UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1240
ELLICE LUH,
Plaintiff - Appellant,
versus
J. M. HUBER CORPORATION,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge. (CA-
03-1023-CCB)
Argued: February 1, 2006 Decided: December 21, 2006
Before WIDENER, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished opinion. Judge Widener wrote the opinion,
in which Judge Niemeyer concurred. Judge Gregory wrote a
dissenting opinion.
ARGUED: John Michael Clifford, CLIFFORD & GARDE, Washington, D.C.,
for Appellant. John F. Meyers, SEYFARTH SHAW, L.L.P., Atlanta,
Georgia, for Appellee. ON BRIEF: Jason M. Zuckerman, CLIFFORD &
GARDE, Washington, D.C., for Appellant. Susan Jeanblanc Cohen,
SEYFORTH SHAW, L.L.P., Washington, D.C.; Cheryl B. Legare, SEYFARTH
SHAW, L.L.P., Atlanta, Georgia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
WIDENER, Circuit Judge:
This case is an appeal from an entry of summary judgment
against the plaintiff, Ellice Luh, in a Title VII race and sex
discrimination lawsuit against her employer, J.M. Huber
Corporation.
The plaintiff alleges that she was terminated from her
position due not only to her race, but also because she was a woman
who had turned down an unwanted sexual advance from a fellow
management employee. Huber maintains that it terminated her as
part of a general restructuring of its business following marked
downturn in profitability. The district court granted summary
judgment for Huber, finding that Mrs. Luh had failed to proffer
support for a finding that the reasons advanced by Huber were
pretextual. We affirm.
I.
The plaintiff, Ellice Luh, is a Chinese-American woman. She
earned an engineering Ph.D. from the University of California at
Berkeley in 1988. Following graduation, she spent nine years
working for the W.R. Grace Co., developing products for paper
coating, electromagnetic glass shielding, and dental silica
applications, among others. She was hired away from this position
by Huber in June 1997 in order to be the Technology Manager for the
company’s dental group located in Havre de Grace, Maryland. Huber
2
is a major supplier of engineered materials and research and
development services.
While with Huber, Mrs. Luh’s work was on the development of
dental silicas, which are the abrasives used in toothpaste.
Because Mrs. Luh joined Huber shortly before it undertook a
large restructuring of its operations, she had four different
supervisors during her time with the company. Her first
supervisor, Bob Klem, had also initially interviewed her for the
position. Following Klem was Jorma Sakko. Sakko was eventually
promoted, and Mrs. Luh was then supervised by Mike Withiam, who
then reported to Sakko. In April 2000, Tom Izod was hired as the
Director of Technology for the company, and took over the
supervision of Mrs. Luh. Our recitation of some of the foregoing
sequences of the supervisors may be slightly out of order.
In early 2000, as the result of a large loss in profits, Huber
undertook a number of measures to reduce labor costs. These
measures included the decision by Izod to combine the Dental
Technology Group with the Food, Feed, Health and Care Group into a
new group called the Consumer Technology Group. The management of
these two groups would be combined, and redundant positions would
be eliminated. The plaintiff's was one of the eliminated
positions.
Philip Block, who held a position with the Food, Feed, Health
and Care Group analogous to Mrs. Luh’s with the Dental Group,
3
received his Ph.D. from the University of North Carolina in 1993.
Prior to working at Huber, he worked for Johnson & Johnson
developing surgical gloves, sterilization compounds, and skin care
products. He also held a position at Unilever developing
detergents and soaps. In his only performance review at Huber
prior to the restructuring, Block had apparently been criticized by
some subordinate employees for his management style, including his
decision to cancel a morning coffee break.
Prior to selecting between Mrs. Luh and Block, Izod met with
each of them, Mrs. Luh on April 19, 2000, and Block the following
day. During her meeting, Mrs. Luh informed Izod she was having
problems with the other managers at Huber, and stated that, as a
result, she could not see herself with the company in five years.
This led Izod to conclude that she “was not interested in expanding
her expertise outside of the Dental Technology area.” In contrast,
Block spoke about his work in skin care and detergents and told
Izod that he was thinking about new uses for existing products
manufactured by the company. This lead Izod to conclude that Block
was a “go-getter.”
Izod ultimately selected Block to be the technology manager of
the Consumer Technology Group. Izod then informed Mrs. Luh that
her position was being eliminated, and her employment would be
terminated effective June 30, 2000. She was offered a severance
package and outplacement services.
4
Block’s own time at Huber was limited, however. He was
removed from his new position and left Huber entirely by March
2001. Mrs. Luh says that Block later indicated to her that he had
been asked to leave due to inadequate performance of his duties,
which, however, is not consistent with his performance review in
the record.
Mrs. Luh also was not the only Asian eliminated during Izod’s
restructuring. Three of the six total employees who were
terminated were Asian, although before the terminations, the group
had 52 employees, 39 of whom were white and five were Asian.1
Following her termination, Mrs. Luh filed a complaint with the
EEOC on February 20, 2001, alleging race and gender discrimination
as well as quid pro quo harassment. The EEOC issued her a notice
of right to sue, after which she filed this lawsuit on April 10,
2003.
The district court entered summary judgment in favor of Huber
on all of Mrs. Luh’s claims on January 25, 2005. Specifically, it
determined that she had not provided evidence to survive summary
judgment by establishing a pretext under the McDonnell Douglas
test. Further, the district court determined that Mrs. Luh could
not sustain her quid pro quo claim,2 as she did not provide any
1
The number of employees involved in the layoff may vary
slightly, depending on the place in the record which is read.
