Davis v. Nissan North America, Inc.

Filing 42

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 7/27/2016. (kns, Deputy Clerk)

FILED
US. DISTRICT COURT
IN THE UNITED STATES DISTRICT COUKtJISTR1CT OF MARYlAND
FOR THE DISTRICT OF MARYLAND
Southern Division
JUl 21 P 3: 32

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CLER~'S rrler:
M G,\E[Ii~iLT

RICHARD H. DAVIS, JR,
RY.

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"C'' 'I'. Y

Plaintiff,

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Case No.: GJH-I-t-3166

v.
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NISSAN NORTH AMERICA,

INC.,

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Defendant.

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MEMORANDUM

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OPINION

This is a race discrimination and retaliation case brought by Plainti ITRichard II. Davis.
Jr.. an African-American
('"Nissan").lor

male. against his tanner cmployer. Nissan North America. Inc.

purported violations of Title VII of the Civil Rights Act of 19M. 42 U.S.C. ~

2000e-2 ef seq. and 42 U.S.c.

S

1981. Nissan's Motion tor Summary Judgmcnt. ECF No. 32.

came betore thc Court for a hearing on July 15. 2016.1 For thc rcasons that folIo\\'. Nissan' s
Motion tor Summary Judgment is granted. and this action is dismisscd.
I.

BACKGROUNJ)2
Nissan is an automobile manufacturer that sells vchicles throughout thc Unitcd Statcs.

ECF No. 1 ~ 4: ECF No. 15 ~ 4. Davis was employed by Nissan beginning in 1996 and
continuing until his termination in August 2013. ECF No. 1 ~ 10; ECF No. 15 ~ 10: ECF No. 32-

J

Following the hearing. the COLIrtinvited the parties to supplement the summary judgment record. The

considers all orthe evidence in the record in ruling on the present Motion. See ECF
2 All

facts are viewed in the light most favorable to the

non-l11ovant.

C01ll1

os. 32. 35. 36. 40 & 41.

3 at 29.3 Davis started in the company as a technical support specialist and was later promoted to
the position of dealer technical specialist C'DTS'"). The obligations of a DTS include assisting in
resolving vehicle repairs that dealer technicians were unable to diagnose and repair: analyzing
dealer service department operations and providing constructive leedback to dealership
management and Nissan regional staff: performing incident investigations and preparing rclated
reports; conducting evaluations of customer "buy-back" vehicles when repairs were
unsatisfaetory:4 and acting as Nissan's representative in Better Business Bureau arbitrations and
"Lemon Law" cases, ECr No. 32-3 at 33: ECF No. 32-4 at 3-4.
Between roughly 2009 and 20 II, Davis worked as a DTS under the supervision of
Rhonda Calico. See ECF No. 35-5 at 14: ECF No. 40-1 at 2. In addition to Davis, Calico was
responsible for supervising six other DTS employees, all of whom were Caucasian. ECF No. 355 at 3. According to Calico, Davis, who is Alrican-American,

ECF No. 32-3 at 3, was a

professional employee who had a good rapport with customers and colleagues, ECr No. 35-5 at
5. During her deposition, she could not recall Davis ever having attendance problems, nor did
she ever receive complaints from other employees or Ii'om Nissan dealers about him. Id. at 6.
Calico described Davis as a "star performer:' whose work was comparable to or better than the
other DTS employees whom Calico supervised./d.

at 7. In her annual evaluations of Davis'

performance, Calico explained that Davis was "a skilled and seasoned prolessional"' who
"displays and maintains an effective and consistent level of performance with results that meet
and sometimes exceed position expectations:'

ECF No. 35-6 at 2. She further explained that

Davis "display[ed] a thorough knowledge of technical aptitude:' Id. at 3. In each category of her

Pin cites to documents tiled on the Court"s electronic filing system (CM/ECF)
by that system .

3

refer to the page numbers generated

A buy-back vehicle is one which Nissan repurchases after a consumer has filed a complaint under a state Lemon
Law or 3rbitration procedure. ECF No. 35-5 at 12.

.l

2

pcrformance

appraisal.

expcctations.

!d at 2-3.

Throughout
rceognizing

Calico ratcd Davis' performance

the course of his employment

and commcnding

his work.

S""

as mecting or exceeding

Nissan's

with Nissan. Davis received various letters

ECF No. 35-4 at 4-30. For instance. in November

2010, thc Regional Vice Presidcnt and Regional General Manager for the Northeast Region of
Nissan wrote to Davis stating this his "efforts in the lield have a signilicant
customers

and dcalcrs alikc" and that his ..training and professionalism

distinguish

In October 2011, Calico was demoted and Davis began reporting
Cristin Adinolfi.
the supervisory

duties of the same DTS employecs

met to discuss the pcrformancc
favorable
individual

to a new supervisor.

ECF No. 35-7 at 4: ECF No. 40-1 at 3. Adinolli

who is Caucasian.

that Calico had previously

No. 35-7 at 9-10. Shortly aner she began working as the DTS supervisor.
of the DTS employees.

Adinolli

employces.

day-to-day

In one incidcnt in November
use ofa corporate

leave in California

although

responsibilities.

rccalled that Calico had a
Calico had of the
power over the

Calico reported to a different manager.
as well. ECl' No. 40-1 at 4.

2011. Adinolli disciplined

credit card.s

ECl'

daily contact with the DTS team .. 'i"" ECF No.

in her ncw role. she maintained

oversaw Calico's

be an improper

supervised.

