Opinion
Civil Action No. RDB-07-638.
August 5, 2008
MEMORANDUM OPINION
This employment discrimination lawsuit arises out of a four-count Complaint filed by Plaintiff Devolus Borders ("Borders" or "Plaintiff") against his former employer Defendant Policy Studies, Inc. ("PSI" or "Defendant"). Borders, an African-American male, alleges that PSI discriminated against him on the basis of his race and gender by replacing him with an African-American female and denying him a promotion. He further alleges that PSI retaliated against him for complaining about a pay dispute, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981. Pending before this Court is Defendant's Motion for Summary Judgment (Paper No. 20). The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2008). For the reasons stated below, Defendant's Motion for Summary Judgment is GRANTED.
BACKGROUND
The facts are viewed in a light most favorable to Plaintiff as the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Policy Studies, Inc. is a private corporation specializing in "outsourcing services, consulting services and technology services to state and federal governments." (Jordan Dep. 8:16-19.) The State of Maryland awarded PSI a contract to operate child support offices in Baltimore City and Queen Anne's County ("the Contract"). ( Id. at 11:11-12.) Pursuant to the Contract, PSI worked with Maryland's law enforcement officers and court system to enforce child support orders and establish paternity orders. ( Id. at 14:10-15:16.) The Contract is supervised by the Child Support Enforcement Administration, or "CSEA", a division of the Maryland Department of Human Resources. (Jordan Decl. ¶ 3.) At all times relevant to this litigation, the Executive Director of CSEA was Brian Shea, a Caucasian man. ( Id.)
The Contract created six types of "key" positions that had to be filled with qualified employees, including a Project Manager, also known as a Program Manager. (Def.'s Mem. Supp. Summ. J. Ex. 3.) Requirements for the Project Manager position were a bachelor's degree and at least five years of experience in general project management, where at least three of those years involved "management of operations with 50 or more employees." ( Id.) Pursuant to the Contract, the State of Maryland's approval was required to fill the key positions, consistent with the requirements mandated by the State. (Jordan Dep. 40:13-17.) Non-key positions within PSI, including the Deputy Program Manager position, could be filled without State approval. ( Id. at 41:2-11.)
The Plaintiff, Devolus Borders, an African-American male who has a bachelor's degree from the University of North Carolina, Chapel Hill, began working for PSI in 1994 in an entry level non-supervisory position. (Pl.'s Mem. Opp'n Summ. J. Ex. 1; Borders Decl. ¶ 2.) From September 1, 1999, to July 2, 2000, Borders was the Project Manager for a contract in Iowa. (Def.'s Mem. Supp. Summ. J. Exs. 9-10.) While the Project Manager in Iowa, Borders supervised a staff of approximately 30 people, although the exact number varied throughout the ten months. (Borders Dep. 53:1-15.) After a brief period of performing special projects, on November 1, 2000, Borders was transferred to Colorado to assume the Project Manager position on PSI's contract there, and worked in that position until July 18, 2001. (Def.'s Mem. Supp. Summ. J. Ex. 11.) During his eight and a half months as Project Manager in Colorado, Borders supervised approximately 59 employees. (Borders Dep. 55:2-12.) Borders left PSI on July 18, 2001, but he was rehired on April 1, 2003, as a consultant with an annual salary of $75,000. (Pl.'s Mem Opp'n Summ. J. Ex. 11.; Def.'s Mem. Supp. Summ. J. Ex. 12.) At the time he was rehired, Borders does not recall signing an employment contract. (Borders Dep. 85:3-6.)
