Vincent Mercer v. PHH Corporation

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-cv-00050-WDQ. Copies to all parties and the district court. [999771464]. [15-1011]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1011

VINCENT T. MERCER,
Plaintiff – Appellant,
v.
PHH CORPORATION,
Defendant – Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
William D. Quarles, Jr., District
Judge. (1:13-cv-00050-WDQ)

Argued:

January 27, 2016

Decided:

March 10, 2016

Before GREGORY, DUNCAN, and FLOYD, Circuit Judges.

Affirmed by unpublished opinion.
Judge Duncan wrote
opinion, in which Judge Gregory and Judge Floyd joined.

the

ARGUED: Daniel Lewis Cox, MARR & COX, LLP, Baltimore, Maryland,
for Appellant. Joseph Garrett Wozniak, KOLLMAN & SAUCIER, P.A.,
Timonium, Maryland, for Appellee.
ON BRIEF: Eric Paltell,
KOLLMAN & SAUCIER, P.A., Timonium, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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DUNCAN, Circuit Judge:
Vincent

Mercer

(“Mercer”

or

“Plaintiff”)

appeals

the

district court’s order granting summary judgment to his former
employer,

PHH

Corporation

(“PHH”),

on

Mercer’s

race

discrimination and retaliation claims under Title VII of the
Civil

Rights

Act

(“Title VII”).

of

PHH

1964,

42

terminated

U.S.C.
Mercer

§ 2000e
after

et

an

seq.

internal

investigation revealed that Mercer was involved in manipulating
the

performance

statistics

of

the

call

center

he

managed.

Mercer filed this lawsuit, alleging that PHH’s proffered reasons
for his termination were a pretext for race discrimination and
retaliation.

For

the

reasons

that

follow,

we

conclude

that

Mercer failed to exhaust his claim of race discrimination.

With

respect

that

Mercer

to

Mercer’s

failed

to

claim

adduce

of

retaliation,

evidence

we

rebutting

conclude
the

legitimate

business reason PHH articulated for terminating his employment.
We therefore affirm the judgment of the district court.
I.
A.
PHH is a company that “provides outsourced vehicle fleet
management solutions to corporate clients.”

1

J.A. 40. 1

Vincent

“J.A.” refers to the Joint Appendix filed by the parties
in this appeal.

2

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Mercer, an African-American male, began working as a call center
representative for PHH in 1999.

In 2007, Mercer joined PHH’s

Diversity Committee; a year later, the Committee elected Mercer
as their Chairman.
In March 2010, the Chief Executive Officer of PHH, Jerry
Selitto, held a town hall meeting with his employees.

At the

meeting, Selitto made remarks that Mercer and other employees
found to be racially insensitive. 2

Employees

reported their

concerns to Mercer in his capacity as Chairman of the Diversity
Committee.

Mercer in turn relayed these concerns to Rita Ennis,

the Senior Vice President of Human Resources, who arranged a
time

for

Mercer

and

discuss the incident.

the

Committee

to

meet

with

Sellito

to

During a conversation about scheduling

this meeting, Ennis allegedly told Mercer “if it’s a fight you
want, it’s a fight you’ll get.” 3

J.A. 171.

2

Mercer and PHH dispute exactly what Selitto said at the
meeting.
According to Mercer, Selitto told employees that
Selitto was not “the captain of a slave ship sent to whip his
people into shape” and, in a second analogy, he referenced an
experiment where monkeys in a cage attempted to reach a banana.
J.A. 153-54.
Because Mercer does not base his claims on
Sellito’s alleged remarks, we have no occasion to opine on what
Sellito said at the meeting.
These comments are only
significant to the issues before us insofar as they prompted
Mercer to engage in protected activity.
3

Mercer does not recall the exact date Ennis made this
statement, nor does he recall the precise context of the
statement in their conversation.
Ennis denies making the
statement.

3

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After

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Selitto

met

with

Pg: 4 of 23

the

Diversity

Committee,

Mercer

approached Selitto individually, and the two agreed that Selitto
would apologize for his comments.
Selitto,

and

another

employee

Mercer worked with Ennis,

to

addressed to all PHH employees.

draft

an

apology

email

On May 13, 2010, Selitto sent

the apology email.
B.
At

the

time

of

the

incident,

Mercer’s

job

within

the

company was to supervise a call center for one of PHH’s clients,
Budget Truck Rental (“BTR”).

