Prettyman v. LTF Club Operations Company, Inc.
Filing
43
MEMORANDUM OPINION. Signed by District Judge T. S. Ellis, III on 11/13/2018. (aott)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
TERRI M. PRETTYMAN,
Plaintiff,
v.
Civil Action No. 1:18cv122
LTF CLUB OPERATIONS CO., INC.,
Defendant.
MEMORANDUM OPINION
In this Title VII and ADEA action, plaintiff, a former group fitness manager at
defendant’s Fairfax, VA fitness club, alleges (i) that her immediate supervisor, Devin
Nickerson (“Nickerson”), discriminated against her on the basis of her religion and age,
(ii) that Nickerson created a hostile work environment by making derogatory statements
about her age and religion, and (iii) that Jorge Hernandez (“Hernandez”), the senior general
manager at the fitness club, retaliated against her for reporting Nickerson’s discriminatory
comments.1 Defendant has moved for summary judgment on all of plaintiff’s claims.
Although plaintiff opposes the motions, she has not created triable issues of fact as to her
Title VII and ADEA disparate treatment claims, her ADEA hostile work environment
claim, and her retaliation claim. Yet, plaintiff has produced sufficient record evidence to
1
Title VII forbids employment practices that discriminate against an employee on the basis of
race, color, religion, sex, or national origin, 42 U.S.C. § 2000e-2, and also prohibits retaliation
against an employee for opposing adverse actions that she reasonably suspects to be unlawful
under Title VII, 42 U.S.C. § 2000e-3. Similarly, the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq,, prohibits discrimination in employment on the basis of age.
1
create a triable issue of fact as to her Title VII hostile work environment claim.
I.
Defendant’s summary judgment motion complies with the federal and local rules
by setting forth its statement of undisputed material fact in separately numbered
paragraphs. Plaintiff also complied with the rules by responding to each of defendant’s
undisputed facts and by including her own list of undisputed facts. From these pleadings,
it appears that although certain facts are disputed, the following facts are uncontested:
• Defendant operates a fitness/health club in Fairfax, Virginia and employed
plaintiff for almost nine years.
• Nickerson, plaintiff’s immediate supervisor, has been employed with defendant
since 2003 and has been the General Manager of defendant’s Fairfax fitness club
since 2013.
• Hernandez has been a Senior General Manager with defendant since 2010.
• On December 19, 2007, plaintiff was hired by defendant as a fitness group
instructor.
• On October 30, 2013, Nickerson promoted plaintiff to Group Fitness Department
Head. At the time of plaintiff’s promotion, she was 54 years old.2
• Plaintiff is Jewish.
• In March 2017, plaintiff was responsible for organizing and hosting an event for
customers at the fitness center and, as part of the planning, plaintiff engaged in a
heated argument with Melanie Heidt, the manager of the café at the fitness center.
• On March 9, 2017, Nickerson had a one-on-one meeting with plaintiff and
discussed her interactions with Ms. Heidt.
2
Plaintiff was born on August 1, 1959.
2
• On March 10, 2017, plaintiff contacted defendant’s employee relations specialist,
Mark Savage, and reported that Nickerson had made anti-Semitic and ageist
remarks to plaintiff over the course of her nine years in defendant’s employ.
• On March 13, 2017, plaintiff had an in-person meeting with Hernandez to discuss
what occurred at the March 9th meeting.
• At the end of the March 13th meeting, plaintiff handed Hernandez an envelope
containing a letter she had written. The letter states that at the March 9, 2017
meeting between plaintiff and Nickerson, plaintiff “called [Nickerson] a liar, and
gave him [her] notice.” Def.’s Ex. I.
• On May 1, 2017, Nickerson hired Amelia Lotz Chung, a 41-year-old woman at the
time of her hire, as the Studio Manager to replace plaintiff.
Although the parties appear to agree on the above-recited facts, they are contesting
the following facts:
• Whether plaintiff resigned or was terminated.
o Defendant contends that during the March 9, 2017 meeting between plaintiff
and Nickerson, plaintiff called Nickerson a liar, resigned and offered
Nickerson her two-week notice.
o By contrast, plaintiff claims that during the March 9th meeting, Nickerson
began to criticize her sharply and she said, “I feel like you want me to quit.
