Mullins v. Southwest VA Regional Jail Authority
Filing
45
MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 11/6/13. (ejs)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
MELISSA MULLINS,
)
)
) Civil Action No. 1:12cv028
)
)
)
) By: Hon. Michael F. Urbanski
)
United States District Judge
)
Plaintiff,
v.
SOUTHWEST VIRGINIA
REGIONAL JAIL AUTHORITY,
Defendant.
MEMORANDUM OPINION
This action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., is scheduled to be tried by a jury on November 12-13, 2013. Currently before the court is
defendant Southwest Virginia Regional Jail Authority’s motion for summary judgment (Dkt. #
15). The parties appeared before the court via conference call on October 10, 2013 for a hearing
held on the record, at which time the court granted defendant’s motion as to plaintiff’s gender
discrimination claim and took under advisement the motion as to plaintiff’s retaliation claim.
For the reasons set forth below, the motion for summary judgment as to the retaliation claim is
DENIED.
I.
Plaintiff Melissa Mullins was employed by the Southwest Virginia Regional Jail
Authority (“the Authority”) for over six years. At the time of her termination on March 22,
2011, she had attained the rank of lieutenant. Mullins alleges that she was terminated in
retaliation for her complaints of gender discrimination—specifically, that the Authority denied
her the opportunity to attend an annual training conference in Virginia Beach while sending male
officers to the conference.1
The facts giving rise to the retaliation claim are captured largely on two audio recordings
of meetings held on March 2, 2011 between Mullins, Lieutenant Jeannie Patrick and Captain
Dwayne Lockhart, and on March 3, 2011 between Mullins, Superintendent Stephen Clear and
Human Resources Director Georgia Fitzgerald.2 The March 2nd meeting was held following an
email sent by Mullins to her supervisor Captain Lockhart, and to HR Director Fitzgerald, in
which Mullins asserted that she had never been asked to attend any Virginia Beach training
conferences in her six years of employment. Mullins complained:
I am finding it extremely hard to understand why a “male”
sergeant has been asked to go more than once and has been asked
before his “female” Lieutenant. I am also finding it hard to
understand why a “male” Lieutenant that has only been in that
position for 2 months over a “female” Lieutenant with over 5 years
in that same position.
. . . I am deeply concerned that this might carry on to other female
officers.
Def.’s Summ. J. Br., Dkt. # 16, at Ex. 2. Mullins, Captain Lockhart, and Lieutenant Jeannie
Patrick3 met in Lockhart’s office to discuss the concerns raised by Mullins. Id. at Ex. 3. Captain
Lockhart began the meeting by stating: “OK. Uh. I was wanting to talk to you about this email
that you sent to me. It is very offensive to me. And I wanted to know if you meant to offend me
by this email.” Id. at Ex. 3, p. 2. Mullins explained she did not mean to offend but meant what
1
Finding no evidentiary support in the record for Mullins’ gender discrimination claim, the court granted summary
judgment in favor of defendant on the record at oral argument. See Dkt. # 33.
2
These audio recordings, along with transcripts of the audio recordings, were provided as exhibits to defendant’s
summary judgment brief. See Def.’s Summ. J. Br., Dkt. # 16, at Ex. 3, Ex. 8.
3
It is readily apparent from the record evidence that the presence of Lieutenant Patrick at this meeting upset
Mullins. For example, in a summary of the meeting that Mullins sent via email to HR Director Fitzgerald later that
day, Mullins stated as regards Lieutenant Patrick, “I didn’t feel she had the right to be in the meeting nor to question
me . . . . I should not have to explain myself to another Lieutenant just because the Capt. wants her in the room.”
Def.’s Summ. J. Br., Dkt. # 16, at Ex. 7. See also discussion, infra.
