Murray v. United Food & Commercial Workers Union, Local 400 , 100 F. App'x 165 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DANIEL C. MURRAY, 
Plaintiff-Appellant,
v.
UNITED FOOD & COMMERCIAL  No. 02-2387
WORKERS UNION, LOCAL 400;
DONALD CASH; CHRISTIAN SAUTER,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(CA-98-2221-JFM)
Argued: May 4, 2004
Decided: June 9, 2004
Before WILLIAMS and TRAXLER, Circuit Judges, and
Pasco M. BOWMAN, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Paul Francis Evelius, WRIGHT, CONSTABLE &
SKEEN, L.L.P., Baltimore, Maryland, for Appellant. Francine Karen
Weiss, KALIJARVI, CHUZI & NEWMAN, P.C., Washington, D.C.,
for Appellees.
2 MURRAY v. UNITED FOOD & COMMERCIAL WORKERS UNION
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Daniel C. Murray brought this action against his employer, the
United Food & Commercial Workers Union, Local 400 ("Local 400")
and Donald Cash, alleging that he was terminated from his employ-
ment as a union organizer because of his race in violation of Title VII
of the Civil Rights Act of 1964, see 42 U.S.C.A. §§ 2000e - 2000e-
17 (West 2003), and 42 U.S.C.A. § 1981 (West 2003). Murray also
alleged a claim for defamation under Maryland law against Local 400
and its organizing director, Christian Sauter, arising from an alleged
defamatory statement made by Sauter after Murray was terminated.
The district court granted summary judgment to the defendants. We
affirm.
I.
Local 400 is a labor organization that represents between 35,000
and 40,000 members, many of whom are employed in retail food
stores. In 1980, Murray, who had been a member of Local 400 since
1974, began working for Giant Food, a Local 400 employer. As part
of the collective bargaining agreement with employers, Local 400
members are allowed to take a leave of absence from their employ-
ment to assist with organizational campaigns. During his employment
with Giant Food, Murray took such a temporary leave of absence on
several occasions.
In January 1997, James Lowthers became president of Local 400,
a position that gave him the sole authority to hire and fire union
employees. Due to Local 400’s unsatisfactory efforts in the past to
unionize additional workplaces, one of Lowthers’ initial goals was to
build an effective organizing department and to recruit full-time orga-
nizers. Christian Sauter was placed in the position of organizing
director of the department.
MURRAY v. UNITED FOOD & COMMERCIAL WORKERS UNION 3
In February 1997, Lowthers offered Murray and two additional
Local 400 members, Ralph Ramirez and Robin Williams, the oppor-
tunity to take a leave of absence and assume employment as full-time
organizers for Local 400 on a one-year probationary basis. Murray is
Caucasian, Ramirez is Hispanic, and Williams is African-American.
In January 1998, Lowthers, after consulting with Sauter, promoted all
three probationary employees to permanent status. Lowthers and
Sauter are both Caucasian. During Murray’s employment, several
additional employees were also selected for probationary status,
including Callie Lake, Steve Hedrick, Heath Fenner and Jennifer
Leonard (all Caucasian), and Tony Perez (African-American).
Despite efforts to build the organizing department and train its
staff, Lowthers remained unsatisfied with its performance. In Febru-
ary 1998, Lowthers asked his executive assistant, Donald Cash, to
assist Sauter. Cash was a seasoned organizer and, because the orga-
nizing department was largely comprised of newly-hired, inexperi-
enced organizers, Lowthers believed that Cash could provide needed
assistance in Local 400’s efforts to educate and train the new organiz-
ers. Cash is African-American.
In the next few months, each of the permanent organizers was
assigned a campaign to lead. Murray was assigned to a K-Mart store
campaign, which was shaping up to be quite promising based upon
the initial efforts of K-Mart employee Emma Van Ness. According to
Lowthers, however, Murray began to exhibit significant performance
problems as the K-Mart campaign progressed, and a reluctance or
inability to complete assigned and expected tasks associated with his
responsibilities as the lead organizer. Both Sauter and Cash, who were
following the progress of the K-Mart campaign, conveyed to Low-
thers their concern about Murray’s interpersonal and communication
skills, a concern that Lowthers shared. Sauter and Cash were also
concerned that Murray was not making enough "home calls" to K-
Mart employees to shore up their support for the union.