Ill. at 27-28. Allhough Calico no longer had supcrvisory

35-5 at 14; ECF No. 40-1 at 2-3. Additionally.

took over

Adinolli and Calico

vicw of the group as a whole. but could not recall any impressions

DTS employces.

personal

[the]

as truly Tier 1!.. ECF No. 35-4 at 4.

franchise

Adinolli

impact on [Nissan'si

S,,"

and used his company

Davis for what she perceivcd

to

ECF No. 32-3 at 6-8. Davis had been out on
card to put gas in a vchicle that he was

Upon Nissan's Motion to Dismiss. ECF NO.7. the Court concluded that Davis' ttllcgatioll respecting this incident
could not form the basis of his Title VII claim because it was time-barred. Ecr o. 13 al 2. Nevertheless. the COUll
explained that Davis could rely on this and other time-barred incidents as background evidence to support his timely
claims. Id.
5

3

driving. See id. at 54. According to Davis. he was driving a buy-back vehicle for a fellow DTS.
Id. at 54: see also ECF No. 35-7 at 33. thus. in his view. he was on a work assignment when hc
used his corporate card. despite the lact that he used it while on approved leave. See ECF No. 355 at 12- J 4: see also ECF No. 35-1 at 15. Adinolti agreed that DTS employees are permitted to
use the company credit card when putting fuel in a buy-back vehicle as long as it was being
driven during the nonnal course of business. and she also agreed that it was possible for
employees to do business work while out on approvcd leave. ECF No. 35-7 at 31. 34. Adinolti
contacted the manager in California. however. who had no knowledge of Davis being in
California. Iii. at 34. Adinolti ultimately rejected Davis' expense report for that charge. as wcll as
for other instances in which Davis made a fuel purchase on weekends. See it!. at 44. Davis
subsequently reimbursed Nissan for those fuel expenses. It!. at 42: see also ECF No. 32-3 at 9.
55.
Adinolti then reported the fuel charge issues to a Nissan human rcsources representative
and. on January 4. 2012. issued Davis a Final Written Warning. informing him that --[alny liilure
actions by Ihim] during the balance of(his] employment that reflect substandard judgmenl.
integrity concerns. violation of policy or behavior that would warrant corrective action will be
grounds for immediate termination ... :. ECF No. 32-3 at 54-55.'> On.January 8. 2012. Davis
wrote a letter to Adinolti explaining his position with respect to the credit eard charges.
specifically. that he was unaware of any Nissan policy preventing an employee Irom using a
company card to pay for lilcl put in a company vehicle on weekends. It!. at 56. lie noted.
however, that he was willing to "work as hard as [he] can to improve communication. provide
feedback. and help [Adinolti] bestow the best service that we can to Nissan and Nissan's

(, Although the Final Written Warning is dated January 4.20 II. other evidence in the record indicates that the date
was wTong and that it was in f<let issued all January 4.2012. ECF No. 32-3 at 7.

4

customers:' Id. at 57. Shortly therealier. however. Davis wrote an email to Adinolli arguing that
"[tJhis hazardous and hostile series of events must be explained and stopped:' though he did not
indicate in that email that he believed he was being singled out because of his race. It/. at 58.
Adinolfi also accused Davis of not complcting a work assignmcnt in Decembcr 20 II. On
November 2. 20 II, Adinolfi informed all of the DTS employees she supervised that they were
required to visit certain Nissan dealers by December 2. 20 II. Ecr No. 35-8 at 4. Davis.
however, was on his approved leave in California for part of that time. so Adinolfi granted him
an extension to complete the dealer visits until December 22.2011. ECI' No. 35-7 at 45--46. In
her deposition, Adinolfi testified that Davis did not complete the assignment. ECI' No. 40-2 at
II, but in an email from Davis to Adinolli dated December 22. 2011. Davis reported that he
completed the necessary dealer visits. ECI' No. 35-9 at 2.
In March or April 01'2012. when Adinolfi was preparing to give annual performance
reviews to the DTS employees. she spoke with Calico to get her input. considering that Calico
had been the DTS supervisor lor the first half of that fiscal year. ECI' No. 35-7 at 16-17.
Adinolfi recalled that Calico had a favorable view of Davis' perfilrlllance. but Adinolfi had a
different impression of the quality of his work and, among other issues. had concerns about
Davis' time management. It/. at 27-28. Despite these perceived performance issues and the
reported misuse of his corporate credit ear,i. for the 20 II perlOrIllanCe year. Adinolfi gm'e Davis
a perfOrIllanCe rating of 2.5. indicating that his performance "meets expectations:'

ECI' No. 32-3

at 62. A rating of 1.75 or below is one that would result in an employee being placed on a 90-day
performance improvement plan ("PIP'"). See ECI' No. 35-7 at 22: Eel' No. 35-5 at 9. In that
performance appraisal, Adinolfi commented:
While [Davis] seems to be very knowledgeable about his job. the locus on
complet[ing] tasks and closing the loop leaves room fi)r improvement. lDavis] has
5

missed customer appointments
not always communicate these
customers. [Davis] does not
Manager also feels [Davis)
tasks/duties assigned. [Davis']
next fiscal year.

or rescheduled appointment[s] frequently. He does
changes in a timely manner to internal and external
regularly provide feedback emails as requested.
does not always understand the importance of
performance will be monitored closely during the