2
she said. Mullins claimed to have asked Lockhart if she could attend the conference the previous
year; Captain Lockhart indicated he did not recall her making such a request. Lockhart claimed
Mullins had been asked to attend the conference in past years but could not go because of illness;
Mullins did not recall being asked. Additionally, Lockhart stated, “[W]e wanted to send you last
year. Because that’s when we sent Debbie, Linda, and Shannon to Virginia Beach. And we
knew you were having some illness problems so we didn’t even ask last year.” Id. at Ex. 3, p. 4.
Lockhart insisted that “[t]his has nothing to do with male/female,” and that “for you to come at
me with an email like this saying the only reason I didn’t send you was because you was a
female. That offends me.” Id. at Ex. 3, p. 5. Lockhart stated that the purpose of the meeting
was “to clear the air” on Mullins’ email “because it really offended [him] and [he] wanted to see
if that’s what [Mullins] was trying to do. Was to offend [him] and all that.” Id. at Ex. 3, p. 7.
Later that evening, Captain Lockhart emailed Superintendent Clear, copying Mullins,
stating: “Lt. Mullins has expressed interest in attending the conference in Virginia Beach this
year. Is there still time for her to register to go?” Superintendent Clear responded, “Yes, there is
plenty of time, I can do it in the morning. I believe their [sic] is an officer from Duffield she can
room with.” Id. at Ex. 4. The following morning, on March 3, 2011, Mullins responded to
Captain Lockhart via email, copying Superintendent Clear, Major Matthew Pilkenton, and HR
Director Fitzgerald, and stating:
After talking with you and Lt. Patrick in the office yesterday, I felt
intimidated and belittled. Another Lieutenant should not have
been in our meeting together and had no right to ask me any
questions at all. I advised you that I would take this higher and I
feel like you contacted Superintendent Steve Clear to try and cover
your oversight. So at this time, I formally decline to go.
Id. at Ex. 6.
3
A lengthy meeting between Mullins, Superintendent Clear and HR Director Fitzgerald on
March 3rd followed this email. At the beginning of this meeting, Superintended Clear asked for
a copy of Mullins’ initial email to Captain Lockhart concerning the Virginia Beach conference
because he had not seen it and “didn’t know what was going on.” Id. at Ex. 8, p. 1. The
discussion began:
Mullins:
Yeah. You look like you’re mad right now.
Clear:
I am. I really and truly am.
Mullins:
Well, I.
Clear:
No. If I was you I wouldn’t say nothing right now.
Just sit there a minute a[nd] let me read this. I
haven’t even read this yet.
Id. at Ex. 8, p. 1-2. When asked what this email had to do with, Mullins once again complained
that in the six years of her employment she had never been asked to attend the Virginia Beach
conference when “a lieutenant that’s only been here for two months” and her sergeant who had
already attended the conference before had been asked to go. Superintendent Clear explained
that all three conference attendees last year were females because “[w]e double up [in rooms]
now,” id. at Ex. 8, p. 4, and that the attendees this year would be male for that same reason.
While gender issues concerning the Virginia Beach conference was the subject of
Mullins’ original complaint to Captain Lockhart and presumably prompted the meeting with
Superintendent Clear, much of the discussion during the March 3rd meeting focused on how
Mullins felt “belittled” in the March 2nd meeting with Captain Lockhart and Lieutenant Patrick.
Specifically, Mullins noted that Lockhart “set the tone” by asking at the outset, “Did you try to
offend me?,” and the situation escalated when “Jeannie [Patrick] intervene[d] trying to ask
questions. . . . She had no business being there.” Id. at Ex. 8, p. 11-12; see also id. at Ex. 8, p.
4
37. Superintendent Clear explained that as an administrative lieutenant, Patrick had a right to be
in that meeting and, in fact, given the tone of Mullins’ initial email to Captain Lockhart, Clear
would have “probably fired” Lockhart if he had not had someone else in the meeting with him.
Id. at Ex. 8, p. 12. HR Director Fitzgerald stated that Mullins had “expressed to [her] before that
she has a problem with Jeannie Patrick because Jeannie is patronizing to her.” Id. at Ex. 8, p. 13.