2
The parties considered the claim of Mrs. Luh, that one Martin
had suggested a sexual liaison, to be a claim quid pro quo. Martin
5
support for the claim that her rejection of a sexual advance had
been a motivating factor in the decision to terminate her, for much
the same reason that she could not demonstrate pretext. Martin was
not her supervisor and did not make the decision to terminate her.
This appeal of the discrimination claim followed. Mrs. Luh has not
pursued an appeal of the district court’s decision on her quid pro
quo claim. Br., pp.1-2 ("STATEMENT OF ISSUES PRESENTED FOR
REVIEW.")
II.
We review the grant or denial of summary judgment de novo.
Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th
Cir. 1988). Summary judgment is appropriate when the materials
before the court “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).
In her appeal, Mrs. Luh takes issue with a number of
evidentiary rulings and interpretations made by the district court
in the process of granting summary judgment. In examining a motion
for summary judgment, a district court must “view the evidence in
the light most favorable to . . . the nonmovant, and draw all
reasonable inferences in her favor without weighing the evidence or
assessing the witness’ credibility.” Dennis v. Columbia Colleton
denied the claim.
6
Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). However,
the court must still abide by "the affirmative obligation of the
trial judge to prevent factually unsupported claims and defenses
from proceeding to trial.” Drewitt v. Pratt 999 F.2d 774, 778-79
(4th Cir. 1993) (internal quotations omitted).
In discrimination cases such as this one, we apply the
McDonnell Douglas burden-shifting scheme. Under this framework,
the plaintiff is responsible for setting forth a prima facie case
of discrimination. After that, the burden shifts to Huber to
present a legitimate, non-discriminatory justification for its
actions. This justification “must be legally sufficient to justify
a judgment for" Huber. Tex. Dept. Comm. Affairs v. Burdine, 450
U.S. 248, 255 (1981). Once Huber has done so, the plaintiff bears
the burden of demonstrating that the proffered reasons were merely
pretextual and the true reason for Huber’s actions was
discriminatory animus.
A.
Most issues that Mrs. Luh raises in her appeal take issue with
the district court’s use of Izod’s testimony to find that Huber had
shown a legitimate, non-discriminatory justification for
terminating her.
She argues that reliance on Izod’s testimony at the summary
judgment stage is improper. She bases this position on a quotation
7
from Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151
(2000), which states that “the court should give credence to the
evidence favoring the nonmovant as well as that ‘evidence
supporting the moving party that is uncontradicted and unimpeached,
at least to the extent that that evidence comes from disinterested
witnesses.’”
We agree with the district court that Mrs. Luh’s
interpretation of Reeves is inappropriate in the present case.
Reeves states the noncontroversial position that witness testimony
that the jury is not required to believe cannot be used to sustain
a summary judgment decision, since the jury is not required to
believe their testimony. Reeves, 530 U.S. at 151. However, the
Court has long held that there are exceptions to this rule. For
example, in Chesapeake & Ohio R. Co. v. Martin, 283 U.S. 209
(1931), the Court held that this rule “does not mean that the jury
is at liberty, under the guise of passing upon the credibility of
a witness, to disregard his testimony, when from no reasonable
point of view is it open to doubt.” 283 U.S. at 216. Instead, the
testimony must display some indicia that it is not credible-
whether by betraying a lack of candor, or by being unsettled by
cross-examination, or by being contradicted by “proof or
circumstance,” especially when it could readily have been shown to
be inaccurate had it been. Chesapeake & Ohio R. Co., 283 U.S. at
216.
8
Recognizing this, Mrs. Luh has claimed that Izod’s testimony
was internally contradictory and that, moreover, it contradicted
evidence that she introduced. Neither of these is sufficient to
save her claim, however.
We have held that an employer offering different
justifications for the dismissal of an employee, one good and one
bad, will justify a conclusion that the good justification is
pretextual. Alvarado v. Bd. of Trs. of Montgomery Comm. Coll., 928
F.2d 118, 123 (4th Cir. 1991). However, Mrs. Luh fails to
establish such contradiction in Izod’s testimony before the court.
The first instance she identifies as a contradiction stems
from the April 5, 2001 statement that Huber made to the EEOC, which
she claims indicated that the decision to hire Block was a joint
one by Izod and Rob Edmonds, another Huber executive. The relevant
passage in the letter was that “Tom Izod, the Director of the
Consumer and Industrial Global Technology, in discussions with Rob
Edmonds, the Vice President of Consumer and Industrial Markets,
looked carefully at each employee’s managerial strengths, and
determined that Block was far better qualified for this management
position.” Mrs. Luh contends that this contradicts Huber’s
response to an interrogatory where it stated simply that “Tom Izod
selected Philip Block... Mr. Izod made his selection after
assessing the managerial skills that he believed were important...”
She adds that these statements, indicating careful consideration of
9
the choice, should be seen as conflicting with Izod’s testimony
that “time was of the essence” in making the decision. We do not
believe that she reads the record fairly. First, Edmonds was
Izod’s superior, and had to approve Izod's decision. Mrs. Luh
presents no evidence, however, that Edmonds did anything other than
approve Izod’s choice. Simply because Izod did not have authority
to act without first obtaining the approval of his supervisor is
not sufficient to find that any statement that he, Izod, “made the
decision” is false or otherwise a misrepresentation that undercuts
his testimony. Similarly, the mere fact that he had to reach a
conclusion quickly does not mean that, in so doing, he did not
conduct an adequate assessment of Mrs. Luh’s qualifications as
compared to Block’s. Without evidence to support her claims, Mrs.
Luh’s attempt to import contradictions into these statements fails.
