Michele Fields v. Verizon Services Corporation , 493 F. App'x 371 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________________
No. 11-2093
___________________
MICHELE FIELDS,
Plaintiff - Appellant,
v.
VERIZON SERVICES CORPORATION,
Defendant - Appellee.
___________________
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(8:10-cv-02484-AW)
___________________
Argued: May 16, 2012 Decided: August 9, 2012
___________________
Before NIEMEYER and KEENAN, Circuit Judges, and Robert J. CONRAD,
Jr., Chief United States District Judge for the Western District of
North Carolina, sitting by designation.
___________________
Affirmed by unpublished per curiam opinion.
___________________
ARGUED: Susan Laiken Kruger, ALAN LESCHT AND ASSOCIATES, PC,
Washington, D.C., for Appellant. Emmett F. McGee, Jr., JACKSON
LEWIS, LLP, Baltimore, Maryland, for Appellee. ON BRIEF: Alan
Lescht, ALAN LESCHT AND ASSOCIATES, PC, Washington, D.C., for
Appellant. Clifton R. Gray, JACKSON LEWIS, LLP, Baltimore,
Maryland, for Appellee.
___________________
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This appeal arises from the interaction of a company’s efforts
to evaluate employees and effect reductions in force (“RIFs”) during
a time period in which one employee, Plaintiff-Appellant Michele
Fields (“Fields”), was diagnosed with, and subsequently received
treatments for, breast cancer. On June 29, 2010, after she was the
subject of a RIF, Fields filed suit in state court in Maryland,
accusing Defendant-Appellee Verizon Services Corporation (“Verizon”)
of engaging in unlawful disability discrimination when it terminated
her. Fields based her claim on Article 1, Section 27-19 of the
Montgomery County Code.1 The case was removed to the District Court
of Maryland on September 9, 2010 pursuant to 28 U.S.C. §§ 1331, 1332
and 1441. The district court granted summary judgment for Verizon
on September 13, 2011 and Fields timely filed her notice of appeal
on October 10, 2011. This Court has jurisdiction pursuant to 28
U.S.C. § 1291. For the reasons set forth below, we affirm the
judgment of the district court.
1
Fields’s complaint also alleged a claim for retaliation in
violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et
seq. Because she did not, in her opening briefs, present any
argument on that claim, we conclude that she has waived any
argument on the issue.
2
I.
Michele Fields worked for Verizon for twenty-seven years.2
During that time, Verizon conducted annual evaluations by means of
a “Year-End Performance Assessment.” Verizon assigned one of four
ratings to each of its employees: leading, performing, new or
developing. “New” was used to indicate that an employee’s
achievement could not be evaluated due to his or her short tenure
in the position. “Developing” indicated that improvement was
needed.
In December 2008, Fields’s Manager, Eva Drum (“Drum”), rated
all of her team members as “performing” for the Year-End Performance
Assessment and then ranked them. Drum ranked Fields as 4th out of
5 Senior Consultants on her team.3
2
Fields worked as a Senior Consultant in Verizon’s
Requirements Group. The general function of the Requirements Group
is to create documents used to generate technical designs and
application codes that detail the behavior and functionality for
the ordering and billing processes of Verizon’s consumer and
business products. In early 2009, the Requirements Group was
comprised of nineteen Senior Consultants and Specialists and six
Managers. Each of the Managers oversaw a team with a specific
focus. Fields’s Manager was Eva Drum and Drum’s team oversaw the
build-out of Verizon’s Converged Front end Engine (“CoFEE”) system,
which is used by Verizon sales representatives to place orders,
including Fiber Optic Service (“FiOS”) orders, review bills and
make adjustments. Another Requirements Group Manager, Joseph
Borrelli, oversaw a team focused exclusively on FiOS-related
projects.
3
After the 5th ranked Senior Consultant was transferred in
the June 2009 RIF, Fields became the lowest-ranked member of Drum’s
team.