On January 1, 2004, PSI took over operations of the Contract in Baltimore from a previous contractor. Joel Bankes, a Caucasian male, was hired as the Project Manager at a salary of $120,000 — based on his previous salary as a consultant for PSI. However, when he assumed the position, it was understood that he would only remain there for six months. (Jordan Dep. 55:15-21.) On January 14, 2004, PSI offered the position of Deputy Project Manager of the Baltimore office to Borders, retroactively effective beginning January 1 of that year. (Def.'s Mem. Supp. Summ. J. Ex. 6.) His salary in that position was $89,500. ( Id.) During the six months that Bankes was the Project Manager, Borders performed many of Bankes's duties in addition to his own, because Bankes was simultaneously working on other PSI projects. (Borders Decl. ¶ 11.) When Bankes left, Borders became the Acting Project Manager, effective July 12, 2004, at a salary of $99,500. (Jordan Dep. 66:1-9, 72:4-7.) At that time, Borders did not possess the Contract qualifications to be Project Manager. Specifically, he had less than three years of management experience overseeing 50 or more employees. He supervised approximately 59 employees as Project Manager for PSI in Colorado from November 1, 2000 to July 18, 2001, and presumably supervised over 50 employees while serving as Deputy Project Manager and Acting Project Manager in 2004. However, those experiences did not total three years. PSI claims it intended to ask the State of Maryland to waive the requirement so that he could permanently assume the position — if he demonstrated that he was capable. ( Id. at 73:12-20.)
There is conflicting information as to when Bankes began working as a Project Manager for PSI. According to Diane Jordan, PSI's Contract Executive for the Baltimore office, in her declaration, Bankes was the Project Manager from January to June of 2004. (Jordan Decl. ¶ 5.) However, in her deposition, she indicated that Bankes actually began in November 2003. (Jordan Dep. 19:8-11.) It appears that the Contract required the reassignment of many employees beginning in November and December 2003 even though the Contract did not officially start until January 1, 2004, and Bankes was involved in the preliminary stages. (Jordan Dep. 52:1-53:2.) Regardless, this dispute of fact is not material.
There is some dispute as to what happened in the last few months of 2004. Borders claims that in October 2004, Diane Jordan ("Jordan"), the Contract Executive for the PSI Baltimore office, verbally offered him the position of Project Manager at an annual salary of $106,000 — much lower than the $120,000 Bankes had been receiving. (Borders Decl. ¶ 20.) He was told the salary could be renegotiated in 12 months, and he accepted the position. ( Id.) In December 2004, however, Jordan informed him that he was denied approval by the State of Maryland. ( Id. ¶¶ 25-26; see also Def.'s Mem. Supp. Summ. J. Ex. 15.)
In contrast, PSI claims that, after observing Borders as Acting Project Manager for several months, Jordan concluded that he was not ready to assume the position permanently for three main reasons. (Jordan Dep. 84:4-6.) First, she disagreed with his "confrontational" management style and believed that he was undermining the operations manager's authority. ( Id. at 84:9-86:4.) Second, a harassment charge had been filed against Borders by the operations manager. ( Id. at 86:5-11.) Third, he was involved in a relationship with a staffing manager of one of PSI's subcontractors that could be perceived as inappropriate because Borders controlled the number of staff hired from the subcontractor and the woman he was dating could receive higher commissions based on his staffing decisions. ( Id. at 87:10-88:1.) Based on these reasons, Jordan claims she decided not to request a waiver so that Borders could remain in the position permanently. ( Id. at 88:7-9.)
Viewing these facts in the light most favorable to the Plaintiff, there is still no dispute of fact that he did not meet the qualifications of the State of Maryland, because he did not have three years of experience managing operations with 50 or more employees for three years.
Jordan searched for candidates to fill the position of Project Manager in January and February 2005. She ultimately hired Francine Douglas, an African-American woman, upon approval by the State of Maryland. ( Id. at 111:7-15, 125:15-20.) Douglas exceeded the minimum qualifications required by the Contract and had previously worked as both Regional Administrator of the Department of Child Support Services and Chief of the Customer Community Services Branch within that Department in Rancho Cardova, California. (Def.'s Mem. Supp. Summ. J. Ex. 14.)
When Douglas began working as Project Manager for PSI in Baltimore on March 28, 2005, Borders again became the Deputy Project Manager, but he received a merit increase from his previous salary at that position from $89,500 to $92,632.50. ( Id. at Ex. 16.) Upon returning to the Deputy Project Manager position, Borders's performance "deteriorated and he was given verbal warnings on May 2, 2005, June 3, 2005 and June 17, 2005. . . ." ( Id. at 13, Ex. 17.) On June 28, 2005, Douglas issued a Final Warning Memo as a result of Borders's continued poor performance and several incidents that disturbed her, including one involving the woman he had been seeing from the PSI subcontractor in which he displayed violent behavior in her workplace. ( Id. at Ex. 17.) Pursuant to the Final Warning Memo, any "subsequent acts of poor judgment, unethical behavior and/or insubordination w[ould] lead to the immediate termination of [his] employment with PSI." ( Id.)
