Springs v. Mayer Brown, LLP et al
Filing
91
ORDER denying 74 Motion for Summary Judgment; denying 75 Motion for Summary Judgment. Signed by District Judge Max O. Cogburn, Jr on 1/27/12. (com)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:09cv352
VENUS Y. SPRINGS,
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Plaintiff,
Vs.
MAYER BROWN, LLP,
Defendant.
_______________________________
MEMORANDUM OF
DECISION AND ORDER
THIS MATTER is before the court on review of plaintiff’s Motion for Summary
Judgment (#74) and defendant’s Motion for Summary Judgment (#75). Both motions
ripened for decision on December 8, 2011, with the filing of replies by the respective
proponents of such motions. Oral arguments were heard on January 25, 2012. Having
carefully considered the cross motions for summary judgment, the briefs, and heard the
excellent arguments of counsel, the court enters the following findings, conclusions, and
Order.
FINDINGS AND CONCLUSIONS
I.
Background
Plaintiff alleges that defendant Mayer Brown, LLP (hereinafter “Mayer Brown”)
terminated her employment as an associate attorney because of her race,1 in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. (hereinafter
"Title VII"), 42 U.S.C. § 1981 ("Section 1981"), and North Carolina public policy, as
expressed in the North Carolina Equal Employment Practices Act, N.C. Gen. Stat. §§
1
It is undisputed that plaintiff is African-American and was hired by the Charlotte
office of Mayer Brown in July 2007. First Amended Complaint (#18), at ¶ 9.
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143-422.1 et. seq. See Amended Complaint, ¶ ¶ 44, 49 (#18), Title VII Complaint, ¶ 45 (#1)
(consolidated from 3:10-CV-00385).
Earlier in this action, the court dismissed plaintiff’s Section 1981 claim for racial
harassment, but denied Mayer Brown’s Motion to Dismiss as to plaintiff’s Section 1981
and state law claims for racial discrimination, and dismissed all claims against the thennamed managing partner. See Order (#23). After entry of that Order, plaintiff filed a new,
separate action in this court against Mayer Brown and the dismissed managing partner in
which she alleged that Mayer Brown harassed her and terminated her employment based
on her race based on Title VII, rather than Section 1981. See Complaint (#1)(Civil Action
No. 3:10-CV-00385). The court consolidated the two actions on September 7, 2010,
(#29), and on January 26, 2011, the court dismissed plaintiff's claims for racial harassment
under Title VII and again dismissed all claims asserted against the managing partner. (#37).
Plaintiff’s only surviving claims are, therefore, for wrongful discharge against Mayer
Brown.
In moving for summary judgment on such surviving claims after the close of
discovery, Mayer Brown contends that plaintiff cannot prove a prima facie case of
wrongful discharge because she cannot establish that she was replaced by a person outside
the protected class or that she was meeting the legitimate expectations of Mayer Brown at
the time of her discharge. Mayer Brown further contends that plaintiff cannot establish that
the legitimate, non-discriminatory reason given for her termination - - poor job
performance - - was a mere pretext for racial discrimination.
Plaintiff has also moved for summary judgment on Mayer Brown’s counterclaim for
conversion (a state common-law claim) of its electronically-stored documents. According
to Mayer Brown, during the 90 day period it allowed plaintiff to remain employed, plaintiff
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admittedly accessed defendant’s electronically stored documents, and printed out or sent
to her private email account copies of firm documents, including documents on legal
matters she had not worked on and confidential documents concerning the firm’s business
plan. Defendant contends that plaintiff has refused to return these documents.
In moving for summary judgment, plaintiff contends that Mayer Brown can present
no evidence of either element of common law conversion, arguing that conversion is not
the acquisition of property, but the wrongful deprivation of property from the owner. She
contends that there has been no destruction or deprivation of access as the documents
remain on Mayer Brown’s computer and that no conversion has, therefore, occurred.
II.
Summary Judgment Standard Generally
Rule 56(a), Federal Rules of Civil Procedure, provides:
A party may move for summary judgment, identifying each claim or defense —
or the part of each claim or defense — on which summary judgment is sought.
The 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. The court should state on the record the reasons for granting or
denying the motion.
Fed.R.Civ.P. 56(a). Rule 56 goes on to provide procedures for a party to use in responding to a
Motion for Summary Judgment:
(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a fact
cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the
record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for
purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that
an adverse party cannot produce admissible
evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible
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Evidence. A party may object that the material cited to support or
dispute a fact cannot be presented in a form that would be
admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited
materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to
support or oppose a motion must be made on personal knowledge,
set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.