Similarly, another claimed contradiction is based upon a
misreading of the record. She contends that Huber indicated in its
interrogatories that there was a reduction in force plan approved
by the company’s human resources department, but insists that, in
actuality, there was only a list of potential terminations
maintained by Izod. Examining the interrogatory response, however,
demonstrates that the two are not in conflict. The response states
that “the HEM management requested that HEM Human Resource Managers
and/or Directors prepare a reduction in force plan. In response,
Tom Izod made the determination that [Mrs. Luh’s and Block’s
10
departments be combined], thereby eliminating a technology manager
position." Mrs. Luh has not introduced any evidence that Izod’s
list was not, in fact, the reduction in force plan that was
requested by Huber’s human resources department, and we decline to
imply a contradiction where none exists based on the record.
Finally, Mrs. Luh attempts to demonstrate an inconsistency in
Izod’s testimony concerning Block’s skill at managing employees.
The first statement she highlights is drawn from a letter to the
EEOC, in which Huber’s counsel stated that “Izod and Edmonds felt
that Block was the superior manager in terms of planning, effective
leadership, and approaching issues with a team orientation.” This,
she says, is contrary to Izod’s statement in his deposition that
Block was “an effective manager of people." Further, Mrs. Luh
argues that both of these statements contradict Izod’s knowledge
that Block’s staff was very upset at the changes he introduced to
his group, particularly reducing their coffee break time.
This claimed contradiction is also without merit. First,
although “superior” is often used to describe objectively excellent
performance, it is also a comparative term, and the statement in
the EEOC letter clearly indicates that Izod and Edmonds believed
that Block was a superior manager to Mrs. Luh, and that they were
not attempting to provide an objective assessment of his
capabilities. This is confirmed by reading the full quotation from
Izod’s deposition. He stated that Block is “an effective manager
11
of people. He had some management skills in the past... you can
understand both of them [Block and Mrs. Luh] are young managers.”
Secondly, we disagree that these statements are opposite to
the staff complaints. As we have noted, “it is the perception of
the decision maker that is relevant... not the opinions of [a
plaintiff’s] co-workers or other third parties.” Tinsley v. First
Union Nat’l Bank, 155 F.3d 435, 444 (4th Cir. 1998). As a result,
we look not to Block's subordinates' complaints, rather to Huber’s
own assessment of Block’s performance. Here, Huber presented ample
evidence that Izod considered Block’s performance satisfactory, and
these staff complaints a good thing. Izod considered the Havre de
Grace facility “the laziest place in our organization,” and was
pleased that Block had instituted firmer policies to bring the
facility more in line with the standards in the rest of the
company. At no point did Mrs. Luh introduce evidence contrary to
this explanation by Huber.
Thus, we find no error in the district court’s determination
that Huber advanced a nondiscriminatory justification for its
termination of Mrs. Luh.
B.
Since Huber proffered a nondiscriminatory justification for
its actions, the burden then shifted back to Mrs. Luh to establish
pretext. The district court determined that she had not done so.
12
She appeals this determination, arguing that the district court
improperly disregarded evidence that she had introduced that was
sufficient to send the case to the jury.
Mrs. Luh’s claim to have established pretext rests on three
separate foundations. First, she contends that the evidence shows
that Izod’s evaluation of her and Block’s qualifications was
unreasonable. Second, she argues that evidence of Block’s failures
in the position demonstrate that she was discriminated against.
Finally, she contends that the district court improperly ignored
statistical evidence that she introduced. We disagree, and find
that the district court’s actions in each of these instances was
proper.
On the first issue, we have held that a plaintiff may
establish pretext by demonstrating that the decisionmaker conducted
the selection process in a “peculiarly informal” manner in order to
discriminate against the plaintiff. Dennis, 290 F.3d at 647. Mrs.
Luh contends that Izod’s evaluation process fit this category. She
focuses on what she sees as Izod failing to investigate her
employment record with Huber. Her evidence for this is Izod’s
admission at deposition that he was unaware she was in the
company’s Leadership Development Program in 1997 and that he had
reviewed only the most recent of her annual performance
evaluations. Additionally, she argues that Izod did not consult
with any of her prior managers.
13
Again, we look to our decision in Tinsley that “it is the
perception of the decision maker that is relevant... not the
opinions of [a plaintiff’s] co-workers or other third parties.”
155 F.3d at 444. Here, it is clear that Izod had established
criteria for the promotion that he carried to completion. During
his interviews with both Block and Mrs. Luh, Izod stressed that he
was emphasizing forward-thinking ability and creativity, rather
than merely past performance. Additionally, Izod testified that he
received and considered information from both Block and Mrs. Luh’s
supervisors, peers and subordinates. Her contention that he
disregarded the various letters written in support of her candidacy
appears to be based upon nothing more than his decision to select
Block for the position rather than her. An assertion such as this,
without supporting evidence, is not sufficient to demonstrate
pretext and defeat summary judgment.
Apart from improprieties in the selection process, we have
held that post-selection performance failures are relevant to a
pretext inquiry when the selectee exhibited similar performance
failures during the decision process and where the decisionmaker
was aware of these failures. Grano v. Dept. of Development, 637
F.2d 1073, 1081 (6th Cir. 1980). Mrs. Luh argues that Block had
later difficulties at Huber, which is denied, and that his
departure from Huber should ground a finding of pretext.
14
We decline to consider this issue, as Mrs. Luh did not raise
the issue in the district court. Issues raised for the first time
on appeal, as this, generally will not be considered. Nat’l
Wildlife Fed. v. Hanson, 859 F.2d 313, 318 (4th Cir. 1988). In
any event, Block's Performance Summary signed by Izod and Edmonds
contradicts the assertion.
Finally, we turn to the district court's consideration of Mrs.