Mercer held this position along

with Louis Nehmsmann, a white male, who served as the center’s
second

supervisor.

Mercer

and

Nehmsmann

had

identical

supervisory duties, and they were jointly responsible for a team
of forty agents in a call center dedicated solely to BTR.
The

BTR

call

center

vendors, and employees.
automated

system

would

handled

calls

from

BTR

Upon receiving a call, the center’s
first

prompt

the

caller

to

himself or herself as a driver, vendor, or employee.
would

then

extension.

transfer

drivers,

the

caller

to

the

relevant

identify

The system
telephone

Once routed, the call would go into a queue, and the

caller would wait for the next available agent.

Agents who

answered calls were expected to stay on the line until they
resolved the caller’s problem, but they were permitted to seek

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guidance if the caller was unhappy or if the agent did not know
how to address the caller’s problem.
BTR

tracked

PHH’s

performance

by

measuring,

among

other

metrics, the “Average Speed of Answer” (“ASA”), the average time
that calls would wait in the queue before an agent answered.
PHH’s contract with BTR set a target ASA of two minutes.

In

addition to monitoring the ASA, PHH also tracked the average
amount of time agents spent on each call.

PHH reported its call

statistics to BTR on a monthly basis.
In late May 2010, PHH developed a “triage” system for highcall-volume periods.

The idea was to reduce caller wait times

by diverting complex calls to a Special Client Service (“SCS”)
team.

Under

this

system,

if

the

agent

could

not

promptly

address the caller’s problem, the agent would tell the caller
that he or she would receive a call back from a specialized
agent within thirty minutes.

The agent would then forward the

caller’s information and a summary of the problem to the SCS
team.

By managing calls in this manner, the call center freed

up agents to address simple calls, thereby reducing wait times
in the call queue.
In June 2010, Nehmsmann devised a plan, known as “callflipping,”

to

reduce

the

ASA

during

high

volume

taking advantage of the way BTR calculated the ASA.
triage

system,

which

screened

out
5

complex

calls

periods

by

Unlike the
to

promote

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efficiency, Nehmsmann’s system cheated PHH’s performance metrics
by “flipping” calls from one queue to another.

As Nehmsmann

explained in his deposition, “[t]he idea was to take the call,
talk to the driver, tell them you would get somebody to help
them, and then put them on hold.”

J.A. 217.

When the agents

first answered the call, it would be removed from the queue of
incoming

calls,

“answered”

for

transferred
purposes

to

of

extension

calculating

16310,

PHH’s

and

ASA.

marked
But

by

immediately transferring the call, the agent would not actually
reduce the wait time for individual callers.

Instead, those

callers would remain on hold in a second internal queue even
though PHH’s performance metrics would reflect that the call had
been answered.

Essentially, the agents would manipulate the

call-tracking system by answering calls and immediately placing
them back on hold.
Though

Mercer

“wasn’t

necessarily

a

fan”

of

the

call-

flipping idea when Nehmsmann first discussed it, Mercer felt it
was in PHH’s best interest to try the plan.
June 18,

2010,

instructions

for

Nehmsmann
the

agents

emailed
in

the

his
BTR

J.A. 111.

Team
call

Leads

with

center.

The

relevant portion of the email is reproduced below:
[A]ll we want them to do is answer the phone
“Thanks for calling Budget truck
Speaking how can I help you” ==

6

On

rental--

Zelda

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I need RSA –“OK please hold I’ll get a dispatcher for you”
And bail to x16310
That’s all they will do all day long[.]
J.A. 260.

Nehmsmann copied Mercer on the email, but did not

copy their supervisor, Tim Mackin.
team,

Nehmsmann

repeatedly

In subsequent emails to the

encouraged

agents

to

flip

calls.

Mercer was also copied on these emails.
C.
PHH

monitors

and

control purposes.

analyzes

incoming

calls

for

quality

In July 2010, a Quality Analyst named Daniel

Hahn conducted a routine review of PHH’s “Agent Release Report,”
which

shows

all

calls

that

last

30

seconds

or

less.

In

reviewing the data for June 2010, Hahn “noticed a few agents who
repeatedly

showed

up

on

the

report.”

J.A.

265.