ECF No. 32-3 at 62.
In August 2012. according to Adinolfi. Davis was late to a meeting with a customer at a
dealership in Tysons Corner. Virginia. An employee of the dealership called Adinolfi to inquire
about Davis' whereabouts. because. although Davis had confirmed the appointment. he was
unreaebable. Adinolfi attempted to contact Davis. as did other Nissan employees. to no avail. but
Adinolti eventually learned that he arrived late fi:lrthe scheduled inspection. ECF No. 40-2 at
16-17; ECF No. 35-7 at 47: ECF No. 35-8 at 5. Then. in March 20 J 3. Davis was instructed to
inspect a vehicle owned by the general manager of one of Nissan's dealers who had complained
that the vehicle smelled of mold after it had a water leak. Although Davis reported that he
uncovered no issue. after the general manager complained that he felt his concerns were being
dismissed. a second DTS was sent to inspeet the vehicle and found evidenee of mold. ECF No.
40-2 at 18-21. 27: ECF No. 35-8 at 5. Adinolfi. however. could not recall or confirm whether an
inspection by an independent third party company verified that there was indeed mold or mildew
in the vehicle. ECF No. 35-7 at 53.
When Adinol fi was completing her performance evaluation of Davis' work I(lr the 2012
tiscal year. she did not consult with Calico. and she ultimately gave him a rating of 1.75.
meaning that his performance was below expeetations. ECF No. 32-3 at 82-83. Adinolfi placed
Davis on a PIP in April 2013. Id. at 64-65.
According to the PIP. the issues on which Davis needed improvement included thal he
lacked appropriate time management. his written work was of substandard quality. and that he
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engaged

in "unprofessional

and insolent behavior"

that Davis meet with Adinolfi
Davis' progress

once per week, typically

immediate

and sustained

improvement

of employment:'

anyone else's

and Watanabe.

different treatment.

Davis met with the Divisional

Vice President

Illr the

and Todd Zannacker,

[him]

It!. at 19.

During the course of Davis' PIP. the weekly meetings

were attended

by Adinolfi.

a former DTS who was slated to become the DTS supervisor

Davis.

beginning

in

It!. at 20-22; ECF No. 32-4 at 14. Although Adinolti reportcd that Davis' tirst weekly

meeting under the I'll' was productive.
substantial

See it!. at 17-18. Following

Oftice to discuss the I'll' and stated that Adinolfi was "falscly accusing

of things that are not true:'

July 2013.

"[wlhy am I being

though. again. he did not make any explicit reference to his or

race as the basis for the allegedly

Regional

issues and refused to sign the I'll', but

Davis asked Adinolfi and her supervisor . .Iun Watanabe.

this meeting with AdinolE
Northeast

action up to and including

and engage in the plan for 90 days. Id at 17.65. During his

he agreed to meet the expectations

treated so much differently:'

[in the

It!.

Davis did not agree that he had any performance

initial I'll' meeting.

to discuss

in the areas discussed

PIP]" and that .•[l1ailure to do so may result in further corrective
termination

conference.

of each dealer visit. Id The I'll' wamed that Davis was

a brief description

required to "demonstrate

by telephone

It!. at 64. The I'll' required

It!. Davis was also required to provide a weekly summary

on the I'll' objectives.

of his work. including

toward Adinolfi.

improvement

4 at 11-12. Specifically.
PIP-improving

in Davis' performance
Adinolfi

believed

over the course of the full 90 days. ECF No. 32-

did not believe that Davis satisficd one expectation

his attendance-when

becausc he mistakenly

ECF No. 32-3 at 66. she testified that she did not see

he missed one of the weekly teleconference

that it was schcduled

7

of the
mcetings

a half an hour later than it was. ECF No.

35-7 at 69: see also ECr No. 32-3 at 68-69. Additionally.
at one weekly meeting,

Davis appeared

unprepared

Zannacker

expressed

to represent Nissan.s

position at an

15 minutes alier the call

arbitration

hearing that was scheduled

concluded.

ECr No. 32-3 at 25. 70-71: see also ECr No. 35-7 at 75: ECr No. 36-3 at 4. Even

though the hearing ended in a favorable
Adinolfi

to begin approximately

his concern that.

result for Nissan. ECl' No. 35-11 at 3. Zannacker

agreed that Davis' unpreparedness

rellected

a deficiency

in his job perflJrlnance.

and
ECr

No. 35-7 at 77-78: ECr No. 36-3 at 4. During another I'll' meeting in mid-July 2013. Zannacker
concluded

that Davis' performance

unfamiliar

with the service history for two vehicles that were on his schedule

day, nor could he immediately

was not improving

recall the customers'

when it appeared

DTS to be educated

about the customer.

the vehiele's

up-to-date

attended

"Nissan expects a

ECl' No. 36-3 at 4.

and Adinolfi also learned that Davis was not
specifically.

he was not cerlilied

See ECr No. 32-3 at 24. 28. 70. Davis indicated that he only

training that was specifically

requested

Davis during their meeting that DTS employees
training.

to Zannacker.

at the dealership'"

on certain training required of the DTS employees:

as a Nissan Master Technician.

by management.
were expected

but Zannacker
to self~manage

explained

the necessary

training. Id. at 28.

At the final I'll' conference.
information

to

their required

ECr No. 32-3 at 70. By the end of the I'll'. Davis still had not completed

certification

that

history. and to have a strategy fllr how to

address any issues prior to meeting with the customer
Early in the course of the I'll'. Zannacker

to be inspected

names or the specific issues with the

See ECr No. 32-3 at 73: ECl' No. 36-3 at 4. According

vehicles.

