UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1647
STEPHEN SCHAFER,
Plaintiff – Appellant,
v.
STATE OF MARYLAND DEPARTMENT OF HEALTH AND MENTAL HYGIENE,
Defendant – Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (1:07-
cv-01213-AMD)
Argued: September 23, 2009 Decided: December 30, 2009
Before NIEMEYER and SHEDD, Circuit Judges, and Mark S. DAVIS,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Vacated and remanded by unpublished opinion. Judge Shedd wrote
the opinion, in which Judge Niemeyer and Judge Davis joined.
ARGUED: Darren Margolis, BIERER & MARGOLIS, Baltimore, Maryland,
for Appellant. John S. Nugent, OFFICE OF THE ATTORNEY GENERAL
OF MARYLAND, Baltimore, Maryland, for Appellee. ON BRIEF:
Douglas F. Gansler, Attorney General of Maryland, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:
Stephen Schafer filed this employment discrimination action
under Title VII of the Civil Rights Act of 1964 claiming that
the Maryland Department of Health and Mental Hygiene (the
“Agency”) failed to promote him because of his gender and race.
The district court granted summary judgment in favor of the
Agency, concluding that (1) Schafer failed to present probative
“direct evidence” of discrimination, and (2) the Agency offered
legitimate nondiscriminatory reasons for not promoting Schafer
and, therefore, there was no genuine dispute of material fact as
to pretext. Because we find that the district court erroneously
held there was no direct evidence of race or gender
discrimination, we vacate the summary judgment order and remand
for further proceedings. 1
1
Summary judgment is appropriate “if the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). We review the district court's order
granting summary judgment de novo. Jennings v. U.N.C., 482 F.3d
686, 694 (4th Cir. 2007) (en banc). In doing so, we generally
must view all facts and draw all reasonable inferences in the
light most favorable to the nonmoving party. Scott v. Harris,
550 U.S. 372, 378 (2007).
2
I
Schafer, a Caucasian male, has been employed by the Agency
since 1975. He is currently the Medical Care Program Supervisor
with the Agency’s Beneficiary Enrollment Services, a position he
has held since 1998. In January 2006, a Program Manager III
position as the Division Chief of the Beneficiary Enrollment
Call Center became available within the Agency. Schafer was one
of 40 persons to apply for the position and was among the 13
applicants who were deemed “qualified.” A five-member Selection
and Evaluation Committee interviewed eight of the 13 “qualified”
applicants and thereafter recommended four applicants, including
Schafer, to be considered by a Final Selection Committee. The
final selection was then submitted to the Agency’s Deputy
Executive Director Mary Dehart and Executive Director Charles
Lehman.
The Final Selection Committee consisted of three Agency
employees: Patricia Nowakowski, Lisa M. Kulishek, and Patricia
Rutley-Johnson. Kulishek was the Director of Eligibility
Operations, Nowakowski was the Deputy Director of Eligibility
Operations, and Rutley-Johnson was a senior staff advisor.
Nowakowski reported to Kulishek, and Kulishek reported to
Dehart.
Although the Final Selection Committee was tasked with
recommending a finalist for the position, Nowakowski testified
3
that the ultimate decision would have to be approved by Dehart
and Lehman. J.A. 87. Nowakowski further testified that while
Dehart would usually just give “a formal ‘okay’ at the end” of
the process, Dehart was more involved than normal in this
instance. Id. Rutley-Johnson also believed that Dehart was
heavily involved in the decision-making of who was to be hired
for this position. She testified that “regardless of who was
chosen as a candidate, Mary Dehart was the person that
ultimately had decision-making power because that was Lisa
Kul[is]hek’s supervisor.” J.A. 217.
Initially, Dehart testified that she was not involved in
the selection process. However, she admitted that she
instructed the Final Selection Committee to select the
“candidate they thought best suited for the position.” J.A.
171. She also admitted that she had to confirm the hire after
the selection was made and that members of the committee came to
her for advice during the selection process. J.A. 172, 175.
After interviewing the finalists, the Final Selection
Committee, voting 2-1, decided that the Division Chief position
should be offered to Elise Green-Watford, an African-American
female. Nowakowski, the dissenting committee member, voted for
Schafer because she believed he was the most qualified
applicant. Dehart confirmed the recommendation and, thereafter,
the position was offered to Green-Watford, and she accepted.
4
Among the evidence Schafer offered in support of his
discrimination claim is testimony from Nowakowski that she
attended a meeting with Lehman, Dehart, and Kulishek during
which Dehart stated that an African-American female should be
hired as the new Division Chief. J.A. 85-86. Additionally,
Dehart allegedly told Nowakowski at a later date “that the
Department was lacking African-American female management and we
had to hire some.” J.A. 87. Nowakowski also testified that she
and Schafer were present at a lunch before the interview process
had even been completed when Rutley-Johnson stated “that this
position was a done deal, and an African-American female
candidate was going to be hired.” J.A. 89.
The district court granted summary judgment in favor of the
Agency because it found that Schafer failed to present probative
“direct evidence” of discrimination. Further, although the
district court found that Schafer made a prima facie case of
discrimination under McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), it found that the Agency had offered legitimate
nondiscriminatory reasons for awarding the position to Green-
Watford instead of Schafer and, therefore, there was no genuine
dispute of material fact as to pretext. This appeal followed.