When

he

listened to their calls, he learned that the agents were simply
answering the calls, briefly listening to the caller’s problem,
and

telling

the

caller

“we

can

transfer you to my dispatcher.”

take

care

J.A. 266.

of

that;

I

will

However, the calls

were never transferred to a dispatcher, because PHH did not have
any

“dispatchers.”

Instead,

the

calls

were

placed

on

hold,

where the caller would wait in the queue for up to 50 minutes.
Troubled by his findings, Hahn spoke with Mercer, who told
him “I

got

it.”

J.A.

266.

Concerned
7

that

Mercer

did

not

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understand
Mercer’s
examined

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the

significance

supervisor,
the

call

Chuck

center’s

Pg: 8 of 23

of

the

problem,

Hogarth. 4
data

and

Hahn

Hogarth
discovered

contacted
immediately

that,

in

the

period between June and July 25, 2010:
•

BTR
agents
transferred
extension 16310;

•

The true ASA for the calls transferred to
extension 16310 was 5:51, nearly three times the
target ASA of two minutes;

•

28.3%
of
all
callers
transferred
to
extension 16310 abandoned the call, nearly triple
the call center’s normal rate; and

•

The maximum wait time for a call transferred to
extension 16310 exceeded 54 minutes.

J.A. 256.

5,045

calls

to

Hogarth also discovered several emails from Nehmsmann

instructing the agents to flip the calls.
When Hogarth approached Mercer and Nehmsmann about the call
data, they admitted to flipping calls and claimed that Mackin
had approved the scheme.

On July 28, 2010, Hogarth spoke with

Mackin, who denied approving the program and stated that he was
not

aware

that

agents

were

flipping

calls.

That

same

day,

Hogarth contacted Kim Bolin, the Contact Center Director, who
was on vacation at the time.

Hogarth told Bolin about the call-

4

Hogarth had recently replaced Tim Mackin as Mercer and
Nehmsann’s supervisor.
Mackin had served as a temporary
supervisor from June to July 2010 while PHH recruited to fill
the position.

8

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flipping problem, and she informed him that she had not approved
the scheme and that the agents must immediately stop flipping
calls.
Bolin and Ellen Quinn-Hamlin, the Senior Manager in Human
Resources, decided to conduct an internal investigation into the
use

of

extension

investigation,
Wilrosea

16310

they

Moncour,

to

flip

interviewed

Chris

Koutek, 5

calls.
Mercer,
and

As

part

of

Nehmsmann,

Michele

the

Mackin,

Roberts. 6

When

Bolin and Quinn-Hamlin interviewed Mercer, he said that he had
discussed

the

plan

with

time--during

a

process

implemented

idiots.”

was

morning

J.A. 593.

the scheme.

Mackin--his

meeting.
“[to

He

not]

supervisor

further
make

stated

ourselves

at

the

that

the

look

like

Nehmsmann, in turn, admitted to engineering

Mackin, however, said that he was entirely unaware

that agents were flipping calls.

He said that he had attended

meetings about the triage process, but had never been involved
in any discussions about call-flipping.
Bolin and Quinn-Hamlin reviewed the BTR center’s emails,
and

discovered

that

although

Mercer

and

Nehmsmann

sent

and

5

Moncour and Koutek were “team leads” in the call center.
They reported to Mercer and Nehmsmann, and were responsible for
overseeing agents.
6

Roberts was a supervisor who did not work in the BTR call
center, but who attended team meetings with Mercer and
Nehmsmann.

9

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received

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emails

discussing

Pg: 10 of 23

call-flipping,

they

never

copied

Mackin, Hogarth, or any other supervisor to whom they reported.
Bolin also had the call data re-examined.
statistics

revealed

that

the

A review of call

call-flipping

process

had

artificially reduced the ASA by 30% in June 2010 and 34% in
July 2010.

PHH reported the corrected call data to BTR after

discovering that the statistics had been manipulated.
On August 24, 2010, Ennis, Quinn-Hamlin, Pam Walinksi (Vice
President of Customer Services), and Tom Keilty (Senior Vice
President of Customer and Vehicle Services and Chief Operating
Officer),

met

to

investigation.
Nehmsmann

for

discuss

They
engaging

the

decided
in

findings

to

the

of

terminate

the

both

call-flipping

internal

Mercer

scheme,

and

and
on

August 26, 2010, PHH issued Mercer and Nehmsmann termination
letters that

cited

their

“total

disregard

for

and

breach

of

PHH’s Code of Ethics in accurately disclosing and representing
factual

business

information.”