Luh's statistical evidence. Her position is copied verbatim from
her brief on appeal, pp. 58, 59:
Before the restructuring/reduction in force, the
workforce population managed by Izod consisted of 46
employees, of whom 39 were White, two were Black and five
were Asian. (JA 854; JA 706-720) Thus, Asians made up
less than 11% of Izod's workforce, while whites accounted
for 85% and Blacks 4%.
From this group, Izod selected or helped to select
a total of six employees for dismissal in connection with
the "restructuring." Of these, three were Asian,
including Plaintiff, and three were White. (JA 720-21)
Thus, 50% of the employees selected for "definite"
termination in Izod's plan were Asian, and 50% were
white. However, the three whites whom Izod selected for
"definite" termination represented only 7.5% of the 39
whites in his workforce. (JA 724) By contrast (as Izod
acknowledged), the three Asians whom Izod selected for
"definite" termination represented 60% of the five Asians
in his workforce. (JA 723) Thus, his Asian employees
were eight times more likely than their white co-workers
to be selected by Izod for termination in the reduction
in force.
In sum, it cannot be denied that the burden of
Izod's termination decisions fell disproportionately upon
the Asian employees he supervised, at a rate that
evidences unlawful intent.
15
The district court analyzed this evidence and decided that
"Luh has not provided sufficient evidence to suggest that the
reasons offered by Huber are false or a pretext for racial or
gender discrimination." There was no expert testimony as to
methodology justifying the sought conclusion of discrimination or
relevance of the statistics to the plaintiff's claim. In such a
case we have held that "[i]f a plaintiff offers a statistical
comparison without expert testimony as to methodology or relevance
to plaintiff's claim, a judge may be justified in excluding the
evidence." Carter v. Ball, 33 F.3d 450, 457 (4th Cir. 1994).
Carter relied on Williams v. Cerberonics, Inc., 871 F.2d 452, 455
n.1 (4th Cir. 1989) for the same proposition in which a plaintiff
had sought to rely on bare statistics without testimony as to why
the statistics were compiled or how they were related to the
plaintiff's claim. In the case before us, in addition to the
absence of such evidence relating the statistics to the case, the
district court noted the small number of people involved, that some
of the Asian employees involved were from a different facility over
which Izod only had partial responsibility and that Huber
articulated an individual reason for Mrs. Luh's layoff.
We conclude that the district court properly analyzed the
evidence presented in this case. We find no error in the
reasoning set forth by the district court in its opinion, either as
to Huber’s demonstration of a legitimate, nondiscriminatory
16
justification or as to Mrs. Luh’s failure to establish the
necessary showing of pretext.
The judgment of the district court is accordingly
AFFIRMED.
17
GREGORY, Circuit Judge, dissenting:
Ellice Luh, a former employee of J.M. Huber Corporation
(“Huber”), appeals from the United States District Court for the
District of Maryland’s grant of summary judgment in favor of Huber.
Luh, who is an Asian-American female, alleges that Huber denied her
a promotion and terminated her employment on the basis of her race
and gender, in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. (2000), and the Civil Rights Act of
1866, 42 U.S.C. § 1981 (2000). Because Luh has produced
sufficient evidence to demonstrate that Huber’s proffered reasons
for not promoting her to the new manager position and terminating
her employment were false or, at best, dubious, she has established
a triable issue regarding pretext for discrimination. Therefore,
I respectfully dissent.
I
The following is a recitation of the facts construed, as they
must be, in the light most favorable to Luh, the nonmovant for
summary judgment. Luh earned a Ph.D. in engineering from the
University of California at Berkley in 1988. For the next nine
years, Luh worked for W.R. Grace Company, in the areas of research
and product development. During her tenure at W.R. Grace, Luh
helped to develop, inter alia, aluminum nitrate for semiconductors,
18
silicon carbide whiskers, non-moire electromagnetic shielded glass,
ceramic composite materials, and dental silica applications.
In 1997, Luh left W.R. Grace to accept a position as the
Technology Manager for Huber’s Dental Group, part of which later
became Huber’s Engineered Materials Division (“HEM”). Huber, which
is headquartered in Atlanta, Georgia, is a diversified,
multinational supplier of engineered materials, natural resources,
and technology-based services. Luh worked in the area of dental
silicas at Huber’s Havre de Grace, Maryland facility from September
21, 1997, until her termination on June 30, 2000. During her
three-year tenure with Huber, Luh had several different
supervisors, including Robert Klem, Jorma Sakka, and Mike Withiam.
Between 1997 and 2000, Luh received three generally positive
annual performance reviews from her supervisors. On her 1997
annual performance review, Klem concluded as follows:
Ellice has rapidly brought herself up to speed with her
role as Dental Technology Manager. She has gained the
respect of her peers in our Division. I expect Ellice
will accelerate and progress in Dental Technology in
1998. Ellice clearly has the potential to be a future
leader in Huber.
J.A. 147. Similarly, at the end of 1998, Klem concluded that Luh
had “rapidly matured as a leader for our Dental Technology team.”
J.A. 155. Further, Klem praised Luh for her “high degree of
dedication and professionalism” and concluded that these attributes
would carry Luh “forward for Huber.” Id. Also in 1998, Huber’s
President of Engineered Materials, David Hill, selected Luh to
19
participate in the company’s Long Term Incentive Pay Plan. See
J.A. 194. In so doing, Hill praised Luh for her contributions and
stated that the viability of the HEM division depended on “the
talents and expertise of people like you.” Id.
In Luh’s 1999 evaluation, Withiam, who had replaced Klem as
Luh’s direct supervisor, noted that “[d]espite the commercial and
technical success, significant concerns remain in the area of
relationships and leadership. Time spent on relationship conflicts
impacted morale and cohesiveness of the [Personal Care team].”