Fed.R.Civ.P. 56(c). On a motion for summary judgment, the moving party has the burden of
production to show that there are no genuine issues for trial.2 Upon the moving party's meeting
that burden, the non-moving party has the burden of persuasion to establish that there is a genuine
issue for trial.
When the moving party has carried its burden under Rule 56(c), its opponent must
do more than simply show that there is some metaphysical doubt as to the material
facts. In the language of the Rule, the nonmoving [sic] party must come forward
with "specific facts showing that there is a genuine issue for trial." Where the
record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial."
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations
omitted; emphasis in the original) (quoting Fed. R. Civ. P. 56). There must be more than just a
factual dispute; the fact in question must be material and readily identifiable by the substantive
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
By reviewing substantive law, the court may determine what matters constitute material
facts. Anderson, supra. "Only disputes over facts that might affect the outcome of the suit under
governing law will properly preclude the entry of summary judgment." Id., at 248. A dispute
about a material fact is "genuine" only if the evidence is such that "a reasonable jury could return
a verdict for the nonmoving party." Id. The court must credit factual disputes in favor of the party
resisting summary judgment and draw inferences favorable to that party if the inferences are
2
The court notes and commends the exceptional job by counsel for Mayer Brown
in providing the court with a statement of undisputed facts, which the court believes is the
appropriate avenue for presentation of facts under newly revised Rule 56.
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reasonable, however improbable they may seem. Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir.
1980). Affidavits filed in support of a Motion for Summary Judgment are to be used to determine
whether issues of fact exist, not to decide the issues themselves. United States ex rel. Jones v.
Rundle, 453 F.2d 147 (3d Cir. 1971). When resolution of issues of fact depends upon a
determination of credibility, summary judgment is improper. Davis v. Zahradnick, 600 F.2d 458
(4th Cir. 1979).
In determining whether a genuine issue of material fact exists, the admissible evidence of
the non-moving party must be believed and all justifiable inferences must be drawn in his or her
favor. Anderson, supra, at 255. In the end, the question posed by a summary judgment motion is
whether the evidence "is so one-sided that one party must prevail as a matter of law." Id., at 252.
III.
Discussion
A.
Mayer Brown’s Motion for Summary Judgment
As provided in the court’s previous Orders, plaintiff’s only remaining claims are for
wrongful discharge based on race. While plaintiff has asserted claims for wrongful
discharge under Section 1981, Title VII, and North Carolina law, the standard for
establishing a wrongful discharge is the same under all three provisions. See White v. BFI
Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004); Hughes v. Bedsole, 48 F.3d 1376,
1383 (4th Cir. 1995).
Plaintiff has presented no direct evidence of discrimination under Title VII; thus, to
survive summary judgment, plaintiff must establish a prima facie case of discrimination
under a burden-shifting analysis. If the plaintiff establishes a prima facie case, the burden
shifts to the defendant to show that there were legitimate, non-discriminatory reasons for
the employment decisions. If an employer satisfies that requirement, the burden then shifts
back to the plaintiff to show that the employer's proffered reasons are false and a pretext
to conceal intentional unlawful discrimination. McDonnell Douglas Corp. v. Green, 411
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U.S. 792 (1973).
While plaintiff’s wrongful discharge claims survived defendant’s motions to
dismiss, to survive summary judgment, plaintiff must now establish a prima facie case of
wrongful termination based on race. A prima facie case of wrongful termination requires
the plaintiff to now present evidence upon which a reasonable jury could find that:
(1) she is a member of a protected class; (2) she suffered adverse
employment action; (3) she was performing her job duties at a level that met
her employer's legitimate expectations at the time of the adverse employment
action; and (4) the position remained open or was filled by similarly
qualified applicants outside the protected class.
Miles v. Dell, Inc., 429 F.3d 480, 485 (4th Cir. 2005); see also Holland v. Washington
Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007).
1.
The First and Second Elements of a Prima Facie Case
It is undisputed that plaintiff, an African-American, is a member of a protected class,
First Amended Complaint (#18), at ¶ 9, and that she suffered an adverse employment action
when her employment was terminated in 2008. Id., at ¶ 26. No evidence has been
submitted that would put either of the first two elements in controversy.
2.