Additional problems followed, most notably a conflict between
Sauter and Murray over the preparation of organizing charts of the K-
Mart campaign. As part of the organizational effort, the lead organiz-
ers held regularly-scheduled staff meetings to review campaign charts
designed to demonstrate, in a snap-shot fashion, the progress and sup-
4 MURRAY v. UNITED FOOD & COMMERCIAL WORKERS UNION
port for unionization of the target workplaces. The charts were to con-
tain such information as the departments to be organized, the number
of employees in each department, the names of the employees, the
employees who had received a home call, the employees who had not
yet been contacted, and indications of the employee’s support. By
looking at these charts, Local 400 officials could "get a flash . . . of
what was going on and how the campaign effort was . . . progressing."
J.A. 667.
It is undisputed that Murray had received training in the prepara-
tion of such charts during a prior organizational assignment in Vir-
ginia. It is also undisputed that, for the three weeks prior to the June
14 staff meeting, Murray had not prepared charts for the K-Mart cam-
paign. When Sauter reported this to Lowthers, Lowthers told Sauter
that Murray was "to put the charts together and get his work done
because that was a basic part of organizing" and that he "didn’t want
to hear about it again." J.A. 436.
At the June 14 staff meeting, Murray presented his charts. Accord-
ing to Murray, after he had given a brief explanation of the charts,
Cash told Murray that he was "not even going to tell [him] why the[ ]
charts [were] unacceptable" and, instead, Cash asked Heath Fenner to
tell him. J.A. 200. Fenner testified that the charts "didn’t make a
whole lot of sense" and "didn’t pass the message on that charts usu-
ally are supposed to pass on, which is to . . . let you know where a
program is at, how it stands." J.A. 860. Sauter described Murray’s
charts as "incomprehensible," J.A. 560, and considered them to be
"the act of a rebel," because he knew, from the prior campaign, that
Murray knew how to properly prepare the charts. J.A. 561. For his
part, Murray does not contend that his work product was acceptable.
Rather, he testified that Cash and Fenner unnecessarily berated and
embarrassed him over the charts during the two-hour meeting and
that, at the end of the meeting, Fenner was told to "fix [Murray’s]
charts" — a directive that Murray found "humiliating" because Fen-
ner was junior to him and had only been organizing a few months.
J.A. 203.
At approximately 5:00 p.m. on the evening of June 16, Murray and
Fenner met in Sauter’s office and reviewed the K-Mart charts that had
been revised. After determining that they remained deficient, Murray
MURRAY v. UNITED FOOD & COMMERCIAL WORKERS UNION 5
proceeded with yet another attempt to redo the charts. Both Sauter
and Fenner were present. According to Murray, Sauter seemed angry
because he was waiting to lock up and was constantly asking Murray
if he was "done yet" because he "want[ed] to go home." J.A. 209. By
about 8:00 p.m., Murray testified that he had "just had it," and told
Sauter "this is enough" and "I’m going home now." J.A. 209. Sauter
replied, "[y]ou’re not going any place until those charts are done," and
Murray retorted to Sauter, "[N]ow you’re on thin ice." J.A. 210. Mur-
ray testified that he made this statement
because it was [Fenner’s] job to fix the charts and the whole
context of the badgering from [Sauter] during [those] three
hours. . . . I was leaving, and that was exactly what I meant
by you’re not forcing me to stay here because I can leave.
That’s what I meant by the thin ice, because you’re . . .
really pushing me.