J.A. 162. Nevertheless, Withiam concluded that Luh was “bright, an
excellent communicator, [was] well liked and [added] greatly to the
overall depth of our effort in Personal Care.” Further, Withiam
stated that he looked forward to Luh “taking an active role, beyond
oral care, in the Consumer Products team.” J.A. 162.
During her tenure as the Technology Manager for Huber’s Dental
Group, Luh oversaw the development of what became known as the
“Janis Project,” which was an effort to develop a new dental silica
product that would clean teeth without being too abrasive. Luh
contends that one of the staunchest supporters of the Janis Project
was Michael Martin, then Huber’s Global Business Leader for Oral
Care. In that capacity, Martin testified that he had the authority
to recommend either the approval or termination of technological
oral care research projects to his direct supervisor, Ron Cole,
Huber’s Global Consumer Leader. See J.A. 982-84. According to
20
Luh, Martin suddenly withdrew his support for the Janis Project
immediately after she rebuffed his sexual advances at an American
Association for Dental Research Convention in Washington, D.C., on
April 5, 2000.
During the convention, Luh, Martin, and Rick Cates, Huber’s
silica products account manager, hosted a private dinner party at
the Georgetown Club for employees of Colgate, an important Huber
customer. Luh testified that, after the dinner, she, Martin, and
Cates returned to the lobby bar of Martin’s hotel to discuss the
convention and business generally. J.A. 427-28. After Cates left
the table to pay the bill and use the restroom, Martin remarked to
her that it was wonderful for employees to have the opportunity to
get to know each other on a more social level. J.A. 430. Luh
testified that Martin then mentioned that he would be “very
discreet,” as he had been in relationships with other women. Id.
According to Luh, Martin stated that neither his nor Luh’s marriage
should “interfere with an opportunity to get to know each other
better.” Id. Luh contends that she rebuffed Martin’s advances by
telling him that he had had too much wine and she would see him at
work the next week. J.A. 431. Luh testified that she told Cates
about Martin’s overture the following week. Cates testified that
Luh had told him about Martin’s advances “within the next few days
during a meeting.” J.A. 1168. Further, Cates testified that
Martin had been “drinking a lot that night” and that someone at the
21
dinner had remarked that “Michael is pretty bombed.” J.A. 1169,
1165. Martin denied drinking alcohol the night of the Colgate
dinner. See J.A. 991. Further, Martin denied making a sexual
overture towards Luh. See J.A. 992.
Despite his initial support for the Janis Project, Martin
undertook a concerted effort to postpone the filing of the Janis
patent application, beginning two days after the convention in
Washington, D.C. On April 7, 2000, Martin sent a three-page
memorandum to a select group of HEM supervisors, including Cates
and Ron Cole, but conspicuously excluding Luh. In this memorandum,
Martin asserted as follows:
I might have been a little slow in getting up to speed on
all aspects of Janis, a very complex project [sic] but
our meetings in Washington DC [sic] with Colgate, from a
business standpoint, lead me to strongly ask for
postponing the filing of the Janis patent application in
its current form.
J.A. 175. Over the course of the next week, Martin wrote multiple
e-mails and letters to HEM supervisors, in which he described the
Janis project as a “hoax” and blamed these shortcomings on Luh
because she spent too much time on customer relations, instead of
managing technology. J.A. 1033, 1175. Cates testified that the
timing of Martin’s aspersions was “odd,” given that just a week
before, at the dental convention in Washington, D.C., “he was all
for it.” J.A. 1174. Cates further testified as follows:
As a matter of fact, he [Martin] was responsible for half
the presentation [about Janis] with Colgate the next day
22
. . . and was very positive about the whole thing, and
then he really didn’t get involved with it anymore.
J.A. 1174-75.
On April 15, 2000, in the midst of Martin’s campaign against
Luh and the Janis Project, Thomas Izod (“Izod”) joined Huber as
Director of Technology and became Luh’s immediate supervisor. As
Director of Consumer and Industrial Technology, Izod had
supervisory authority over Luh’s Dental Technology Group and the
Food, Feed Health, and Care Group (“FFH&C”). In this role, Izod
asserted that he was responsible for reducing the research and
development costs of both the Dental Technology Group and FFH&C.
Accordingly, Izod created a consolidation plan, whereby he combined
the Dental Technology Group and the FFH&C group into a single
entity, the new Consumer Technology Group.
Izod testified that one of his goals in consolidating the two
groups was to de-emphasize the dental products and “move more
aggressively into the personal care cosmetics area.” J.A. 646.
Within two weeks of his hiring, Izod decided to retain either the
manager of the Dental Technology Group (Luh) or the manager of the
FFH&C, Philip Block, but not both of them. See J.A. 637.
Like Luh, Block had impressive educational credentials, having
obtained a science Ph.D. from the University of North Carolina in
1993. Thereafter, Block worked for Johnson & Johnson and Unilever
in the areas of sterilants, surgical gloves, and skin care. As
Block had only joined Huber as manager of FFH&C in November 1999,
23
he had not been employed long enough to have had a performance
review. Over the course of two months, Izod undertook an
evaluation of these two managers. According to Izod, his
evaluation process consisted of a single one-hour interview with
each manager and discussions with various Huber supervisors about
each manager’s experience, past performance, and capabilities.
Those discussions included at least one talk with Martin sometime
between April and June 2000. Izod was aware of Martin’s efforts to
communicate to other supervisors his concerns about the Janis
Project. Izod admitted that Martin talked to him about Luh and
those concerns. See J.A. 630, 653, 655–56.
At the same time Izod was evaluating Luh and Block, he began
to evaluate the rest of the employees under his supervision.
