Vincent Mercer v. PHH Corporation , 641 F. App'x 233 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1011
VINCENT T. MERCER,
Plaintiff – Appellant,
v.
PHH CORPORATION,
Defendant – Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:13-cv-00050-WDQ)
Argued: January 27, 2016 Decided: March 10, 2016
Before GREGORY, DUNCAN, and FLOYD, Circuit Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Gregory and Judge Floyd joined.
ARGUED: Daniel Lewis Cox, MARR & COX, LLP, Baltimore, Maryland,
for Appellant. Joseph Garrett Wozniak, KOLLMAN & SAUCIER, P.A.,
Timonium, Maryland, for Appellee. ON BRIEF: Eric Paltell,
KOLLMAN & SAUCIER, P.A., Timonium, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
Vincent Mercer (“Mercer” or “Plaintiff”) appeals the
district court’s order granting summary judgment to his former
employer, PHH Corporation (“PHH”), on Mercer’s race
discrimination and retaliation claims under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(“Title VII”). PHH terminated Mercer after an internal
investigation revealed that Mercer was involved in manipulating
the performance statistics of the call center he managed.
Mercer filed this lawsuit, alleging that PHH’s proffered reasons
for his termination were a pretext for race discrimination and
retaliation. For the reasons that follow, we conclude that
Mercer failed to exhaust his claim of race discrimination. With
respect to Mercer’s claim of retaliation, we conclude that
Mercer failed to adduce evidence rebutting the legitimate
business reason PHH articulated for terminating his employment.
We therefore affirm the judgment of the district court.
I.
A.
PHH is a company that “provides outsourced vehicle fleet
management solutions to corporate clients.” J.A. 40. 1 Vincent
1“J.A.” refers to the Joint Appendix filed by the parties
in this appeal.
2
Mercer, an African-American male, began working as a call center
representative for PHH in 1999. In 2007, Mercer joined PHH’s
Diversity Committee; a year later, the Committee elected Mercer
as their Chairman.
In March 2010, the Chief Executive Officer of PHH, Jerry
Selitto, held a town hall meeting with his employees. At the
meeting, Selitto made remarks that Mercer and other employees
found to be racially insensitive. 2 Employees reported their
concerns to Mercer in his capacity as Chairman of the Diversity
Committee. Mercer in turn relayed these concerns to Rita Ennis,
the Senior Vice President of Human Resources, who arranged a
time for Mercer and the Committee to meet with Sellito to
discuss the incident. During a conversation about scheduling
this meeting, Ennis allegedly told Mercer “if it’s a fight you
want, it’s a fight you’ll get.” 3 J.A. 171.
2
Mercer and PHH dispute exactly what Selitto said at the
meeting. According to Mercer, Selitto told employees that
Selitto was not “the captain of a slave ship sent to whip his
people into shape” and, in a second analogy, he referenced an
experiment where monkeys in a cage attempted to reach a banana.
J.A. 153-54. Because Mercer does not base his claims on
Sellito’s alleged remarks, we have no occasion to opine on what
Sellito said at the meeting. These comments are only
significant to the issues before us insofar as they prompted
Mercer to engage in protected activity.
3
Mercer does not recall the exact date Ennis made this
statement, nor does he recall the precise context of the
statement in their conversation. Ennis denies making the
statement.
3
After Selitto met with the Diversity Committee, Mercer
approached Selitto individually, and the two agreed that Selitto
would apologize for his comments. Mercer worked with Ennis,
Selitto, and another employee to draft an apology email
addressed to all PHH employees. On May 13, 2010, Selitto sent
the apology email.
B.
At the time of the incident, Mercer’s job within the
company was to supervise a call center for one of PHH’s clients,
Budget Truck Rental (“BTR”). Mercer held this position along
with Louis Nehmsmann, a white male, who served as the center’s
second supervisor. Mercer and Nehmsmann had identical
supervisory duties, and they were jointly responsible for a team
of forty agents in a call center dedicated solely to BTR.
The BTR call center handled calls from BTR drivers,
vendors, and employees. Upon receiving a call, the center’s
automated system would first prompt the caller to identify
himself or herself as a driver, vendor, or employee. The system
would then transfer the caller to the relevant telephone
extension. Once routed, the call would go into a queue, and the
caller would wait for the next available agent. Agents who
answered calls were expected to stay on the line until they
resolved the caller’s problem, but they were permitted to seek
4
guidance if the caller was unhappy or if the agent did not know
how to address the caller’s problem.
