Opinion
Civil Action No. RDB-07-1930.
August 1, 2008
MEMORANDUM OPINION
This employment discrimination action arises out of a Complaint filed by Yvonne Gay ("Plaintiff" or "Gay") against her former employer, Timberlake Homes, Inc. ("Defendant" or "Timberlake"). Plaintiff's Complaint contains a single count alleging termination of employment on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Pending before this Court is Defendant's Motion for Summary Judgment. (Paper No. 9.) This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2008). For the reasons that follow, Defendant's Motion for Summary Judgment is DENIED.
BACKGROUND PROCEDURAL HISTORY
This Court reviews the facts of this case in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Timberlake Homes is a construction company in the business of building and renovating homes in Maryland and Delaware. (Def.'s Mem. Supp. Summ. J. 1.) Timberlake has at times contracted with the marketing group, Builder's First Choice ("BFC"), for services relating to the promotion and sale of its properties. (Minzer Dep. 21-22.)
Yvonne Gay, an African-American, alleges that she was hired as a sales assistant by Timberlake. (Gay Dep. 7.) The record indicates, however, that Gay began her employment at BFC before becoming an official employee of Timberlake. (Pl.'s Mem. Opp. Summ. J. Ex. 5.) Nevertheless, in 2000, Kathryn Ryan ("Ryan"), a Caucasian, was hired in a similar capacity to that of Gay's. ( Id. at 2.) At the beginning of their respective employments, both Gay and Ryan were given the opportunity to work under BFC sales manager Robert Rayman ("Rayman"). Despite conflicting allegations as to the identity of Gay's original employer, it is undisputed that from 2000 until 2004, Gay, Ryan, and Rayman primarily served Timberlake properties and worked directly with Timberlake employees. (Gay Dep. 7-10; Rayman Dep. 19.)
On October 22, 2004, Gay, Ryan, and Rayman were subject to a new agreement between BFC and Timberlake. (Def.'s Mem. Supp. Summ. J. Ex. 3.) Under the new agreement, the three employees were made official employees of Timberlake. (Minzer Dep. 29.) As a Timberlake employee, Rayman was promoted to Vice President of Sales and Marketing, overseeing Gay and Ryan, who among others held the title of Sales Manager. (Rayman Dep. 20; Def.'s Mem. Supp. Summ. J. 2.) Rayman's responsibilities as Vice President of Sales and Marketing ranged from overseeing sales made by Timberlake employees (Minzer Dep. 66), to evaluating sales managers and reporting back to Timberlake's President, John Minzer ("Minzer"). (Pl.'s Mem. Opp. Summ. J. Exs. 1-4.)
In evaluating Gay at the end of 2004, Rayman stated that:
Yvonne performed exemplarily this past year under very trying conditions. . . . [She] performed steadily in spite of numerous rumors. She remained totally loyal to, worked diligently for [and] acted totally in the best interests of Timberlake Homes. . . . Overall, I was extremely pleased with Yvonne's performance. She displayed both the desire and willingness to learn.
( Id. at Ex. 2.) A year later, Rayman's evaluation of Gay stated that she was only meeting the requirements of her position and was working below her potential. ( Id. at Ex. 4.)
In the midst of a declining housing market, Minzer met with Rayman at the beginning of 2006 to set a year long sales quota for Timberlake employees. (Minzer Dep. 92-95.) After a slow start towards meeting the 2006 quota, Rayman sent a number of e-mails to the six sales managers insisting on better performance. (Def.'s Reply Ex. A.) A few of these e-mails were sent specifically to Gay while others were sent to groups of Sales Managers. ( Id.) In one such e-mail, dated March 29, 2006, four sales managers including Gay were cautioned by Rayman:
To say I am disappointed with your overall effort would be an understatement. Strong words — but they need be said. . . . Okay — is everyone guilty of everything — no. But I will tell you this, I am getting enough negative feedback to warrant these words. . . . Either make it happen or get out of the way so that I can put someone in that will make it happen.