J.A. 210. After the "thin ice" comment, Murray testified that Sauter
"just glared at [him]," but "tempers were diffused," and he "finished
the charts." J.A. 210. Sauter’s version of the events is essentially the
same, except that he recalls telling Murray to go home and to see him
in the morning. According to Sauter, he "didn’t know how to take"
the "thin ice" comment at the time, J.A. 564, but felt "sure [that Mur-
ray] was upset for having to be at the office to complete the task."
J.A. 565. But, Sauter testified, "this was a task that had been, for sev-
eral weeks, assigned to him. On numerous occasions, it was not being
completed." J.A. 565.
The following day, Sauter met with Murray to discuss the events
of the previous evening. Sauter told Murray that the "thin ice" com-
ment was unacceptable and Murray apologized. Murray told Sauter
that he had been feeling pressure to get an election, that he had been
having marital difficulties, in large part because of the unpredictable
schedule inherent in the position of being a union organizer, and that
he was feeling stressed because he had not been told whether he could
go on his family vacation, which he had asked to start the following
week. Sauter approved the vacation for Murray and Murray left as
planned. However, Sauter testified that "[i]n my own opinion, it
didn’t matter what I attributed [the comment] to, be it family prob-
6 MURRAY v. UNITED FOOD & COMMERCIAL WORKERS UNION
lems, being pissed off. Fact of the matter remains he threatened me.
I was his supervisor. That is unacceptable." J.A. 615.
Within the next day or so, Sauter also met with Lowthers concern-
ing the confrontation with Murray. By this time, Lowthers and Sauter
were already concerned that Murray had not been making necessary
home calls and doubted Murray’s potential to be an organizing leader
given his communication and interpersonal skills. Frustrated, Sauter
told Lowthers that he "was tired of trying to get things done and
[Murray] was not doing them," that by that time he "had a good feel-
ing that K-Mart had probably died [because] . . . there was no con-
tact," and that he "didn’t want Dan Murray in the department any
more." J.A. 572-73. As explained by Sauter, "[w]e had had the chart
incident. We had had the threat. And we had [the K-Mart] campaign
that was very hot to begin with [but], due to lack of contacting card
signers, they lost interest." J.A. 572. Lowthers agreed. Although the
performance and communication problems were troubling, Lowthers
testified that he probably would not have terminated Murray solely
for those problems; rather, "[u]nder the conditions that existed at the
time," the confrontation with Sauter "was the straw that had broken
the camel’s back. That was the end of it." J.A. 440.
Murray returned to work from his vacation on June 29, 1998. At
that time, Sauter informed Murray that he would be rotated back into
the stores effective July 11, 1998. At the request of Sauter, who had
never been in the position of having to fire someone, Cash was pres-
ent at the termination meeting. According to Murray, Cash told him
that Local 400 did not feel that he had the skills necessary to be an
organizer and that he had trouble communicating, but that Sauter told
him that "it wasn’t anything [he] said" and that it was "not about K-
Mart." J.A. 221. Callie Lake, also Caucasian, was terminated the
same day for problems she had exhibited in completing assignments
and being available to work when needed.
After he was terminated, Murray became convinced that Cash was
responsible for the decision because Local 400 had voiced no com-
plaints to him until Cash joined Sauter in the organizing department
and that Cash was motivated to get Murray fired because of Murray’s
race. According to Murray, on the evening of his termination, a Local
400 business representative called him at home and told him that he
MURRAY v. UNITED FOOD & COMMERCIAL WORKERS UNION 7
and some of the other representatives "feel real bad about what hap-
pened and we think it’s a black thing." J.A. 228. In addition, Murray
testified that Ramirez told him, without elaboration or explanation,
that "it was Cash" who was behind the decision. J.A. 232. Both indi-
viduals denied making these statements to Murray.
Within the next few days, Murray requested a meeting with Low-
thers. According to Murray, "[Lowthers] said we’re going to be hon-
est with you because I’m an honest guy. You didn’t have the
qualifications for the job when I hired you, you didn’t have the quali-
fications for the job when I promoted you and you didn’t have the
qualifications, so I fired you." J.A. 234. Lowthers also told him that
Sauter had concurred in the decision and that Lowthers had also "put
a lot of weight in what Don [Cash] sa[id]." J.A. 234.