I guess you just want me to give my two weeks’ notice,” and Nickerson then
stated that he accepted her resignation. Plaintiff contends that she never
intended to resign, and that Nickerson twisted her words to achieve his
desired result: i.e. plaintiff’s termination.
• Whether Nickerson and other employees made discriminatory remarks to plaintiff.
o Plaintiff claims that Nickerson made a host of ageist comments throughout
her tenure at defendant’s fitness center, including saying: (i) that she is “as
old as the hills,” (ii) that plaintiff reminds Nickerson of his “pain in the ass
mother,” and (iii) that plaintiff should “become friends with and drink wine
with [Nickerson’s] mother.” Plaintiff also claims that Nickerson uttered
anti-Semitic remarks, including: (i) commenting on plaintiff’s “Jewish
3
money,” (ii) discussing plaintiff’s “trust fund,” and asking where her “Jewish
money” came from, and (iii) commenting that plaintiff purchased her big
house with “Jewish money.” Plaintiff also claims that Nickerson encouraged
other employees to treat plaintiff differently because of her Jewish faith and
that Erin Jacobsen, the operations department head at the Fairfax fitness
center, called plaintiff a “JAP” (Jewish American Princess).
o Defendant disputes that any anti-Semitic or ageist comments were made by
any of its employees, including Nickerson.
Given the factual record on summary judgment, it is necessary to determine whether
summary judgment is appropriate as to any of plaintiff’s claims or whether triable issues
of material fact exist as to some or all of plaintiff’s claims.
II.
The standard for summary judgment is too well-settled to require extensive
elaboration here. Summary judgment is appropriate when there is “no genuine dispute as
to any material fact” and based on those undisputed facts the moving party “is entitled to
judgment as a matter of law.” Celotex v. Catrett, 477 U.S. 317, 322 (1986). A genuine
factual dispute exists if “there is sufficient evidence on which a reasonable jury could return
a verdict in favor of the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). Importantly, at the summary judgment stage, courts must “view the evidence
in the light most favorable to . . . the non-movant.” Dennis v. Columbia Colleton Med.
Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002).
4
III.
A.
Plaintiff claims that she was treated differently from other employees because of her
Jewish faith and age, in violation of Title VII and the ADEA. To avoid summary judgment
on her Title VII and ADEA disparate treatment claims plaintiff can either produce direct
of evidence of age and religious discrimination or rely on the McDonnell-Douglas burden
shifting framework.
1.
Here, plaintiff has failed to produce direct evidence of discriminatory animus
against plaintiff because of her age or religion. Direct evidence is “evidence of conduct or
statements that both reflect directly on the alleged discriminatory attitude and that bear
directly on the contested employment decision.” Johnson v. Mechs. & Farmers Bank, 309
F. App’x. 675, 681 (4th Cir. 2009) (quoting Taylor v. Va. Union Univ., 193 F.3d 219, 232
(4th Cir. 1999) (en banc)). Discriminatory statements standing alone are insufficient to
state a claim; a plaintiff must also show “a nexus between the discriminatory statements
and the employment action.” See Hill v. Lockheed Martin Logistics Mgmt., Inc., 314 F.3d
657, 665 (4th Cir. 2003); see also Martin v. Scott & Stringfellow, Inc., 643 F. Supp. 2d
770, 782 (E.D. Va.), aff’d, 352 F. App’x 778 (4th Cir. 2009) (“Even if an apparently
discriminatory statement exists, it does not create direct evidence of discrimination unless
it has a nexus with the employment decision.”). In other words, evidence is “direct” if it
“proves [the] existence of [discriminatory intent] without inference or presumption.”
Jefferson v. Sewon Am., Inc., 891 F.3d 911, 921 (11th Cir. 2018) (internal marks and
5
citation omitted); Fassbender v. Correct Care Sols., LLC, 890 F.3d 875, 883 (10th Cir.
2018); Herster v. Bd. of Supervisors of Louisiana State Univ., 887 F.3d 177, 186 (5th Cir.
2018).
Although plaintiff testified in her deposition that Nickerson made discriminatory
remarks about her religion and age, including calling her “over the hill” and commenting
on her “Jewish money,” plaintiff has not produced any evidence to connect these
statements to the alleged adverse employment action. In other words, these remarks – some
of which occurred years before any adverse employment action allegedly occurred – do
not prove, without inference or presumption, that plaintiff was discharged for an
impermissible reason. These comments are simply too remote from plaintiff’s purported
discharge on March 9, 2017, to constitute direct evidence of discriminatory discharge.