Rayman listed nine instances in which he believed the sales team was underperforming, including sales persons: (1) not on site during work hours; (2) not attending pre-settlement meetings; (3) complaining about attending or not attending an assessment geared to pinpoint training needs; (4) not cleaning sales trailers; (5) complaining about lack of traffic instead of focusing on ways to generate traffic; (6) not knowing the market; (7) voicing why they can't get things done instead of why they can; (8) making errors, failing to follow through; and (9) saying I need, I need and so on. (Def.'s Reply Ex. A.)
( Id. at 2.) In addition, a subsequent e-mail, dated May 26, 2006, sent exclusively to Gay, requested an explanation for "failure to provide information as required." ( Id. at 11.)
By June of 2006, sales numbers remained down and Minzer realized that Timberlake's year-long quota was not going to be met. (Minzer Dep. 95.) Minzer, therefore, decided to place individual quotas on sales managers for the month of July. ( Id. at 92-105.) Employees were allegedly told that failure to meet their respective quotas would result in termination of employment. (Gay Decl. ¶ 9.) In early July of 2006, Gay and Ryan were made to sign their quota agreements, requiring them to make four sales each in the month of July. (Gay Decl. ¶ 9) Gay alleges that other, less experienced sales managers were required to sell fewer homes at this time. ( Id.) The record is unclear on this point, however, and there is considerable dispute between the parties as to whether all the sales managers were required to sign similar agreements. ( See Pl.'s Mem. Opp. Summ. J. 5 n. 3.) Specifically, Gay insists Rayman informed her that all sales managers signed a document requiring a quota. ( Id. at 5.) Moreover, at least one employee claims to have seen all the managers sign a similar agreement. (Pittman Decl. ¶ 5). On the other hand, one sales manager, Kevin Sasada, claims to have refused to sign such an agreement (Gay Decl. ¶ 9), and Timberlake maintains that only Gay's and Ryan's agreements contained the clause regarding potential termination of employment (Pl.'s Mem. Opp. Summ. J. Ex. 8, p. 5).
By this time Timberlake was operating with seven sales managers. (Pl.'s Mem. Opp. Summ. J. Ex. 8, p. 2.) Ira Watson, hired July 1, 2006, was the only other African-American sales manager besides Gay. ( Id.)
At this point, Gay and Ryan were Timberlake's two most senior sales managers earning a base salary of $50,000. Other sales managers were earning a base salary of $30,000. (Def.'s Mem. Supp. Summ. J. 6 n. 1.)
None of the agreements from July have been produced for the record.
When the agreements were signed, Gay's sales record indicated that four sales in one month would be an improvement, while Ryan's record reflected that a four-sale month was not at all unusual. From January 2006 through June 2006, Gay's sales were ranked third highest for the company, with eight total sales for the year. ( Id. at Ex. 7.) Accordingly, Gay was averaging 1.3 sales per month. ( Id.) Ryan, on the other hand, was Timberlake's best seller, coming in first in total sales with 23 for the year, and averaging 3.75 sales per month. ( Id.) Gay has attributed the difference in sales by the two managers to the exposure of their respective housing developments. ( Id.) Ryan's housing development received roughly three times the traffic of Gay's over this period. ( Id.)
In addition to the four-sale requirement placed on both sales managers, Gay was told, in late June, that she would not be allowed to write contracts between the hours of 11:00 a.m. and 6:00 p.m. (Pl.'s Mem. Opp. Summ. J. 5; Pittman Decl. ¶ 6.) It was later learned by Gay, in late July, that Ryan had been permitted to sign contracts between those hours, and only after confronting Rayman was Gay permitted to do the same. (Pl.'s Mem. Opp. Summ. J. 6.)
During the month of July, Gay alleges that Ryan received assistance from Rayman that was not provided to her. Specifically, Gay alleges that Rayman and another supervisor, Stacey Smith, provided Ryan with printed fliers and the use of a broker outreach program. ( Id.) It is Timberlake's position however, that toward the end of the month, upon the realization that Gay was unlikely to meet her quota, Rayman offered her assistance. (Rayman Dep. 95-102.)