BTR tracked PHH’s performance by measuring, among other
metrics, the “Average Speed of Answer” (“ASA”), the average time
that calls would wait in the queue before an agent answered.
PHH’s contract with BTR set a target ASA of two minutes. In
addition to monitoring the ASA, PHH also tracked the average
amount of time agents spent on each call. PHH reported its call
statistics to BTR on a monthly basis.
In late May 2010, PHH developed a “triage” system for high-
call-volume periods. The idea was to reduce caller wait times
by diverting complex calls to a Special Client Service (“SCS”)
team. Under this system, if the agent could not promptly
address the caller’s problem, the agent would tell the caller
that he or she would receive a call back from a specialized
agent within thirty minutes. The agent would then forward the
caller’s information and a summary of the problem to the SCS
team. By managing calls in this manner, the call center freed
up agents to address simple calls, thereby reducing wait times
in the call queue.
In June 2010, Nehmsmann devised a plan, known as “call-
flipping,” to reduce the ASA during high volume periods by
taking advantage of the way BTR calculated the ASA. Unlike the
triage system, which screened out complex calls to promote
5
efficiency, Nehmsmann’s system cheated PHH’s performance metrics
by “flipping” calls from one queue to another. As Nehmsmann
explained in his deposition, “[t]he idea was to take the call,
talk to the driver, tell them you would get somebody to help
them, and then put them on hold.” J.A. 217. When the agents
first answered the call, it would be removed from the queue of
incoming calls, transferred to extension 16310, and marked
“answered” for purposes of calculating PHH’s ASA. But by
immediately transferring the call, the agent would not actually
reduce the wait time for individual callers. Instead, those
callers would remain on hold in a second internal queue even
though PHH’s performance metrics would reflect that the call had
been answered. Essentially, the agents would manipulate the
call-tracking system by answering calls and immediately placing
them back on hold.
Though Mercer “wasn’t necessarily a fan” of the call-
flipping idea when Nehmsmann first discussed it, Mercer felt it
was in PHH’s best interest to try the plan. J.A. 111. On
June 18, 2010, Nehmsmann emailed his Team Leads with
instructions for the agents in the BTR call center. The
relevant portion of the email is reproduced below:
[A]ll we want them to do is answer the phone
“Thanks for calling Budget truck rental-- Zelda
Speaking how can I help you” ==
6
I need RSA –-
“OK please hold I’ll get a dispatcher for you”
And bail to x16310
That’s all they will do all day long[.]
J.A. 260. Nehmsmann copied Mercer on the email, but did not
copy their supervisor, Tim Mackin. In subsequent emails to the
team, Nehmsmann repeatedly encouraged agents to flip calls.
Mercer was also copied on these emails.
C.
PHH monitors and analyzes incoming calls for quality
control purposes. In July 2010, a Quality Analyst named Daniel
Hahn conducted a routine review of PHH’s “Agent Release Report,”
which shows all calls that last 30 seconds or less. In
reviewing the data for June 2010, Hahn “noticed a few agents who
repeatedly showed up on the report.” J.A. 265. When he
listened to their calls, he learned that the agents were simply
answering the calls, briefly listening to the caller’s problem,
and telling the caller “we can take care of that; I will
transfer you to my dispatcher.” J.A. 266. However, the calls
were never transferred to a dispatcher, because PHH did not have
any “dispatchers.” Instead, the calls were placed on hold,
where the caller would wait in the queue for up to 50 minutes.
Troubled by his findings, Hahn spoke with Mercer, who told
him “I got it.” J.A. 266. Concerned that Mercer did not
7
understand the significance of the problem, Hahn contacted
Mercer’s supervisor, Chuck Hogarth. 4 Hogarth immediately
examined the call center’s data and discovered that, in the
period between June and July 25, 2010:
• BTR agents transferred 5,045 calls to
extension 16310;
• The true ASA for the calls transferred to
extension 16310 was 5:51, nearly three times the
target ASA of two minutes;
• 28.3% of all callers transferred to
extension 16310 abandoned the call, nearly triple
the call center’s normal rate; and
• The maximum wait time for a call transferred to
extension 16310 exceeded 54 minutes.
J.A. 256. Hogarth also discovered several emails from Nehmsmann
instructing the agents to flip the calls.