Upon returning to work at Giant Food, Murray filed this lawsuit
against Local 400 and Cash, alleging that he was terminated because
of his race. In September 1998, Murray amended his complaint to add
Sauter as a defendant and to assert a state law defamation claim
against Local 400 and Sauter. Murray alleged that Sauter defamed
him after he was terminated by telling Van Ness, who asked why
Murray was no longer assigned to the floundering K-Mart campaign,
that Murray was not a good organizer.
On remand from an earlier appeal to this court,1 the district court
granted defendants’ motion for summary judgment and denied plain-
tiff’s cross-motion for summary judgment. See Murray v. United
Food & Commercial Workers Union, 229 F. Supp. 2d 465 (D. Md.
2002). Murray appeals.
1
The district court originally granted defendants’ motion to dismiss
and to compel arbitration of Murray’s race discrimination claim, and
granted defendants’ motion to dismiss Murray’s defamation claim for
failure to state a claim for relief under Maryland law. Concluding that
arbitration was not required and that the complaint adequately alleged the
defamation claim, we reversed and remanded for further proceedings.
See Murray v. United Food & Commercial Workers Int’l Union, 289
F.3d 297 (4th Cir. 2002).
8 MURRAY v. UNITED FOOD & COMMERCIAL WORKERS UNION
II.
Murray contends that the district court erred in granting summary
judgment on his claims of race discrimination and defamation. We
review the grant of summary judgment de novo. See Higgins v. E.I.
DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988).
Summary judgment is proper when there are no material facts in dis-
pute and the moving party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). In evaluating a motion for summary judgment, we view the
evidence in the light most favorable to Murray. See Anderson v. Lib-
erty Lobby, Inc., 477 U.S. 242, 255 (1986). As the non-moving party
below, Murray had the ultimate burden of demonstrating a genuine
issue of material fact for trial. See Celotex, 477 U.S. at 322-23. "Con-
clusory or speculative allegations do not suffice, nor does a mere scin-
tilla of evidence in support of his case." Thompson v. Potomoc Elec.
Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (internal quotation
marks omitted).
A.
Title VII makes it "an unlawful employment practice for an
employer . . . to discharge . . . or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race." 42
U.S.C.A. § 2000e-2(a)(1) (emphasis added). An employee may estab-
lish a claim of race discrimination by presenting sufficient evidence
that an employer’s proffered legitimate reasons for an adverse
employment action were merely a "pretext" for race discrimination,
under the method established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), or by presenting sufficient evidence that, despite
the existence of legitimate, nondiscriminatory reasons for the adverse
employment action, race was also a motivating factor in the decision
(the "mixed-motive" method). See Hill v. Lockheed Martin Logistics
Mgmt., Inc., 354 F.3d 277, 284-85 (4th Cir. 2004) (en banc). In this
case, Murray proceeds under both frameworks, which we address in
turn.
1.
We begin with Murray’s assertion that he may proceed under the
burden-shifting scheme of proof established in McDonnell Douglas
MURRAY v. UNITED FOOD & COMMERCIAL WORKERS UNION 9
and its progeny. Under this "pretext" framework, an aggrieved "em-
ployee, after establishing a prima facie case of discrimination, demon-
strates that the employer’s proffered permissible reason for taking an
adverse employment action is actually a pretext for discrimination."
Hill 354 F.3d at 285.
