Dorn B. Holland v. Washington Homes, Incorporated

KING, Circuit Judge,

concurring in part and dissenting in part:

This appeal is controlled by a simple principle: Where the defendant employer in a race-based termination and retaliation action has tendered multiple, contradictory explanations for its termination of the plaintiff—and has admitted that one of those explanations was a lie—a jury must decide whether the employer’s court-proffered explanation for the termination is pretextual. That straightforward precept is compelled both by our precedent and by fundamental principles of evidence, and should be entirely uncontroversial. Yet the majority rejects it, instead holding that such a mendacious defendant can be found credible as a matter of law.

*221Accordingly, although I concur in the portion of the majority’s opinion ruling that Dorn Holland’s claims of pre-termi-nation disparate treatment are time barred (Part II.C), I respectfully dissent from the majority’s affirmance of summary judgment on Holland’s race-based termination and retaliation claims (Part II.A and II.B). To the contrary, Holland has presented sufficient evidence to demonstrate that Washington Homes’ asserted nondiscriminatory reason for terminating Holland was pretextual. More specifically, Holland has presented compelling evidence of a material factual dispute, in that Washington Homes provided the Maryland Department of Labor, Licensing, and Regulation (the “Maryland Agency”) with an entirely different basis for Holland’s termination than that it has espoused in this case. As explained below, Washington Homes’ false statement in this regard warrants a trial on Holland’s race-based termination and retaliation claims.

As spelled out in the majority’s opinion, Holland has pursued his discriminatory termination and retaliation claims against Washington Homes under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this standard, once a plaintiff has established a prima facie case of unlawful discrimination or retaliation, “the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action.” Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir.2004) (en banc). Here, as properly recognized by the majority, Holland has established prima facie race-based termination and retaliation claims, and Washington Homes has responded with its asserted nondiscriminatory reason for the termination. Specifically, Washington Homes contends in this proceeding that Holland was terminated because its President believed Holland had made threatening statements against his supervisor. Because Washington Homes articulated a nondiscriminatory reason for firing Holland, “the burden shifts back to [Holland] to prove by a preponderance of the evidence that [Washington Homes’] stated reasons ‘were not its true reasons, but were a pretext for discrimination.’ ” Hill, 354 F.3d at 285 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). Holland is entitled to establish such a pretext “by showing that the employer’s proffered explanation is unworthy of credence.” Reeves, 530 U.S. at 143, 120 S.Ct. 2097 (internal quotation marks omitted). My disagreement with the majority centers on the evidence of pretext.

On appeal, Holland contends that the evidence creates a genuine issue of material fact on whether Washington Homes’ proffered explanation for his termination was false. Holland has forecast evidence that, even though Washington Homes informed him that he was being terminated for misconduct, it thereafter reported an entirely different reason for his discharge to the Maryland Agency (which contacted Washington Homes when Holland applied for unemployment benefits), asserting that Holland had in fact been terminated for lack of work.

The majority acknowledges that Washington Homes reported a conflicting reason for Holland’s termination to the Maryland Agency, but concludes that this evidence does not discredit Washington Homes’ contention that it terminated Holland for threatening his supervisor. The majority sees this conflict as simply a minor discrepancy, concluding that Holland has failed to demonstrate that Washington Homes’ court-proffered explanation is pretextual. In so ruling, the majority relies on Hux v. City of Newport News, 451 *222F.3d 311, 315 (4th Cir.2006), which recognized that a “plaintiff cannot seek to expose [an employer’s] rationale as pretex-tual by focusing on minor discrepancies that do not cast doubt on the explanation’s validity.” In Hux, a decision in which I joined, the plaintiff had sought to rebut the employer’s proffered reason of inferior job qualifications by comparing “herself to other employees on the basis of a single evaluative factor artificially severed from the employer’s focus on multiple factors in combination.” 451 F.3d at 315.

The Hux ease, however, is materially different from the situation here. Holland is not seeking to demonstrate pretext by focusing on a single factor severed from a combination of other factors. Instead, he shows pretext by focusing on the fact that Washington Homes has provided two contradictory explanations for his termination, a proposition supported by our precedent in EEOC v. Sears Roebuck & Co., 243 F.3d 846 (4th Cir.2001), and Alvarado v. Board of Trustees, 928 F.2d 118 (4th Cir.1991).

In the Sears case, the plaintiff had presented evidence that Sears had, over the course of the litigation, provided a variety of legitimate, nondiscriminatory explanations for its failure to hire him. 234 F.3d at 852-53. In evaluating whether this evidence was sufficient to demonstrate pretext, we concluded that it was, and the fact that Sears offered multiple, inconsistent justifications for its adverse employment action was, “in and of itself, probative of pretext.” Id. at 853. In Alvarado, we ruled that the plaintiff had presented sufficient evidence of pretext by showing that his employer first asserted he was being fired for lack of work, and then later alleged that he was fired for unsatisfactory job performance. 928 F.2d at 122-23; see also Reeves, 530 U.S. at 147, 120 S.Ct. 2097 (“Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.”); Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 647 (4th Cir.2002) (“The fact that an employer has offered inconsistent post-hoc explanations for its employment decisions is probative of pretext....”); Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 432 (1st Cir.2000) (“[W]hen a company, at different times, gives different and arguably inconsistent explanations, a jury may infer that the articulated reasons are pretextual.”); Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1167 (6th Cir.1996) (“An employer’s changing rationale for making an adverse employment decision can be evidence of pretext.”); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir.1994) (concluding that reasonable juror could infer that employer’s inconsistent explanations were evidence of pretext). Based on the relevant precedent, Holland has presented sufficient evidence of pretext in this case, showing that Washington Homes has, at different times, given contradictory reasons for his termination.