J.A.

572,

574.

Of

the

individuals involved in deciding to terminate Mercer, only Ennis
was

involved

in

Mercer’s

activity

in

response

to

Selitto’s

remarks at the town hall meeting.

And it is undisputed that she

did

call

not

initiate

the

review

of

investigation of the scheme.

10

data

that

prompted

the

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D.
Following

his

termination,

Mercer

filed

a

Charge

of

Discrimination with the Equal Employment Opportunity Commission
and the Maryland Commission on Human Relations.

The form for

the

the

complaint

contained

“Discrimination Based On.”

a

section

with

heading

Underneath that heading were check-

boxes for eleven different types of discrimination: race, color,
sex,

religion,

national

origin,

retaliation,

age,

disability,

genetic information, and “other.”

Mercer’s complaint contained

a

box

checkmark

in

the

“retaliation”

alone.

The

narrative

portion of the charge stated:
I.
I began my employment with above-named employer
in November 2000. My position was Supervisor. I did
not have disciplinary or performance issues; in fact,
I was an exemplary employee.
Furthermore, I was the
chair of the Diversity Committee.
In or about the
last week of April 2010, I had a discussion with the
CEO Jerry Selitto; regarding comments made by him.
These comments which referenced “Slaves, Whips and
Monkeys” were perceived by the employee population to
be racially motivated and discriminatory.
I provided
recommendation regarding this issue.
On August 26,
2010, I was discharged by Ellen Quinn-Hamlin, Senior
Manager of Human Resources, and Kim Bolin, Director of
Customer and Vehicle Service.
II. The reason given for discharge was for total
disregard and breach of my employers’ code of ethics.
III. I believe I was discriminated against and subject
to retaliation for engaging in a protected activity in
violation of Title VII of the Civil Rights Act of
1964, as amended, with respect to discharged.

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J.A. 295.

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The charge did not contain any other information

regarding

the

receiving

a

substance

right

to

of

sue

Mercer’s

notice,

allegations.

Mercer

timely

After

filed

his

complaint in the district court.
PHH filed a motion for summary judgment, seeking dismissal
of Mercer’s complaint.

With respect to Mercer’s claim of race

discrimination, the district court found that Mercer failed to
exhaust

his

administrative

remedies.

Regarding

Mercer’s

retaliation claim, the district court held that Mercer failed to
show “any evidence upon which a reasonable jury could conclude
that those who terminated him knew about his complaints about
Selitto.”
Mercer

J.A. 565-66.

failed

legitimate,
pretextual.

to

Further, the district court found that

present

non-retaliatory

sufficient
reason

for

evidence
discharging

that

PHH’s

Mercer

was

The district court entered judgment for PHH, and

Mercer timely appealed.

II.
On

appeal,

Mercer

argues

that

the

district

court

erroneously granted summary judgment to PHH on his claims of
race

discrimination

and

retaliation.

Mercer’s claims in turn.

12

We

address

each

of

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A.
The district court concluded that Mercer failed to include
his claim of race discrimination in his administrative charge of
discrimination.

A

plaintiff’s

failure

to

exhaust

his

administrative remedies deprives the federal courts of subject
matter jurisdiction over his Title VII claim.

Jones v. Calvert

Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009).
dismissal

for

lack

of

subject

matter

We review a

jurisdiction

de

novo.

Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 406 (4th
Cir. 2013).
Because a plaintiff may only pursue claims that have been
administratively

exhausted,

“[t]he

scope

of

the

plaintiff’s

right to file a federal lawsuit is determined by the charge’s
contents.”

Jones, 551 F.3d at 300.

Accordingly, “a plaintiff

fails to exhaust his administrative remedies where . . . his
administrative charges reference different time frames, actors,
and discriminatory conduct than the central factual allegations
in his formal suit.”

Snydor v. Fairfax Cty., 681 F.3d 591, 594

(4th Cir. 2012) (quoting Chacko v. Patuxent Inst., 429 F.3d 505,
506

(4th

Cir.

2005)).