To establish a prima facie case of race discrimination, Murray is
required to establish that: (1) he is a member of a protected class; (2)
he suffered an adverse employment action; (3) at the time of the
action, he was performing at a level that met Local 400’s legitimate
job expectations; and (4) his position remained open or was filled by
a similarly qualified applicant outside the protected class. See Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). If he
succeeds, the burden shifts to Local 400 to come forward with a legit-
imate, non-discriminatory reason for the termination. See id. If Local
400 meets this burden, the presumption of race discrimination created
by the prima facie case disappears from the case, and the burden
shifts back to Murray to come forward with sufficient evidence for a
jury to conclude, by a preponderance of the evidence, that Local
400’s proffered legitimate reasons "were not its true reasons, but were
a pretext for discrimination." Id. at 143 (internal quotation marks
omitted). "Regardless of the type of evidence offered as support for
[a] discrimination claim (direct, circumstantial, or evidence of pre-
text), or whether [the plaintiff] proceeds under a mixed-motive or
single-motive theory, ‘[t]he ultimate question in every employment
discrimination case involving a claim of disparate treatment is
whether the plaintiff was the victim of intentional discrimination.’"
Hill, 354 F.3d at 286 (quoting Reeves, 530 U.S. at 153).
In this case, Lowthers (a Caucasian), made the decision to rotate
Murray (a Caucasian), Williams (an African-American), and Ramirez
(a Hispanic) to probationary full-time organizing positions. After one
year of training, Lowthers, after consultation with Sauter, promoted
all three members to full-time status. During Murray’s employment,
Lowthers hired four additional organizers — three Caucasians and
one African-American. After Murray’s termination, Lowthers hired
thirteen organizers — nine Caucasians, two African-Americans, two
Asians, and one Hispanic. However, because Murray was elevated
from probationary to full-time status just four months prior to his ter-
mination and the first person hired for an organizer’s position after
10 MURRAY v. UNITED FOOD & COMMERCIAL WORKERS UNION
Murray’s departure was a minority candidate, the district court held
that, "[v]iewing th[e] evidence in the light most favorable to the plain-
tiff, . . . Murray barely makes out a prima facie case of discrimina-
tion" sufficient to shift the burden to Local 400 to articulate legitimate
non-discriminatory reasons for the decision to terminate him. Murray,
229 F. Supp. 2d at 470.
Local 400, in response, overwhelmingly met its burden of produc-
tion, presenting evidence that Lowthers’ decision to terminate Murray
was based upon the cumulative effect of four factors: (1) Murray’s
failure to make sufficient home calls to K-Mart employees who had
signed cards to confirm and shore up their support for unionization;
(2) Murray’s poor interpersonal and communication skills in general
and, in particular, during the K-Mart campaign; (3) Murray’s failure
to timely and properly prepare the required K-Mart charts for presen-
tation during the Local 400 staff meetings, which were held to moni-
tor the progress of each organizer’s campaign; and (4) the direct
confrontation that ultimately occurred between Sauter and Murray. It
is undisputed that the reasons articulated by Local 400 constitute
legitimate, non-discriminatory reasons for Murray’s termination.
In light of the foregoing, we will assume that Murray has estab-
lished a prima facie case that has been satisfactorily met by Local
400. Thus, we proceed directly to the ultimate question of whether
Murray has met his burden of offering sufficient evidence upon which
a reasonable jury could conclude that the reasons articulated by Low-
thers were not his true reasons, but instead merely pretext to disguise
racial discrimination. See Reeves, 530 U.S. at 143; see also Hill, 354
F.3d at 286 (noting that "[t]o demonstrate such an intent to discrimi-
nate on the part of the employer, an individual alleging disparate
treatment based upon a protected trait must produce sufficient evi-
dence upon which one could find that the protected trait . . . actually
motivated the employer’s decision (internal quotation marks omit-
ted)). "[P]roof that the employer’s proffered reason is unpersuasive,
or even obviously contrived," however, "does not necessarily estab-
lish that [Murray’s] proffered reason [race discrimination] . . . is cor-
rect." Reeves, 530 U.S. at 146-47 (internal quotation marks omitted).
"It is not enough to disbelieve the defendants." Love-Lane v. Martin,
355 F.3d 766, 788 (4th Cir. 2004). Rather, the jury must be reason-
MURRAY v. UNITED FOOD & COMMERCIAL WORKERS UNION 11
ably able to "believe [Murray’s] explanation of intentional race dis-
crimination." Id.Murray asserts that he created a genuine issue of material fact
regarding whether Lowthers’ reasons were pretextual because he pre-
sented evidence that Lowthers’ concerns regarding Murray’s perfor-
mance and confrontation of his immediate supervisor were not serious
enough to warrant termination and that Lowthers treated similarly-
situated minority employees less harshly than Murray. We disagree.
