge Grice filed an Amended

Complaint in the United States District Court for the District of Maryland asserting claims against the County, Homan and

Berger. 6 Count One of Grice's Amended Complaint asserts claims against Homan and Berger, individually and in their official capacities, for violation of Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983. Grice contends that Homan and

Berger violated her civil rights by unlawfully discriminating against her based on gender when they did not select her for the Claims Manager position. Count Two asserts a claim against the

County for unlawful discrimination in violation of Title VII. Grice's Title VII claims are based on allegations that the

County discriminated against her by (a) hiring a less qualified male, Underwood, as Claims Manager ("non-selection claim"), (b) demoting her to Assistant Claims Manager ("demotion claim"), (c) retaliating against her by imposing a suspension based upon her

At oral argument, Grice confirmed that no dispute exists as to this sequence of events at the June meeting. Grice originally filed suit on June 27, 2007, but the suit was dismissed because she failed to exhaust her administrative remedies. Grice subsequently exhausted her administrative remedies and the EEOC issued a right-to-sue letter on April 28, 2008.
6

5

5

co-worker's

complaints

("retaliation

claim"),

and

(d)

by

terminating her on June 13, 2007 ("discharge claim"). The district court granted summary judgment to Homan,

Berger and the County on all claims. court found Grice's based on non-selection her failure

Specifically, the district claim to under an Title VII was

time-barred

file

administrative

charge with the EEOC within 300 days of the alleged violation. 7 The district court then determined that even if the claim had not been time-barred, "the Defendants would still be entitled to summary judgment on this claim as well as on Grice's timely filed demotion, suspension, discharge and retaliation claims . . . . " Joint Appendix ("J.A.") at 748.

Grice appeals the district court's judgment in some, but not all, respects. She does not challenge the district court's

finding that her non-selection claim under Title VII was timebarred. Nonetheless, Grice asserts the district court erred in

granting summary judgment on her claims against Homan and Berger arising under 42 U.S.C. § 1983. For the reasons set forth

below, we disagree and affirm the district court.

Grice learned she had not been selected for the Claims Manager position on October 13, 2005 but did not file a claim with the EEOC until 349 days later, September 27, 2006. J.A. 746.

7

6

As

an

initial for

matter as

we set

note

that in

Grice's her

two

"Issues brief

Presented

Review"

forth

opening

challenge only the non-selection and discharge claims. the arguments in Grice's her opening to brief tend the to

Although in and

overlap

various

respects,

failure

address

demotion

retaliation claims results in the abandonment of those claims on appeal. (4th See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 1999) ("[T]he argument and the . . . must contain them, . . .

Cir.

`appellant's

contentions

reasons

for

with

citations to the authorities and parts of the record on which the appellant relies.'") (quoting Fed. R. App. P. 28(a)(9)(A)). The "[f]ailure to comply with the specific dictates of [Rule 28] with respect to a particular claim triggers abandonment of that claim on appeal." Id. Indeed, Grice confirms in her reply

brief that "[t]here are two issues on this appeal ­ whether summary judgment was properly granted on [her] claims (1) that she was denied the Claims Manager position in September 2005 because of sex discrimination, and (2) that she was fired in June 2007 because of retaliation for alleging bias in the Claims Manager selection." Accordingly, discharge claims. Reply Br. at 1. we address only the non-selection and

7

II. A district court's grant of summary judgment is reviewed de novo." Causey v. Balog, 162 F.3d 795, 800 (4th Cir. 1998)

(citing Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir. 1995)). "Summary judgment is appropriate when the

evidence, viewed in the light most favorable to the non-moving party, demonstrates there are no genuine issues as to any

material fact, and the moving party is entitled to judgment as a matter of law." Id. (citing United States v. Leak, 123 F.3d The elements of a prima facie case Gairola v.

787, 794 (4th Cir. 1997)).

under Title VII are the same under 42 U.S.C. § 1983.

Commw. of Va. Dep't of Gen. Servs., 753 F.2d 1281, 1285 (4th Cir. 1985). Although at the time she filed her Amended Complaint Grice apparently believed that Berger had been involved in the

decision not to hire her, she admitted during oral argument that subsequent evidence shows "there is not evidence that Ms. Berger had a role in the sex discrimination and retaliation claim." 8 As

such, the district court's entry of summary judgment in favor of Berger was correct. See Holland v. Washington Homes, Inc., 487

On brief and in oral argument Grice refers to the nonselection claim as the sex discrimination claim and categorizes the demotion, suspension and discharge claims as retaliation claims.