that Davis was

Adinolti

infllrlned Davis that Nissan would review all oCthe

gathered over the course of the PIP and evaluate his perll1rlnance

days. Id. at 27: ECl' No. 32-4 at 19-20. A representative

8

Ii.om human resources

over the full 90
who was on the

call. Edith Ballard. informed Davis that Nissan would be determining whether to continue his
employment. ECF No. 32-4 at 20. Davis then sent a letter to Zannacker and Ballard detailing the
ways in which he felt he was exceeding his job expectations as compared to his peers. ECF No.
35-11; see also ECF No. 40-5 at 15-16. For instance. Davis explained that. in addition to his
own assignments. he was required to take over other employees' assignments. ECF No. 35-11 at
2. Davis also indicated that. although he was unprepared for one hearing. that conduct would
never occur again and he emphasized that. despite his unpreparedness. the result of that hearing
was favorable for Nissan. Id. at 3. Davis assured Zannacker and Ballard that he was "willing to
listen and seriously accept [their] recommendations and use this knowledge [gained from the
PIP] as a path to focus and shine light on [his] performance for improvement." ld. at 6. Davis
was nevertheless terminated trotn his employment with Nissan on August 13.2013. ECl' No. 323 at 29.
At various times before his termination. Davis complained to Calico that he was being
treated differently than other DTS employees managed by Adinolti. See ECF No. 35-5 at 15-16.
He also complained that he felt that he was working in a hostile work environment.? ld.: see also
ECF No. 32-3 at 58. After Davis reported to Calico that Adinolti was unhappy with his
performance. Calico explained that AdinolE was a different manager than she was. and. in an
effort to assure him that he had not been singled out. informed him that Adinolfi had placed
another employee on a PIP. ECF No. 36-1 at 7.
Indeed. another DTS employee. Carlos Ferreira. who is Caucasian. was placed on a I'll'
by AdinolE the year before Davis. See ECl' No. 32-3 at 31: ECl' No. 32-4 at 8. 23. Ferreira had

7 At some before Adinolti became his supervisor.
Davis also complained to Calico about an email sent to him by an
employee at a particular Nissan dealership that Davis characterized as racist and sexist. Set! ECF No. 1-5: ECF No.
35-7 at 81. Adinolfi did not recall this incident being mentioned during the course of Davis' PIP. ECr No. 35-7 at
81. Additionally, this incident was one that the Court previously concluded could 110t form the basis of Davis'
Complaint in this action because it was time-barred. ECF No. 13 at 2.

9

previously been placed on a I'll' under Calico's supervision for missing appointments and "Iililed
accomplishments:'

and Calico believed that Davis outperformed Ferreira.s ECF No. 35-5 at 7-8.

At the end of his tirst I'll'. Calico did not recommend that Ferreira be terminated. Id. at 8. Under
Adinolfi's supervision. Ferreira had communication and attendance issues. see ECF No. 35-7 at
18, but Ferreira was not recommended lor termination at the end of this second I'll' because.
according to Adinolfi. he "did a complete 180" and improved substantially over the course of his
I'll'. ECF No. 32-4 at 15: see also ECF No. 40-1 at 5. Ferriera continues to work liJr Nissan. ECF
No. 35-7 at 74.
After Davis' termination li'Dln Nissan. Calico and another Nissan employee. Les Vee.
both agreed to write a letter of recommendation on Davis' behalf. ECF No. 35-4 at 2-3. In
Calico's letter. she indicated that Davis "has great aptitude fiJr research and discovery": that he
"embraces continuous learning": that he "has a keen interest in his chosen field of automative
technology and is skillful at time management": and that he "would be an asset to any
organization." !d at 2. Yee. Nissan' s Fixed Operations Manager for the Northeast region,
explained: "[Nissan] dealers and I have found [Davis] to be competent in resolving difticult
issues" and that Davis "has been responsive not only to me hut to all of the many dealership
technicians and service managers that would constantly call him on his mohile telephone:' ld at
3. In September 2013. Davis received a letter from John Spoon. the Vice President of the Nissan
Parts & Service Division-but

addressed simply to a "DTS Team Member"-thanking

him lill'

his efforts training Infiniti technicians on how to update software and cnable the start of ncw
sales, and noting that that therc were "great reports regarding [his] professionalism throughout:'
ld.atI3.

8

When she first took over as supervisor. Adinolfi agreed that Davis was outperforming Ferreira. ECF No. 40-2 at 5.

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Davis filed a charge of discrimination with the Equal Employment Opportunity
Commission ('"EEOC) on November 27. 2013. ECF No. I ~ 66: ECF No. 32-2. The EEOC
issued a right-to-sue notice on July 11. 2014. ECF No. 1-6. Davis then initiated the present action
in this Court on October 8. 2014. ECF NO.1. Nissan moved to dismiss certain allegations in the
Complaint on the ground that they were time-barred. ECF NO.7. and the Court granted that
motion on January 28. 2015. ECF No. 13. Following discovery. Nissan tiled the presentlypending Motion for Summary Judgment. ECF No. 32.

II.

STANDARD OF REVIEW
"Under Rule 56(e) [of the Federal Rules of Civil Procedure]. summary judgment is

proper 'if the pleadings. depositions. answers to interrogatories. and admissions on tile. together
with the aflidavits. ifany. show that there is no genuine issue as to any material tact and that the
moving party is entitled to ajudgment as a matter of law"" Celoll'x Corp. \'. Calrl'l/. 477 U.S.
317,322,

106 S.C!. 2548 (1986) (quoting Fed. R. Civ. P. 56(c)). The party moving for summary

judgment bears the burden of demonstrating that no genuine dispute exists as to material taets.
Pulliam In\'. Co. \'. Caml'o Props .. 810 F.2d 1282. 1286 (4th Cir. 1987). If the moving party
demonstrates that there is no evidence to support the non-moving party's case. the burden shins
to the non-moving party to identify specitic facts showing that there is a genuine issue tor trial.
.'11'1'
CeloIl'X, 477 U.S. at 322-23. Summary judgment is proper if there are no issues of material
tact and the moving party is entitled to judgment as a matter of law. Jd. at 322: Francis \'. Boo::.
A/ll'n & Hamillon. Inc., 452 F.3d 299. 302 (4th Cir.2006). A material fact is one that "might
affect the outcome of the suit under the governing law," Spriggs \'. Diamond AII/o Glass. 242
F.3d 179. 183 (4th Cir. 2001) (quoting Andl'l'.\'on I'. l.iherly I.ohhy. Inc.. 477 U.S. 242. 248.106
S.C!. 2505 (1986)). A dispute of material tilct is only "genuine" if sufticient evidence tilHlring

11

the non-moving party exists for the trier of fact to return a verdict for that party. Anderson.