We begin with Murray’s claim that he has demonstrated the falsity
of Lowthers’ claim that Murray failed to pursue the home calls neces-
sary to maximize the potential for success on his assigned K-Mart
campaign. As support, Local 400 points to Murray’s "Organizer
Weekly Reporting Forms," which were supposed to record home calls
attempted and home calls made during each week, and "Person Pro-
file Records," which also contain information on home calls made to
individual employees.
Murray does not dispute that home calls are a critical part of the
unionization effort and that organizers are required to turn in "Orga-
nizer Weekly Reporting Forms" to document their progress. Nor does
he dispute that, between February 1, 1998, and April 18, 1998, he
submitted only six such weekly reports, and he submitted no reports
after April 18, 1998. Murray admitted that he did not ask to be
excused from completing the forms, but that he "just didn’t see them
as terribly important." J.A. 271. Nevertheless, he claims that he did
complete the requisite home calls and that this is reflected by his
"call-in" sheets. According to Murray, the organizers "were required
to call in at particular times during the day to . . . advise the depart-
ment on what our plans were for the next segment of the day." J.A.
213. Murray claims his call-in sheets show that he made additional
home calls that are not reflected by the scant "Weekly Reporting
Forms" or the incomplete "Person Profile Records."2 Murray also
contends that it is improper for Lowthers to point to the absence of
2
The "Person Profile Records" indicate that Murray only made eight
home calls during the K-Mart campaign. However, Murray offered evi-
dence that the records would only document the last three calls and,
therefore, also do not show every home call made.
12 MURRAY v. UNITED FOOD & COMMERCIAL WORKERS UNION
the weekly reports when Lowthers did not rely upon Murray’s record-
keeping as a basis for the termination decision.
In sum, Murray contends that he has created a genuine issue of
material fact as to the validity of Lowthers’ rationale because he has
created a genuine issue of material fact as to whether he, in fact, com-
pleted the requisite home calls. Murray’s contentions, however, mis-
construe his burden. A factual dispute as to whether Murray
performed additional home calls not reflected by the required weekly
reports does not amount to a factual dispute as to whether Lowthers
based his decision, at least in part, upon Lowther’s belief that Murray
had not fulfilled his duties in this regard. In short, Murray has come
forth with insufficient evidence upon which a jury could conclude that
Lowthers’ proffered reason was false and instead advanced merely as
a pretext to cover hidden racial motivations behind the termination
decision.
Murray’s claim that he has demonstrated the falsity of Lowthers’
articulated concern that Murray lacked the communication and inter-
personal skills to be an effective leader (as opposed to worker) in an
organizing effort also fails to find the requisite evidentiary support.
Murray contends that he has created a genuine issue of material
fact regarding the truth of these criticisms of his interpersonal skills
because Lowthers had just hired him, promoted him, and assigned
him to an important campaign, actions that Lowthers would not have
taken if he truly had reservations about Murray’s organizing skills.
However, it is undisputed that, although Murray had participated in
several campaigns in the past, K-Mart was the first campaign that he
was assigned to lead. Furthermore, the temporal proximity of Low-
thers’ promotion of Murray and his assignment as lead organizer on
the K-Mart campaign to Lowthers’ decision to terminate Murray actu-
ally hurts Murray’s claim. Lowthers hired Murray, promoted Murray,
and fired Murray within the span of seventeen months. Where an
"employee [is] hired and fired by the same person within a relatively
short time span," there is "a strong inference that the employer’s
stated reason for acting against the employee is not pretextual." Proud
v. Stone, 945 F.2d 796, 798 (4th Cir. 1991). Although "[t]he plaintiff
still has the opportunity to present countervailing evidence of pretext,
. . . in most cases involving this situation, such evidence will not be
MURRAY v. UNITED FOOD & COMMERCIAL WORKERS UNION 13
forthcoming." Id.; see also Jiminez v. Mary Washington College, 57
F.3d 369, 378 (4th Cir. 1995). Murray has failed to present such suffi-
cient countervailing evidence.