3
In April 2009, months after Fields’s low 2008 year-end rating,
she was diagnosed with breast cancer. She underwent surgery,
chemotherapy and radiation, causing her to be out of work full time
for approximately four months and part time for an additional three
months. Fields was finally healthy enough to return to work full
time on November 23, 2009.
During this time period, Verizon executed two RIFs using
employee rankings. The first RIF occurred in June 2009. At that
time, everyone in the Requirements Group was assessed as
“performing” or “leading,” because any employees assessed as
“developing” were terminated in previous RIFs. Drum declared that
she did not take Fields’s cancer into consideration in any way when
she ranked Fields in June 2009, and confirmed that she used the same
criteria for determining rankings for the December 2008 Year-End
Performance Ratings as for the June 2009 RIF.
To facilitate the June 2009 RIF, the Requirements Group
Managers participated in a conference call and discussed each of the
nineteen Senior Consultants and Specialists in the Requirements
Group, ranking them according to their subject matter expertise,
business knowledge, and the types of projects each supported.
Although Fields had been off work for almost two months, Drum never
mentioned Fields’s breast cancer or related absence during the call.
In fact, Fields testified that she felt Drum was generally
“supportive” during her treatment and recovery, and that she was
“always treated fairly” by Drum. The Managers came up with a list
4
and in June 2009, Verizon terminated or transferred the four lowest-
ranked employees–those ranked 16th through 19th. Fields, ranked
13th, was not terminated in this RIF.
The second RIF occurred on November 24, 2009. After becoming
Director of the Requirements Group in September of that year (in
addition to being Director of the Testing Group), Joseph Milla
(“Milla”) learned that there would be another RIF affecting both
groups and requiring Milla to lay-off eleven employees. As a result
of being Director over the Testing Group for fourteen years, Milla
had substantial insight into the skill sets and expertise of the
group’s employees. Because he had only supervised the Requirements
Group for one month, Milla asked the Requirements Group Managers to
provide him with a list ranking the fifteen remaining Senior
Consultants and Specialists in that group.
The Requirements Group Managers concluded that there was no
need to change the list they generated for the June 2009 RIF because
the subject matter expertise and skill sets of the employees had not
significantly changed in the few months between June and October.
Therefore, the ranking list provided to Milla for the November 2009
RIF was identical to the list for the June 2009 RIF, except for the
absence of the employees previously ranked 16th through 19th who
were terminated or transferred in the June RIF.
Milla initially determined that the three lowest-ranked members
of the Requirements Group would be selected for the November 2009
RIF–i.e. those ranked 13th through 15th. Fields was ranked 13th,
5
Ernestine Garlick (“Garlick”) was ranked 14th, and William Lesiak
(“Lesiak”) was ranked 15th. In addition, Milla selected eight
employees from the Testing Group for termination pursuant to the
RIF.
After his initial selection of eleven employees to be
terminated, Milla learned that he could save two employees from
losing their jobs. Milla felt it would be the most “fair” for him
to retain one employee from the Testing Group and one from the
Requirements Group. For the Requirements Group, Milla considered
employees ranked 13th (Fields) and 14th (Garlick), both of whom
worked in Maryland. Milla called Fields’s and Garlick’s Managers
to ascertain who had the most relevant and valuable skill set and
should be saved from the RIF.
Garlick’s Manager Joseph Borrelli (“Borrelli”) explained that
Garlick’s work was focused on projects directly concerning Verizon
FiOS. Borrelli opined that FiOS was Verizon’s premiere product and
that it would be sensible to retain those Requirements Group
employees, such as Garlick, who focused on and had expertise in
FiOS-related projects.
Fields’s Manager Drum explained that Fields’s skill sets and
subject matter expertise were focused on Verizon’s CoFEE system.
According to Milla, Drum was an “advocate” for Fields, explaining
that Fields “was a performing employee” and that “she was valuable
to the corporation.” When Milla asked Drum about Fields’s
experience working on projects related to Verizon FiOS, however,
6
Drum conceded that Fields’s FiOS experience was limited. Fields
served as the primary lead on several projects that included FiOS
products, but her team focused on projects related to the CoFEE
system. Indeed, Fields testified that in 2008 and 2009, she spent
nearly all of her time working on the build-out of the CoFEE system.