477

U.S. at 248. However. the nonmoving party "cannot create a genuine issue of material fact
through mere speculation or the building of one inference upon another:' Beale ". HaI"lZI'. 769
F.2d 213, 214 (4th Cir. 1986). The Court may only rely on facts supported in the record. not
simply assertions in the pleadings. in order to fullill its "affirmative obligation ... to prevent
'factually unsupported claims or defenses' Irom proceeding to tria!'" Felly \'. Grave-Humphreys
Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (quoting Celolex. 477 U.S. at 324-25). When ruling on

a motion for summary judgment. ..[tJhe evidence of the non-movant is to be believed. and all
justiliable inferences are to be drawn in his favor:' Anderson.
III.

477 U.S. at 255.

DISCUSSION
A. Disparate Treatment
In Count I of his Complaint. Davis claims that Nissan discriminated against him on the

basis of his race." Title VII makes it illegal for an employer ..to discharge any individual or
otherwise to discriminate against any individual with respect to his compensation. terms.
conditions. or privileges of employment. because of such individual's race ... :. 42 U.S.c. ~
2000e-2(a)( 1). "A plaintiff generally may deteat summary judgment and establish a claim [elr
race discrimination [under Title V II] through two avenues of proof:" Holland ". Washinglon
HOII/es. fnc .. 487 F. 3d 208. 213 (4th Cir. 2007). One avenue is forthc plaintitTto demonstrate

..through direct or circumstantial cvidence that his race was a motivating factor in the cmploycr's
adverse employment action:' fd. (citing Ifill\". Lockheed ,\[arlin Logislics .\/gml .. fnc .. 354 F. 3d
277.284 (4th Cir. 2004) (en bane)). Alternatively. the plaintiff may proceed under thc familiar

*

Davis raises claims under both Title VII and 1981. "Where. as here, a plaimifT presentscirClll1lstnntial evidence
afrace discrimination. the elements required to show a viable cause of action are the sallle tor both Title VII and ~
1981:' Wang \', Ale/ro. L!fe Ins. Co., 334 F. Supp. 2d 853. 862 11.9 (D. Md. 2004) (citing Lm'e-Lunl! \'. ,\farall.355
F.3d 766. 786 (4th Cir. 2004): Paller.H)1I \'. II'cLeall Credit Ullioll. 491 U.S. 164. 186. 109 S.Ct. 2363 (1989)).

i)

12

burden-shining

framework set forth in McD0I1I1ellDoug/as Corp. \'. Green. 411 U.S. 792.93 S.

Ct. 1817 (1973).
Here. Davis has chosen to prove his case through the McDonnell Doug/as burden-shining
framework. See ECF No. 35-1 at 11-17. Under this approach. the plaintiff has the initial burden
of establishing a prima/ilcie

case of discrimination by a preponderance of the evidence. See

McDonnell Doug/as. 41 ( U.S. at 802: see a/so Emns \'. Tech. App/icalions & Sen'. Co.. 80 F.3d
954, 959 (4th Cir. 1996). Notably. the United States Supreme Court has indicated that a
plaintiffs

burden to establish his prima/ilcie case is not intended to be onerous. See Tex. Dep'l

IJ{'Cmly. ..UJilirs \'. Burdine. 450 U.S. 248. 253.101 S. Ct. 1089 (1981). If the plaintiffestablishes
aprimaftlcie

case. the burden of production shins to the defendant to articulate some legitimate.

nondiscriminatory

reason for its actions. McDonnell Doug/as. 411 U.S. at 802. The plaintiff must

then prove by a preponderance of the evidence that the legitimate reasons oflered by the
defendant are but a pretext for discrimination. thus creating an inference that the defendant acted
with discriminatory intent. See Reews \'. Sanderson P/umhing I'roducis. Inc.. 530 U.S. 133. 143.
120 S. Ct. 2097 (2000). lfthe plaintiff cannot produce evidence demonstrating the falsity of the
defendanfs

proffered reasons. the defendant is entitled to summary judgment. See Diamond

1'.

Colonial Life & Acc. Ins. Co.. 416 F.3d 310. 320 (4th Cir. 2005). Imp0l1antly ... [tJhe plaintiff
always bears the ultimate burden of proving that the employer intentionally discriminated against
[him]." EWll1s. 80 F.3d at 959.
In order to demonstrate a prima/ilcie

case of race discrimination. a plaintiff must show

that: (I) he is a member ofa protectcd class: (2) he suflered an advcrse employment action: (3)
he was performing at a Icvel that met his cmploycr's legitimate expectations at the time ofthc
adverse cmploymcnt action: and (4) the position remaincd open or was tilled by similarly

13

qualified applicants outside the protected class. Lel/ieri \'. Elfualll Inc.. 478 F.3d 640. 646 (4th
Cir. 2007) (quoting Hill. 354 F.3d at 285).
The central dispute in this case involves the third clement of Davis' pril//afilcie

case. i.e ..

whether he was performing at a level that met Nissan's legitimate expectations at the time of his
termination. and whether Nissan's proffered nondiscriminatory reason for Davis' terminationthat his performance was not up to par-is

pretextual.l<' Because Nissan's stated reason fill"

terminating Davis was poor work performance. the evidence with respect to these two issues
overlaps, and the Court will accordingly considcr them together. See Warch ,'. Ohio Cas. IllS.
CO., 435 F.3d 510. 515-16 (4th Cir. 2006) (noting the flexibility ofthc McDonnell

Doug/as

framework and finding "no impermcable barricr that prevents the employer's use of such
evidence [of an employec's unsatisfactory work performance] at different stages of the

