Clinton Jones v. Constellation Energy Projects
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:13-cv-00850-RWT Copies to all parties and the district court/agency. [999683795].. [15-1090]
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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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Jones
the
PER CURIAM:
Clinton
W.
appeals
granting
summary
judgment
Services
Group,
Inc.
to
district
Constellation
(“CEPS”)
on
his
court’s
Energy
(1)
order
Projects
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 610).
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
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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
affidavits,
must
“go
beyond
depositions,
admissions
on
file
material fact exists.
324 (1986).
to
the
answers
demonstrate
pleadings”
to
and
rely
interrogatories,
that
a
genuine
issue
on
and
of
Celotex Corp. v. Catrett, 477 U.S. 317,
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
3
that
claims
of
racial
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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
facie
case
by
Douglas,
showing
a
plaintiff
that
(1)
“he
must
put
belongs
forth
to
a
a
prima
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
rise to an inference of unlawful discrimination.
giving
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
terminating
shortchanging
his
him
employment.
on
“The
commissions;
requirement
and
of
(4)
an
CEPS
adverse
employment action seeks to differentiate those harms that work a
significant
detriment
on
employees
relatively insubstantial or trivial.”
4
from
those
that
are
Adams v. Anne Arundel
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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
evaluation
has
or
not
his
demonstrated
placement
status or his compensation.
on
how
a
PIP
his
“basic
changed
performance”
his
employment
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
2
On
appeal,
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)
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Jones does not cite any evidence in the record that creates a
genuine
issue
shortchanged
of
Jones
material
on
fact
commissions.
regarding
whether
Accordingly,
we
CEPS
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.”
203
F.3d
274,
280
(4th
Cir.
2000).
Hawkins v. PepsiCo, Inc.,
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 timebarred 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).
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Accordingly, Jones has not satisfied the third element of the
McDonnell Douglas test.
prima
facie
case
of
Therefore, Jones has not made out a
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 burdenshifting framework of McDonnell Douglas.”
249.
On
appeal,
Jones
argues
that
he
Foster, 787 F.3d at
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
decision.”
that
bear
directly
on
the
contested
employment
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
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some
evidence
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tying
the
racially
discriminatory
attitude at CEPS to his termination.
Here,
protected
Jones
alleges
activity
discrimination
and
a
temporal
of
complaining
his
connection
internally
termination.
The
between
about
record
his
racial
shows
Jones
complained of racial discrimination in November 2009 and CEPS
terminated him nine months later, in August 2010.
that
the
activity
significant
engaged
in
lapse
by
of
Jones
time
and
between
his
support an inference of retaliation.
We conclude
the
termination
protected
does
not
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.
animus
and
the
To establish a causal link between the alleged
adverse
employment
action,
a
plaintiff
must
demonstrate that the individuals who expressed animus played a
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role
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in
the
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adverse
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employment
action.
Crockett
v.
Mission
Hosp., Inc., 717 F.3d 348, 356 (4th Cir. 2013).
Here, the
record
shows
overseeing
Jones’
performance
that
the
and
individuals
for
responsible
Jones’
for
termination
were
Gregory
Jarosinski, CEPS’ President of Sales, and Walter Godleski, CEPS’
Director
of
allegations
Sales.
that
Jones’
Godleski
amended
made
complaint
any
raises
statements
no
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.
present
direct
Foster, 787 F.3d at 250.
or
Jones’ failure to
indirect
causal
evidence
of
a
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.
9
We
dispense
with
oral
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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
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