The Fourth Element of a Prima Facie Case
As to the fourth element, plaintiff alleges that she was replaced by one of three
Caucasian attorneys who were hired around the time that her employment ended. Id., at
¶39. One of these three new employees was a former Bank of America employee, whom
plaintiff alleges was hired as a quid pro quo for an increase in business from Bank of
America, an act which the plaintiff alleges is “tantamount to commercial bribery.” Id. The
other two attorneys had served as summer associates for the firm and were hired as
permanent associates prior to the end of the plaintiff’s employment in September 2008. Id.,
at ¶30. Mayer Brown contends that plaintiff cannot satisfy her burden on the fourth
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element as she cannot show that her position was filled by a person outside the protected
class, see Defendant’s Memorandum in Support (#75-1, at p. 14), and points to it Statement
of Undisputed Facts, specifically the following paragraphs:
37.
No one was hired to replace plaintiff in performing (or being
available to perform) securitized lending transactions in the Charlotte
office. (Arado Decl. ¶ 72).
38.
Plaintiff's primary work for Mayer Brown had been in the area of
work for which she had been hired – real estate lending. (Pl. depo.
230:2-5). In the weeks and months leading up to her discharge,
because of her poor performance, partners and clients of the Firm
with this type of work had all but decided not to utilize plaintiff, such
that at the time of her termination, she was engaged in very little if
any client-chargeable work. (Arado Decl. ¶¶ 65, 73).
39.
At the same time, the demand for originating real estate loans
intended for securitization lending transactions was severely reduced
due to the global economic downturn. Even today there is little to
none of this type of real estate work in the Firm generally, and the
Charlotte office more specifically. (Arado Decl. ¶ 74).
Defendant’s Memorandum in Support (#75-1), at pp. 11-12. In response, plaintiff argues
that
[w]ithin weeks of Springs' departure, three white attorneys were hired
in the Real Estate group, one a former Bank of America employee, Erin
Bruenig, who was hired on a contract basis just before Springs[’] last days
of employment. Since Springs’ termination, Mayer Brown and Frank Arado
have continued to add white attorneys to the real estate department, including
Matt Conway, Lauren Rico, Sara Brown, and Amanda Christie (Arado pps.
57, Exh. “O, Interrogatory responses). Arado also admitted that as of
November, 2010, in spite of the financial crisis, his department now has a
headcount of eight attorneys. (Arado p. 76)
Plaintiff’s Memorandum in Opposition (#83), at p. 18. In reply, Mayer Brown has
submitted evidence that the associates it did hire were entry level, first year associates who,
unlike plaintiff , had no experience in loan origination for securitization or mezzanine
lending (see defendant’s Reply (#85), at 2-3 (citing Arado Decl., at ¶¶ 78,80)), and that Ms.
Bruenig’s position as a contractor was very different than the position plaintiff held at the
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firm. Id., at 3. The court there to be a genuine issue of material fact as to whether plaintiff
was replaced by someone outside the protected class.
While the parties have focused on the second part of the fourth element which
concerns whether plaintiff was replaced by a Caucasian attorney, little if any discussion has
been devoted to whether the position “remained open,” a showing of which would be
sufficient to satisfy the fourth element. See also Hill v. Lockheed Martin Logistics
Management, Inc., 354 F.3d 277, 285 (4 th Cir. 2004).
Defendant’s own statement of
undisputed facts provides that “[n]o one was hired to replace plaintiff in performing (or
being available to perform) securitized lending transactions in the Charlotte office. (Arado
Decl. ¶ 72).” Defendant’s Memorandum in Support (#75-1), at p. 11. Clearly, such
evidence would be sufficient for a jury to determine whether plaintiff’s position “remained
open,” thereby satisfying the fourth element.
3.
The Third Element of a Prima Facie Case
Defendant has not directly argued the third element of a prima facie case, but has
instead argued such element in the context of its legitimate, non-discriminatory reason for
terminating plaintiff’s employment. 3 Thus, for the purposes of the instant motion, the court
will deem that plaintiff has stated a prima facie case and consider in the pretext analysis
whether there is evidence that plaintiff was performing her job duties at a level that met her
employer's legitimate expectations at the time of the adverse employment action was taken.
4.
Pretext
Defendant has cited to plaintiff’s job performance as the legitimate, non-
3
Defendant notes in its Reply in rebuttal to plaintiff’s argument against a
legitimate, non-discriminatory reason that “[f]or these same reasons, plaintiff also cannot
establish the third prong of her prima facie case – that she was performing her job to her
supervisor's legitimate expectations.” Defendant’s Reply (#85), at f.n. 3.