5
II
Title VII makes it “an unlawful employment practice for an
employer . . . to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, . . . [or]
sex.” 42 U.S.C. § 2000e-2(a). A plaintiff can defeat summary
judgment in a discrimination action under Title VII by either of
two avenues of proof: (a) through direct evidence that gender,
race, or both motivated the decision not to promote him, or (b)
through the burden-shifting scheme established by McDonnell
Douglas Corp., 411 U.S. at 802. See Hill v. Lockheed Martin
Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th Cir. 2004)(en
banc). Under the direct proof standard, the plaintiff must only
show that his gender or race was a “motivating factor” in the
decision not to promote him. Id. at 284. Further, such proof
includes evidence of conduct or statements that reflect a
discriminatory attitude and bear directly on the contested
employment decision. Id. at 284-85.
Schafer contends that he offered at least two items of
direct evidence of discrimination. Specifically, he claims his
direct evidence includes (1) Rutley-Johnson’s statement that
“this position was a done deal, and an African American female
was going to be hired,” and (2) Dehart’s statements that an
African-American female should be hired as the new Division
6
Chief. The district court concluded that these statements are
not direct evidence. Specifically, the court held that Dehart
was not an actual decisionmaker under Hill, and there is “no
direct evidence whatsoever to show that Kulishek and Rutley-
Johnson were improperly motivated by race or gender in their
decision.” 2 J.A. 267.
When a plaintiff proceeds under a direct evidence claim of
discrimination, we have held that in order for the plaintiff to
survive summary judgment, he must produce sufficient evidence
that the discriminating “employee possessed such authority as to
be viewed as the one principally responsible for the decision or
2
The district court also stated that “even assuming that
Nowakowski’s hearsay testimony would be admissible at trial,”
her statements would be “stray remarks.” J.A. 267 (emphasis
added). We disagree with the district court’s characterization
that this testimony is “hearsay.” See Pitrolo v. County of
Buncombe, N.C., 2009 WL 1010634 (4th Cir. March 11, 2009).
Federal Rule of Evidence 801(d)(2) defines as non-hearsay a
statement “offered against a party” that is “the party’s own
statement, in either an individual or a representative capacity”
or “a statement by the party’s agent or servant concerning a
matter within the scope of the agency or employment.” Dehart
was the Deputy Executive Director of the Agency; hence, she was
an “agent” within the meaning of Rule 801(d)(2). Likewise,
Rutley-Johnson’s statement would also be admissible under the
same basis. Rutley-Johnson was a member of the Final Selection
Committee and would be an “agent” within the meaning of Rule
801(d)(2). Therefore, we find that the alleged statements made
by Dehart and Rutley-Johnson are not hearsay and are admissible
under Rule 801(d)(2) as a “party-opponent admission.” Further,
statements related to the hiring decision made by an actual
decisionmaker are not “stray remarks.” Cf. Price Waterhouse v.
Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring).
7
the actual decisionmaker for the employer.” Hill, 354 F.3d at
291. With this in mind, we must decide whether Schafer has
presented sufficient evidence to demonstrate that he has been
the victim of intentional discrimination based upon the actions
of an actual decisionmaker.
We hold that Schafer has presented evidence tending to
establish that an actual decisionmaker used an improper
criterion in making the employment decision. First, even were
we to accept the Agency’s argument that only members of the
Final Selection Committee are actual decisionmakers, evidence in
the record tends to show that committee member Rutley-Johnson
used an improper criterion in selecting Green-Watford.
Specifically, Rutley-Johnson’s statement “that this position was
a done deal, and an African-American female candidate was going
to be hired” could reasonable be understood as direct evidence
of discrimination by the committee member who cast the deciding
vote.
Further, contrary to the Agency’s position that Dehart’s
role was limited to the ministerial function of signing off on
the recommendation of the Final Selection Committee, there is a
genuine factual dispute concerning whether Dehart is an actual
decisionmaker. Cf. Hill, 354 F.3d at 290 (noting that “[w]hen a
formal decisionmaker acts merely as a cat’s paw for or rubber-
stamps a decision, report, or recommendation actually made by
8
[another employee], it is not inconsistent to say that the
[other employee] is the actual decisionmaker or the one
principally responsible for the contested employment decision”).
Here, there is testimony from which a jury could find that
Dehart was the actual decisionmaker. Nowakowski and Rutley-
Johnson indicated that Dehart was such a decisionmaker, and
Dehart’s testimony itself establishes that (1) she had a
significant degree of supervision over the committee, (2) the
committee sought her advice during the hiring process, (3) she
gave instructions to the committee, and (4) she had to
ultimately confirm its selection. Therefore, we hold that a
jury could find that Dehart was an actual decisionmaker.
Further, a jury could find that Dehart used an improper
criterion in the employment decision based on her statements
that an African-American female should be hired for the
position.
III
Because there is evidence that the actual decisionmaker
based the decision not to promote Schafer on his race or gender,
we vacate summary judgment and remand for further proceedings. 3
VACATED AND REMANDED
3
Because we find direct evidence of discrimination in this
case, we need not address the McDonnell Douglas test.
9