When Hogarth approached Mercer and Nehmsmann about the call
data, they admitted to flipping calls and claimed that Mackin
had approved the scheme. On July 28, 2010, Hogarth spoke with
Mackin, who denied approving the program and stated that he was
not aware that agents were flipping calls. That same day,
Hogarth contacted Kim Bolin, the Contact Center Director, who
was on vacation at the time. Hogarth told Bolin about the call-
4Hogarth had recently replaced Tim Mackin as Mercer and
Nehmsann’s supervisor. Mackin had served as a temporary
supervisor from June to July 2010 while PHH recruited to fill
the position.
8
flipping problem, and she informed him that she had not approved
the scheme and that the agents must immediately stop flipping
calls.
Bolin and Ellen Quinn-Hamlin, the Senior Manager in Human
Resources, decided to conduct an internal investigation into the
use of extension 16310 to flip calls. As part of the
investigation, they interviewed Mercer, Nehmsmann, Mackin,
Wilrosea Moncour, Chris Koutek, 5 and Michele Roberts. 6 When
Bolin and Quinn-Hamlin interviewed Mercer, he said that he had
discussed the plan with Mackin--his supervisor at the
time--during a morning meeting. He further stated that the
process was implemented “[to not] make ourselves look like
idiots.” J.A. 593. Nehmsmann, in turn, admitted to engineering
the scheme. Mackin, however, said that he was entirely unaware
that agents were flipping calls. He said that he had attended
meetings about the triage process, but had never been involved
in any discussions about call-flipping.
Bolin and Quinn-Hamlin reviewed the BTR center’s emails,
and discovered that although Mercer and Nehmsmann sent and
5Moncour and Koutek were “team leads” in the call center.
They reported to Mercer and Nehmsmann, and were responsible for
overseeing agents.
6Roberts was a supervisor who did not work in the BTR call
center, but who attended team meetings with Mercer and
Nehmsmann.
9
received emails discussing call-flipping, they never copied
Mackin, Hogarth, or any other supervisor to whom they reported.
Bolin also had the call data re-examined. A review of call
statistics revealed that the call-flipping process had
artificially reduced the ASA by 30% in June 2010 and 34% in
July 2010. PHH reported the corrected call data to BTR after
discovering that the statistics had been manipulated.
On August 24, 2010, Ennis, Quinn-Hamlin, Pam Walinksi (Vice
President of Customer Services), and Tom Keilty (Senior Vice
President of Customer and Vehicle Services and Chief Operating
Officer), met to discuss the findings of the internal
investigation. They decided to terminate both Mercer and
Nehmsmann for engaging in the call-flipping scheme, and on
August 26, 2010, PHH issued Mercer and Nehmsmann termination
letters that cited their “total disregard for and breach of
PHH’s Code of Ethics in accurately disclosing and representing
factual business information.” J.A. 572, 574. Of the
individuals involved in deciding to terminate Mercer, only Ennis
was involved in Mercer’s activity in response to Selitto’s
remarks at the town hall meeting. And it is undisputed that she
did not initiate the review of call data that prompted the
investigation of the scheme.
10
D.
Following his termination, Mercer filed a Charge of
Discrimination with the Equal Employment Opportunity Commission
and the Maryland Commission on Human Relations. The form for
the complaint contained a section with the heading
“Discrimination Based On.” Underneath that heading were check-
boxes for eleven different types of discrimination: race, color,
sex, religion, national origin, retaliation, age, disability,
genetic information, and “other.” Mercer’s complaint contained
a checkmark in the “retaliation” box alone. The narrative
portion of the charge stated:
I. I began my employment with above-named employer
in November 2000. My position was Supervisor. I did
not have disciplinary or performance issues; in fact,
I was an exemplary employee. Furthermore, I was the
chair of the Diversity Committee. In or about the
last week of April 2010, I had a discussion with the
CEO Jerry Selitto; regarding comments made by him.
These comments which referenced “Slaves, Whips and
Monkeys” were perceived by the employee population to
be racially motivated and discriminatory. I provided
recommendation regarding this issue. On August 26,
2010, I was discharged by Ellen Quinn-Hamlin, Senior
Manager of Human Resources, and Kim Bolin, Director of
Customer and Vehicle Service.
II. The reason given for discharge was for total
disregard and breach of my employers’ code of ethics.
III. I believe I was discriminated against and subject
to retaliation for engaging in a protected activity in
violation of Title VII of the Civil Rights Act of
1964, as amended, with respect to discharged.