Mullins clarified her feelings about Lieutenant Patrick, explaining she felt Patrick had the
support of Captain Lockhart and Major Pilkenton no matter what, but Mullins did not, and that
sometimes things “happen on the shift that really [Lieutenant Patrick] has no business
answering.” Id. at Ex. 8, p. 14. The conversation proceeded as follows:
Mullins:
[Lieutenant Patrick] make[s] a decision to get my
shift hurt or in trouble.
Clear:
So. So you think that she’s making
Mullins:
I think she has no business telling me what to do on
my shift. There you go.
Clear:
Ok.
Mullins:
She doesn’t have the experience or the knowledge
of what’s going on back there to do that. Period.
Clear:
Ok. There’s nothing wrong with that feeling at all.
Mullins:
Well no because it’s true.
Clear:
Ok. Uh. Now If- have you specifically mentioned
that to anyone other than Georgia [Fitzgerald]?
Cause now when you go in to talk to Dwayne
[Lockhart] she’s probably there so you’re not going
to talk to Dwayne about it there. Right?
Mullins:
Well I don’t know if I’ve said anything—I don’t
know. I really have to think about that. I don’t
know if I said anything to him or not.
Clear:
Ok.
5
Mullins:
Cause usually it’s something that’s quick decision
and then it is over.
Clear:
Ok.
Mullins:
And I can make arrangements to go around that.
You see what I’m saying?
Clear:
Ok. So if she tells you to do something you’re
telling me you make arrangements to go around it.
...
Mullins:
. . . I may have to do something on—so that my
shift is safe. You see what I’m saying.
Id. at Ex. 8, p. 16-17. The conversation continued:
Clear:
Ok. I can—you correct me if I’m saying this
wrong. I sense that you do not have confidence in
Jeannie [Patrick] or Dwayne [Lockhart].
Mullins:
Well you probably sense I don’t have confidence in
none of you.
Clear:
in none of us?
Mullins:
Yes
Id. at Ex. 8, p. 19. Mullins made plain that she intended this statement to mean she lacked
confidence in Superintendent Clear as well:
Clear:
. . . So you don’t have confidence in any of the
management.
Mullins:
Not much, no.
Clear:
And you’re that unhappy in your job?
Mullins:
I love my job. I love my job.
Clear:
Ok.
Mullins:
But my job is to take care of shifts.
6
Clear:
Ok. Here’s the thing, here’s the thing you have no
confidence in any of the management here.
Mullins:
right.
Clear:
all the way up.
Mullins:
No. just from—
Clear:
wait a minute.
Mullins:
Just the top 3.
Clear:
So me, Matt [Pilkenton], and Dwayne [Lockhart].
Mullins:
Yeah.
Clear:
Well I mean that’s all of it.
Mullins:
Ok then ok.
Id. at Ex. 8, p. 21; see also id. at Ex. 8, p. 20. Superintendent Clear then directed HR Director
Fitzgerald to escort Mullins back to get her belongings “before [they] get too deep into this.” Id.
at Ex. 8, p. 22. Clear stated he was placing Mullins on leave with pay4 because:
. . . I need some time to interview and look at the management
structure. Cause you have brought up some points that I definitely
need to look at. But I also got to come up with some ideas. The
fact that you said you do not have confidence I’m not going to
wrap my mind around it about now because I’ve got so many other
[sic] going on so I’m going to think about that. Ok. And like I
said nobody else will know. Here’s the thing though Melissa next
week you are going to be off all week because I’m out of the
country and I’m trying to get my father-in-law in the nursing
home, trying to get him settled and them I’m leave [sic]. I’m
going [sic] be gone all next week out of the country so you’re
going to have a whole week and I hope you think about it. You
know and ultimately what I hope is when I get back I will look at it
again. I’m going to sit down with Georgia [Fitzgerald] and let her
look at it. And I am going to say Georgia, tell me reading, after
reading this, what do you think? And I’m going to ask her. I’m
4
Clear directed HR Director Fitzgerald to put the leave in the system as vacation time so no one else would know
about it. Def.’s Summ. J. Br., Dkt. # 16, at Ex. 8, p. 22.