The July results indicate that Ryan was able to secure a total of seven sales. (Pl.'s Mem. Opp. Summ. J. Ex. 8, p. 2.) Gay, on the other hand, secured two early sales and claims that she later found two ready, willing, and able buyers. ( Id. at 6.) Gay argues that a ready, willing, and able buyer was, typically recognized by Timberlake as a sale. ( Id.) In response, Timberlake points to a policy that was in effect in 2006 restricting managers from signing "sales contracts with potential customers unless the customer was prepared to go to closing within six months of the date of the contract." (Minzer Aff. ¶ 4.) Gay maintains that such a policy has never been enforced, and that the ready, willing, and able buyers should have fulfilled her quota. (Pl.'s Mem. Opp. Summ. J. 6.) With the proposed buyers requesting a longer time-frame, Gay was told the sales could not be made. ( Id.) Gay, therefore, failed to meet her required quota of four sales, and her employment was terminated on August 14, 2006. ( Id. at Ex. 11.)
While it is undisputed that Gay's failure to meet her quota was the primary reason given for the termination of her employment, Rayman has offered a number of other factors that contributed to her discharge. (Rayman Dep. 95-02.) Specifically, Rayman cites failures to attend events, and a two-week vacation taken with short notice at the end of July. ( Id.) Additionally, Rayman has said that when he offered Gay help in securing sales he felt like he was helping someone who "just didn't care or gave up." ( Id. at 102.) Finally, Rayman has testified that had Gay put forth more effort and still failed he would have opposed her termination when discussing the failure with Minzer. ( Id. at 102-03.)
Other employee results in July included failures by three Caucasians and Ira Watson, the newly hired African-American male. (Pl.'s Mem. Opp. Summ. J. Ex. 8, p. 2.) Unlike Gay, none of these employees were fired for failure to meet their monthly goal. ( Id. at 3). In the months following Gay's termination, similar quotas were placed on sales managers. Specifically, one sales manager, Ronnie Pittman ("Pittman"), was made to sign an agreement acknowledging she "would be fired" for not fulfilling a goal for the month of October 2006. (Pittman Decl. ¶ 11.) However, this document appears to have been redrafted shortly thereafter to read "may be cause for dismissal." (Pittman Decl. ¶ 12; Rayman Dep. 85.) Nevertheless, no other Timberlake employee has been fired for failure to satisfy a monthly quota since Gay. (Smith Dep. 61.)
Upon Gay's employment termination, Pittman, an African-American Assistant Sales Manager, was encouraged by Rayman and Smith to apply for her position. (Pittman Decl. ¶ 10.) Pittman was hired for Gay's position in September of 2006, with an understanding that if she did not perform "up to par," she would be demoted back to sales assistant. (Pittman Dep. 37.) Despite making a majority of her sales goals from September 2006 to March 2007, Pittman was reassigned to her prior job when it was decided that she was not adequately fulfilling her new role with Timberlake. ( Id. ¶ 13.) Thereafter, a Caucasian woman, Frances Calhoun, was hired to fill what was formerly Gay's position. ( Id. 3.)
Gay filed a Charge of Discrimination with the Maryland Commission on Human Relations alleging race discrimination. On April 30, 2007, the EEOC dismissed the charge, finding that it was unable to conclude that any statute had been violated. (Def.'s Rep. Mem. Supp. Summ. J. Ex. 8.) On July 20, 2007, Gay filed a single count Complaint against Timberlake in this Court. On February 4, 2008, Timberlake filed the pending Motion for Summary Judgment. (Paper No. 9.) Gay filed a Response in Opposition (Paper No. 12) on February 29, 2008, to which Timberlake filed a Reply (Paper No. 15) on March 18, 2008.
STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c) (emphasis added). In Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), the Supreme Court explained that only "facts that might affect the outcome of the suit under the governing law" are material. Id. at 248. Moreover, a dispute over a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The Court further explained that, in considering a motion for summary judgment, a judge's function is limited to determining whether sufficient evidence supporting a claimed factual dispute exists to warrant submission of the matter to a jury for resolution at trial. Id. at 249. In that context, a court must consider the facts and all reasonable inferences in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
"Once the movant has established the absence of any genuine issue of material fact, the opposing party has an obligation to present some type of evidence to the court demonstrating the existence of an issue of fact." Pension Ben. Guar. Corp. v. Beverley, 404 F.3d 243, 246-47 (4th Cir. 2005) (citing Pine Ridge Coal Co. v. Local 8377, UMW, 187 F.3d 415, 422 (4th Cir. 1999)). A genuine issue of material fact may exist if the evidence presented to the court is sufficient to indicate the existence of a factual dispute that could be resolved in favor of the non-moving party at trial. Rachael-Smith v. FTDATA, Inc., 247 F. Supp. 2d 734, 742 (D. Md. 2003) (citing Anderson, 477 U.S. at 248-49). Moreover, any inferences drawn from disputed evidence must be accorded to the non-moving party. See Matsushita, 475 U.S. at 587-88; E.E.O.C. v. Navy Federal Credit Union, 424 F.3d 397, 405 (4th Cir. 2005).
DISCUSSION
A plaintiff in a Title VII case may survive a motion for summary judgment filed by the defendant employer in one of two ways: "(1) by offering direct evidence of discrimination under the ordinary standards of proof, or (2) under the system of shifting evidentiary burdens established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)." Garrow v. Economos Props., Inc., 242 Fed. Appx. 68, 70 (4th Cir. 2007). Because Plaintiff has not alleged any direct evidence of discriminatory intent, her claim is reviewed under the familiar three-step McDonnell Douglas burden-shifting model.To satisfy the McDonnell Douglas framework, the plaintiff must first present enough evidence to establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. If the plaintiff is able to do so, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Id. In reviewing the defendant's explanation, this Court does not "sit as a kind of super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination." DeJarnette v. Corning, Inc., 133 F.3d 293, 298-99 (4th Cir. 1998) (internal quotations and citations omitted). If the defendant provides a legitimate, nondiscriminatory reason for the adverse employment action, the ultimate burden shifts to the plaintiff to show that the defendant's stated reason is pretextual. McDonnell Douglas, 411 U.S. at 804.
In order for a plaintiff's complaint to withstand summary judgment, the plaintiff must produce circumstantial evidence demonstrating discrimination, with sufficient probative force to reflect a genuine issue of material fact. Burns v. AAF-McQuay, Inc., 96 F.3d 728, 732 (4th Cir. 1996). If the plaintiff cannot present facts that would permit a reasonable inference that defendant's explanation is a pretext for discrimination, summary judgment in favor of the defendant will be granted. See Rowe v. Marley Co., 233 F.3d 825, 830 (4th Cir. 2000) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-47 (2000)).
In this case, Defendant argues that Plaintiff has failed to establish a prima facie case by a preponderance of the evidence. Alternatively, Defendant insists that Plaintiff's employment was terminated for legitimate nondiscriminatory reasons and that no evidence has been put forth to establish that the offered reasons were pretextual.
I. Plaintiff's Prima Facie Case
To satisfy her initial burden, Plaintiff must meet four elements by a preponderance of the evidence. Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 513 (4th Cir. 2006) cert. denied, 127 S.Ct. 53. Namely, Plaintiff must show that she (1) is a member of a protected class, (2) suffered adverse employment action, (3) was performing her job in a satisfactory manner, or to her employer's legitimate expectations, and (4) was replaced by an individual of comparable qualifications outside the protected class following her discharge. Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, 285 (4th Cir. 2004) (en banc). Defendant has neither disputed that, as an African-American, Plaintiff is a member of a protected class, nor has it argued the adversity of the employment decision. Rather, Defendant argues that Plaintiff has failed to satisfy the third and fourth elements of the prima facie case.
A. Meeting Employer's Legitimate Job Expectations
Plaintiff must produce sufficient evidence from which a jury could conclude that she met her legitimate job expectations. Warch 435 F.3d at 517. Although Plaintiff is "require[d] to prove by the preponderance of the evidence a prima facie case of discrimination," the performance expectations requirement should not be applied too strictly for fear of dismissing an otherwise meritorious claim. Id. at 515-16 (citations omitted). To be sure, establishing the prima facie case is not meant to be prohibitive or onerous. Id. Moreover, evidence creating a question of fact satisfies the initial burden shouldered by the Plaintiff. Ruff v. Target Stores, Inc., 226 Fed. Appx. 294, 301 (4th Cir. 2007).