Upon

reviewing

Mercer’s

charge

of

discrimination, we conclude that Mercer failed to exhaust his
claim of race discrimination because that claim does not appear
anywhere on the form Mercer submitted to the Maryland Commission

13

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on

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Human

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Relations

and

Pg: 14 of 23

the

Equal

Employment

Opportunity

Commission.
First,

the

check-box

section

of

the

“retaliation” as the basis for the charge.

form

lists

only

Mercer asserts that

the Maryland Commission on Human Relations was responsible for
filling out the form based on his oral complaint, and he should
not

be

penalized

“race” box.

for

the

Commission’s

failure

to

check

the

According to Mercer, he related his allegations to

an investigator, who was responsible for selecting the boxes on
the

form.

complaint

Although
does

not

an

agency’s

excuse

any

involvement

deficiency

in

in
the

drafting
charge,

a

see

Balas, 711 F.3d at 408-09, we agree with Mercer that his failure
to check a box on the form is not dispositive.

Instead, we look

at the charge as a whole, and the absence of a checked box is
only one factor in our analysis.
Second, and more importantly, the narrative section of the
charge only sets out an allegation of retaliation.
briefly

describes

the

town

hall

incident,

and

The charge

concludes:

“I

believe I was discriminated against and subject to retaliation
for engaging in protected activity.”

J.A. 295.

The charge does

not allege, at any point, that PHH terminated Mercer because of

14

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his race. 7

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Given that Mercer failed to present his claim of race

discrimination in his administrative charge, we conclude that he
forfeited that claim.
Mercer

points

to

PHH’s

response

to

the

administrative

charge, arguing that PHH construed his charge to contain a race
discrimination

claim.

Contrary

to

plaintiff’s

position,

it

makes no difference that PHH responded to Mercer’s charge of
discrimination with a letter that referenced a possible claim of
race discrimination.

See J.A. 420 (“For the reasons set forth

herein, there is simply no evidence to substantiate Mercer’s
claim

of

race

retaliation.”).
claims,

and

discrimination
It

the

was

fact

Mercer’s
that

PHH

and

possible

obligation
used

the

to

unlawful

exhaust
phrase

his

“race

discrimination” in its response to the charge did not remove
that burden. 8

If we were to accept Mercer’s argument, then

employers would be wary indeed of responding fully to a charge
of discrimination, lest they inadvertently expand the scope of
the claims properly presented before the investigating agency.

7

At most, the charge states that Selitto’s comments at the
town hall meeting were “racially discriminatory,” J.A. 295, but
Sellito’s comments have nothing to do with Mercer’s claim that
Ennis terminated him because of his race.
8

In any event, it is impossible for us to tell what claims
the letter refers to, because Mercer has only included the first
page of PHH’s letter in the Joint Appendix.

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Accordingly,

we

affirm

Pg: 16 of 23

the

dismissal

of

Mercer’s

race

discrimination claim for lack of subject matter jurisdiction.
B.
We
claims

next

address

that

Mercer’s

PHH--and

claim

of

specifically,

retaliation.

Rita

Mercer

Ennis--retaliated

against him for complaining about Sellito’s remarks during the
town hall meeting.

For the reasons set forth below, we agree

with the district court that Mercer failed to present a genuine
dispute of material fact that PHH retaliated against him.
We review de novo a district court’s order granting summary
judgment.

Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d

562, 565 n.1 (4th Cir. 2015).

“A district court ‘shall grant

summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’”
P. 56(a)).
fact

Id. at 568 (quoting Fed. R. Civ.

In determining whether a genuine issue of material

exists,

we

review

“all

facts

and

reasonable

inferences

therefrom in the light most favorable to the nonmoving party.”
T-Mobile Ne. LLC v. City Council of Newport News, 674 F.3d 380,
385 (4th Cir. 2012) (citation omitted).
or

speculative

scintilla
case.”

of

allegations

evidence

in

do

not

support

However, “[c]onclusory

suffice,
of

[the

nor

does

nonmoving

a

mere

party’s]

Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649

(4th Cir. 2002) (internal quotation marks and citation omitted).
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When a plaintiff lacks direct evidence of retaliation, we
apply

the

familiar

burden-shifting

framework

set

forth

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

in

Foster

v. Univ. of Md.-E. Shore, 787 F.3d 243, 250 (4th Cir. 2015).
First,

the

plaintiff

demonstrating

that

must

(1)

he

establish
engaged

a

in

prima
a

facie

protected

case

by

activity,

(2) his employer took an adverse action, and (3) there was a
causal

connection

Thompson,

380

between

F.3d

209,

the
212

two.
(4th

Id.
Cir.