11
J.A. 295. The charge did not contain any other information
regarding the substance of Mercer’s allegations. After
receiving a right to sue notice, Mercer timely filed his
complaint in the district court.
PHH filed a motion for summary judgment, seeking dismissal
of Mercer’s complaint. With respect to Mercer’s claim of race
discrimination, the district court found that Mercer failed to
exhaust his administrative remedies. Regarding Mercer’s
retaliation claim, the district court held that Mercer failed to
show “any evidence upon which a reasonable jury could conclude
that those who terminated him knew about his complaints about
Selitto.” J.A. 565-66. Further, the district court found that
Mercer failed to present sufficient evidence that PHH’s
legitimate, non-retaliatory reason for discharging Mercer was
pretextual. The district court entered judgment for PHH, and
Mercer timely appealed.
II.
On appeal, Mercer argues that the district court
erroneously granted summary judgment to PHH on his claims of
race discrimination and retaliation. We address each of
Mercer’s claims in turn.
12
A.
The district court concluded that Mercer failed to include
his claim of race discrimination in his administrative charge of
discrimination. A plaintiff’s failure to exhaust his
administrative remedies deprives the federal courts of subject
matter jurisdiction over his Title VII claim. Jones v. Calvert
Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009). We review a
dismissal for lack of subject matter jurisdiction de novo.
Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 406 (4th
Cir. 2013).
Because a plaintiff may only pursue claims that have been
administratively exhausted, “[t]he scope of the plaintiff’s
right to file a federal lawsuit is determined by the charge’s
contents.” Jones, 551 F.3d at 300. Accordingly, “a plaintiff
fails to exhaust his administrative remedies where . . . his
administrative charges reference different time frames, actors,
and discriminatory conduct than the central factual allegations
in his formal suit.” Snydor v. Fairfax Cty., 681 F.3d 591, 594
(4th Cir. 2012) (quoting Chacko v. Patuxent Inst., 429 F.3d 505,
506 (4th Cir. 2005)). Upon reviewing Mercer’s charge of
discrimination, we conclude that Mercer failed to exhaust his
claim of race discrimination because that claim does not appear
anywhere on the form Mercer submitted to the Maryland Commission
13
on Human Relations and the Equal Employment Opportunity
Commission.
First, the check-box section of the form lists only
“retaliation” as the basis for the charge. Mercer asserts that
the Maryland Commission on Human Relations was responsible for
filling out the form based on his oral complaint, and he should
not be penalized for the Commission’s failure to check the
“race” box. According to Mercer, he related his allegations to
an investigator, who was responsible for selecting the boxes on
the form. Although an agency’s involvement in drafting a
complaint does not excuse any deficiency in the charge, see
Balas, 711 F.3d at 408-09, we agree with Mercer that his failure
to check a box on the form is not dispositive. Instead, we look
at the charge as a whole, and the absence of a checked box is
only one factor in our analysis.
Second, and more importantly, the narrative section of the
charge only sets out an allegation of retaliation. The charge
briefly describes the town hall incident, and concludes: “I
believe I was discriminated against and subject to retaliation
for engaging in protected activity.” J.A. 295. The charge does
not allege, at any point, that PHH terminated Mercer because of
14
his race. 7 Given that Mercer failed to present his claim of race
discrimination in his administrative charge, we conclude that he
forfeited that claim.
Mercer points to PHH’s response to the administrative
charge, arguing that PHH construed his charge to contain a race
discrimination claim. Contrary to plaintiff’s position, it
makes no difference that PHH responded to Mercer’s charge of
discrimination with a letter that referenced a possible claim of
race discrimination. See J.A. 420 (“For the reasons set forth
herein, there is simply no evidence to substantiate Mercer’s
claim of race discrimination and possible unlawful
retaliation.”). It was Mercer’s obligation to exhaust his
claims, and the fact that PHH used the phrase “race
discrimination” in its response to the charge did not remove
that burden. 8 If we were to accept Mercer’s argument, then
employers would be wary indeed of responding fully to a charge
of discrimination, lest they inadvertently expand the scope of
the claims properly presented before the investigating agency.
7 At most, the charge states that Selitto’s comments at the
town hall meeting were “racially discriminatory,” J.A. 295, but
Sellito’s comments have nothing to do with Mercer’s claim that
Ennis terminated him because of his race.