Drum did not disclose Fields’s breast cancer or related absence to
Milla during this call, or at any other time.
In the end, Milla “agreed with Mr. Borrelli’s assessment that
Verizon FiOS was the premiere product of Verizon and the line of
business expanding most rapidly, and that retaining an employee such
as Ms. Garlick, who already had significant experience and expertise
in working on Verizon-FiOS related projects, made the most sense for
the Requirements Group from a strategic and business standpoint.”
II.
We review the district court's grant of summary judgment de
novo, viewing the facts and inferences drawn therefrom in the light
most favorable to the nonmoving party. See E.E.O.C. v. Navy Fed.
Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). Summary judgment
is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (citing FED . R. CIV . P. 56(c)). The “mere existence of some
7
alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment . . . .
Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986).
III.
A.
Fields claims that she was unlawfully terminated by Verizon due
to her disability in violation of Montgomery County Code (“MCC”)
Article 1, Section 27-19, which prohibits employers from discharging
or otherwise discriminating against an individual on the basis of
disability. See MCC, Art. 1, § 27-19. Section 27-6 of the MCC
defines disability as “a physical or mental impairment that
substantially limits one or more of an individual's major life
activities, a record of having such an impairment, being associated
with an individual with a disability or being regarded as having
such an impairment . . . .” Id. at § 27-6.
The Montgomery County Code tracks the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), in all relevant
respects and we accordingly look to ADA cases to analyze Fields’s
claim. See Heiko v. Colombo Savings Bank, F.S.B., 434 F.3d 249,
254-55 (4th Cir. 2006); see also Cohen v. Montgomery Cnty. Dep't of
Health & Human Servs., 817 A.2d 915, 922-25 (Md. Ct. Spec. App.
8
2003) (interpreting the disability discrimination provisions in the
Montgomery County Code as congruent with the ADA); Ridgely v.
Montgomery Cnty., 883 A.2d 182, 193 (Md. Ct. Spec. App. 2005)
(looking to federal decisions interpreting the ADA for guidance in
interpreting the MCC). But see MCC § 27-1 (“The prohibitions in
this article are substantially similar, but not necessarily
identical, to prohibitions in federal and state law.”). Fields did
not submit any direct evidence of disability discrimination.
Therefore, to survive summary judgment, Fields must establish a
circumstantial case under the burden shifting framework set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Ennis
v. Nat’l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir.
1995) (holding that the McDonnell Douglas scheme of proof applies
to claims brought under the ADA).
First, Fields must establish a prima facie case of wrongful
termination. Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248,
252-53 (1981). If Fields “succeeds in proving the prima facie case,
the burden shifts to the defendant ‘to articulate some legitimate,
nondiscriminatory reason’” for Fields’s termination. Id. at 253(quoting McDonnell Douglas, 411 U.S. at 802). If Verizon carries
this burden, Fields “must then have an opportunity to prove by a
preponderance of the evidence that the legitimate reasons offered
by the defendant were not its true reasons, but were a pretext for
discrimination.” Id. (citing McDonnell Douglas, 411 U.S. at 804);
9
see also Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d
277, 285 (4th Cir. 2004).
The district court found that Fields failed to establish a
prima facie case of discrimination under Mitchell v. Data Gen.