10 The Parties also disputed in their written submissions
whether Davis has established the final clement of his prima
facie case, but, with respect to that dispute, both Pal1ies assumed that the Iinal element to be considered is whether
the employer treated similarly situated employees outside of a plaintiJrs protected class more t:1Vorably than the
plaintiff. See ECF No. 32-1 at 10: ECF No. 35-1 at 12. That assumption is not unreasonable considering that the
United States Coul1 of Appeals for the Foul1h Circuit has appeared to apply that standard. without much
explanation. in some cases where a plaintiff \vas terminated from employment for allegedly discriminatory reasons.
See Goode \', Cent. Virginia Legal Aid Soc )', Inc.. 807 F.3d 619. 626 (4th Cir. 20 I 5): Coil/man \', f\lt!. Courl
Appeals, 616 F.3d 187. 190 (4th Cir. 10 I0). airel.wh 111111/.
Clliell/all \'. COllrt or Appeols (!{.IIc!.. 131 S. Cl. 1317
(2012). If this standard were to apply in this casc, Davis could not satisfy his burden on this clcment, Although he
argues that Ferreira. a Caucasian man. received more favorable treatment because he. too. was placed on a PIP but
ultimately \vas not terminated. ECF No, 35-1 at 14, Davis has not submitted any evidence to dispute Adinolli's
testimony that. contrary to Davis' performance over the course of his PIP. Ferreira "did a complete ISO:' ECF No.
32-4 at 15. But in Aliles \', Dell, /I1C .. the Fourth Circuit noted that \",hen a Title VII plaintiff has been terminated
from his employment. "[i]t is. , , clear that thc law in this circuit is that. as a general rule. Title VII plaintiffs must
show that they were replaced by someone outside their protected class in order to make out a pr;ma/ade case," .t~9
F.3d 480. 486 14th Cir. 1005). In 1110re
recent cases. the Foul1h Circuit has hroadly described the Iinal elel11ent orthe
pr;ma/ade case as requiring that a plaintiff show that the adverse employment action "occurred 'under
circumstances \vhich give rise to an inference of unlawful discrimination:" Co/l;ns \'. Ball. C;I.'" 1Jd. (~lS(-h
COII/II/'r.<. 518 F. App'x 169, 1n (4th Cir. 1013) (quoting Burelille. 450 U.S. at 153). But "[ulsually. a plaintitf docs
so by showing that she was replaced by an individual outsidc her protectcd class:' Itl (citing Ahles. 429 F,3d at 486
): see also Addisoll \'. C,IIH HOllies. Inc .. 47 F. Supp. 3d 404. 419 (D.S.C. 1014) (citing comparison to "similarly
situated employees" as standard for final clcment of pr;'l1ujcl('ie case. but noting that c ]OllrtS lise a more specific
prima fade test in connection with a claim of disparate treatment based upon a discharge" requiring proof that
plaintW-s position remained open or was filled by an individual outside the protected class). During oral argument
on the present Motion. the Parties agreed that Davis was replaced by a Caucasian. EeF No. 39 at 41. 57. but neither
party has pointed to any evidence in the record supporting that fact. That lack of evidence is of 110 moment in lhe
present case. however. because the Court ultimately determines that dismissal is warranted for other reasons. and
will simply assume. without deciding. that Davis can satisfy the final clement of his pr;majclch! case.

(~r

"r

14

McDonnell Douglas framework"); Fortier v. Amerilech Mohile Commc'ns. Inc.. 161 F.3d 1106.
1113 (7th Cir. 1998) (noting that there is "a great deal of overlap" with respect to the factual
inquiry regarding whether an employee was fulfilling the legitimate performancc cxpectations of
the employer and whcther thc reasons given by the employer for thc dischargc arc prctcxtual).
To demonstrate at thc summary judgmcnt stage that an employce was mccting his
employer's pcrformance cxpcctations, a plaintilTmust "demonstratc that hc was gcncrally
satisfying his employcr's relevant. objcctivc pcrformance standards at thc time of his
termination.'. Br01l"nv. Siemem lIealthcare Diagnostics. Inc.. No. DKC -11-0769. 2012 WI.
3136457, at *7 (D. Md. July 31. 2012) (citing Bass v. E.I. DuPonl de Nemours & Co.. 32-1 F.3d
761, 766 & n.1 (4th Cir. 2003» .... [A] plainti ITnccd not show perfect performancc or evcn
average performance to satisfy this c1cmcnt. He nccd only show that his pertonnance was of
sufticient quality to merit continued employmcnt. thcreby raising an inlercncc that some other
factor was involved in the decision to discharge him .... Id (quoting 1'00rell \'. Syracuse Uni\"..
580 F.2d 1150, 1155 (2d Cir. 1978)). A plaintilT can mect his burden of proving pretext .'cither
by showing that [the employer's] explanation [for his termination

I is 'unworthy

of credcnce' or

by offering other forms of circumstantial evidence surticiently probative of ... discrimination.'.
,l4ereish v. Walker, 359 F.3d 330. 336 (4th Cir. 2004) (citing Burdine. 450 U.S. at 256: Dugan ".
Alhemarle CountySch. Bd.. 293 F.3d 716. 721 (4th Cir. 2002).
In arguing that hc was meeting Nissan's legitimate job expectations at the time he was
terminated, Davis relies principally on Calico's assessment of his work. See ECF No. 35-1 at 1314. Although Calico was no longer his supervisor at the time of his PIP or termination. Davis
points to evidence indicating that Calico maintained daily interaction with him alicr Adinolti
took over as his supervisor. and that she did not receive any complaints about his work during

15

that time. ECF No. 35-5 at 14: ECF No. 36-1 at 6. Additionally. alier his termination. Calico
provided Davis with a letter of recommendation for future employment. noting that Davis
"would be an asset to any organization:'

ECF No. 35-4 at 2. Davis also points to other

"endorsement letters" he received praising his work. see lOCI'No. 35-4. and argues that this
evidence demonstrates that he "satistied all. the alle~ations in the 1'11':' lOCI'No. 35-1 at 16.
..
Many courts. including this one. have held that the opinion of prior supervisors does "not
suffice to prove ... a pril//a./ilcie case because acceptable job performance in the past does not
establish acceptable job performance at the time of the termination:'

Dial//ond \'. Bea .\laurel'.