A plaintiff may satisfy the third prong of the prima facie case in at least two ways. First, a plaintiff may show that the legitimate expectations of the employer were in fact met. See Love-Lane v. Martin, 355 F.3d 766, 787 (4th Cir. 2004); Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1228 (4th Cir. 1998). Alternatively, a plaintiff may show that an employer's expectations were not met because they were, in fact, not legitimate. Warch, 435 F.3d at 517. In the immediate case, the Plaintiff has introduced numerous arguments in an attempt to satisfy the third prong of her prima facie case.
Plaintiff's first and second arguments assert that a positive employment history and a lack of criticism are evidence of meeting her employer's expectations. Both parties have offered exhibits tending to show the legitimacy or illegitimacy of Plaintiff's performance in this context.
Plaintiff argues that past performance evaluations demonstrate her employer's satisfaction. ( See Pl.'s Mem. Opp. Summ. J. Ex. 2.) Plaintiff's 2004 performance evaluation shows that, at the upstart of her employment with Defendant, Plaintiff was exceeding her supervisors' expectations. ( Id.) In addition, Plaintiff's 2005 performance evaluation, represents that Defendant's expectations were being met. ( Id. at Ex. 6.) Past evaluations, however, are not dispositive of an employee's overall work performance. As the time gap between last positive evaluation and challenged employment action lengthens, the inference of satisfactory performance weakens. Warch, 435 F.3d at 516 (citing Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 244 (4th Cir. 1982)); see also O'Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542, 547 (4th Cir. 1995) (holding that a review of an employee's performance was irrelevant to a determination of whether his performance was satisfactory at the time of his termination).
Supporting the conclusion that Plaintiff's performance was inadequate, Defendant has offered numerous e-mails that were sent to Plaintiff concerning poor work habits. (Def.'s Rep. Mem. Supp. Summ. J. Ex. A.) These e-mails are in direct contradiction to Plaintiff's contention that her job performance had not been criticized. The record indicates, however, that emails of this sort were not sent exclusively to the Plaintiff. Rather, the majority of the sales staff had at times been criticized for failure to perform as expected. ( See Def.'s Reply Ex. A.) Accordingly, this Court finds that Plaintiff's performance evaluations and Defendant's e-mails provide minimal insight as to whether or not legitimate job expectations were being met.
Plaintiff next contends that Defendant failed to count two sales that were made in the month of July that would have satisfied Plaintiff's quota. Specifically, Plaintiff argues that a ready, willing, and able buyer was typically considered a sale, and that Defendant's failure to count her two ready, willing, and able buyers resulted in her not fulfilling her quota. (Pl's Mem. Opp. Summ. J. Ex. 6.) Defendant responds that a potential buyer counted as a sale only if the buyer was willing to close within six months. (Minzer Aff. ¶ 4.) Plaintiff maintains, however, that even if there was such a policy, it had never been enforced. Neither Plaintiff nor Defendant has offered any substantial evidence concerning the existence or enforcement of the policy; rather both parties have merely alleged different facts. Moreover, at least one employee has offered conflicting testimony on the policy, at one time noting that a ready, willing, and able buyer was typically a sale, but later suggesting there may have been limitations. (Pittman Dep. 46; Pittman Decl. ¶ 8.) Precisely what constitutes a sale remains unclear. However, taking facts in a light most favorable to the non-moving party, Plaintiff has undoubtedly created a question of fact which, alone, may satisfy her burden at this stage of the McDonnell Douglas framework. See Ruff, 226 Fed. Appx. at 301.