In order to counter Holland’s evidence that Washington Homes has made two conflicting — and irreconcilable — explanations for his termination, the majority concludes thát its reporting of a different termination reason to the Maryland Agency fails, as a matter of law, to cast doubt on its position in this case. In so doing, the majority relies on Washington Homes’ explanation that, in making its false statement to the Maryland Agency, it was simply acting out of charity. The majority is incorrect in this regard, however, because it is thereby impermissibly resolving a conflict of material fact. In adopting Washington Homes’ explanation on why it falsely advised the Maryland Agency with respect to Holland’s termination, the majority is making a credibility determination *223that is inappropriate in our assessment of a summary judgment award. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.... ”). Put simply, it is for a jury, not an appellate court, to decide whether Washington Homes was being charitable or, instead, that its conflicting positions constitute evidence of discriminatory misconduct. See id.1

The majority apparently fails to recognize that there were, under this evidence, three different stories presented concerning Holland’s termination. First, Holland contends that he was terminated because of his race and his previous complaints of discrimination. Washington Homes, by contrast, maintains in this proceeding that Holland was terminated because he threatened his supervisor. The third story is the one Washington Homes asserted to the Maryland Agency: that Holland was terminated for lack of work. Because Washington Homes admittedly lied to the Maryland Agency, a jury, under settled evidentiary principles, including the maxim of falsus in uno, falsus in omnibus (“false in one thing, false in all”), would be entitled to disregard all of its evidence concerning Holland’s termination. See Black’s Law Dictionary 491 (7th ed.1999) (describing maxim as “[t]he principle that if the jury believes that a witness’s testimony on a material issue is intentionally deceitful, the jury may disregard all of that witness’s testimony”); see also Kevin F. O’Malley et si.,-Federal Jury Practice and Instructions § 15.06 (5th ed.2000) (spelling out time-honored jury instruction that “[i]f a person is shown to have knowingly testified falsely concerning any important or material matter, you obviously have a right to distrust the testimony of such an individual concerning other matters”); Edward J. Devitt et al., Federal Jury Practice and Instructions § 73.04 (4th ed.1987) (spelling out similar jury instruction that “[i]f a witness is shown knowingly to have testified falsely concerning any material matter, you have a right to distrust such witness’s testimony in other particulars and you may reject all the testimony of that witness or give it such credibility as you may think it deserves”).2

Finally, the majority has failed to view the evidence in the proper light, that is, in the light most favorable to Holland, as the non-moving party. See Seabulk Offshore, Ltd. v. Am. Home Assurance Co., 377 F.3d 408, 418 (4th Cir.2004) (recognizing that courts must view “the facts and inferences drawn therefrom in the light most favorable to the non-moving party” in reviewing summary judgment award). Instead, the majority has viewed the conflicting evidence in the light most favorable to the defendant, concluding that Washington Homes was being charitable to Holland in *224providing false information to the Maryland Agency and that it is being truthful now.3 On the contrary, we should — for summary judgment purposes — conclude that Washington Homes terminated Holland because of race and his previous complaints of discrimination, and that it is not being truthful when it asserts that Holland was terminated for threatening his supervisor. Put simply, we should not — on summary judgment review — credit the position of an admitted liar.

I would reverse the award of summary judgment to Washington Homes on Holland’s race-based termination and retaliation claims. I therefore respectfully dissent.

. It is immaterial that Washington Homes, in connection with its admitted false statement to the Maryland Agency, changed Holland's termination date so that his 401(k) plan would mature. That circumstance does not at all explain Washington Homes' admission that it lied at least once concerning its reason for terminating Holland. In fact, the relevant issue is not why Washington Homes lied, but whether Holland has established pretext by demonstrating that Washington Homes gave two entirely inconsistent explanations for Holland's termination. See Sears, 243 F.3d at 853; Alvarado, 928 F.2d at 122-23.

. Holland has no obligation — under the McDonnell Douglas burden shifting standard — to further counter Washington Homes’ evidence that it lied only to the Maryland Agency (proof that Washington Homes gave two inconsistent explanations is sufficient).

. Under Maryland law, Washington Homes could, on the basis of its present position, be subject to prosecution for a misdemeanor, because "an employer, its officer or agent, or another person” may not "knowingly make a false statement or fact representation or knowingly fail to disclose a material fact” to "avoid becoming or remaining subject” to Maryland’s labor and employment laws. Md. Code Ann., Lab. & Empl. § 8-1302 (West 2007).