Inc., 128 F. App'x 968. 973 (4th Cil'. 2005). and that "[i]t is the perception of the decision maker
which is relevant"" when determining whether a plainti 1'1' met his burden on this element.
has
McZeke \'. lion}' 0.1'.• 609 F. App'x 140. 144 (4th Cil'. 2015) (citation and internal quotation
marks omitted): see also Mah,J' \'. Capilal One, NA .. No, GJH-13-02059. 2014 WL 6875791. at
*4 (D. Md. Dec. 3. 2014) (noting that prior supervisor's assessment ofplaintifTs

performance

seven months before she was terminated was "irrelevant to her pril//ajilcie case"). The Fourth
Circuit has also explained that ,.[tlhe alleged opinions of[a plaintitTsj co-workers as to the
quality of [his] work arc ... 'close to irrelevant' .. in determining whether a plaintiff was
satisfying his employer's job expectations. 1I11\I'kins\', PepsiCo, Inc.. 203 F.3d 274. 280 (4th Cil'.
2000) (quoting De.Jamel1e \" Coming Inc., 133 F.3d 293. 299 (4th Cil'. 1998)). Nonetheless.
courts should hesitate to rely solely on the stated view of the alleged discriminator. the deeisionmarker. in dismissing a Title VII claim. Indeed. the McDonnell Douglas framework was
fOnTIulated because "it is rare that a decision-maker will admit to discriminating and it is
impossihle to get inside the deeision-maker's

mind:' Glowr \', Willial//shurg Local Sch. Dis', 1M

ofEduc" 20 F, Supp, 2d 1160. 1174 (S.D. Ohio 1998): see also Merril1 \', Old DOl//inion Freigl"

16

Line. [nc .. 601 F.3d 289. 299-300 (4th Cir. 2010) ("A plaintilTdoes not need a 'smoking gun' to

prove invidious intent. and few plaintiffs will have one:').
Here. however, Davis has not submitted evidence creating a genuine dispute with respect
to whether he was meeting Nissan's legitimate expectations at the time of his termination. and
whether Nissan' s stated reason for his tennination was therefore pretext for discriminatory
animus. See Anderson. 477 U.S. at 248 (a dispute of materia I Iact is genuine "ifthe evidencc is
such that a reasonable jury could return a verdict for the nonmoving party"). Although Calico
indeed had positive reviews of Davis' performance while she was his supervisor. once Adino!li
took over, Calico was no longer involved in evaluating Davis' perfonnance. nor did she see
Davis' written work. ECF No. 36.1 at 6: ECF No. 36-2 at 4. Her ability to accurately assess
whether Davis' performance continued to bc satisfactory was limited. Calico also testilied at her
deposition that she explained to Davis that Adinolli was"a very ditlcrent manager with diflcrent
expectations" and that she did not think that Adinolli was singling Davis out because she also
was addressing performance issues with other DrS employees. ECF No. 36.1 at 7: see o/so
A\,(1111\'. S. Mwy/alU/

Ho.\jJ .. lne.,

No. GJH-13-02989. 2015 WL 435011. at *6 (D. Md. Feb. 2.

2015) (citations and internal quotation marks omitted) ('" D J ifferent supen'isors may impose
di fferent standards of behavior, and a new supervisor may decide to enlorce policies that a
previous supervisor did not consider important[T).

Importantly. with respeet to the letters of

endorsement that Davis received from other individuals at Nissan. Davis has not submitted any
evidence from which the Court could determine to what extent those individuals were
knowledgeable of the quality of his work. See ECF No. 35.4: see a/so DeJal'llel/e. 133 F.3d at
299 n.3 (conclusion that coworkers' opinion testimony was "substantially irrelevant" was
"buttressed by the coworkers' concessions ... that they rarely observed [the plaintiff] and that

17

they were unable to observe [the plaintitll as olien as [her direct supervisor] observcd hcr").
Indced. one letter submittcd in support of Davis' argument is datcd alier his termination and
addressed only to a "DTS Tcam Member:' ECF No. 35-4 at 25.
Moreover. the record is replete with documentation dcmonstrating Davis' lack of
progress throughout the course of the I'll'. See ECF No. 32-3 at 66-81. In April 2013. alicr Davis
had multiple performance issues. see ECF No. 35-8 at 5. Adinolfi's placcd him on a I'll'. See
ECF No. 32-3 at 64-65. Throughout the course of the I'll'. Adinolfi and Zannacker agrccd that
Davis was not improving. See ECF No. 32-4 at 11-12: ECF No. 36-3 at 4. Both had conccrns
with the fact that Davis appeared unprepared fiJr an arbitration hearing that was schcduled to
begin shortly alier one of their weckly mcctings. and. alier he had been on thc I'll' fix ncarly
threc months. he appeared unpreparcd to rcsolvc customer concerns relatcd to two vchiclcs that
were on his schedule for the day of another PIP mccting. ECF No. 32-3 at 70-71; ECF No. 32-4
at 15-16; ECF No. 36-3 at4. Moreover. Davis had failcd to stay up-to-date on required DTS
training certitications. and. despite being informcd during thc I'll' that hc was requircd to self~
monitor that ccrtitication process. he failed to completc his missing ccrtilication training by thc
end ofthc I'll'. See ECF No. 32-3 at 24. 28. 70.
Davis. however. contends that his perj(lrnHlIlCeover the course of the PIP was not thc
true rcason for his termination because Adinolfi wanted to tirc him bel(lfe shc placed him on the
I'll'. See ECF No. 35- I at 15. Specifically. Davis argues that Adinolfi indicatcd that he was "onestep away from tcrmination" whcn he allegedly violatcd the Nissan cxpense and reimbursemcnt
policy lor his use of the corporatc credit card while hc was on Icavc in Calilornia./d.:

see "Isil

ECF No. 35-7 at 43. Hc further points to the lact that he was lalsely accuscd of not completing
an assignment by thc rcquired deadline in Dccembcr 201 I. See ECF No. 35-8 at 4-5. Evcn