On May 12, 2005, Borders sent a letter to Diane Jordan voicing concerns over the fact that he was not paid the salary of a Project Manager for the few months he served in that position "not Acting Program Manager." (Def.'s Mem. Supp. Summ. J. Ex. 15.)
Borders appealed the Final Warning Memo to PSI's Vice President of Human Resources, Carole Sumption, but, in the meantime, his performance continued to deteriorate and his behavior caused his coworkers to become uncomfortable. ( Id. at Ex. 19.) His appeal was denied on July 27, 2005. ( Id. at Ex. 18.) Because his performance had not improved, Borders was fired on July 28, 2005. ( Id. at Ex. 19.) He filed a Charge of Discrimination with the Baltimore Community Relations Commission ("BCRC") on January 13, 2006, alleging race and sex discrimination, as well as retaliation. ( Id. at Ex. 20.) The United States Equal Employment Opportunity Commission ("EEOC") did not find in his favor and issued a Right to Sue letter on December 12, 2006. (Compl. ¶ 9.)
Borders filed a Complaint in this Court on March 12, 2007. In Counts I and II, he claims he was discriminated against on the basis of his race when he was paid less as Acting Project Manager than Bankes had been paid as Project Manager and later terminated, in violation of Title VII and Section 1981, respectively. In Count III, Plaintiff claims he was discriminated against on the basis of his gender when Francine Douglas, an African-American female, was selected for the Project Manager position over him in March 2005 and when he still performed the duties of that position at a lower salary, in violation of Title VII. Finally, Count IV claims that Borders was fired in retaliation for "complain[ing] to Jordan about the lack of compensation for the time he performed the duties of Project Manager, whereas Bankes had been fully compensated for the same duties" in violation of Title VII. (Compl. ¶ 47.) On December 14, 2007, Defendant filed the subject Motion for Summary Judgment (Paper No. 20), arguing that there are no genuine issues of material fact and it is entitled to judgment as a matter of law.
STANDARD OF REVIEW
Summary judgment is appropriate under Rule 56(c) of the Federal Rules of Civil Procedure when there is no genuine issue as to any material fact, and the moving party is plainly entitled to judgment in its favor as a matter of law. In Anderson v. Liberty Lobby, Inc., the United States Supreme Court explained that, in considering a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." 477 U.S. 242, 249 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. Thus, "the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Id. at 252.
In undertaking this inquiry, a court must view the facts and the reasonable inferences drawn therefrom "in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also E.E.O.C. v. Navy Federal Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). The opponent, however, must bring forth evidence upon which a reasonable fact finder could rely. Celotex Corp. v. Catrett, 477 U.S. 317 (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)). Rule 56(e) also requires that "affidavits submitted by the party defending against a summary-judgment motion contain specific facts, admissible in evidence, from an affiant competent to testify, `showing that there is a genuine issue for trial.'" Id. (quoting 10B Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 2740, 399 (3d ed. 1998)). The mere existence of a "scintilla" of evidence in support of the nonmoving party's case is not sufficient to preclude an order granting summary judgment. Anderson, 477 U.S. at 252.
This Court has previously held that a "party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences." Shin v. Shalala, 166 F. Supp. 2d 373, 375 (D. Md. 2001) (citations omitted). Indeed, this Court has an affirmative obligation to prevent factually unsupported claims and defenses from going to trial. Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (quoting Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)).