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discriminatory reason for terminating plaintiff’s employment. Defendant's burden at this
stage is not one of persuasion, but merely one of production under the burden-shifting
scheme of McDonnell Douglas Corp., supra. If Mayer Brown successfully proffers such
an explanation, the burden then shifts back to plaintiff to show that the proffered reason is
merely a pretext. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993).
In support of such contention, defendant has presented evidence that it hired plaintiff
to primarily perform real estate lending transactions, in particular originating real estate
loans intended for securitization:
Plaintiff understood that her experience in mezzanine lending and doing
bank lender's work was of value to Mayer Brown. (Pl. depo. 203:2-13).
Indeed, Arado expected that plaintiff's primary focus at Mayer Brown would
be real estate lending transactions, in particular originating real estate loans
intended for securitization, which at the time included mezzanine loans.
(Arado Decl. ¶ 19).
Defendant’s Memorandum in Support (#75-1), at p. 12. Defendant has also presented
evidence that at the time it terminated plaintiff’s employment in May 2008, she was not
meeting its legitimate expectations in performing such job duties:
In the weeks and months leading up to her discharge, because of her poor
performance, partners and clients of the Firm with this type of work had all
but decided not to utilize plaintiff, such that at the time of her termination,
she was engaged in very little if any client-chargeable work. (Arado Decl. ¶¶
65, 73).
Id., at 11-12. In addition, defendant has presented evidence that
Following his April meeting with plaintiff, Arado solicited email views of
plaintiff's performance from partners who had worked with her. (Arado Decl.
¶ 64). After reviewing emails including the partners' assessments of
plaintiff's work, and based upon his own view of plaintiff's poor
communication with partners, poor attitude, sub-par work performance, lack
of availability, and the fact that the very partners who could have provided
her with real estate lending work had lost confidence in her abilities and
would no longer utilize her on their transactions, Arado decided to terminate
plaintiff's employment. (Arado depo. 182:20-23). Before implementing his
decision, Arado discussed the matter with his real estate Firm practice group
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leaders and Barrett. (Arado Decl. ¶ 67).
Id., at 10-11. In response to all of the facts proffered by defendant, defendant has
responded that such were merely a pretext for discrimination based on race.
a.
Presumption that the Termination was not Pretextual
Plaintiff first contends that no inference can be drawn against racial animus from the
fact that Mr. Arado made the decisions to both hire and fire plaintiff in less than 12 months
because others were involved in the decision to hire her. Plaintiff’s Memorandum in
Opposition (#83), at p. 3. While it is clear that Mr. Arado may well have consulted with
others during the hiring and firing process, the only evidence before the court is that Mr.
Arado was the ultimate decision maker as to plaintiff’s employment at Mayer Brown. See
Arado Depo., at 28:2-4; Statement of Undisputed Facts, ¶ 3 (#75).
As Mr. Arado both
hired and fired plaintiff within 12 months, a rebutable presumption arises in favor of
defendant under Proud v. Stone, 945 F.2d 796 (4th Cir. 1991), that the adverse employment
action was not pretextual as Mr. Arado both hired and fired plaintiff in close temporal
proximity. Id.
b.
Plaintiff’s Evidence of Good Work
Plaintiff next contends that poor job performance is pretext for racial discrimination
because she has evidence of good work performance.
Plaintiff’s Memorandum in
Opposition (#83), at p.4. Much of this evidence plaintiff relies on consists of her own
opinions as to the quality of her work, her own speculation, statements made in
contradiction to her deposition testimony, and otherwise inadmissible evidence.
1.
Dean Isaacs
Plaintiff contends that a partner in Mayer Brown’s Chicago office, Dean Isaacs,
reported to her in early February 2008 that another partner told him that she “just got it
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right” and that he agreed with that partner. Id., at p. 5. Plaintiff asserts that Isaacs sent an
email on February 19, 2008, telling Arado that plaintiff's "work on two deals was 'really
about as good as I would get from any other associates/counsel I work with.’” Id., at pp.
13-14.
Plaintiff also relies on a February 27, 2008, e-mail that Isaacs sent to plaintiff and
two other Mayer Brown employees in which Isaacs states:
Among the 3 of you, I would still expect you to bill an aggregate of another
160 hours, and continue to do a top-notch job on whatever work that
remains.