8 In any event, it is impossible for us to tell what claims
the letter refers to, because Mercer has only included the first
page of PHH’s letter in the Joint Appendix.
15
Accordingly, we affirm the dismissal of Mercer’s race
discrimination claim for lack of subject matter jurisdiction.
B.
We next address Mercer’s claim of retaliation. Mercer
claims that PHH--and specifically, Rita Ennis--retaliated
against him for complaining about Sellito’s remarks during the
town hall meeting. For the reasons set forth below, we agree
with the district court that Mercer failed to present a genuine
dispute of material fact that PHH retaliated against him.
We review de novo a district court’s order granting summary
judgment. Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d
562, 565 n.1 (4th Cir. 2015). “A district court ‘shall grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’” Id. at 568 (quoting Fed. R. Civ.
P. 56(a)). In determining whether a genuine issue of material
fact exists, we review “all facts and reasonable inferences
therefrom in the light most favorable to the nonmoving party.”
T-Mobile Ne. LLC v. City Council of Newport News, 674 F.3d 380,
385 (4th Cir. 2012) (citation omitted). However, “[c]onclusory
or speculative allegations do not suffice, nor does a mere
scintilla of evidence in support of [the nonmoving party’s]
case.” Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649
(4th Cir. 2002) (internal quotation marks and citation omitted).
16
When a plaintiff lacks direct evidence of retaliation, we
apply the familiar burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Foster
v. Univ. of Md.-E. Shore, 787 F.3d 243, 250 (4th Cir. 2015).
First, the plaintiff must establish a prima facie case by
demonstrating that (1) he engaged in a protected activity,
(2) his employer took an adverse action, and (3) there was a
causal connection between the two. Id. (citing Price v.
Thompson, 380 F.3d 209, 212 (4th Cir. 2004)). Once the
plaintiff establishes a prima face case, the burden shifts to
the employer to proffer a legitimate, non-retaliatory reason for
taking an adverse action against the employee. Id. (citing Hill
v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th
Cir. 2004)). If the employer satisfies this burden, the
plaintiff must show that the employer’s reason was a pretext for
retaliation. Id. (citing Hill, 354 F.3d at 285).
Even if we assume, at step one of our analysis, that Mercer
established a prima facie case of retaliation, PHH has clearly
demonstrated a non-retaliatory reason for terminating Mercer:
his misconduct. It is undisputed that Mercer participated in a
call-flipping scheme with the intention of misrepresenting
performance statistics to PHH’s client, in breach of the
company’s ethics policy. The company’s investigation into the
scheme and its decision to terminate Mercer for misconduct are
17
well documented, and Mercer has admitted to participating in the
call-flipping scheme. 9 Thus, at step two of the McDonnell
Douglas framework, we conclude that PHH has demonstrated a
legitimate, non-retaliatory reason for firing Mercer. We
therefore proceed to step three of the McDonnell Douglas
analysis.
Mercer contends that, under step three, he has demonstrated
sufficient evidence of pretext to prevail on his retaliation
claim. At this stage of the burden-shifting framework, a
plaintiff must adduce evidence from which a jury could
reasonably conclude that “the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for
discrimination.” Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To carry this burden, a plaintiff
must offer direct or circumstantial evidence that calls into
question the employer’s explanation. See Walker v. Mod-U-Kraf
Homes, LLC, 775 F.3d 202, 211 (4th Cir. 2014) (finding no
reasonable inference of pretext in the absence of either direct
9 Mercer asserts that PHH has given inconsistent reasons for
terminating him. We disagree. During Mercer’s unemployment
proceedings, PHH stated that the company terminated Mercer for
failing to perform his job, and this statement is entirely
consistent with Mercer’s termination for misconduct. Mercer’s
job was to supervise agents responsible for answering calls in
the BTR call center. He failed to do his job when he directed
agents to flip calls instead of answering them.
18
or circumstantial evidence). In evaluating a plaintiff’s
allegation of pretext, we are mindful that “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.” Hawkins v. PepsiCo, Inc., 203 F.3d
274, 279 (4th Cir. 2000) (quoting DeJarnette v. Corning, Inc.,
133 F.3d 293, 299 (4th Cir. 1998)).
We conclude that the record is bereft of any evidence from
which a jury could find that PHH’s proffered reasons are
pretextual, because Mercer has failed to call into question
PHH’s non-retaliatory reason for firing him. Indeed, it would
have been exceptionally difficult for Mercer to overcome the
strong evidence that the call-flipping scheme prompted his
termination rather than his earlier protected activity. As we
discuss below, there was no connection between Mercer’s
complaints of racial discrimination and the discovery of his
misconduct. Moreover, Mercer was treated identically to
Nehmsmann, who did not engage in any protected activity.