8

8

F.3d 208, 216 (4th Cir. 2007) (employer put forth evidence that its decisionmaker fired employee for non-discriminatory reason); Geiger v. Tower Auto., 579 F.3d 614, 620­21 (6th Cir. 2009) ("Any discriminatory statements must come from decisionmakers to constitute evidence of discrimination."). Thus, the only

question is whether the district court properly granted summary judgment claims. A. Lacking direct Grice's Non-Selection Claim evidence of discrimination, the district as to Homan on Grice's non-selection and discharge

court assumed without deciding that Grice had made out a prima facie case under the burden-shifting framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which required Grice to prove that she (1) was a member of a protected class, (2) had suffered an adverse employment action, (3) had maintained a satisfactory job performance, and (4) that a

similarly-situated employee outside the protected class received more favorable treatment. White v. BFI Waste Services, LLC, 375

F.3d 288, 295 (4th Cir. 2004) (citing McDonnell Douglas Corp., 411 at 802). Pursuant to the McDonnell Douglas framework the

district court then found, and the record clearly supports, that the County had articulated "legitimate, non-discriminatory

reason[s] for the decision: namely that while both Grice and Underwood were strong applicants on paper, Underwood had a much 9

better

interview;

his

experience

was

better

suited

for

the

position; and he did not have a history of problematic employee relations as did Grice." J.A. 749-50.

To rebut the County's legitimate non-discriminatory reasons for hiring Underwood, Grice argues that Behler, Homan and Berger (the panelists who conducted her interview) were biased against her and that their "motivation was discriminatory." Br. of

Appellant at 23.

However, as the district court found, Grice

"does not provide any evidence that the bias was based on her gender." J.A. 750.

In her Amended Complaint Grice asserts that in 1999 she became aware that Behler may have been romantically involved with another employee. According to Grice, she reported this

allegation to Homan who "rebuked [her] for the manner in which she had handled the matter, and threatened to abolish her job." J.A. 12. According to Grice, Homan removed Behler as her direct When Behler resumed his supervision of he "treated [her] disfavorably on

supervisor until 2004. Grice, she alleges

that

account of her role in reporting his alleged sexual misconduct." J.A. 12. Grice further asserts in her Amended Complaint that "Homan and Berger also had significant bias against [her], rendering it impossible for them to fairly consider plaintiffs' superior

qualifications for the position." J.A. 12. 10

However, according

to

Grice,

this

bias

arose

because

"[j]ust

months

before

the

selection panel convened . . . [Grice] accidentally interrupted [Homan and Berger] in an awkward scene after work hours . . . ." J.A. 12. According to Grice, it was "from that point on [that

Homan and Berger] launched a campaign to get rid of [her]." J.A. 13. The general rule is that "a party is bound by the admissions of his pleadings." Best Canvas Products & Supplies v. Ploof Truck Lines, 713 F.2d 618, 621 (11th Cir. 1983). See also Action Manufacturing, Inc. v. Fairhaven Textile Corp., 790 F.2d 164, 165 (1st Cir. 1986); PPX Enterprises, Inc. v. Audiofidelity, Inc., 746 F.2d 120, 123 (2d Cir. 1984); Brown v. Tennessee Gas Pipeline Co., 623 F.2d 450, 454 (6th Cir. 1980) ("under federal law, stipulation and admissions in the pleadings are generally binding on the parties and the Court."); State Farm Mutual Automobile Ins. Co. v. Worthington, 405 F.2d 683, 686 (8th Cir. 1968) (". . . judicial admissions are binding for the purpose of the case in which the admissions are made including appeals."). Lucas v. Burnley, 879 F.2d 1240, 1242 (4th Cir. 1989). Grice's

allegations establish that any bias on the part of Behler, Homan and Berger resulted from her at discovery of their has allegedly no

inappropriate

activities

work.

Grice

provided

evidence that Homan's animus towards her, if any, was based on gender. In short, the record does not show that the County's

explanation for hiring Underwood is a mere pretext for gender discrimination. As the district court stated, "[a] showing of

bias is not sufficient to prove that an employer has violated

11

Title

VII

[or

§

1983]

unless

the

bias

is

based

on

the

plaintiff's membership in a protected class."

J.A. 750-51.

For the foregoing reasons the district court did not err in finding that Grice failed to establish pretext for the

legitimate, nondiscriminatory reasons for selecting Underwood. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 25253 (1981); Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 234-35 (4th Cir. 1991). granting summary judgment The district court did not err in to the defendants on Grice's non-

selection claim under 42 U.S.C. § 1983. B. Grice's Discharge Claim

The County has not disputed, either in this Court or below, that it was or aware that of Grice's the EEOC claim claim (and subsequent protected

amendments) activity.

filing

constituted

In addition, the district court determined that Grice

had "alleged sufficient evidence of retaliatory animus . . . to meet the minimal burden required . . . ." its finding that Grice had made a J.A. 757. facie Despite case of

prima

discrimination, the district court granted summary judgment on the discharge claim because, as with her non-selection claim, Grice failed to provide a preponderance of evidence that the County's reasons for her discharge were pretextual. reasons that follow, we agree with the district court. For the

12

The stated

district that the in

court

found

the

County

had

"consistently was Grice's and Niles

reason refusing

for to

termination meet with

insubordination

Dorsey

without her attorney present and her refusal to take from Dorsey the materials to be discussed at the meeting." J.A. 758.