Id. Even assuming that such comment and emails were positive and reflected well on
plaintiff, such email in and of itself does not refute Isaacs’ post February 2008 reports to
Arado in which he expressed concerns about plaintiff's performance, reported that it
continued to diminish and described it as "mediocre." Arado Decl., ¶¶ 54, 55, 64. Further,
such earlier praise does not diminish Isaacs' April 23, 2008 e-mail to Mayer Brown's billing
specialist, copying Arado, in which he writes off all of the time that plaintiff billed to the
client for that transaction, citing the "very poor job" that plaintiff had done. See Statement
of Undisputed Facts, ¶ 24 (#75). While an aggrieved employee may be able to point to coworkers and customers who offered praise for good work, such a showing does not
demonstrate pretext as it is the perception of the decision-maker which is relevant. Tinsley
v. First Union Nat'l Bank, 155 F.3d 435, 444 (4th Cir. 1998).
2.
Kelly Ryan
Plaintiff also takes issue with the job performance portrayed to her by partner Kelly
Ryan and the job performance such partner portrayed to Arado concerning the time Ryan
and plaintiff worked together. Even assuming that plaintiff could testify that Ryan praised
her work privately and that such testimony would be admissible, plaintiff has not disputed
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that Ryan subsequently told Arado in March and April 2008 that he had serious concerns
regarding plaintiff's performance, including her combativeness, responsiveness, attention
to detail, and attentiveness to deadlines. See Statement of Undisputed Facts, ¶¶ 27-28
(#75). Under relevant case law, it is the perception of the decision maker which is relevant:
we have repeatedly explained that “‘[i]t is the perception of the decision
maker which is relevant,’ not the self-assessment of the plaintiff.”
Accordingly, the plaintiff’s “perception of [her]self . . . is not relevant.”
Similarly, that plaintiff’s coworkers may have thought that [she] did a good
job, or that [she] did not ‘deserve’ [to be discharged], is close to irrelevant.”
DeJarnette v. Corning Incorporated, 133 F.3d 293 (4 th Cir. 1998)(citations and quotations
omitted).4
3.
Doug Wisner
Plaintiff also posits that another partner, Doug Wisner, was pleased with plaintiff’s
work on another transaction in the New York office. According to plaintiff, Wisner told
her that she had done an “excellent job” on that project in October 2007. Plaintiff’s
Memorandum in Opposition (#83), at p. 5. Even taking this 2007 statement as true, it is
undisputed that Wisner subsequently complained to Arado that he had received several
calls from the client expressing frustration with plaintiff's handling of the transaction, and
that the client found plaintiff to be difficult to work with and obstreperous. Statement of
Undisputed Facts (#75), ¶ 15. Plaintiff also does not dispute that Wisner reported to Arado
that plaintiff "did not instill confidence in the client or in me." Id. Even taking plaintiff’s
contentions as true that the client in that transaction wrote in an e-mail that Mayer Brown
did a "great job" on the transaction, that Wisner sent her to close the transaction, and that
4
Plaintiff has also offered the affidavit of her private investigator, who allegedly
interviewed the client’s principals in the transaction that plaintiff and Ryan worked on. Such
affidavit is inadmissible as a matter of well settled law. Maryland Highways Contractors Ass'n
v. Maryland, 933 F.2d 1246, 1251 (4th Cir. 1991).
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Wisner allegedly subsequently gave her additional work, see Plaintiff's Memorandum in
Opposition (#83), at p. 13, such does not undermine the fact that Wisner later voiced
concerns to Arado. Indeed, the evidence of record shows that in-house counsel for the
client complained directly to Arado about plaintiff’s handling of the transaction, reporting
that the business people involved had been appalled by plaintiff's behavior during the
transaction and that plaintiff had threatened the viability of the transaction. Statement of
Undisputed Facts (#75), ¶ 17.
c.
Other Evidence Cited by Plaintiff in Support of Pretext
1.
Charging for Plaintiff’s Time
Plaintiff argues that because Mayer Brown billed clients for her work, its reliance
on poor job performance is pretext. Plaintiff’s Memorandum in Opposition (#83), at p. 6.
Plaintiff offers no citation to any case where simply charging clients for work done by a
later terminated employee was considered evidence of pretext. Indeed, the evidence of
record indicates that plaintiff’s employment was terminated immediately following a
decision by a partner to write off plaintiff’s billable time for work done on the DVU matter,
as discussed above.
2.
State Bar Admission Affidavit
Plaintiff also points to an affidavit Avado submitted in support of plaintiff’s
application for admission to the New York State Bar. On April 24, 2008, Arado filed an
affidavit with the New York State Court, Appellate Division, regarding plaintiff’s
performance and suitability as a “waive-in” candidate for admission to the New York Bar.