Because plaintiff has produced no evidence linking these alleged discriminatory
statements to the purported adverse employment action, her Title VII and ADEA disparate
treatment claims cannot survive summary judgment based on direct evidence of
discrimination. See, e.g., Fierros v. Texas Dept. of Health, 274 F.3d 187, 195 (5th Cir.
2001) (“In the context of Title VII, direct evidence [may] include[] any statement or written
document showing a discriminatory motive on its face.”).
Accordingly, plaintiff’s
disparate treatment claims survive only if she makes out prima facie cases under the
McDonnell-Douglas burden shifting scheme.
2.
Where, as here, plaintiff fails to produce direct evidence that her termination was
discriminatory she can nonetheless survive summary judgment if she establishes prima
6
facie cases for religious and age discrimination. But a review of the factual record discloses
that plaintiff has not produced admissible record evidence to establish prima facie cases
for either religious or age discrimination; and therefore, defendant’s motion for summary
judgment must be granted as to those claims.
To state a prima facie case for disparate treatment under Title VII, plaintiff must
produce record evidence demonstrating: “(1) membership in a protected class; (2)
satisfactory job performance; (3) an adverse employment action; and (4) different treatment
from similarly situated employees outside the protected class.” Coleman v. Md. Court of
Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff’d, 132 S. Ct. 1327 (2012). Plaintiff can
clearly establish the first element of the prima facie case because plaintiff is Jewish and is
therefore a member of a religious class protected by Title VII. There is also ample evidence
that plaintiff performed her job satisfactorily. The third element of the prima facie case is
more troublesome. The great weight of the record evidence points to the conclusion that
plaintiff resigned from her position; however, plaintiff testified in her deposition that she
did not intend to resign and was instead discharged against her will.3 This apparent dispute
3
There is persuasive legal authority for proposition that the non-moving party cannot manufacture
a material dispute through self-serving deposition testimony or a conclusory affidavit when the
great weight of the record evidence contradicts the self-serving statement. See Larken v. Perkins,
22 F. App’x 114, 115 (4th Cir. 2001) (“[Plaintiff] filed only his own, self-serving affidavit
containing conclusory assertions and unsubstantiated speculation, which the district court properly
found to be insufficient to stave off summary judgment.” citing Williams v. Cerberonics, Inc., 871
F.2d 452, 455 (4th Cir. 1989). See also Irving v. Chester Water Auth., 439 F. App’x 125, 127 (3d
Cir. 2011) (“In light of both his earlier testimony and the other record evidence, Irving’s
subsequent self-serving deposition testimony is insufficient to raise a genuine issue of material
fact.”); Teller v. Dogge, 8 F. Supp. 3d 1228, 1234 (D. Nev. 2014) (“Self-serving testimony, made
when an individual is faced with summary judgment, that contradicts clear evidence on the record
need not be given credence by the court.”) For the purposes of this summary judgment analysis,
7
over the adverse employment element may be avoided by assuming, without deciding, that
plaintiff was, as she contends, terminated.4 Even assuming plaintiff was terminated,
plaintiff’s disparate treatment claim still fails because she cannot prove the fourth element
of the prima facie case, namely that she was treated less favorably than similarly situated
employees outside the protected class.
In this regard, plaintiff has produced no evidence that comparable non-Jewish
employees were treated more favorably than she was. In other words, plaintiff’s Title VII
disparate treatment claim fails because she has not identified any comparators, much less
comparators who are similarly situated. See Hurst v. D.C., 681 F. App’x 186, 189 (4th Cir.
2017) (noting that proof of similarly situated comparators satisfies the fourth element of a
disparate treatment claim); see also Haywood v. Locke, 387 F. App’x. 355, 359 (4th Cir.
2010). Moreover, plaintiff has produced no evidence showing she was discharged “under
circumstances giving rise to an inference of unlawful discrimination.” Bryant v. Aiken
Reg’l Med. Centers Inc., 333 F.3d 536, 545 (4th Cir. 2003) (holding that comparator
evidence may not be required to prove the fourth element of the prima facie case if plaintiff
however, plaintiff’s position that she never resigned and was instead discharged will be taken as
true.