Corp., 12 F.3d 1310 (4th Cir. 1993),4 because (1) “Fields was not an
individual with a disability as defined by the MCC at the time her
employment was terminated in November 2009,” and (2) “the employees
retained by Verizon were not performing at a lower level than
Fields.” Fields v. Verizon Servs. Corp., No. 10-cv-02484-AW, 2011
WL 4102087, at *5, 7 (D. Md. Sept. 13, 2011). “Even if Fields had
established a prima facie case,” the district court went on to hold,
“Verizon has presented legitimate, non-discriminatory reasons for
terminating Fields pursuant to the RIF: Fields’[s] lack of direct,
4
The parties argued the prima facie test set forth in
Mitchell, which states that “the plaintiff must show that (1) he
was in the protected age group; (2) he was discharged; (3) at the
time of the discharge, he was performing his job at a level that
met his employer's legitimate expectations; and (4) following the
discharge, he was replaced by an individual of comparable
qualifications outside the protected class.” 12 F.3d at 1315 (age
discrimination). This Court, however, has noted its preference for
using the test enunciated in Ennis in the ADA context, which
requires the plaintiff to show that (1) she was in the protected
class; (2) she was discharged; (3) at the time of the discharge,
she was performing her job at a level that met her employer's
legitimate expectations; and (4) her discharge occurred under
circumstances that raise a reasonable inference of unlawful
discrimination. See Ennis, 53 F.3d at 58-59; see also Rohan v.
Networks Presentations LLC, 375 F.3d 266, 272 n.9 (4th Cir. 2004);
Rhoads v. FDIC, 257 F.3d 373, 387 n.11 (4th Cir. 2001); Haulbrook
v. Michelin N. Am., Inc., 252 F.3d 696, 702 (4th Cir. 2001).
Despite the fact that the district court used a different prima
facie test, the pretext analysis is the same under either standard
and precludes Fields from relief.
10
significant requirements experience working on FiOS-related
projects.” Id. at *7. Finally, the district court found that
Fields did not present “any evidence to show that Verizon’s
legitimate, non-discriminatory reasons were pretextual.” Id.
Because we agree that Fields failed to meet her burden of
establishing that Verizon’s stated reason was actually a pretext for
unlawful discrimination, McDonnell Douglas, 411 U.S. at 804, we hold
that the district court properly granted summary judgment in favor
of Verizon.
B.
Assuming arguendo that Fields established a prima facie case
of discriminatory termination, Verizon articulated a legitimate,
nondiscriminatory reason for Fields’s termination: Fields’s relative
lack of experience in the area most relevant to Verizon at the time
of the November 2009 RIF. See (J.A. 130-31); Duke v. Uniroyal Inc.,
928 F.2d 1413, 1418 (4th Cir. 1991) (age discrimination) (“When the
[RIF] selection process is based on performance, the criterion is
more a question of relevant performance than one of not meeting
employer expectations.”). In 2009, Verizon viewed FiOS as the
strategic focus of the company.5 (J.A. 130-31). Verizon retained
Garlick over Fields because Garlick had direct, significant
requirements experience working on FiOS-related projects. (J.A.
5
Fields even agreed that FiOS was the “primary strategic
product” for Verizon and that Verizon was putting a greater
emphasis on the FiOS product than its other existing products.
(J.A. 35-36).
11
117-18). Garlick’s group worked exclusively on FiOS-related
projects and, accordingly, all of the members of her group were
protected from the RIF. (J.A. 117-18; 120-21). In contrast,
Fields’s team focused on the CoFEE system and while Fields had some
experience working with FiOS in varying degrees, she admitted that
she never worked on any projects exclusively focused on FiOS. (J.A.
25, 31, 34).
Selecting an employee for termination pursuant to a RIF because
she does not have sufficient experience in the area most important
to the present and future needs of the company is a legitimate,
nondiscriminatory reason for termination. See Duke, 928 F.2d at
1418 (describing as legitimate and nondiscriminatory the stated
reason of discharging plaintiffs pursuant to a RIF because
plaintiffs “were the least qualified for the existing and future
needs of [defendant employer]”). In Mereish v. Walker, 359 F.3d
330, 335 (4th Cir. 2004), the defendant employer, United States Army
Medical Research Institute for Infectious Diseases (“USAMRIID”),
terminated the plaintiffs pursuant to a RIF. USAMRIID’s stated
reason for their termination was “to ensure that the technical
skills possessed by the USAMRIID employees after the RIF would match
the changing nature of the threats to which the agency was designed
to respond–namely, biological war and terrorism.” Id. This Court
found that “[s]uch a strategic business decision constitutes a
legally sufficient justification for appellants’ termination.” Id.Verizon’s stated reason that it terminated Fields because of her
12
relative lack of FiOS experience constitutes a legitimate,
nondiscriminatory reason for Fields’s termination. The burden
shifts to Fields to offer evidence that the articulated reason for
her termination is pretextual.