(citing
2004)).

Price
Once

v.
the

plaintiff establishes a prima face case, the burden shifts to
the employer to proffer a legitimate, non-retaliatory reason for
taking an adverse action against the employee.

Id. (citing Hill

v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th
Cir.

2004)).

If

the

employer

satisfies

this

burden,

the

plaintiff must show that the employer’s reason was a pretext for
retaliation.

Id.

(citing Hill, 354 F.3d at 285).

Even if we assume, at step one of our analysis, that Mercer
established a prima facie case of retaliation, PHH has clearly
demonstrated

a

non-retaliatory

his misconduct.
call-flipping
performance

reason

for

terminating

Mercer:

It is undisputed that Mercer participated in a

scheme

with

statistics

company’s ethics policy.

to

the
PHH’s

intention

of

misrepresenting

client,

in

breach

of

the

The company’s investigation into the

scheme and its decision to terminate Mercer for misconduct are
17

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well documented, and Mercer has admitted to participating in the
call-flipping
Douglas

scheme. 9

framework,

legitimate,
therefore

Thus,

we

conclude

non-retaliatory
proceed

to

at

step

step

that

reason

two

PHH

for

three

of

of

has

the

demonstrated

firing
the

McDonnell

Mercer.

McDonnell

a
We

Douglas

analysis.
Mercer contends that, under step three, he has demonstrated
sufficient evidence of pretext to prevail on his retaliation
claim.

At

plaintiff

this

must

stage
adduce

of

the

burden-shifting

evidence

from

which

framework,
a

jury

a

could

reasonably conclude that “the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for
discrimination.”

Tex.

Dep’t

450 U.S. 248, 253 (1981).

of

Cmty.

Affairs

v.

Burdine,

To carry this burden, a plaintiff

must offer direct or circumstantial evidence that calls into
question the employer’s explanation.
Homes,

LLC,

775

F.3d

202,

211

(4th

See Walker v. Mod-U-Kraf
Cir.

2014)

(finding

no

reasonable inference of pretext in the absence of either direct

9

Mercer asserts that PHH has given inconsistent reasons for
terminating him.
We disagree.
During Mercer’s unemployment
proceedings, PHH stated that the company terminated Mercer for
failing to perform his job, and this statement is entirely
consistent with Mercer’s termination for misconduct.
Mercer’s
job was to supervise agents responsible for answering calls in
the BTR call center. He failed to do his job when he directed
agents to flip calls instead of answering them.

18

Appeal: 15-1011

or

Doc: 37

Filed: 03/10/2016

circumstantial

allegation

of

evidence).

pretext,

we

Pg: 19 of 23

In

are

evaluating

mindful

that

a

“it

plaintiff’s
is

not

our

province to decide whether the reason was wise, fair, or even
correct, ultimately, so long as it truly was the reason for the
plaintiff’s termination.”

Hawkins v. PepsiCo, Inc., 203 F.3d

274, 279 (4th Cir. 2000) (quoting

DeJarnette v. Corning, Inc.,

133 F.3d 293, 299 (4th Cir. 1998)).
We conclude that the record is bereft of any evidence from
which

a

jury

pretextual,

could

because

find

that

PHH’s

Mercer

has

failed

proffered
to

call

PHH’s non-retaliatory reason for firing him.

reasons
into

are

question

Indeed, it would

have been exceptionally difficult for Mercer to overcome the
strong

evidence

that

the

call-flipping

scheme

prompted

termination rather than his earlier protected activity.
discuss

below,

there

was

no

connection

between

his

As we
Mercer’s

complaints of racial discrimination and the discovery of his
misconduct.

Moreover,

Mercer

was

treated

identically

to

Nehmsmann, who did not engage in any protected activity.
Significantly, the scheme was only uncovered when a quality
analyst--who

had

nothing

incident--discovered

the

review

Even

of

calls.

to

do

misrepresented
in

response

with
data
to

the
during

town
a

questioning

hall

routine
at

oral

argument, Mercer failed to identify anyone involved in the town
hall incident who initiated the review of the BTR call center’s
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data.