4
Not every factual dispute precludes summary judgment. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986) (“Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.”); AIU N. Am.,
Inc. v. Caisse Franco Neerlandaise de Cautionnements, 72 F. Supp. 2d 350, 353 (S.D.N.Y.
1999) (“[T]he mere existence of a factual dispute between parties does not preclude summary
judgment when the dispute is not genuine or when the disputed facts are immaterial. A disputed
fact is immaterial when the outcome of the case remains the same regardless of the disputed
issue.”).
8
produces other evidence that shows the adverse employment action was rooted in
discriminatory animus). Accordingly, plaintiff has not produced sufficient evidence to
establish the fourth element of the prima facie case for Title VII religious discrimination.
Plaintiff’s age discrimination claim fares no better. Plaintiff could have established
a prima facie case for age discrimination had she produced record evidence establishing
(1) that she is a member of a protected class, i.e., at least 40 years of age; (2) that she
suffered an adverse employment action; (3) that she was replaced by a substantially
younger employee; and (4) that age was the “but-for” cause of defendant’s adverse
employment action.5 See Buchhagen v. ICF Intern., Inc., F. App’x 217, 220 (4th Cir.
2013); 29 U.S.C. § 631(a). To be sure, plaintiff has established the first and third elements
of the prima facie case because she is over the age of forty and was replaced by someone
who was approximately fifteen years her junior. See DeBord v. Washington Cty. Sch. Bd.,
340 F.Supp.2d 710, 714 (W.D. Va. 2004) (“Courts have generally held that age differences
of 10 or more years are sufficiently substantial to meet the requirement of the fourth prong
of the prima facie case.” citing Grosjean v. First Energy Corp., 349 F.3d 332, 336–38 (6th
Cir. 2003)). The second element of the prima facie case – i.e. that plaintiff suffered an
adverse employment action – is problematic for the same reasons discussed above. But,
5
Notably, the causation standard differs between a Title VII disparate treatment claim and an
ADEA disparate treatment claim. Under Title VII, discrimination need only be a motivating factor
for the adverse employment action, whereas under the ADEA discrimination must be the but-for
cause of the adverse employment action. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 174
(2009) (“Unlike Title VII, the ADEA’s text does not provide that a plaintiff may establish
discrimination by showing that age was simply a motivating factor.”).
9
here again, resolution of the arguably disputed adverse employment element can be
avoided because plaintiff failed to produce evidence permitting a reasonable juror to
conclude that her age was the but-for cause of any adverse action.
The evidence shows that defendant promoted plaintiff to a management role when
she was 54 years old. In the absence of any other evidence showing that plaintiff’s age led
to her alleged discharge, it would be ridiculous to infer that defendant hired and then
promoted plaintiff knowing her age and then fired her thereafter because of her age. For
this reason, plaintiff’s age discrimination claim fails, and summary judgment must be
granted to defendant on this claim.
B.
For her Title VII and ADEA hostile work environment claims to survive summary
judgment, plaintiff must show that a reasonable jury could find that the alleged conduct by
her supervisor and fellow employees: (1) was unwelcome; (2) was based on her age and/or
religion; (3) was sufficiently severe or pervasive to alter the conditions of her employment
and to create an abusive work environment; and (4) was imputable to her employer. See
Pryor v. United Air Lines, Inc., 791 F.3d 488, 495–96 (4th Cir. 2015); Baqir v. Principi,
434 F.3d 733, 745 (4th Cir. 2006)). Stated differently, a hostile work environment claim
is established upon proof that “the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citation omitted) (quotation marks
10
omitted). In other words, hostile work environment claims “are based on the cumulative
effect of individual acts.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002).
1.
Plaintiff’s ADEA hostile work environment claim is dead on arrival.
Stray
comments by Nickerson that plaintiff was “over the hill” or needed to befriend his mother
are not sufficiently severe or pervasive to alter plaintiff’s conditions of employment or to
create an abusive working environment.
“[S]imple teasing, offhand comments, and
isolated incidents (unless extremely serious) will not amount to discriminatory changes in
the terms and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775,
788 (1998) (internal quotation marks and citations omitted). That’s precisely what we have
here. Plaintiff was very likely teased about her age on occasion – after all she worked in
an industry where youth and vigor are particularly prized. But none of the evidence reveals
that this teasing was sufficiently serious to create a hostile work environment.