ANALYSIS
Defendant Policy Studies, Inc. has moved for summary judgment on all counts of the Complaint. As an initial matter, PSI argues that some of Borders's Title VII claims are untimely. To assert a Title VII claim in federal court, a plaintiff must first exhaust his administrative remedies by filing a timely charge with the EEOC. Chacko v. Patuxent Inst., 429 F.3d 505, 508 (4th Cir. 2005). In order for the charge to qualify as "timely," a plaintiff must file it within 180 days or 300 days of the alleged discriminatory incident, depending on whether the incident occurred in a "deferral state." 42 U.S.C. § 2000e-5(e)(1) (2007); see Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 439 (4th Cir. 1998). A "deferral state," such as Maryland, is one with "a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof." 42 U.S.C. § 2000e-5(e)(1) (2007); see Tinsley, 155 F.3d at 439; EEOC v. R R Ventures, 244 F.3d 334, 338 n.* (4th Cir. 2001). The Baltimore Community Relations Commission ("BCRC"), where Borders filed his charge of discrimination, is one such local agency with authority over employment discrimination cases. Thus, in order to timely file a Title VII claim in Maryland, Borders had to file his charge of discrimination within 300 days of the alleged employment actions. Because his charge was filed on January 13, 2006, Title VII claims arising out of any alleged unlawful employment actions occurring before March 19, 2005, are time-barred.
Because Section 1981 claims are subject to a three-year statute of limitations rather than a 300-day filing requirement, this argument does not apply to the race discrimination claim set forth in Count II, and Defendant concedes that this claim was timely filed. See Grattan v. Burnett, 710 F.2d 160, 162 (4th Cir. 1983) (holding that "the proper period in Maryland for actions under Title 42 is three years") (citing Md. Code Ann., Cts. Jud. Proc. § 5-101).
The only events occurring after March 19, 2005, were the hiring of Francine Douglas to take over as Project Manager, effective March 28, 2005, and the termination of Plaintiff's employment on July 28, 2005. Plaintiff argues that the doctrine of equitable tolling should be applied to the alleged salary disparity beginning in October 2004, when Jordan allegedly told him that "they would revisit the salary issue" after 12 months of observing him as Project Manager. (Pl.'s Mem. Opp'n Summ. J. 16.) From March 19, 2005 to March 28, 2005, Plaintiff arguably was continuing to earn less than Bankes had earned previously and what was budgeted for the position, but the Supreme Court has recently held that pay discrimination claims based on the effects of discriminatory acts falling outside the 300-day window are not valid. See Ledbetter v. Goodyear Tire Rubber Co., ___ U.S. ___, 127 S. Ct. 2162, 2169 (2007) ("Because a pay-setting decision is a `discrete act,' it follows that the period for filing an EEOC charge begins when the act occurs."). Thus, any Title VII race discrimination claims that he was treated differently than Bankes are time-barred. However, Plaintiff's Title VII claims with respect to his replacement by Douglas and subsequent termination will now be addressed in turn.
Defendant also argues that Plaintiff knew he was not going to be promoted permanently to the position of Project Manager as early as December 2004. (Def.'s Mem. Supp. Summ. J. 22.) However, there is evidence that PSI intended to seek a waiver of the Contract requirements depending on how Borders performed in the acting role. (Jordan Dep. 73:12-20.) Thus, it was not certain that he would not be promoted until Douglas was actually hired.
Plaintiff has not produced any direct evidence of racial discrimination. Thus, in order to establish a claim for employment discrimination based on race, he must satisfy the three-step burden-shifting test first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, a plaintiff must present enough evidence to prove a prima facie case of discrimination. Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 142-43 (2000). Second, once the plaintiff establishes a prima facie case, the burden shifts to the defendant to produce evidence that the adverse employment action was taken against the plaintiff "for a legitimate, nondiscriminatory reason." Id. at 142 (citing Tex. Dept. Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). Third, the plaintiff is "afforded the `opportunity to prove by a preponderance of evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.'" Id. (quoting Burdine, 450 U.S. at 253). Each of Borders's claims will be analyzed within this framework.
I. Count I: Title VII Race Discrimination
A. Prima Facie Case
In Count I, Borders contends that PSI discriminated against him on the basis of his race by terminating his employment, in violation of Title VII. A prima facie case of discriminatory discharge requires a showing that: 1) Borders is a member of a protected class; 2) he suffered adverse employment action; 3) he was performing his job duties at a level that met his employer's legitimate expectations at the time of the adverse employment action; and 4) the position remained open or was filled by similarly qualified applicants outside the protected class. Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, 285 (4th Cir. 2004). It is undisputed that Borders is an African-American male and that he was fired — clearly an adverse employment action — so the first two elements have been shown.