Significantly, the scheme was only uncovered when a quality
analyst--who had nothing to do with the town hall
incident--discovered the misrepresented data during a routine
review of calls. Even in response to questioning at oral
argument, Mercer failed to identify anyone involved in the town
hall incident who initiated the review of the BTR call center’s
19
data. Among the individuals who participated in the ultimate
decision to terminate Mercer, only Ennis was involved in the
town hall incident, and Mercer has failed to connect Ennis to
Hahn’s discovery of the scheme. This fact is not dispositive,
as Mercer might have adduced evidence that, although Ennis did
not initiate the review or discover the misrepresentation
herself, she nevertheless acted retaliatorily in response to
this information. But again, Mercer failed to produce any
evidence to that effect.
Mercer points to Ennis’s alleged statement that “if it’s a
fight you want, it’s a fight you’ll get” as evidence of her
retaliatory motive. This lone remark is insufficient evidence
of pretext, however, because Mercer has not provided any context
for it, and it is unclear what it was intended to express.
Moreover, the comment occurred substantially prior to the
investigation that prompted Mercer’s termination, which
undermines the causal connection Mercer attempts to draw between
the comment and his termination. See Merritt v. Old Dominion
Freight Line, Inc., 601 F.3d 289, 300 (4th Cir. 2010) (“[I]n the
absence of a clear nexus with the employment decision in
question, the materiality of stray or isolated remarks is
substantially reduced.”).
Further, as we have noted, PHH terminated both Mercer and
Nehmsmann for violating the same policy, and there is no
20
evidence that Nehmsmann engaged in any protected activity under
Title VII. See Laing v. Fed. Express Corp., 703 F.3d 713, 722-
23 (4th Cir. 2013) (finding no pretext when company investigated
and then terminated both an employee who engaged in protected
activity and an employee who did not for violating the same
company policy). We do not hold that any time an employer
simultaneously terminates an employee who did not engage in the
protected activity along with the one who did the employer is
free from liability, as such a holding might lead to perverse
results. Nevertheless, here, there is no evidence that
Nehmsmann was fired for any other reason than that he was
“violating the exact same company policy in the exact same way.”
See id. at 723.
Faced with the evidentiary deficiencies just discussed,
Mercer points to alleged flaws in the internal investigation to
support his claim that PHH’s actions were suspicious. For
example, he claims that Bolin and Quinn-Hamlin failed to
interview several agents in the call center who would have
testified that PHH authorized the call-flipping scheme. He
further asserts that Bolin and Quinn-Hamlin gave Mackin
favorable treatment by telling him the purpose of the
investigation before questioning him. However, the fact that
the investigation may not have been as thorough as Mercer would
have liked falls far short of establishing pretext. See Bonds
21
v. Leavitt, 629 F.3d 369, 386 (4th Cir. 2011) (finding that
evidence of an “improper or substandard” investigation does not
demonstrate pretext) (citing Hux v. City of Newport News,
451 F.3d 311, 315 (4th Cir. 2006)).
Mercer next contends that the call-flipping scheme cannot
have been the real reason for his termination, because PHH
approved of the plan to manipulate call data. The record,
however, simply does not support this assertion. Significantly,
after Mercer and Nehmsmann admitted to PHH that they engineered
the call-flipping scheme, the company discovered that their
emails discussing the scheme were never copied to Mackin--or any
other supervisor, for that matter. Mercer did testify that
Mackin approved the call-flipping plan during a meeting. But
even though we are required to accept as true Mercer’s testimony
about Mackin’s role in the scheme, PHH was not required to
accept Mercer’s claim that he had received managerial approval
for the scheme. Moreover, there is no evidence that the
managers who investigated the scheme and terminated
Mercer--namely, Bolin, Quinn-Hamlin, Walinsky, and Keilty--had
previously authorized or even known about the scheme. And, on
this point, it bears emphasizing that the managers who
terminated Mercer outranked Mackin.
22
Based on the record, we find that the only conclusion a
jury could reasonably draw from the evidence of record is that
PHH terminated Mercer for misconduct.
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
23