Even if the record definitively demonstrated that Plaintiff had not met her quota, this Court would nevertheless find the claim capable of satisfying the third element of the prima facie case. Plaintiff has argued that Defendant's expectations of her were not legitimate. In what has been acknowledged by Defendant as a slowing housing market, Plaintiff was asked to triple her monthly sales average of 1.3 homes and sell four homes in the month of July. (Pl's Mem. Opp. Summ. J. Ex. 5.) Plaintiff suggests that it was unreasonable for Defendant to set the same quota — four homes — for both her and Ryan, when Ryan was averaging 3.75 homes per month. In addition, Plaintiff points out that traffic and exposure of the neighborhood from which she was selling was roughly one third of Ryan's neighborhood, requiring Plaintiff to make equal sales with less opportunity. ( Id.) Furthermore, assistance from supervisors was provided for Ryan but not for Plaintiff, and Ryan was permitted to sign contracts from 11 a.m. to 6 p.m. while Plaintiff was only allowed to do so starting late in the month. (Pl.'s Mem. Opp. Summ. J. 14.) Finally, the failure of five, of a total seven, sales managers to obtain their monthly goals is substantial evidence that the monthly quotas were unreasonably high to begin with. By these facts, Plaintiff has created a substantial question of fact with respect to the legitimacy of Defendants expectations. Plaintiff has, therefore, satisfied the third element of her prima facie case.
B. Plaintiff's Replacement
To satisfy the fourth element of the prima facie case a plaintiff is typically required to show that he or she was replaced by an individual of comparable qualifications outside of the protected class. Hill, 354 F.3d at 285. "However, [the Fourth Circuit has] recognized that `there may be exceptions to this rule in limited situations.'" Miles v. Dell Inc., 429 F.3d 486 (4th Cir. 2005) (quoting Brown v. McLean, 159 F.3d 898, 905 (4th Cir. 1998)). "Moreover, every other circuit has held that a Title VII plaintiff does not always have to show replacement outside the protected class in order to make out a prima facie case," and the Supreme Court has not addressed this issue. Miles, 429 F.3d at 485-86. Initially replaced by an African-American, Plaintiff argues two exceptions to the general rule, that are well established in this Circuit.
1. Hire and Discharge Exception
First, a plaintiff may show that the decision to discharge and the decision to hire the replacement were made by different supervisors. Miles v. Dell Inc., 429 F.3d 480 (4th Cir. 2005). "When one individual makes the decision to fire the plaintiff and another makes the replacement hiring decision, the second individual's hiring decision has no probative value whatsoever as to whether the first individual's firing decision was motivated by the plaintiff's protected status." Id. at 489.
Arguing in favor of the hiring-firing exception, Plaintiff suggests that the decisions to place the quota on her and terminate her employment were made by Minzer, while the decision to hire her temporary replacement was made by Rayman and Smith. Plaintiff's argument fails however, in that she refuses to address evidence that both Rayman and Minzer were substantially involved in both the decision to terminate Plaintiff and hire Pittman. ( See Pl.'s Mem. Opp. Summ. J. Ex. 8, p. 4.) First, it is undisputed that Minzer only decided to place the four-home quota on Plaintiff after consulting Rayman. (Minzer Dep. 105.) Second, Minzer has testified that the decision to terminate Plaintiff's employment was only made after he spoke with Rayman. ( Id. at 114.) Lastly, in addition to Rayman's involvement in the termination of Plaintiff, there is substantial evidence that Minzer was involved in the hiring of Pittman. Specifically, Minzer testified that he suggested Pittman be looked at for the position, and also that the ultimate hiring decision for Plaintiff's replacement was reviewable by him. ( Id. at 118.)
Taken in a light most favorable to the Plaintiff, this Court is unable to conclude that the decisions to terminate Plaintiff and hire Pittman were made by different individuals. Both were collaborative efforts, and extending the Fourth Circuit exception to the case at hand would improperly relieve the Plaintiff's burden. See Parker v. Smithfield Packing Co., No. 06-468, 2007 U.S. Dist. LEXIS 21706 (E.D. Va. Mar. 26, 2007) (reasoning similar facts as unsatisfactory to warrant the exception's use).