Accordingly, summary judgment must be entered on behalf of defendant on plaintiff’s
ADEA hostile work environment claim.
2.
Plaintiff’s Title VII hostile work environment claim stands on different ground. In
her deposition, plaintiff testified that Nickerson referred to her “Jewish money” on
numerous occasions and that another employee referred to her as a “Jewish American
Princess.” These statements are sufficiently severe to create a hostile work environment.
There are certain words and phrases that are loathsome. The n-word is a prime
example. That word, because of its long and violent history, is no longer permissible and
11
if uttered in the workplace can “create an abusive working environment in an instant.”
Pryor v. United Air Lines, Inc., 791 F.3d 488, 496 (4th Cir. 2015). Use of the n-word in
the workplace is “degrading and humiliating in the extreme” and is so severe that it need
not be pervasive to create a hostile work environment. Id. Because the record does not
warrant classifying Nickerson’s alleged anti-Semitic comments as “pervasive,” the
question becomes whether references to “Jewish money,” and “Jewishness” are so severe
as to create a hostile work environment. This question calls for a simple answer: references
to “Jewish money” and “Jewish American Princess” and other derogatory remarks
associated with Judaism, like use of the n-word, are sufficiently severe to create, without
more, a hostile work environment in an instant.
America has a long history of discrimination and violence against Africans
involuntarily brought to this country in chains and their descendants; slavery, Jim Crow
and persistent racism are manifestly this country’s greatest sins. It is because of this history
that use of the n-word in the workplace unquestionably creates a hostile work environment.
Similarly, the history of violence and discrimination against Jews has spanned the pages
history dating back millennia. Whether it be the Alhambra Decree of 1492 (the zenith of
the Spanish Inquisition), the Russian pogroms, or Hitler’s extermination camps, few have
suffered more or longer than Jews.6 And America has not been immune to the plague of
6
Phyllis Goldstein, A Convenient Hatred: The History of Antisemitism, Facing History and
Ourselves National Foundation (2012); William Nicholls, Christian Antisemitism: A History of
Hate, Rowan & Littlefield (1993).
12
anti-Semitism. One need not look far to find tragic examples of anti-Semitism in this
country.7
Much of this historical antipathy towards Jews was grounded in economic
antisemitism,8 which makes comments about “Jewish money” all the more objectionable
and offensive. These words and phrases about Jews, like the n-word, are so serious and
severe that they instantly signal to an employee that he or she is unwelcome in the work
place because of his or her religion.9 Here, plaintiff alleges her supervisor and co-workers
made these comments about her religion and, as at least one circuit court has noted, nothing
7
There is a long history of anti-Semitism in this country and these are but a few examples:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
the lynching of Leo Frank in 1915;
the bombing of the Hebrew Benevolent Congregation in 1958;
the attack on the Temple Beth-Israel in 1960;
the 1977 shooting at the Brith Sholom Kneseth Israel synagogue;
the 1985 murder of the Goldmark family;
the 1986 murder of Neal Rosenblum;
the Crown Heights riot;
the 1994 Brooklyn Bridge shooting;
the 1999 Jewish Community Center shooting in Los Angeles;
the 2009 Holocaust museum shooting;
the 2014 Overland Park shooting; and
the Tree of Life synagogue shooting in Pittsburg.
See Isabel Fattal, A Brief History of Anti-Semitic Violence in America, The Atlantic, October 28,
2018.
One need only look to Shakespeare’s The Merchant of Venice or Dickens’ Oliver Twist to find
popular characterizations of Jews as degenerate and moneygrubbing.
8
It is important to note that not every utterance of the word “Jew” or “Jewish” in the workplace
will create a hostile work environment. For example, a non-Jewish co-worker may ask a Jewish
co-worker “are you Jewish,” without subjecting their employer to liability under Title VII for
hostile work environment. In other words, use of “Jew” or “Jewish” must be pejorative or hateful
to create a hostile work environment. Thus, the inquiry will almost always be a context-specific.
9
13
more is required at this stage to establish the first three elements of a hostile work
environment claim.10 The only remaining issue is whether plaintiff has produced evidence
in the summary judgment record that demonstrates that defendant either knew or should
have known about the hostile work environment created by Nickerson and other employees
and did nothing to remedy the situation.