Though Grice argued the County had "ever-shifting reasons" for firing her, which indicated that the pretext, "minor the district she court cited

correctly

concluded

discrepancies"

were not evidence of pretext. Washington ("`Once Homes, an Inc., 487 has

J.A. 757-58. F.3d 208, 216 a

See Holland v. (4th Cir. 2007)

employer for its

provided the

non-discriminatory cannot seek on to

explanation expose that

decision, as not

plaintiff by on

rationale that do

pretextual cast doubt

focusing the

minor

discrepancies

explanation's

validity, or by raising points that are wholly irrelevant to it.'") (quoting Hux v. City of Newport News, 451 F.3d 311, 315 (4th Cir. 2006)). Grice's Notice of Dismissal states that her "refusal to meet with her supervisor . . . as well[] as the refusal to take a copy of the items to be discussed in the meeting constitutes an act of insubordination." his deposition Dorsey J.A. 437 (emphasis added). that after asking During to

confirmed

Grice

attend the meeting several times he acceded to her demands to have her attorney present. J.A. 585-86. 13 Grice contends that

this

admission

by

Dorsey

"should

have

been

dispositive

of

summary judgment, because the Appellants did not assert that Grice would have [been] fired simply ­ and solely ­ because she did not take the materials." Br. of Appellant at 29. Once it

became clear that Grice was not going to attend the meeting without her attorney, we fail to see how Dorsey's acquiescence to a postponement is material in light of her undisputed refusal to take the papers as instructed. According to the County's

rules, an employee can be "dismissed for cause if she fail[s] to obey any lawful and reasonable direction given by [her] Her

supervisor."

J.A. 757 (internal quotation marks omitted).

failure to take the documents as directed clearly supports the County's finding of insubordination while Dorsey's acquiescence, under these factual circumstances, does nothing to prove the County's rationale for discharging her was a mere pretext for sex discrimination. Aside from her failure to come forward with evidence

undermining the County's legitimate reasons for her termination, Grice's discharge claim fails for another reason. non-selection fatal. claim, her own pleadings and As with her prove

testimony

Grice asserts in her Amended Complaint that she

was treated less favorably than other employees . . . by defendant Homan because defendants Homan and Berger were involved in a close personal relationship . . . was treated adversely by defendant Homan in retaliation for reporting [Behler's] alleged 14

involvement with a female subordinate . . . and . . . was removed from her position . . . by defendants Homan and Berger because she discovered their afterhours conduct at a time when their close personal relationship was a tremendously sensitive issue in county government. J.A. 14. supra. In addition to the allegations contained in her pleadings, Grice testified that she "firmly believe[d]" her firing went "back to April of 2005 when [she] walked in on [Homan and Grice is bound by her own allegations. See Lucas,

Berger] after work" in a compromising position.

S.J.A. 180-81.

When asked why she thought Berger had discriminated against her, Grice stated that it was in Berger's "best interest not to have [Grice] there because [she] walked in on Fred Homan and Suzanne Berger in a compromising position." S.J.A. 208. Asked if she

thought it would have been different "had a man walked in on them," Grice testified that "it would have been the same if it had been anyone, but I also think the sequence of events

afterward were [sic] handled differently with me because I was a woman rather than someone else if they had been male." 208 (emphasis added). Grice's belief, however, is insufficient to undermine the legitimate, non-discriminatory reasons put forth by the County, particularly in light of the fact that the parties do not S.J.A.

dispute the sequence of events at the June 13, 2007 meeting.

15

See Williams, 871 F.2d at 456 ("[A] plaintiff's own assertions of discrimination in and of themselves of are insufficient to

counter

substantial

evidence

legitimate

nondiscriminatory

reasons for an adverse employment action.") (citing Gairola v. Comm. of Va. Dep't of Gen. Servs., 753 F.2d 1281, 1288 (4th Cir. 1985)). An examination of the record in this matter does not reveal evidence to support Grice's contention that the County's reason for her discharge served as a pretext for discrimination based on gender. Indeed, Grice's own pleadings and evidence indicate

that Homan's motivation to retaliate arose, if at all, from an entirely nondiscriminatory motive (that Grice allegedly Any

interrupted Homan during inappropriate workplace behavior).

such motivation, however, does not support a claim of unlawful discrimination. "[W]hen an employer articulates a reason for

discharging the plaintiff not forbidden by law, it is not our province to decide whether that reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination." Giannopoulos v. Brach & Brock

Confections, Inc., 109 F.3d 406, 411 (7th Cir. 1997). For the reasons set forth above, the district court did not err in granting summary judgment.

16

III. For the foregoing reasons we affirm the judgment of the district court. AFFIRMED

17