2. Disguise of an Act of Discrimination Exception
Under an alternative exception to the fourth element, Plaintiff asks this court to determine that the hiring of the African-American Pittman was "calculated to disguise an act of discrimination." Brown, 159 F.3d at 905. When an "employer's decision to hire someone of the plaintiff's protected class as a replacement does not give rise to an inference of non-discrimination with respect to the decision to fire the plaintiff . . . the fourth prong of the prima facie case ought to give way." Miles, 429 F.3d at 489.
In Cole v. Anne Arundel County Bd. of Educ., No. 05-1579, 2006 U.S. Dist. LEXIS 89426 (D. Md. Nov. 30, 2006), an African-American plaintiff alleged discrimination when a Caucasian woman was initially hired to replace her as a school bus driver. In Cole, this Court found that because the Caucasian woman was subsequently replaced by an African-American some four months later, the inference of discrimination that could be drawn from the initial replacement was no longer relevant.
In the immediate case, the parties have acknowledged that Plaintiff was replaced by Ronnie Pittman, an African-American, and six months later by a Caucasian Francis Calhoon. Plaintiff argues that because Pittman failed to hold the position, the nondiscriminatory inference that can usually be drawn from a defendant's replacement decision is not realized. This Court finds the logic of Cole to be equally applicable to the facts at hand. When an employee is replaced by someone inside his or her protected class, but that replacement is sometime thereafter replaced by someone outside the protected class, it is sufficient in certain circumstances to warrant the exceptions use. In short, this scenario raises a genuine issue of material fact.
Here, Pittman appears to have been hired on a somewhat temporary basis. Specifically, Pittman was promoted with the understanding, or stipulation, that she would be replaced if the Defendant felt she was not adequately handling her new post. ( See Pittman Dep. 37.) Moreover, Defendant admitted that the evidence surrounding Pittman's demotion "may not be clear," and Pittman has testified that she was demoted despite fulfilling the requirements of her new position. (Def.'s Reply 4; Pittman Decl. ¶ 13.) Taken in a light most favorable to the Plaintiff, this Court finds that the Plaintiff's burden under the fourth element has been met.
Plaintiff has, therefore, made out a prima facie case satisfying her initial burden under the McDonnell Douglas framework.
II. Defendant's Nondiscriminatory Reason and Plaintiff's Ultimate Burden
Defendant has satisfied the second prong of the McDonnell Douglas test by "explaining clearly the nondiscriminatory reasons for its actions." Burdine, 450 U.S. at 260. In addition to Plaintiff not meeting her quota, Plaintiff's supervisor specifically testified that her work habits were decreasing in that she was putting forth little effort in a downward market. (Rayman Dep. 95-102.) Furthermore, Plaintiff's dismissal has been justified by Defendant because of other reasons, such as: (1) Plaintiff's failure to communicate to supervisors, (2) failure to participate in functions designed to promote sales, and (3) short notice that she was taking a two-week vacation. ( Id.) Additionally, Plaintiff's supervisor described her performance at the end of her employment as that of someone who "just didn't care or gave up." (Rayman Dep. 102.)
Plaintiff now shoulders the ultimate burden to demonstrate that Defendant's legitimate, nondiscriminatory reasons for terminating her employment were pretextual. McDonnell Douglas, 411 U.S. at 804. In order for Plaintiff's complaint to withstand summary judgment, she must produce circumstantial evidence of a purpose to discriminate on the basis of race, with sufficient probative force to reflect a genuine issue of material fact. Burns v. AAF-McQuay, Inc., 96 F.3d 728, 732 (4th Cir. 1996). In addition, "[P]laintiff'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." Reeves, 530 U.S. at 148. Thus, "a key factor for courts to consider is the probative value of the proof that the employer's explanation is false." Holland v. Wash. Homes, Inc., 487 F.3d 208, 215 (4th Cir. 2007) (internal quotations omitted).
In accordance with the McDonnell Douglas framework, Plaintiff contends that Defendant's proffered reasons for terminating her employment were pretextual because (1) Defendant's reasons have changed over time, (2) she did in fact sell four houses in the month of July, and (3) the quota requirement was strictly enforced on her but not on other employees.