It is well-settled that an employer may be liable for hostile work environments
created by co-workers and third parties “if it knew or should have known about the
harassment and failed to take effective action to stop it ... [by] respond[ing] with remedial
action reasonably calculated to end the harassment.” EEOC v. Sunbelt Rentals, Inc., 521
F.3d 306, 319 (4th Cir.2008) (internal quotation marks omitted). Here, one of defendant’s
corporate employees, Jennifer Lucas, testified that when she visited the gym to observe
Nickerson and other employees, she witnessed Nickerson saying “very derogratory
[things] about . . . [plaintiff’s] age or [plaintiff’s] religion.” Dep. Jennifer Lucas 31:12-16.
Ms. Lucas also testified that she emailed her superiors about Nickerson’s behavior towards
plaintiff because it made Ms. Lucas feel uncomfortable. Id. Because Ms. Lucas, as one of
See Shanoff v. Illinois Dep’t of Human Servs., 258 F.3d 696, 704 (7th Cir. 2001) (holding that
comments by plaintiff’s supervisor like “[I’m] going to keep your white Jewish ass down,” and
“I know how to handle white Jewish males,” were sufficient to create a hostile work
environment). Admittedly, some courts have viewed this issue differently. See, e.g., Milam v.
Pafford EMS, 729 F. App’x 632, 637 (10th Cir. 2018) (holding that fellow employees calling
plaintiff a “f—ing Jew” and plaintiff’s supervisor telling him not to “pull the Jew card on me,”
did not create a hostile work environment); Goode v. Billington, 932 F. Supp. 2d 75, 88 (D.D.C.
2013) (holding that there was no hostile work environment when fellow employees posted a sign
labelled “Good Riddance Jew Boy” outside the plaintiff’s office and also stole a picture of
Jerusalem from plaintiff’s office).
10
14
defendant’s corporate representative, witnessed Nickerson’s comments and reported
Nickerson’s behavior to her superiors, there is ample evidence to permit a reasonable jury
to find that defendant knew or should have known about Nickerson’s derogatory statements
about plaintiff’s religion.
For these reasons, defendant’s motion for summary judgment on plaintiff’s Title
VII hostile work environment claim must be denied.
C.
Plaintiff’s final claim is for retaliation. This claim also fails because plaintiff has
not produced sufficient evidence in the summary judgment record to permit a reasonable
jury to find that plaintiff’s protected activity was the cause of her discharge.
To establish a prima facie case of retaliation, plaintiff must prove three elements:
“(1) that she engaged in protected activity; (2) that her employer took an adverse
employment action against her; and (3) that there was a causal link between the two
events.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 271 (4th Cir. 2015) (quoting
EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405–06 (4th Cir. 2005)). At the prima
facie stage, plaintiff must demonstrate a causal link between the adverse employment
action(s) and the protected activity.11 Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243,
252 (4th Cir. 2015). To establish a causal link, plaintiff must first show that the defendant
The Fourth Circuit has stated that the “but-for” causation standard governing Title VII retaliation
cases does not apply at the prima facie stage; but instead applies later at the pretext stage. See
Foster, 787 F.3d at 252.)
11
15
knew of her protected activity. See Holland v. Washington Homes, Inc., 487 F.3d 208, 218
(4th Cir. 2007).
Logically, there can be no causation where, as here, the purported cause happens
after the effect. Plaintiff claims she was fired by Nickerson on March 9, 2017. Plaintiff’s
protected activity did not occur until March 10, 2017. Protected activity that occurred a
day after the purported adverse employment action could not have caused plaintiff’s
discharge.
To avoid this logical conclusion, plaintiff claims that she was not truly
discharged until March 13, 2017, when Hernandez, the senior general manager, confirmed
she was terminated. This hail-Mary argument plaintiff makes fails because the record
unmistakably establishes that plaintiff either resigned or was discharged on March 9, 2017.
Thus, plaintiff’s retaliation claim fails for the most obvious reason: it is factually
impossible.
IV.
For the reasons set forth above, defendant’s motion for summary judgment will be
granted in part and denied in part.
An appropriate order will issue separately.
The Clerk is directed to provide a copy of this Order to all counsel of record.
Alexandria, Virginia
November 13, 2018
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