With respect to the remaining two requirements to establish a prima facie case, there is absolutely no dispute that, upon Borders's termination as Deputy Project Manager, he was replaced by Frenchell White, an African-American woman. (Jordan Decl. ¶ 9.) Accordingly, with respect to an allegation of race discrimination, Borders clearly fails to satisfy a key requirement. He was replaced by another African-American and was not replaced by a similarly qualified applicant "outside the protected class." Hill, 354 F.3d at 285. For this reason alone, the Plaintiff has failed to establish a prima facie case of race discrimination.
Alternatively, Plaintiff cannot satisfy the third element, because PSI has produced ample evidence that Borders was not performing at a satisfactory level. Specifically, PSI points to the verbal counseling he received on May 2, June 3, and June 17, 2005, by Francine Douglas regarding his deteriorating performance. ( See Def.'s Mem. Supp. Summ. J. Ex. 17.) He also received a Final Warning Memo dated June 28, 2005, referencing a number of specific incidents and deficiencies. ( Id.)
B. Legitimate, Nondiscriminatory Reason Pretext
Even if Plaintiff had been able to make a prima facie showing of racial discrimination, he has not presented any evidence that the motivation behind his termination — his poor performance — was discriminatory. PSI first points to the verbal counseling he received on May 2, June 3, and June 17, 2005, by Francine Douglas regarding his deteriorating performance. ( See Def.'s Mem. Supp. Summ. J. Ex. 17.) Borders later received a Final Warning Memo dated June 28, 2005, referencing a number of incidents
including but not limited to a personal domestic dispute on the business premises during working hours that resulted in a criminal charge against Mr. Borders, authorizing payments to a subcontractor despite his failure to secure a written contract, informed the staffing subcontractor that its staff would receive a 3% pay increase even though such increase was not authorized under the subcontract, disregarding and ignoring specific instructions from Ms. Douglas, and walking away from Ms. Douglas in an insubordinate manner when she presented him with a verbal counseling memo.
( Id. at 25 (citing Ex. 17).) Even a month after the Final Warning Memo was issued, Borders continued to perform poorly by failing to convey certain information that affected PSI's budget, and contacting the State of Maryland for reports that were not ready — an action that irritated the State. ( Id. at Ex. 19.) Furthermore, he created an uncomfortable work environment for his coworkers and refused to participate in staff meetings. ( Id.; Jordan Dep: 149:7-17.) Defendant contends that this behavior did not meet its expectations for the performance of a Deputy Project Manager. (Def.'s Mem. Supp. Summ. J. Ex. 25-26.) Thus, PSI claims that Borders was fired because of a pattern of poor performance and behavior in the Spring of 2005. (Def.'s Mem. Supp. Summ. J. 42.)
The burden then shifts back to Plaintiff to provide evidence that this legitimate, nondiscriminatory reason for firing him was pretextual for race discrimination. However, Plaintiff has presented no evidence of pretext. Rather, he simply disputes certain facts, such as whether the woman he was seeing received a commission for her staffing placements and whether the State of Maryland refused to waive its contract requirements. (Pl.'s Mem. Opp'n Summ. J. 25.) However, he has presented no evidence sufficient to create a genuine issue of material fact and makes no specific arguments why Defendant's proffered reasons were pretext for race discrimination.
Accordingly, Plaintiff has failed to create a genuine issue of material fact and Defendant is entitled to judgment as a matter of law. Thus, Defendant's Motion for Summary Judgment is GRANTED as to Count I.
II. Count II: Race Discrimination under Section 1981
In Count II, Plaintiff claims that he was treated differently than other employees and ultimately terminated from his position because of his race, in violation of 42 U.S.C. § 1981. The analysis under both Title VII and section 1981 is the same. Thus, for the same reasons stated supra in Part I, Count II must fail as to Plaintiff's discharge. As to the claim that Borders was treated differently than Bankes, who is Caucasian, the prima facie case is slightly different. Specifically, he must show that (1) he is a member of a protected class; (2) he was paid less than an employee outside the class; and (3) the higher paid employee was performing a substantially similar job. Kess v. Mun. Employees Credit Union of Baltimore, Inc., 319 F. Supp. 2d 637, 644 (D. Md. 2004). Defendant concedes that the first two elements are met because Plaintiff is African-American and was paid less than Bankes.