7
going to say Georgia, what do you think can be done? And then
we are going to call you back in and then I’m going to say Melissa
again I’m going to say what do you expect to happen from here.
From this time forward. . . .
Id. at Ex. 8, p. 22-23. Mullins asked why she was being put on leave and Clear responded:
“Because I’m leaving and you just told me you don’t have confidence in the management here. I
can’t leave—no, no, no, no, no. . . . I can’t leave with the comments that you’ve made.” Id. at
Ex. 8, p. 23-24. He continued:
Again what this has to do with is again you got over a matter of
one email, a meeting, and a second email there’s an escalation that
I’m not comfortable with.
. . . And then I’m not comfortable with your statement
saying you have no confidence in me and other management. Ok.
Id. at Ex. 8, p. 27.
On March 22, 2011, Superintendent Clear sent Mullins a letter that stated:
I have taken some time to review our meeting on March 4 [sic].
Though several issues were discussed, your thoughts and
conclusions on the leadership of the Authority keep recurring in
my review. As Lieutenant of the Abingdon Facility, you are a
major part of the leadership of the Authority and there is a certain
level of expectations. Your statement that you had no confidence
in any of the leadership of the Authority and the general tone of the
entire conversation concerning your supervisors leads me to the
conclusion that your services are no longer required by the
Authority.
Id. at Ex. 15. With respect to what prompted this letter, Clear stated in his affidavit:
Due to my planned vacation, Lieutenant Mullins was placed on
leave with pay until I could return and interview other involved
personnel. Because of the vacation and a death in my family, the
leave was extended. Upon returning, I reviewed the emails, emails
concerning her meeting with the Captain, discussed the issues with
the Captain and Operations Lieutenant Jeannie Patrick and spent
time with the employees on Lieutenant Mullins[’] shift. Upon my
return I spoke with Ms. Georgia Fitzgerald concerning our meeting
with Lieutenant Mullins to gather her opinion as to the letter that I
8
had decided to send to Lieutenant Mullins. For I had decided on
March 22, 2011 that Lieutenant Mullins[’] services were no longer
required by the Authority. . . . I spoke with Major Pilkenton,
Georgia Fitzgerald, and Captain Lockhart concerning the recent
events and listened to the recorded conversation between
Lieutenant Mullins, Captain Lockhart, and Operations Lieutenant
Patrick.
Id. at Ex. 9, ¶ 6. Clear stated further:
[I]t is Lieutenant Mullins[’] own statements about no confidence in
the administration, working around orders that had been given to
her . . . with no concern why those orders were given, and her own
perceptions of her shifts morale . . . . All these sticking in my
mind. I agree with Lieutenant Mullins that her job is a dangerous
one. But as an officer in the jail, she must rely on policy, her coworkers, her supervisors, and the jail administrator to maintain
safety not only for themselves but for each inmate and if a
Lieutenant, in this case Lieutenant Mullins, makes a decision to go
around an order without knowing the exact reasons for the order,
this can create an unsafe environment in the Abingdon Jail. So not
only did Melissa Mullins verbalize more than once that she had no
confidence in the management in particular of those officers above
her (which would include Major Pilkenton, Captain Lockhart, and
Operations Lieutenant Patrick) she was acting out that lack of
confidence by going around the instructions of my Operations
Lieutenant Patrick. While acknowledging on one hand that
Lieutenant Patrick was the person in charge when Captain
Lockhart and Major Pilkenton were not around she emphasized in
our conference that Lieutenant Patrick “has no business telling me
what to do on my shift.”
Id. at Ex. 9, ¶ 11. Superintendent Clear explained that this concern was compounded by a note
he saw in Mullins’ personnel file from Captain Lockhart dated December 9, 2010, which stated:
“This is the third time that Lt. Mullins has moved people around without asking or getting
direction from me. I have placed all three people on the shift and she moves them without
checking with me.” Id. at Ex. 9, ¶ 15; see id. at Ex. 18.