C.
Fields argues that Verizon’s stated reason for her termination
was a pretext for discrimination. (Doc. No. 17 at 28). First,
Fields argues that her higher ranking is proof that she was
performing better than Garlick, and that Drum and Milla illegally
took her cancer into consideration when selecting her for
termination. (Id. at 28-29). According to Fields, Milla’s
explanation that Fields did not have as much FiOS experience was
only a cover for the actual reason she was selected for the RIF–her
cancer and related absence. (Id. at 28-31). Second, and in direct
conflict with her first argument, Fields attacks the ranking system
as unfair, subjective and artificial. (Id. at 29-30). This
argument undermines the only evidence that Fields presented of
discrimination–her termination despite her slightly higher rank.
1.
a.
Fields contends that Drum illegally took her cancer and related
absence into account when she evaluated and ranked Fields. (Doc.
No. 17 at 30). Fields states that she “served as the primary lead
on several projects that included FiOS products,” (J.A. 143), and
that she worked with FiOS when she traveled to call centers to
13
support the launch of new FiOS projects. (J.A. 144). Fields argues
that Drum’s awareness of her work on FiOS-related projects and
visits to call centers should have led her to rank Fields higher
than she did. (Doc. No. 17 at 30). Because her rank was the direct
result of Drum’s input, Fields concludes that Drum must have been
motivated by her awareness of Fields’s cancer and frustration over
her absence when she ranked her so low. See (id.).
Fields’s pretext argument related to Drum is rebutted by the
evidence presented by both Fields and Verizon. First, Fields
undercuts her own argument by offering significant evidence that
Drum did not hold any discriminatory animus toward her. Fields
testified that Drum was “supportive” during her treatment and
recovery, (J.A. 39), that she was “always treated fairly” by Drum,
(J.A. 37), and that Drum never did or said anything to her to
suggest that Drum held Fields’s cancer or prolonged absence against
her, (J.A. 40).
Second, Verizon offered evidence that Drum did not take
Fields’s cancer or related absence into consideration when ranking
Fields. Drum testified that she never mentioned anything about
Fields having breast cancer during her conference calls with other
Managers in the Requirements Group. (J.A. 219, 221). Drum also
declared that she did not take Fields’s cancer into consideration
in any way when she evaluated and ranked Fields.6 (Id.). Finally,
6
Other than offering her own opinion and speculation, Fields
did not present any evidence to discredit Drum’s testimony as
14
Drum ranked Fields 4th out of 5 Senior Consultants on her team in
December 2008–months before Fields was even diagnosed with breast
cancer. (J.A. 220). After the 5th-ranked person was terminated in
the June 2009 RIF, Fields became the lowest ranked member on her
team. The consistency in Fields’s low ranking is further proof that
Drum did not take Fields’s cancer into consideration when ranking
her.
b.
Fields argues that Milla lied in his deposition and that his
dishonesty is evidence of pretext. (Doc. No. 17 at 28). Fields
contends that Milla was dishonest when he stated that (1) he did not
know Fields had cancer, and (2) a lack of FiOS-related experience
was the reason for her termination. (Doc. No. 17 at 28). This is
an accusation lacking evidentiary support. Fields did not offer any
evidence that Milla knew of Fields’s cancer or treatment.7 When
unreliable. See Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d
299, 308 (4th Cir. 2006) (finding unsupported speculation
insufficient to create a genuine issue of material fact); Goldberg
v. B. Green & Co., Inc., 836 F.2d 845, 848 (4th Cir. 1988)
(“Conclusory assertions that [defendant’s] state of mind and
motivation are in dispute are not enough to withstand summary
judgment.”) (citing Zoby v. American Fidelity Co., 242 F.2d 76, 80
(4th Cir. 1957) (a “bare contention that the issue is disputable
will not suffice” to resist a motion for summary judgment)).