Subsequently, Izod came up with a reduction-in-force plan for the
new Consumer Technology Group. Izod memorialized his reduction-in-
force plan on a single sheet of paper. Specifically, Izod listed
each of the forty-six employees from the Dental Technology Group
and FFH&C in one of three columns on a single sheet of paper. Izod
titled the first column, which listed thirty-four employees, “KEEP
OR MOVE,” the second, which listed seven employees, “POTENTIAL
LEAVE,” and the third, which listed five employees, “DEFINITE
LEAVE.” Izod placed Luh in the potential leave category. From
this initial list, Izod and his supervisor Rob Edmonds eventually
selected a total of six employees for termination.
24
Before Huber implemented Izod’s reduction-in-force plan in
June 2000, the workforce population managed by Izod consisted of
forty-six employees, of whom thirty-nine were Caucasian, two were
African American, and five were Asian American. Thus, Caucasians
constituted 85% of the existing workforce, while Asian and African
Americans constituted 11% and 4%, respectively. Of the six
employees selected by Izod and Edmonds for termination, three were
Asian American and three were Caucasian. Thus, 50% of the
employees selected for termination under the reduction-in-force
plan were Asian American, thereby reducing by 60% Izod’s Asian
American workforce.
On June 27, 2000, Huber informed Luh that she had been
selected for termination due to restructuring. At or about the
same time, Izod selected Block to be Technology Manager for the
Consumer Technology Group. After declining Huber’s offer of a
severance package and outplacement services, Luh filed a timely
charge of discrimination with the Baltimore District Office of the
United States Equal Employment Opportunity Commission (“EEOC”).
After the EEOC issued a determination of reasonable cause that Luh
was discharged from Huber on account of her race and gender and
because of quid-pro-quo sexual harassment, Luh filed a timely suit
in the District of Maryland. In her complaint, Luh alleges that
Huber discriminated against her on account of her race and gender,
while favoring a less qualified Caucasian male employee, Philip
25
Block. Further Luh alleges that Huber’s decision not to select her
was influenced by false accusations of poor performance, made by a
manager whose sexual overtures she had rebuffed.
After discovery, Huber filed a motion for summary judgment on
all three counts. The district court granted the motion without
hearing oral argument. In so doing, the district court assumed for
the purposes of summary judgment that Luh had established a prima
facie case of racial and gender discrimination. However, the court
held that these claims failed because Luh had not put forth
sufficient evidence to suggest that the reasons cited by Huber were
pretext for discrimination. J.A. 1259. The district court also
granted summary judgment on the quid-pro-quo claim, concluding that
even if Michael Martin had in some way influenced Izod’s decision,
Huber could not be held liable for this impermissible influence.
J.A. 1260. This appeal followed.
II
Although Luh raises a number of sub-issues relating to the
district court’s application of Title VII’s burden-shifting
framework, the central issue to be decided is whether the district
court correctly granted summary judgment for the defendant on Luh’s
claims of race and gender discrimination under Title VII and §
1981.
26
This court reviews de novo an award of summary judgment,
viewing the facts and inferences drawn therefrom in the light most
favorable to the non-moving party. See Seabulk Offshore, Ltd. v.
Am. Home Assurance Co., 377 F.3d 408, 418 (4th Cir. 2004).
Ultimately, summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with 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); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Title VII makes it “an unlawful employment practice for an
employer . . . to discharge . . . or otherwise to discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race . . . [or] sex.” 42 U.S.C. § 2000e-2(a)(1). A
plaintiff may establish a Title VII claim by either of two methods
of proof: (1) using a “mixed-motive” framework, whereby the
plaintiff demonstrates, by way of direct or circumstantial
evidence, that race or sex discrimination motivated the employer’s
adverse employment decision; or (2) using the familiar burden-
shifting framework announced in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), whereby the plaintiff demonstrates, by way of
circumstantial evidence, that the employer’s proffered reason for
the adverse employment action is merely a pretext for racial or
27
gender discrimination. The district court relied primarily on the
burden-shifting framework to analyze the summary judgment motion
and Luh relies exclusively on this framework to argue that summary
judgment was inappropriate.1
Under the McDonnell Douglas burden-shifting framework, a
plaintiff must first establish a prima facie case of race or gender
discrimination.2 See Hill v. Lockheed Martin Logistics Mgmt.,
Inc., 354 F.3d 277, 285 (4th Cir. 2004)(en banc). Assuming the
plaintiff establishes a prima facie case, the burden of production
shifts to the defendant to proffer a permissible, non-
discriminatory basis for taking the adverse employment action. See
id. In a reduction-in-force context, a plaintiff must show that
(1) she is a member of a protected class; (2) she was selected for
discharge from a larger group of candidates; (3) she was performing
at “a level equivalent to the lowest level of those of the group
retained”; and (4) “the process of selection produced a residual
work force of persons in the groups containing some unprotected
1
In the concluding paragraphs of its memorandum opinion, the
district court briefly asserted that Luh’s claims also failed under
a mixed-motive framework because the circumstantial evidence
presented did not establish that race or gender was a motivating
factor in her termination. See J.A. 1260. Luh does not take issue
with this alternative holding, relying solely on a burden-shifting
framework to attack the propriety of the district court’s grant of
summary judgment.
2
The McDonnell Douglas framework is used in both Title VII and
§ 1981 cases. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 189
(4th Cir. 2001).
28
persons who were performing at a level lower than that at which she
was performing.”3 O’Connor v. Consolidated Coin Caterers Corp., 56
F.3d 542, 546 (4th Cir. 1995), rev’d on other grounds, 517 U.S. 308
(1996).