Section 1981 provides that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. . . ." 42 U.S.C. § 1981. Where a plaintiff alleges that he was discriminated against on the basis of his race and gender, "the burden-shifting scheme of McDonnell Douglas Corp. v. Green and its progeny" applies. Hawkins v. PepsiCo, Inc., 203 F.3d 274, 278 (4th Cir. 2000) (citations omitted); Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) ("[T]he elements required to establish a prima facie case are the same under Title VII and Section 1981.").
As to the third element, PSI argues that Borders and Bankes were never performing substantially similar jobs. There is some evidence that, when Bankes was the Project Manager and Borders was the Deputy Project Manager, Borders performed some of the duties typically assigned to the Project Manager. (Borders Decl. ¶¶ 10-12.) However, there is also evidence that Bankes was responsible for assuming a much broader leadership role, overseeing and building relationships with the State and its Child Support Enforcement Administration in addition to managing PSI's Baltimore office. (Def.'s Mem. Supp. Summ. J. Ex. 5.) In fact, Bankes had specifically been sought after by the State for the position of Project Manager because of his prominence and leadership skills from being the Executive Director for the National Child Support Enforcement Association — a national organization — for four years. ( Id. at Ex. 4; Jordan Dep. 55:15-56:5.) Thus, it is clear that their jobs were substantially different and any pay disparity between Plaintiff, who received $89,500 as Deputy Project Manager, and Bankes, who received $120,000 as Project Manager, can easily be attributed to that difference.
When Plaintiff assumed the Acting Project Manager position at a salary of $99,500, PSI argues that his job was not substantially similar to that of Project Manager because PSI did not have to obtain the State's permission first because it was merely temporary. (Jordan Decl. ¶ 10.) Thus, Defendant argues, at no time when Borders was serving in that role had he been approved by the State and, therefore, subject to its stricter hiring requirements and job responsibilities. In support of his argument that he was improperly paid less than Bankes, Plaintiff points to the fact that the woman who became Acting Deputy Project Manager when he took over as Acting Project Manager was paid the same salary he had been paid as Deputy Project Manager — $89,500 — while he was being paid less than the Project Manager's salary before him. However, Defendant notes that Bankes had been paid a salary of $120,000 prior to his coming to work for PSI and PSI agreed to continue to pay that amount in light of the State's eagerness to hire him and his exceptional experience and prominence in the field. (Def.'s Mem. Supp. Summ. J. 34-35.) Plaintiff was being paid $75,000 as a consultant for PSI before assuming the position of Deputy Project Manager and receiving a raise to $89,500, and he even acknowledged in his deposition that location, experience, and other factors can affect a person's salary. (Borders Dep. 151:1-21.) Thus, there is simply no evidence that Borders was paid less than a person outside his protected class for a substantially similar job.
Even if he could make a prima facie showing of race discrimination as to compensation, Borders has presented no evidence that Defendant's proffered reason for paying Bankes more than Borders — Bankes's exceptional experience and prominence in the field — was pretextual for race discrimination. Accordingly, Plaintiff has failed to create a genuine issue of material fact as to his section 1981 claim and Defendant is entitled to judgment as a matter of law. Thus, Defendant's Motion for Summary Judgment is GRANTED as to Count II.
III. Count III: Title VII Sex Discrimination
A. Prima Facie Case
In Count III, Plaintiff contends that he was not promoted to the position of Project Manager permanently on the basis of his gender. A prima facie case of discriminatory failure to promote requires a showing that (1) Borders is a member of a protected group, (2) he applied for the position in question, (3) he was qualified for that position, and (4) PSI rejected his application under circumstances that give rise to an inference of unlawful discrimination. Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 269 (4th Cir. 2005). It is undisputed that Borders is a male and that he applied for the Project Manager position. Thus, the first two elements have been shown.
As to the third element, PSI contends that Borders was not qualified for two reasons. First and foremost, pursuant to the terms of the Contract, Borders did not meet the objective qualifications to assume the position full time, regardless of how often he assumed Bankes's duties when he was the Project Manager. See id. ("[An employee] cannot establish her own criteria for judging her qualifications for the promotion. She must compete for the promotion based on the qualifications established by her employer."). Second, PSI has presented clear evidence that Borders was not meeting his employer's expectations while serving as Acting Project Manager, so he was not qualified to assume the position permanently. Thus, Borders cannot satisfy the third element of the prima facie case.