7
Fields claims that she “proved Milla–the final decision
maker of the RIF–was aware of Fields’s disability and that she was
taking significant time off from work.” (Id.). Milla testified
that he knew that Fields had some kind of illness, but not that she
had breast cancer or was on short term disability. (J.A. 107).
Fields presented evidence that Milla received daily emails stating
“Fields-STD.” (J.A. 343, 345). These emails reported absences for
every employee who worked under Milla and standing alone do not
15
Milla was given the opportunity to save two employees from the RIF,
he decided to pick one from the Requirements Group and one from the
Testing Group. (J.A. 120, 129). He called the Managers of the two
highest ranked employees selected for the RIF–Fields and Garlick–to
ascertain who had the most relevant and valuable skill set. (J.A.
130). Through these calls, Milla learned that Garlick was more
skilled than Fields in FiOS. Because Milla regarded FiOS as the
more relevant and important skill set for the future of the company,
Milla selected Garlick as the employee to be saved from the RIF.
Fields herself testified that FiOS was the “primary strategic
product” for Verizon and that Verizon was putting a greater emphasis
on the FiOS product than its other existing products. (J.A. 35-36).
So long as this decision to investigate beyond the bare face
of the first RIF’s rankings was not based on Fields’s cancer, this
Court will refrain from second-guessing Milla’s decision. See Rowe
v. Marley, Co., 233 F.3d 825, 831 (4th Cir. 2005) (holding an
employer’s decision to discharge one employee over another is the
type of decision this court is reluctant to second guess); Anderson
v. Westinghouse Savannah River Co., 406 F.3d 248, 272 (4th Cir.
2005); Henson v. Liggett Grp., Inc., 61 F.3d 270, 277 (4th Cir.
1995) ("We have recognized the importance of giving an employer the
latitude and autonomy to make business decisions, including
show that he lied about knowing Fields was on short term
disability. See Price v. Thompson, 380 F.3d 209, 214 n.1 (4th Cir.
2004) (finding that while a lie may be evidence of pretext, a
mistake of fact is not).
16
workplace reorganization, as long as the employer does not violate
the ADEA."); E.E.O.C v. Clay Printing Co., 955 F.2d 936, 946 (4th
Cir. 1992) ("It is not . . . the function of this court to second
guess the wisdom of business decisions."); DeJarnette v. Corning,
Inc., 133 F.3d 293, 299 (4th Cir. 1998) (A federal court “does not
sit as a kind of super-personnel department weighing the prudence
of employment decisions made by firms charged with employment
discrimination . . . . Our sole concern is whether the reason for
which the defendant discharged the plaintiff was discriminatory.
Thus, when an employer articulates a reason for discharging the
plaintiff not forbidden by law, it is not our province to decide
whether the reason was wise, fair, or even correct, ultimately, so
long as it truly was the reason for the plaintiff's termination.”)
(quotations and citations omitted). Milla worked in a different
state, and did not know anything about Fields’s or Garlick’s skills
or qualifications when he decided to call their Managers. (J.A.
130). There is no evidence that Milla’s decision to personally
research Fields’s and Garlick’s qualifications was based on
discrimination. (J.A. 131).
2.
Fields’s attempt to show pretext by arguing that Verizon’s
ranking system was unfair, subjective and artificial also fails.
