Horne v. Reznick Fedder & Silverman , 154 F. App'x 361 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1025
SUSAN J. HORNE,
Plaintiff - Appellant,
versus
REZNICK FEDDER & SILVERMAN, Certified Public
Accountants, A Professional Corporation,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CA-03-2638-1-WDQ)
Argued: October 26, 2005 Decided: November 17, 2005
Before LUTTIG, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Lawrence Edward Dubé, Jr., DUBE & GOODGAL, Baltimore,
Maryland, for Appellant. Ari Karen, KRUPIN O’BRIEN, L.L.C.,
Washington, D.C., for Appellee. ON BRIEF: Kara M. Maciel, KRUPIN
O’BRIEN, L.L.C., Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Plaintiff-appellant Susan Horne worked for defendant-appellee
Reznick, Fedder & Silverman (“RFS”), an accounting firm, from
September 1998 until she was fired on July 3, 2002. From September
1998 until the fall of 2000, Horne was a senior tax accountant. In
November 2000, she received an offer to be a tax manager, a
position that entailed greater responsibility and a higher salary,
at another accounting firm. When she informed RFS of her offer,
RFS offered to promote her to tax manager, even though the
principals considered the promotion somewhat premature. See J.A.
801-807.
In March 2001, two months after Horne began working as a tax
manager, Richard Anderson, who was at the time a senior manager,*
allegedly told Horne that as the first black female in the tax
department, she should be careful because she was being closely
watched. Id. at 186. Horne claims that she reported the remark to
Caren Lichter, the principal who served as a liaison between
managers and principals. Id. No action was taken at that time.
After Horne’s first year as a tax manager, most of her
supervisors, including Anderson, gave her positive evaluations, but
some expressed concerns about her performance. Id. at 320-42, 955-
56. In her second year, as Horne received increasingly complex
*
As a senior manager, Anderson did not at this time have
supervisory authority over Horne. He was later promoted to
principal and supervised some of Horne’s work.
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assignments, more of her supervisors became frustrated with her
unsatisfactory performance. Id. at 311, 494, 496-97. By the
beginning of 2002, the general consensus among the principals that
had worked with Horne was that her performance remained at the
level expected of associates, not managers. Id. at 353, 437, 496,
927-31. In March of 2002, David Norton, Horne’s mentor, took her
to lunch and told her that she appeared to have reached a plateau,
that she would have difficulty advancing at RFS, and that it might
be time to consider moving on. Id. at 357-58.
On April 26, 2002, Horne met with Anderson (now a principal)
to discuss a poor performance evaluation he had given her. Id. at
362-66. Horne disagreed with Anderson’s assessment of her
performance and accused him of discrimination. RFS’ director of
human resources was notified of Horne’s allegations and an
investigation was initiated. RFS claims that it was at this time
that Horne first brought to its attention the comment Anderson had
allegedly made a year earlier. RFS’ investigation culminated in
the conclusion that the allegations of discrimination were
groundless. Id. at 311.
In June 2002, Horne worked on a major project for David
Norton. Horne was assigned to draft a memo that was due on June
28. Norton knew that Horne was scheduled for vacation on June 27
and 28, but told her to complete as much of the memo as she could
and that he would finish it. On June 26, Horne told Norton that
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she was leaving and had not begun the memo, but offered to work on
it from home that evening and e-mail Norton her work. Id. at 408.
The next morning, Horne sent Norton an e-mail stating that she had
not been able to get to the memo. Id. Norton was forced to work
overnight to have the memo ready by the following morning. Id.
After this incident, Norton recommended to Caren Lichter that Horne
be terminated, and the two of them discussed the matter with Mark
Einstein, the managing partner of the tax group. Id. at 396-98,
521, 527-28, 898. Einstein fired Horne on July 3, 2002.
On April 17, 2003, Horne filed a complaint against RFS
alleging race and sex discrimination, as well as retaliation. The
district court granted RFS’ motion for summary judgment as to all
three claims, concluding that Horne failed to make out a prima
facie case of race or sex discrimination because she did not show
that she was meeting RFS’ legitimate expectations, id. at 167, and
that she failed to make out a prima facie case of retaliation
because she did not show a causal connection between her complaints
about discrimination and her termination, id. at 168-69. This
appeal followed. Finding no reversible error, we affirm the
judgment of the district court.
I.
The district court did not err in granting summary judgment to
RFS on Horne’s race and sex discrimination claims. The district
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court correctly concluded that Horne did not satisfy prong three of
her prima facie case because she did not show that she was meeting
RFS’ legitimate expectations. See J.A. at 167. Horne did not
produce a single person who would provide positive feedback about
her performance as a tax manager, whereas RFS produced evidence
that every principal who supervised Horne’s work as a tax manager
considered her performance to be sub-par. See id. at 397. Horne’s
evidence consists of her own assertions that she was performing
adequately or that any inadequacies in her performance did not
merit termination. Such subjective self-assessments from Horne are
not sufficient to sustain her burden of showing that she was
meeting RFS’ legitimate expectations. See Smith v. Flax, 618 F.2d
1062, 1067 (4th Cir. 1980) (“[Plaintiff’s] perception of himself .