See Application for Admission, Form Affidavit (#82-9). In his affidavit, Arado avers that
he supervised plaintiff and that her duties were “satisfactorily” performed. Id., at ¶ 4. In
Reply, defendant argues the fact “ that plaintiff had the requisite skills, etc., to practice law
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is a far cry from a conclusion that she deserved to remain employed at Mayer Brown.”
Defendant’s Reply (#85), at p. 12. This interpretation of the averment made is problematic,
as the statement made by Avado to the New York State Bar was in close temporal
proximity to firing plaintiff and was an under-oath representation to a state licensing body
that “Applicant’s duties were satisfactorily performed.” See Application for Admission,
Form Affidavit (#82-9), at ¶ 4(c).
Such affidavit constitutes some evidence that the given reason of the decisionmaker
was pretextual. Whether such will be sufficient for a jury to find pretext is not for this
court to weigh. As the Supreme Court has made clear:
The factfinder's disbelief of the reasons put forward by the defendant
(particularly if disbelief is accompanied by a suspicion of mendacity) may,
together with the elements of the prima facie case, suffice to show
intentional discrimination. Thus, rejection of the defendant's proffered
reasons will permit the trier of fact to infer the ultimate fact of intentional
discrimination, and the Court of Appeals was correct when it noted that,
upon such rejection, “[n]o additional proof of discrimination is required,”
970 F.2d, at 493 (emphasis added). But the Court of Appeals' holding that
rejection of the defendant's proffered reasons compels judgment for the
plaintiff disregards the fundamental principle of Rule 301 that a presumption
does not shift the burden of proof, and ignores our repeated admonition that
the Title VII plaintiff at all times bears the “ultimate burden of persuasion.”
St. Mary's Honor Center v. Hicks, 509 U.S. at 511. In Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000), the Supreme Court held that
Proof that the defendant’s explanation is unworthy of credence is simply one
form of circumstantial evidence that is probative of intentional
discrimination, and it may be quite persuasive.
Id., at 147. The Reeves Court further held that "a plaintiff’s prima facie case, combined
with sufficient evidence to find that the employer’s asserted justification is false, may
permit the trier of fact to conclude that the employer unlawfully discriminated." Id., at
148. Finding that such affidavit creates a genuine issue of material fact as to whether the
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legitimate, non-discriminatory reason was pretextual, the court will deny defendant’s
Motion for Summary Judgment.
B.
Plaintiff’s Motion for Summary Judgment
Plaintiff has also moved for summary judgment as to defendant’s counterclaim for
conversion of Mayer Brown’s documents. In North Carolina, a common-law claim for
conversion is defined as "an unauthorized assumption and exercise of the right of
ownership over goods or personal chattels belonging to another, to the alteration of their
condition or the exclusion of an owner's rights." Spinks v. Taylor, 303 N.C. 256, 264
(1981)(citation and corresponding quotation marks omitted). It is of no "importance what
subsequent application was made of the converted property, or that the defendant derived
no benefit from the act," so long as there has been a denial or violation of the plaintiff's
dominion over or rights in the property. Lake Mary Ltd. Partnership v. Johnston, 145 N.C.
App. 525, 531 (2001). In this case, defendants have proffered evidence that plaintiff made
paper and electronic copies of digitally stored proprietary and confidential documents by
surreptitiously searching Mayer Brown's electronic files after being notified of her
impending termination. That plaintiff did not destroy the data base or exclude Mayer
Brown from its digitally stored material is of no moment, as what constitutes
"unauthorized" possession or interference with another's ownership of goods or chattels
depends upon the circumstances under which such interference arose. Madey v. Duke
Univ., 336 F.Supp.2d 583 (M.D.N.C. 2004); Binkley v. Loughran, 714 F. Supp. 776
(M.D.N.C. 1989), aff'd, 940 F.2d 651 (4th Cir. 1991). Clearly, defendant has presented a
forecast of evidence that plaintiff has taken away from the firm things of value that she was
not authorized to take, and as to such copies, plaintiff has excluded defendant from
exercising the control over its proprietary and/or confidential documents. Finding that a
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genuine issue of material fact exists, the court will deny plaintiff’s Motion for Summary
Judgment.
ORDER
IT IS, THEREFORE, ORDERED that plaintiff's Motion for Summary Judgment
(#74) and defendant's Motion for Summary Judgment (#75) are DENIED.
Signed: January 27, 2012
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