If the defendant proffers a permissible, non-discriminatory
basis for its action, then the initial presumption of
discrimination is rebutted and the burden of production shifts back
to the plaintiff to prove that the defendant’s proffered reason is
mere pretext for discrimination. See id. A plaintiff can
accomplish this by showing that the employer’s proffered reason is
false because “in appropriate circumstances, the trier of fact can
3
Luh argues that the reduction-in-force standard is
inapplicable because Huber was choosing between only two people for
the manager position instead of choosing from a larger group of
people. In so doing, Luh relies on this court’s decision in Karpel
v. Inova Health Sys. Servs. Inc., 134 F.3d 1222, 1228 (4th Cir.
1998). In that case, the plaintiff alleged that she had been
subject to race discrimination after being terminated from her
employment for unsatisfactory performance. In the context of that
case, we recognized that in order to establish a prima facie case
of discrimination, the plaintiff would have to demonstrate (1) that
she was a member of a protected class; (2) that she was qualified
for her job and her performance was satisfactory; (3) that, in
spite of her qualifications and performance, she was fired; and (4)
the job remained open to similarly situated employees after her
termination. Id. Thus, to the extent that the plaintiff in Karpel
was not laid off as part of an overall restructuring or reduction
in force, but for allegedly unsatisfactory job performance, the
prima facie standard set forth in that case is inapplicable here.
As Huber correctly notes in its brief, the standard for
establishing a prima facie case in the reduction-in-force context
does not change depending on the number of employees subject to
termination by the employer. So long as the employee was
terminated as a result of her employer’s reduction-in-force plan,
we will apply the prima facie standard articulated in O’Connor.
29
reasonably infer from the falsity of the explanation that the
employer is dissembling to cover up a discriminatory purpose.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147
(2000).
The district court assumed that Luh has established a prima
facie case of racial and gender discrimination.4 Therefore, I now
turn to the more difficult questions of whether Huber proffered
legitimate, non-discriminatory reasons for her termination, and, if
so, whether Luh has demonstrated that these proffered reasons were
pretext for discrimination. Ultimately, for the reasons discussed
below, I conclude that Huber’s proffered justification is legally
insufficient to justify the grant of summary judgment in its favor
on the race and gender discrimination claims.
As this court recently recognized in Mereish v. Walker, 359
F.3d 330 (4th Cir. 2004), an employer seeking to rebut a prima
facie showing of discrimination is not required to persuade the
court that “the proffered reason was the actual motivation for . .
. [the] decision.” Id. at 335. Instead, the employer “must merely
4
Huber suggests that had the district court analyzed the
evidence to determine whether Luh had established a prima facie
case of discrimination it likely would have concluded that she did
not because there was little to no evidence to satisfy the fourth
prong. The record evidence belies this argument. Considering
Luh’s stellar educational background, extensive previous work
experience, and high achievement as manager of the Dental
Technology team, it is disingenuous to assert that the reduction in
force produced a residual work force containing no unprotected
persons who were performing at a level lower than that at which Luh
was performing.
30
articulate a justification that is legally sufficient to justify a
judgment in his favor.” Id. (internal quotation marks and
citations omitted). Although an “employer has discretion to choose
among equally qualified candidates, provided the decision is not
based on upon unlawful criteria . . . ,” Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 259 (1981), the overwhelming
evidence in this case demonstrates that Luh was far more qualified
than Block with respect to the skills Izod professed to be
pertinent to his decision.
Consistent with his intention to retain only one manager, Izod
testified that he undertook a comparative evaluation of Luh’s and
Block’s credentials. See J.A. 643-652. Izod testified that he
conducted a single, one-hour interview with each candidate and
solicited feedback about each manager from various Huber
supervisors. See J.A. 640-655. Huber asserts that Izod ultimately
decided to retain Block over Luh because he concluded that Block
stood out in the following areas: (1) customer interaction, (2)
planning, (3) leadership, (4) presentation skills, (5) team
orientation, (6) new idea concepts, and (7) field expertise. J.A.
640. The record evidence strongly indicates, however, that Izod
failed to consider and credit a plethora of relevant evidence
pertaining to Luh’s strengths in these areas. Accordingly, I find
that a jury could reasonably conclude that Luh was more qualified
31
than Block and, thus, infer that Izod’s decision to select Block
over Luh was indicative of pretext.
With respect to the planning and new idea concepts criteria,
Huber asserts that Izod concluded that Block was more qualified
than Luh. Izod testified that during his one-hour interview with
Luh, “she came across as not being an individual that was terribly
interested in other things outside the dental area.” J.A. 644. By
contrast, Izod testified that he found Block to be interested in
the development of new consumer products, particularly in the area
of cosmetics. See J.A. 802. Izod testified that he was
particularly impressed with Block’s ideas for fragrance carrying,
cosmetic samples that Block had recently presented at a cosmetic
show, and Block’s desire to develop the skin care area. J.A. 909.
Izod’s overall impression of Block was that, contrary to Luh, he
was someone who was “going to step up and do something that’s going
to create the change that’s of value to the company.” J.A. 645.
Although Huber contends that Izod concluded that Block was
more qualified than Luh in terms of the planning and formulating
consumer products, Izod conceded at his deposition that he had
never actually asked Luh about her ideas for expanding research and
development in this area. See J.A. 644. Further, Izod admitted
that he had failed to ask Luh whether she had attended any cosmetic
shows, or whether she had any familiarity with the cosmetics
industry. J.A. 688-69. Indeed, had Izod taken the time to review
32
Luh’s previous employment evaluations, he would have discovered
that Luh had attended a global cosmetics convention in London in
1998 and that Luh’s team’s “[d]ye-absorbing silica granules [had]
received positive feedback from 5 different companies in Europe.”