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Among the individuals who participated in the ultimate

decision to terminate Mercer, only Ennis was involved in the
town hall incident, and Mercer has failed to connect Ennis to
Hahn’s discovery of the scheme.

This fact is not dispositive,

as Mercer might have adduced evidence that, although Ennis did
not

initiate

herself,
this

she

the

review

or

nevertheless

information.

But

discover

acted

again,

the

misrepresentation

retaliatorily
Mercer

failed

in

response

to

produce

to
any

evidence to that effect.
Mercer points to Ennis’s alleged statement that “if it’s a
fight you want, it’s a fight you’ll get” as evidence of her
retaliatory motive.

This lone remark is insufficient evidence

of pretext, however, because Mercer has not provided any context
for it, and it is unclear what it was intended to express.
Moreover,

the

investigation

comment
that

occurred

prompted

substantially
Mercer’s

prior

termination,

to

the
which

undermines the causal connection Mercer attempts to draw between
the comment and his termination.

See Merritt v. Old Dominion

Freight Line, Inc., 601 F.3d 289, 300 (4th Cir. 2010) (“[I]n the
absence
question,

of

a
the

clear

nexus

materiality

with
of

the

stray

employment
or

in

remarks

isolated

decision

is

substantially reduced.”).
Further, as we have noted, PHH terminated both Mercer and
Nehmsmann

for

violating

the

same
20

policy,

and

there

is

no

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evidence that Nehmsmann engaged in any protected activity under
Title VII.

See Laing v. Fed. Express Corp., 703 F.3d 713, 722-

23 (4th Cir. 2013) (finding no pretext when company investigated
and then terminated both an employee who engaged in protected
activity and an employee who did not for violating the same
company policy).

We do not hold that any time an employer

simultaneously terminates an employee who did not engage in the
protected activity along with the one who did the employer is
free from liability, as such a holding might lead to perverse
results.

Nevertheless,

Nehmsmann

was

fired

here,

for

any

there

other

is

reason

no

evidence

that

that

was

than

he

“violating the exact same company policy in the exact same way.”
See id. at 723.
Faced

with

the

evidentiary

deficiencies

just

discussed,

Mercer points to alleged flaws in the internal investigation to
support

his

example,

he

claim

that

claims

interview

several

testified

that

further
favorable

asserts

PHH’s

that

agents

PHH

Bolin
in

Bolin
by

and

the

authorized

that

treatment

actions

call

were

suspicious.

Quinn-Hamlin
center

who

For

failed
would

have
He

the

call-flipping

scheme.

and

Quinn-Hamlin

gave

telling

him

investigation before questioning him.

the

to

purpose

Mackin
of

the

However, the fact that

the investigation may not have been as thorough as Mercer would
have liked falls far short of establishing pretext.
21

See Bonds

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v. Leavitt, 629 F.3d 369, 386 (4th Cir. 2011) (finding that
evidence of an “improper or substandard” investigation does not
demonstrate

pretext)

(citing

Hux

v.

City

of

Newport

News,

451 F.3d 311, 315 (4th Cir. 2006)).
Mercer next contends that the call-flipping scheme cannot
have

been

approved

the

of

real

the

reason

plan

to

for

his

manipulate

termination,

because

call

The

data.

however, simply does not support this assertion.

PHH

record,

Significantly,

after Mercer and Nehmsmann admitted to PHH that they engineered
the

call-flipping

scheme,

the

company

discovered

that

their

emails discussing the scheme were never copied to Mackin--or any
other

supervisor,

for

that

matter.

Mercer

did

testify

that

Mackin approved the call-flipping plan during a meeting.

But

even though we are required to accept as true Mercer’s testimony
about

Mackin’s

role

in

the

scheme,

PHH

was

not

required

to

accept Mercer’s claim that he had received managerial approval
for

the

managers

scheme.
who

Moreover,
investigated

there
the

is

no

scheme

evidence
and

that

the

terminated

Mercer--namely, Bolin, Quinn-Hamlin, Walinsky, and Keilty--had
previously authorized or even known about the scheme.
this

point,

it

bears

emphasizing

terminated Mercer outranked Mackin.

22

that

the

And, on

managers

who

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Based on the record, we find that the only conclusion a
jury could reasonably draw from the evidence of record is that
PHH terminated Mercer for misconduct.

III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.

23