As to the fourth element, there is some dispute as to whether Jordan submitted Plaintiff's name to the State of Maryland for Project Manager in the Fall of 2004 with the intent to request a waiver of the Contract requirements and it was rejected or whether she declined to submit his name at all. However, even though it is clear that Jordan initially intended to seek a waiver of the formal Contract requirements, whether she ultimately did or not raises no genuine disputes of material fact, because the State of Maryland — not PSI — was responsible for the ultimate approval of any candidate for that "key" position. In addition, Jordan stated at her deposition that when she observed Borders in the Acting Project Manager position, he did not appear to be ready to take the job on permanently. (Jordan Dep. 84:4-6.) Thus, Plaintiff cannot satisfy the fourth element.
Accordingly, Plaintiff has failed to make a prima facie showing of sex discrimination and Defendant's Motion for Summary Judgment is GRANTED as to Count III.
IV. Count IV: Title VII Retaliation
In Count IV, Plaintiff claims he was disciplined and fired in retaliation for his May 2005 complaint to Jordan "about the lack of compensation for the time he performed the duties of Project Manager, whereas Bankes had been fully compensated for the same duties." (Compl. ¶ 47.) Thus, Plaintiff must make a prima facie showing of retaliation, namely (1) that he engaged in a protected activity, (2) that his employer took an employment action against him that a reasonable employee would have found materially adverse, and (3) that there was a causal connection between the protected activity and the adverse employment action. Burlington Northern Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 298 (4th Cir. 2004) (en banc). It is undisputed that Plaintiff was fired, which is clearly an adverse employment action, in satisfaction of the second element.
As to the first element, Plaintiff submitted a letter to Jordan on May 12, 2005, questioning why he had not been compensated — per their discussion — at a salary of $106,000 for the last few months when, he contends, he was Project Manager rather than Acting Project Manager. (Def.'s Mem. Supp. Summ. J. Ex. 15.) This letter does not appear to be a "protected activity" within the meaning of Title VII, as it simply raised a pay dispute and made no mention of discrimination based on his race or sex, or any other category of discrimination covered by Title VII. The United States Court of Appeals for the Fourth Circuit has held that
Protected activities fall into two distinct categories: participation or opposition. An 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. Activities that constitute participation are outlined in the statute: (1) making a charge; (2) testifying; (3) assisting; or (4) participating in any manner in an investigation, proceeding, or hearing under Title VII.Laughlin v. Metropolitan Washington Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998). In addition, the Supreme Court held that retaliation claims are meant to prevent employment actions likely to "`dissuade a reasonable worker from making or supporting a charge of discrimination.'" Burlington Northern Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (citation omitted). In this case, in contrast, there is no allegation that Plaintiff made any charge of discrimination, but rather he attempted to seek back pay based on an understanding between him and Jordan. Thus, Plaintiff has failed to satisfy the first element of the prima facie case of retaliation. Because he did not engage in a protected activity, he cannot demonstrate any causal link with his termination. Thus, the third element fails as well.
Accordingly, Plaintiff has failed to establish a prima facie case of Title VII retaliation and Defendant is entitled to judgment as a matter of law. Defendant's Motion for Summary Judgment is, therefore, GRANTED as to Count IV.
CONCLUSION
For the above-mentioned reasons, Defendant's Motion for Summary Judgment is GRANTED. A separate Order and Judgment follows.
ORDER AND JUDGMENT
For the reasons stated in the foregoing Memorandum Opinion, IT IS this 5th day of August 2008, HEREBY ORDERED AND ADJUDGED that
1. Defendant Policy Studies, Inc.'s Motion for Summary Judgment is GRANTED;
2. Judgment IS ENTERED in favor of Defendant Policy Studies, Inc. and against Plaintiff Devolus Borders;
3. The Clerk of the Court transmit copies of this Order and Judgment and the accompanying Memorandum Opinion to counsel of record; and
4. The Clerk of the Court CLOSE THIS CASE.