The Authority argues that this evidence establishes there is no genuine issue of material
fact as to the reason for terminating Mullins’ employment:
9
Mullins lost her employment with the Authority . . . because she
made it clear to the Superintendent of the Authority that she had
absolutely no confidence in him or her supervising major, her
supervising captain, or the administrative lieutenant and was as a
result willing to take actions at the jail contrary to jail policy and
the directives that she had been given. Such insubordination and
violation of policy are legitimate and sufficient reasons for
Lieutenant Mullins to lose her job with the jail Authority.
Def.’s Summ. J. Br., Dkt. # 16, at 19. Mullins, on the other hand, argues that after she
complained of gender discrimination she was subjected to retaliation—first, by Captain Lockhart
who “repeatedly ignored the discrimination itself and focused the meeting solely on questioning
plaintiff as to whether she intended to offend the Captain by making this complaint,” and then by
Superintendent Clear who “began the meeting by stating that he was ‘really and truly’ mad
because plaintiff had complained of sex discrimination.” Pl.’s Br. in Opp. to Summ. J., Dkt. #
22, at 12. Mullins contends that “[r]ather than management taking appropriate action and
addressing plaintiff’s complaint in a professional manner, management chose to get angry,
accuse, speaking in a booming and loud manner, and intimidate plaintiff in every way possible,
obviously to convince her to withdraw her complaint.” Id. Mullins claims that “such actions by
management in response to a complaint of discrimination, obviously made in good faith, could
not possibly inspire confidence in any reasonable person.” Id. at 13. Mullins asserts that there is
strong circumstantial evidence of retaliation in violation of Title VII.
II.
Under Federal Rule of Civil Procedure 56, 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.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Nguyen v. CNA Corp., 44 F.3d 234, 236-37 (4th Cir. 1995). When
making this determination, the court should consider “the pleadings, depositions, answers to
10
interrogatories, and admissions on file, together with . . . [any] affidavits” filed by the parties.
Celotex, 477 U.S. at 322. Whether a fact is material depends on the relevant substantive law,
and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of
material fact. Celotex, 477 U.S. at 323; Nguyen, 44 F.3d at 237. If that burden has been met, the
non-moving party must then come forward and establish the specific material facts in dispute to
survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986). “All reasonable inferences drawn from the evidence must be viewed in the light
most favorable to the party opposing the motion,” but “[a] mere scintilla of evidence supporting
a case is insufficient.” Nguyen, 44 F.3d at 237.
III.
To prevail on her retaliation claim, Mullins “must satisfy the three-step proof scheme
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).” Laughlin v.
Metropolitan Wash. Airports Auth., 149 F.3d 253, 258 (4th Cir. 1998). First, she “must
establish, by a preponderance of the evidence, a prima facie case of retaliation.” Laughlin, 149
F.3d at 258. “Once established, the burden shifts to the [Authority] to rebut the presumption of
retaliation by articulating a non-[retaliatory] reason for its action.” Id. (citing Ross v. Commc’ns
Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985)). If the Authority meets this burden of
production, the presumption “created by the prima facie case is rebutted and ‘drops from the
case,’ and [Mullins] bears the ultimate burden of proving that she has been the victim of
11
retaliation.” Id. (internal citations omitted). At this third step, plaintiff must show that the stated
reason for her termination was pretext. McDonnell Douglas, 411 U.S. at 804.
Turning to the first step of the McDonnell Douglas framework, Mullins has the burden of
proving a prima facie case of retaliation under Title VII by establishing: “(1) that she engaged in
protected activity, (2) that an adverse employment action was taken against her, and (3) that
there was a causal link between the protected activity and the adverse employment action.”