J.A. 877. Furthermore, Izod’s purported conclusion that Block was
more innovative than Luh is dubious in light of the fact that Block
had only had eight months experience as a product manager at
Johnson and Johnson, where he helped to develop latex gloves, and
had only worked for Huber for a period of six months when Izod
began his evaluation. To the contrary, Luh had worked for Huber
for a period of three years and was instrumental in the research
and development of numerous dental and consumer products, including
cosmetics. In short, Block did not adequately consider Luh’s
knowledge, interest, and experience in consumer products and
overstated Block’s qualifications in this area.
Turning to the proffered customer relationships and
presentation skills criteria, the evidence indicates that Izod
disregarded Luh’s considerable strengths in these areas. Unlike
the relatively new Block, Luh had cultivated relationships with
many of the company’s major dental and consumer products customers
over the course of her three-year tenure with the company. Luh’s
1998 performance evaluation concludes that Luh had “demonstrated
good customer focus during the past year through her address of the
various long-term programs and short-term technical service needs
33
of our customers.” J.A. 152. Importantly, even Michael Martin
praised Luh’s “acumen” in the area of customer relations. See J.A.
997. Izod even conceded that he had been informed “by a number of
people” that Luh’s customer presentation skills were “very good.”
J.A. 640. Because of his relatively short tenure with the company,
there is no comparable evidence in the record regarding Block’s
performance in these areas. However, Izod testified that he had
been told that Block had performed well at a European cosmetics
convention. See id.
As for leadership and team orientation skills, it is apparent
that Izod disregarded a wealth of evidence of Luh’s strengths in
these areas. Huber asserts that Izod concluded that Luh would not
be an effective leader, mainly because Luh told Izod during her
interview that she was “having difficulty” with “some of the
current management,” specifically Michael Martin. J.A. 417-418.
During the interview, Luh told Izod about Martin’s negative e-mail
campaign against her and the Janis Project. J.A. 418.5 Further,
Luh confided in Izod that if these problems persisted, she could
not see herself at Huber for another five years. J.A. 420. Izod
testified that he concluded from this conversation that Luh was “so
wound up” in a number of areas concerning her history, that she did
not seem “terribly interested in other things outside of the dental
5
According to Luh, she even sent copies of Martin’s derogatory
e-mails to Izod in order to get his advice on how to deal with that
situation. J.A. 190–93.
34
area.” J.A. 644. Accordingly, Izod concluded that Luh would not
be an effective leader of his new Consumer Technology team. See
id.
In reaching his conclusion, Izod admitted that, although he
had read Luh’s most recent annual evaluation, he had not reviewed
her other evaluations, which had noted Luh’s initiative and
leadership ability. J.A. 668-69. Further, Izod admitted that he
had not been aware that Huber had selected Luh for its leadership
development program in 1998 or that she had been selected for a
long-term retention contract. J.A. 668. Izod even admitted that
he hadn’t known that Luh “had been successful at Huber.” J.A. 675.
Izod defended these omissions by stating as follows:
I’m trying to evaluate people. As I said earlier on, Mr.
Clifford, I was trying to find out who I wanted on my
team. Okay? I was trying to get from these one-on-ones,
these introductory type one-on-ones I wanted to get a
feel for the type of person we had. I wasn’t really
interested in going back and looking at a lot of history
quite frankly because history is just - I’m looking to
make something start again, get off to a fresh start in
an organization . . . .
J.A. 675.
I also note that Izod disregarded the concerns of a number of
Huber employees with respect to Block’s leadership and team
orientation skills. During his deposition, Izod conceded that even
before he selected Block, he was aware that some employees of the
FFH&C team were unsatisfied with Block’s heavy-handed leadership
style. See J.A. 649-51. Similarly, Richard Cates testified that
35
a number of FFH&C had voiced concerns about Block. See J.A. 1139-
41. Izod downplayed these concerns as expected disgruntlement by
employees who were resentful of their new manager for making them
work harder. See id. I note, however, that Block resigned his
position as Consumer Technology Manager within six months and left
the company altogether within a year of Izod’s hiring. Although
Izod claims that Block left voluntarily, there is significant
evidence that suggests otherwise. At her deposition, Luh testified
that Block later told her that Izod had asked him to resign. This
scenario is more consistent with Block’s January 5, 2001,
performance evaluation, in which Izod concluded as follows:
My main concern is the initial negative response to Phil
by a number of people outside the group in other
departments. There must be a problem here because the
issue crosses several departments, yet I can’t identify
an exact cause. The inputs that I’ve received are that
Phil was too aggressive and controlling when he first
started as Consumer Technology Manager. Conversations
with people concerned suggest that Phil’s approach has
improved in the past month. The consensus is that Phil
is really bright, but that his management inexperience is
the basis for the problem.
J.A. 216 (emphasis added). Based on this evidence, a jury could
reasonably conclude that Luh was more qualified than Block in terms
of leadership and team orientation skills.
In sum, I conclude that Izod’s bases for not selecting Luh for
the manager position are unworthy of belief (or at least very
suspicious) because Luh was better qualified than Block under
Izod’s stated criteria. The record is replete with evidence from
36
which a jury could conclude, as did the EEOC, that Izod was lying
when he testified that he selected Block to be Consumer Technology
Manager because of Block’s superiority in (1) customer interaction,
(2) planning, (3) leadership, (4) presentation skills, (5) team
orientation, (6) new idea concepts, and (7) field expertise. The
evidence of pretext that Luh presented is sufficient to survive a
motion for summary judgment.
III
For the foregoing reasons, I respectfully submit that this
Court should reverse the district court’s grant of summary judgment
with respect to the race and gender discrimination claims. Thus,
I dissent.
37