A. Defendant's Changing Justifications
In Dennis v. Columbia Colleton Medical Center, Inc., 290 F.3d 639 (4th Cir. 2002), the Fourth Circuit found that a plaintiff had established sufficient evidence of pretext in an employer's "inconsistent post-hoc explanations for its employment decisions." In Dennis, the decisionmaker testified that he hired someone other than the plaintiff because of managerial experience, but later added that it was both managerial experience and computer knowledge that caused him to hire someone other than the plaintiff. Id. In discussion, the Dennis court held that when a defendant changes its reason for an adverse employment action, the inconsistency may be probative of pretext. Id.; see also EEOC v. Sears Roebuck Co., 243 F.3d 846, 852-853 (4th Cir. 2001) ("[T]he fact that [defendant] has offered different justifications at different times for its [adverse employment decision] is, in and of itself, probative of pretext.").
In the immediate case, Plaintiff has drawn the Court's attention to the initial reason provided for her termination. (Pl.'s Mem. Opp. Summ. J. Ex. 8, pp. 2-3.) Specifically, Defendant first explained that Plaintiff's employment was terminated because she "simply failed to meet her sales goals." ( Id.) This answer is consistent with the Termination Letter received by Plaintiff at the time of her dismissal on August 14, 2006. ( Id. at Ex. 11.) Defendant has since, however, altered and/or elaborated on its initial response to include reasons for dismissal ranging from failure to make sales events, to failure to notify superiors of a vacation. ( See Def.'s Mem. Supp. Summ. J. 6.) The addition of these reasons are more substantial than those found in the Dennis case, where the employer only added plaintiff's lack of an extra job skill. Therefore, there is a genuine issue of material fact. The facts of this case may permit a jury to conclude that Defendant's piling on of justifications is probative of pretext. See Rowe, 233 F.3d at 830.
B. Defendant's Four-Home Quota
Notwithstanding the inconsistencies described above, Defendant relies heavily on Plaintiff's failure to meet her quota as justification for the termination of employment. As discussed in analysis of Plaintiff's prima facie case, however, a substantial question of fact surrounds whether or not Plaintiff did indeed sell four homes in the month of July. If a trier of fact were to determine that Plaintiff met her quota, then the major legitimate reason, for the adverse employment action, advanced by the Defendant would be false. Given the significance of resolving this question of fact, and the pretextual standard highlighted in the Reeves decision, summary judgment in favor of the defendant is inappropriate. See Hux, 451 F.3d at 315 ("The summary judgment standards mesh comfortably with the McDonnell Douglas framework. Once an employer has provided a non-discriminatory explanation for its decision, the plaintiff cannot seek to expose that rationale by focusing on minor discrepancies that do not cast doubt on the explanation's validity." (emphasis added)).
C. Defendant's Expectations
The record reflects that the vast majority of Defendant's employees were not meeting expectations. Specifically, multiple sales managers were receiving e-mails about poor performance ( see Def.'s Reply Ex. A), and in the month of July, five of Defendant's seven sales managers failed to meet the quota the Defendant had set for them. Defendant has suggested that its decision to terminate only Plaintiff's employment was, nevertheless, justified on the grounds that only she and Ryan signed the form stating that they would be dismissed for failure to meet the quota. Despite Defendant's contention, there is considerable dispute between the parties as to whether all the sales managers were required to sign these agreements at this time. ( See Pl.'s Mem. Opp. Summ. J. 5 n. 3). Indeed, Pittman claims to have seen all the managers sign a similar agreement. (Pittman Decl. ¶ 5.) Furthermore, no agreement from the month of July has been provided for the record. This question of fact aside, there is substantial evidence that Defendant was displeased with a majority of its sales managers, but chose only to dismiss the African-American Plaintiff.
Taken together, this Court is satisfied by the three arguments in favor of this case being resolved by a jury. Plaintiff has produced circumstantial evidence of a purpose to discriminate on the basis of race, with sufficient probative force to reflect a genuine issue of material fact. See Burns 96 F.3d at 732.
CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment is DENIED. A separate Order follows.