Laughlin, 149 F.3d at 258 (citing Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 754 (4th
Cir. 1996)). “Protected activity under Title VII is divided into two categories, opposition and
participation.” Id. at 257. The statute provides in pertinent part:
It shall be an unlawful employment practice for an employer to
discriminate against any of his employees . . . because he has
opposed any practice made an unlawful employment practice by
this subchapter . . . or because he has made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e-3(a). In short, “[a]n employer may not retaliate against an employee for
participating in an ongoing investigation or proceeding under Title VII, nor may the employer
take adverse employment action against an employee for opposing discriminatory practices in
the workplace.” Laughlin, 149 F.3d at 259. Participation includes “(1) making a charge [with
the EEOC]; (2) testifying; (3) assisting; or (4) participating in any manner in an investigation,
proceeding, or hearing under Title VII.” Id. (citing 42 U.S.C. § 2000e-3(a)). “Opposition
activity encompasses utilizing informal grievance procedures as well as staging informal protests
and voicing one’s opinions in order to bring attention to an employer’s discriminatory activities.”
Id. (citing Armstrong v. Index Journal Co., 647 F.2d 441, 448 (4th Cir. 1981)).
Plainly, Mullins engaged in protected opposition activity by raising complaints of gender
discrimination, specifically related to the Virginia Beach conference. Moreover, it is undisputed
12
that Mullins was placed on paid administrative leave and then terminated. The temporal
proximity between Mullins’ discrimination complaints and her termination sufficiently
establishes a causal connection between the protected activity and the adverse employment
action. Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (“Hoyle demonstrates a
causal connection because of the temporal proximity between her complaints and her
reassignment.”); Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989) (“While this
proof [that plaintiff was discharged after her employer became aware that she had filed a
discrimination charge] far from conclusively establishes the requisite causal connection, it
certainly satisfies the less onerous burden of making a prima facie case of causality.”). Thus,
Mullins has made a prima facie showing of retaliation.
The Authority, however, has rebutted the presumption of retaliation by articulating a nonretaliatory reason for Mullins’ discharge—that she was terminated as a result of her own
statements concerning her lack of confidence in management and her insubordination.
Therefore, under the applicable framework:
The presumption created by establishing a prima facie case “drops
from the case,” Texas Dep’t of Community Affairs v. Burdine, 450
U.S. 248, 256 n.10 [(1981)], and “the factual inquiry proceeds to a
new level of specificity,” id. at 255 []. This new level of
specificity “refer[s] to the fact that the inquiry now turns from the
few generalized factors that establish a prima facie case to the
specific proofs and rebuttals of [retaliatory conduct] the parties
have introduced.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,--,
113 S. Ct. 2742, 2752 [] (1993).
Jiminez v. Mary Washington College, 57 F.3d 369, 377 (4th Cir. 1995). Mullins bears “‘the
ultimate burden of persuading the court that [she] has been the victim of’” retaliation in violation
of Title VII. Id. (quoting Burdine, 450 U.S. at 256). Thus, it is not enough that Mullins prove
the Authority’s articulated reason for her termination is false; she must prove “‘both that the
13
reason was false, and that [her complaints of discrimination were] the real reason’ for the
challenged conduct.” Id. at 377-78 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515
(1993)); accord Adams v. Trustees, 640 F.3d 550, 560 (4th Cir. 2011). In so doing, she cannot
rely merely on her own assertions. See Adams, 640 F.3d at 560 (quoting Williams, 871 F.2d at
456). Rather, Mullins must show “specific proofs and rebuttals” of retaliatory conduct. St.
Mary’s, 509 U.S. at 516. Evidence relevant to the issue of pretext may include defendant’s
treatment of plaintiff during her employment and defendant’s reaction, if any, to plaintiff’s
legitimate civil rights activities. McDonnell Douglas, 411 U.S. at 804-05.
However, “a plaintiff is not required to offer additional evidence to show pretext other
than that which [s]he offered to make out h[er] prima facie case. . . .” Thurston v. Am. Press,
497 F. Supp. 2d 778, 781 (W.D. Va. 2007). At the pretext stage, “the trier of fact may still
consider the evidence establishing the plaintiff’s prima facie case ‘and inferences properly drawn
therefrom. . . on the issue of whether the defendant’s explanation is pretextual,’ Burdine, [450
U.S.] at 255, n.10 [].” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
“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 [retaliated against plaintiff].” Id. at 148.