18

assuming these incidents prove, as Davis argues, that Adinolli was inclined to lire Davis "and
simply gathcrcd evidencc to build her case," ECF No, 35-1 at 15, it does not cstablish that
Nissan's rcason for terminating his employment was mcrc prctcxt for racial discrimination,
Indeed, in order to dcmonstrate pretext. a plaintilT must provc "bo/h that the reason was falsc.
and that discrimination was the real reason" for thc advcrsc cmploymcnt action, Adams \', 7i', (!/'
!he Univ,

()f

N. C.- Wi/ming/on. 640 F.3d 550, 560 (4th Cir. 2011) (cmphasis in original) (citation

omitted); see a/so Sellers \', GiaJ1lCemeJ1l Holdinf!,. Inc.. No, 11-2803,2013 WL 4436470. at *3
(D,S,C. Aug. 14. 2013) ('" [13
luilding cascs' against undcr-pcrforming employecs does not
demonstrate a discriminatory animus. Indeed, in many race discrimination cascs .. , the Plaintiff
advances the exact opposite argument; that is, that there wcre no warnings made along the way.
thercby giving rise to an inference of racial discrimination, , . , [W]ell-documcntcd warnings and
reprimands issued to thc Plaintiff are not proof of pretext. "), Because Davis has not pointed to
any circumstantial evidence probativc of discrimination, nor pointed to evidcncc establishing that
Nissan's reason for his termination is "unworthy of credence:' Men'ish. 359 F,3d at 336 (citation
and internal quotation marks omitted). Nissan is entitled to summary judgmcnt on Count I of
Davis' Complaint.
B. Retaliation
In Count II of the Complaint. Davis asscrts a claim of retaliation against Nissan in
violation of Title VII and

S

1981. Like claims of race discrimination, a plaintiffmay provc his

claim of retaliation using the l'v1cDonnell Doug/as burdcn-shining framework. See Price ".
Thompsoll. 380 F.3d 209. 212 (4th Cir. 2004), abroga/ed on o/her grounds by Fos/er \', Unh'. oj'
Md.-£. Shore. 787 F.3d 243, 253 (4th Cir. 2015). A primajilcie case of retaliation requircs proof
that "'(I) [the plaintitll engaged in protected activity. (2) hc suffcred an adverse employmcnt

19

action at the hands of[his employer]; and (3) [the employer] took the adversc action because of
the protected activity"" Bryal1tl'. Aiken Reg? Med. Cel1ters Inc.. 333 F.3d 536. 543 (4th eir.
2003) (quoting Spriggs. 242 F.3d at 190); see also 42 U.S.c. ~ 2000e-3(a) (prohibiting
discrimination against employee in retaliation for employec's opposing illegal discrimination
practices or participating in Title VII enforcement proceedings). Once the plaintifTestablishes a
prill/a/i/cie case. the employer can defend itself by producing "evidence ofa legitimate. nondiscriminatory reason for taking the adverse employment action:' Br)'al1l. 333 F.3d at 543
(citation and internal quotation marks omitted). [I' the employer mcets this burden. the burden
shifts back to the plaintiff to prove by a preponderance of the evidence that the employer's stated
reasons were not its true reasons. but were in fact a pretext for retaliation. See Hoyle

I'.

Freightliner. LLC. 650 F.3d 321. 337 (4th Cir. 2011).
Here. even assuming Davis could establish aprill/a/ilcie

case of retaliation. Davis' claim

ultimately fails for the same reasons previously discussed with respect to his claim of race
discrimination. namely. that Davis has failed to submit any evidence demonstrating that 'issan's
legitimate nondiscriminatory

reason for terminating him was pretextual.ll

See Roherls

1'.

,c,,'ailll

Agnes Hosp .. No. OJII-13-3475. 2015 WL 3932398. at *11 (D. Md. June 25, 2015), atf'dsuh
nOIl/.Roherts

1'.

Saini Agnes Ho.\p.lAscension/lealth,

622 F. App'x 255 (4th Cir. 2015) (granting

employer's motion for summary judgment on retaliation claim where plaintiIrs termination
"was the result of his lengthy and well-documented performance deficiencies" and plaintiff
"failed to adduce any admissible evidence to suggest a connection between his complaints about
alleged workplace discrimination and his eventual termination"). Nissan is thereft)re entitled to
summary judgment on Count 1101'Davis' Complaint.
11 In light of this conclusion. the Court need not determine whether Davis' complaints that Adinolfi"s conduct was
"hazardous and hostile:' set! EeF No. 32-3 at 58. or that he was suffering from a hostile work environment
constituted protected activity. despite the fact that Davis did not specifically mention his race in his complaints.

20

IV.

CONCLUSION
For the foregoing reasons. Nissan's Motion for Summary Judgment. Eel' No. 32. is

GRANTED. and this action is DISMISSED with prejudice. A separate Order follows.

Dated; July

G~4-L---

t-7 .2016

United States District Judge

21