To facilitate the selection process for the June 2009 RIF, Verizon’s
Requirements Group Managers ranked their members according to
subject matter expertise, business knowledge, and the types of
17
projects each employee worked on. (J.A. 218-19). This Circuit has
previously approved similar criteria as valid, nondiscriminatory
measures of employee performance. See Evans v. Techs. Applications
& Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996) (“Job performance and
relative employee qualifications are widely recognized as valid,
non-discriminatory bases for any adverse employment decision.”); see
also Anderson v. Westinghouse Savannah River Co., 406 F.3d at 257,
267 (approving of ranking system examining job expectations, quality
and quantity of work, position scope, support to achieving
commitments, feedback from others, awards and recognition, and
performance standards). While Verizon’s objective factors were, to
some extent, subjectively employed, “the mere fact that subjective
criteria are involved in the reason articulated by an employer does
not prevent according it sufficient rebuttal weight to dispel the
inference of discrimination . . . .” Page v. Bolger, 645 F.2d 227,
230 (4th Cir. 1981). Verizon’s ranking system appears to be, for
the most part, objective and to the extent subjective criteria were
used, their application in the present case appears to be consistent
and even-handed. Given the consistency of the results and the
objective criteria used to evaluate the Requirements Group
employees, the Court does not find any reason to discredit the
application of Verizon’s ranking system to the present decision
involving Fields. See Page, 645 F.2d at 230 (“[I]t must be possible
for employers legally to make employment decisions that disfavor
18
qualified minority employees on the basis of comparative evaluation
of their qualifications with those of other applicants.”).
Fields’s disagreement with her low rank is insufficient to
discredit Verizon’s ratings system or stated reason for firing her.
Fields argument that her inability to attend work hobbled her
ranking is also unsubstantiated. The only support Fields offers for
the claim that her ranking and eventual termination were influenced
by her illness-related absence is her statement, “I feel like they
ranked me low because I was out.” (J.A. 41). Fields’s “own
assertions of discrimination in and of themselves are insufficient
to counter substantial evidence of legitimate nondiscriminatory
reasons for an adverse employment action.” Williams v. Cerberonics,
Inc., 871 F.2d 452, 456 (4th Cir. 1989); see also Evans, 80 F.3d at
960 (explaining that “[plaintiff’s] unsubstantiated allegations and
bald assertions concerning her own qualifications and the
shortcomings of her co-workers fail to disprove [defendant
employer’s] explanation or show discrimination”). Fields’s
supposition is also refuted by the record. Fields’s ranking at the
time of the November 2009 RIF was consistent with her ranking prior
to, and therefore, unaffected by, her April 2009 cancer diagnosis
and subsequent absence. Drum did not share Fields’s health
condition or leave of absence with the other Managers during the
conference calls for either the June 2009 RIF or the November 2009
RIF. (J.A. 99, 219-21). A discharged employee cannot attack an
employer’s ratings system that is objective and facially fair merely
19
because she differs with the result. See Conkwright v. Westinghouse
Elec. Corp., 933 F.2d 231, 235 (4th Cir. 1991) (“The system . . .
used was objective and facially fair, even if it, like all human
endeavors, was imperfectly administered.”). Fields has not
proffered any evidence that the ranking process or her termination
were based on any discriminatory animus.
IV.
Even though we assume arguendo that Fields established a prima
facie case, her suit must be dismissed. Verizon put forward
evidence that Fields’s relative lack of direct and extensive
FiOS-related experience led to removal from her Senior Consultant
position. The district court held that this was a legitimate,
nondiscriminatory reason for Fields’s termination, and we agree.
See Fields, 2011 WL 4102087, at *3. Fields failed to meet her
burden of presenting evidence “that the employer’s stated reasons
were not its true reasons, but were a pretext for discrimination.”
Hill, 354 F.3d at 285; see also Ennis, 53 F.3d at 58 (“the plaintiff
bears the ultimate burden of proving that she has been the victim
of intentional discrimination”); St. Mary’s Honor Ctr. v. Hicks, 113
S. Ct. 2742, 2746-49 (1993) (summary judgment is appropriate unless
plaintiff presents adequate evidence that employer unlawfully
discriminated). The district court’s decision granting summary
judgment in favor of Verizon is affirmed.
AFFIRMED
20