The Authority argues that the evidence in this case “is so one sided that it does not
present a sufficient disagreement to require submission of the issues in this case to a jury. . . .”
Def.’s Reply Br., Dkt. # 30, at 13. Specifically, the Authority contends that Mullins has failed to
cite record evidence that would give a jury reasonable grounds for determining the reasons given
by Superintendent Clear for her termination were false and that the real reason she was
14
discharged was her complaint of gender discrimination. See Dkt. # 36. The court finds, after
careful review, that the record does not warrant summary judgment on the retaliation claim.
Throughout the March 2nd meeting, Captain Lockhart repeatedly stated that he was
offended by Mullins’ email complaint of gender discrimination. Likewise, Superintendent Clear
made plain at the outset of the March 3rd meeting that he was mad and that “[i]f [he] was
[Mullins] [he] wouldn’t say nothing right now.” Def.’s Summ. J. Br., Dkt. # 16, at Ex. 8, p. 2.
He later stated, “Well, I will grant you I’m upset. I’m upset because I wasn’t coming in today. I
had—dealing with a father-in-law and now then I have to come in and deal with this,” referring
to Mullins’ emails. Id. at Ex. 8, p. 17.
When the conversation at the March 3rd meeting turned from Mullins’ complaints of
discrimination to her feelings about Lieutenant Patrick, Mullins expressed her belief that
Lieutenant Patrick “doesn’t have the experience or the knowledge of what’s going on back there”
and had “no business” telling Mullins what to do on her shift. Id. at Ex. 8, p. 16. Superintendent
Clear responded by stating: “There’s nothing wrong with that feeling at all.” Id. Yet Clear
stated in his affidavit that one of the reasons for Mullins’ termination was that Mullins
“emphasized in [the March 3rd] conference that Lieutenant Patrick ‘has no business telling
[Mullins] what to do on [her] shift.’” Id. at Ex. 9, ¶ 11.
These statements by Captain Lockhart and Superintendent Clear and the overall tone of
the March 2011 meetings, coupled with the close temporal proximity between Mullins’
complaints of discrimination and her termination, lead the court to believe that the issue of
pretext and the ultimate issue of retaliation must be decided by a trier of fact. The court cannot
determine as a matter of law that Mullins’ termination resulted from the statements she made at
the March 3rd meeting concerning her lack of confidence in management and admitted
15
willingness to disobey orders given by Lieutenant Patrick, rather than from her complaints of
gender discrimination, which she raised at the very same meeting.
This is especially true in light of the fact that the record contains almost no evidence that
Mullins was failing to meet the Authority’s performance expectations prior to March 2011. This
is not a case in which Mullins’ assertions of unlawful retaliation must be viewed against a long
history of documented poor performance and insubordination. Cf. Williams, 871 F.2d at 459
(plaintiff’s own assertions of discrimination, “[s]et against the documented deterioration of her
work after she was placed on probation and her continued abuse of telephone privileges after
repeated warnings,” could lead no reasonable trier of fact to conclude that retaliation figured into
her dismissal). Indeed, Mullins provides as an exhibit to her response brief commendations she
received from Major Pilkenton on her work performance in December 2010, just a few months
prior to her termination. Pl.’s Resp. Br., Dkt. # 22, at Ex. 2. The document states:
It is one thing to do a job and yet another to do a job well and with
pride; you have exhibited the latter trait very well. For you, this is
not merely a job but a career. Through your efforts, it is shown
that you perform the tasks of your work to the highest level of your
ability. That effort is hereby appreciated and you are commended
for it.
Id.
The sole evidence in the record of any history of poor performance in Mullins’ six-year
employment with the Authority is a December 9, 2010 note in Mullins’ personnel file stating
Mullins had “moved people around without asking or getting direction from” Captain Lockhart.