. . is not relevant. It is the perception of the decision maker
which is relevant.”). Indeed, Horne concedes that in March 2002
-- four months prior to her termination and prior to the negative
review by Anderson that led her to accuse him of discrimination --
David Norton took her to lunch and told her that she “was not
recognizing issues,” that “the Seniors were on [her] toes,” that
she “was not managing accounts the way [she] should,” that she
“need[ed] to get it together in the next 3 to 6 months,” and that
she should “get up to speed to where [she] should be so that [she]
could leave RFS on a high note.” Id. at 196-97. Moreover, Horne
does not dispute that she failed to complete the memo for David
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Norton, forcing him to work through the night to complete it in
time to meet the deadline. Mark Einstein, the managing partner,
testified that this was “an egregious act that could potentially
support termination even if [Horne’s] employment had not been
unsatisfactory.” Id. at 397. Horne simply has no basis for
claiming that she was meeting RFS’ legitimate expectations.
Even if Horne had shown that she was performing satisfactorily
as a tax manager, her discrimination claims would still fail as a
matter of law because she presented no evidence of discriminatory
animus on the part of those who made the decision to terminate her.
RFS presented uncontroverted evidence that the decision to
terminate Horne was made by David Norton, Caren Lichter, and Mark
Einstein, and Horne presented no evidence -- and indeed does not
even argue -- that these individuals were motivated by a
discriminatory animus. Horne’s only claim is that their decision
to fire her was “supported by” the negative feedback Anderson had
given, which feedback, she says, was motivated by discrimination,
as evidenced by Anderson’s earlier alleged remark that Horne was
being closely watched because she was a black female. That the
decision may have been “supported by” Anderson’s negative
appraisals of her work (which were in general accord with the
appraisals of others for whom she had worked) does not remotely
establish that Anderson “possessed such authority as to be viewed
as the one principally responsible for the decision or the actual
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decisionmaker for the employer,” as required by this court’s
decision in Hill v. Lockheed Martin Logistics Management, 354 F.3d
277, 291 (4th Cir. 2004) (en banc). In sum, Anderson’s alleged
remark is the only evidence Horne musters that even arguably shows
that anyone at RFS harbored a discriminatory animus toward her, and
that statement, made a year and a half prior to Horne’s termination
by a person who at the time was not a principal of the firm, who
later gave her positive evaluations, and who did not participate
in the termination decision, is insufficient to sustain Horne’s
burden of showing that the decision to fire her was the product of
discrimination.
II.
The district court did not err in granting summary judgment to
RFS on Horne’s retaliation claim. Prong three of the retaliation
prima facie case requires plaintiffs to demonstrate a causal
connection between the protected activity and the adverse
employment action. Tinsley v. First Union Nat’l Bank, 155 F.3d
435, 443 (4th Cir. 1998). The district court correctly concluded
that Horne failed to produce sufficient evidence of such a causal
connection. J.A. 168-69. Horne’s only evidence of causation is
that she was fired two months after she accused Anderson of
discrimination. However, this court has previously noted that a
lapse of two months between the protected activity and the adverse
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action is “sufficiently long so as to weaken significantly the
inference of causation.” King v. Rumsfeld, 328 F.3d 145, 151 n.5
(4th Cir. 2003). And here, any inference of causation that might
arise out of the temporal proximity is more than rebutted by the
facts that, prior to the protected activity, Horne had been told
that her performance was sub-par and that she should prepare to
leave RFS, see McLee v. Chrysler Corp., 109 F.3d 130, 136 (2d Cir.
1997) (“[S]ince ... [the defendant] was preparing to discharge [the
plaintiff] before [the plaintiff] contacted any of the civil rights
offices, it is not a permissible inference that [the plaintiff] was
discharged because he contacted those offices.”), and that Horne’s
poor performance continued -- and the incident with Norton occurred
-- after her complaints about discrimination, see Kodengada v.
Int’l Bus. Mach. Corp., 88 F. Supp. 2d 236, 245 (S.D.N.Y. 2000)
(intervening incidents of misconduct broke the chain of causation);
Hite v. Biomet, Inc., 38 F. Supp. 2d 720, 743 (N.D. Ind. 1999) (no
causal connection where, during the two-month lapse between the
protected activity and the termination, plaintiff failed to report
to work).
CONCLUSION
The district court correctly granted summary judgment to RFS
on Horne’s race and sex discrimination claims because Horne failed
to create a genuine issue of material fact as to whether she was
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meeting RFS’ legitimate expectations or as to whether the
individuals who made the decision to fire her were motivated by a
discriminatory animus. The district court correctly granted
summary judgment to RFS on Horne’s retaliation claim because Horne
failed to show any causal connection between her complaints about
discrimination and her termination. Accordingly, the judgment of
the district court is affirmed.
AFFIRMED
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