Def.’s Summ. J. Br., Dkt. # 16, at Ex. 18. This note does not mention Lieutenant Patrick and
was only discovered by Superintendent Clear after he had placed Mullins on administrative leave
following the March 3rd meeting. Id. at Ex. 9, ¶ 15. Plainly, this note had been in Mullins’
personnel file for several months and had not given the Authority reason to terminate her up until
16
March 2011—the point at which she happened to raise her complaint of gender discrimination.
From this evidence, a rational trier of fact could conclude that Mullins’ alleged insubordination
is pretext for retaliation.
It may well be that, at the end of the day, Mullins cannot meet her burden of persuasion
on her retaliation claim by proving she was terminated because she raised complaints of gender
discrimination. Indeed, the United States Supreme Court recently articulated in the case of
University of Texas Southwestern Medical Center v. Nassar, --- U.S. ---, 133 S. Ct. 2517, 2533
(2013), that “Title VII retaliation claims must be proved according to traditional principles of
but-for causation,” not the lessened “motivating-factor” causation test set forth in 42 U.S.C. §
2000e-2(m), which is applicable to cases involving intentional discrimination based on race,
color, religion, sex or national origin. “This requires proof that the unlawful retaliation would
not have occurred in the absence of alleged wrongful action or actions of the employer.” Nasser,
133 S. Ct. at 2533.
At this stage, however, the court cannot say based on the evidence before it that no
reasonable juror could find in favor of the plaintiff. There is a sufficient nexus between the
protected activity and the Authority’s decision to terminate Mullins to require resolution of her
claim by a trier of fact. Cf. Ramos v. Molina Healthcare, Inc., No. 1:12-cv-856 (GBL/TCP),
2013 WL 4053227, at *16 (E.D. Va. Aug. 8, 2013) (“Plaintiff may not simply establish that the
employer’s legitimate permissible reasons were inaccurate without also demonstrating a nexus
between the protected activity and the employer’s decision to terminate. Plaintiff’s declarations
simply deny Defendants’ assertions without tethering the termination to the protected meetings
. . . .”).
17
As the district court noted in Ferrell v. Harris Ventures, Inc., 812 F. Supp. 2d 741, 748
(E.D. Va. 2011):
Questions of intent are hard to decide on summary judgment. They
are almost always inferential, and best left to the trier of fact who
can observe the witnesses and determine whether explanations
hold water. “It is readily apparent that determining intent is factintensive, and when the circumstantial evidence of a person’s
intent is ambiguous, the question of intent cannot be resolved on
summary judgment.” Gen. Analytics Corp. v. CNA Ins. Cos., 86
F.3d 51, 54 (4th Cir.1996) (citation omitted). A great deal depends
on when statements occurred and what their precise content was.
This Court has observed that “the timing and content of several
conversations is not just material, but potentially dispositive. There
is sufficient conflict about interwoven events, and sufficient need
for a fact finder to resolve credibility issues, to preclude summary
judgment on the retaliation claim.” Atkins v. Computer Scis.
Corp., 264 F.Supp.2d 404, 413 (E.D.Va.2003).
Here, like in Ferrell, Mullins’ complaints of discrimination, her statements concerning her lack
of confidence in management, and her termination are interwoven. As such, summary judgment
is not appropriate. See Thurston, 497 F. Supp. 2d at 781 (“[T]he plaintiff can survive summary
judgment so long as [s]he has offered sufficient evidence to allow a reasonable jury to disbelieve
the defendant’s proffered reason for [terminating her].”). The trier of fact must resolve the
ultimate question of whether Mullins has met her burden of proving that she was retaliated
against in violation of Title VII.
IV.
For these reasons, defendant’s motion for summary judgment as to Mullins’ retaliation
claim is DENIED.
18
An appropriate Order will be entered.
Entered: November 6, 2013
/s/ Michael F. Urbanski
Michael F. Urbanski
United States District Judge
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