We turn now to the most significant problem cited by Lowthers,
the one that led to Murray’s immediate dismissal — Murray’s failure
to timely and adequately prepare the K-Mart campaign progress
charts and the confrontation with Sauter that arose as a result of the
inadequate charts.
It is undisputed that Murray was required to prepare the charts, that
Sauter informed Murray that they were inadequate, and that the con-
frontation over the charts occurred. Murray claims that Lowthers’
reliance upon these events is pretextual because the inadequacy of his
charts and his argument with Sauter were not as serious as Sauter later
claimed and as Lowthers perceived them to be. As before, however,
the flaw in Murray’s claim is that he has presented no evidence that
Lowthers did not believe that this was a legitimate basis upon which
to terminate Murray at the time or that Lowthers used it as a pretext
to terminate him for race-based reasons. See Hawkins v. Pepsico, Inc.,
203 F.3d 274, 278 (4th Cir. 2000) ("[W]hen an employer gives a
legitimate, non-discriminatory reason for discharging the plaintiff, 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." (internal quotation marks omitted)). There is
no evidence that Lowthers — the man who hired, promoted, and fired
Murray in the span of seventeen months — did not believe that Mur-
ray’s performance during the K-Mart campaign and his direct con-
frontation with Sauter warranted his immediate dismissal or that his
basis for dismissal was merely pretext either to carry out a racially-
motivated discharge on his part or to "cover" for any racially-
motivated influence allegedly brought to bear by Cash.3
3
Indeed, the crux of Murray’s claim is that Cash, who is African-
American, was motivated by racial animus, conveyed negative opinions
of Murray to Lowthers, and influenced Lowthers to terminate Murray as
a result of this racial animus. Murray contends that Lowthers’ reliance
upon the chart and the "thin ice" incident with Sauter was designed to
"cover" Cash’s motivations after the fact. As discussed infra, this theory
also fails because Murray has failed to present sufficient evidence that
Cash was racially biased or that, even if he was, he possessed a degree
of power justifying the imputation of that bias to Local 400.
14 MURRAY v. UNITED FOOD & COMMERCIAL WORKERS UNION
Murray’s reliance upon the fact that Lowthers issued written disci-
plinary notices to two minority Local 400 organizers the following
year, as opposed to imposing immediate termination, is also unavail-
ing. In March 1999, Robin Williams, the African-American organizer
who was hired with Murray in early 1997, was issued a counseling
letter for calling Sauter a liar during an argument over her attendance
at a conference. And, in July 1999, Rose Lee, an organizer of Asian
descent who was hired after Murray, was given a written warning for
attendance problems and, ultimately, fired for the same reason. Low-
thers testified that his decision to issue such written warnings was, on
advice of legal counsel, adopted as a result of Murray’s lawsuit. But,
regardless, these instances of disciplinary action provide Murray no
solace because he was not similarly situated to either of the other
employees. Unlike Williams and Lee, Lowthers had already received
unfavorable performance evaluations of Murray from both Cash and
Sauter in the weeks leading up to the confrontation between Sauter
and Murray, and Lowthers, after consulting with Sauter following the
chart incident and confrontation, made the decision to terminate Mur-
ray based upon these cumulative problems. Hence, as the district
court correctly observed, neither of the employees were similarly situ-
ated to Murray, nor did they perform in a comparably deficient man-
ner.
We agree with the district court’s determination that Murray failed
to proffer sufficient evidence of pretext to avoid summary judgment.
Murray has presented no direct evidence of racial bias on the part of
Lowthers, Sauter, Cash, or any other Local 400 official. And, Murray
has presented insufficient evidence upon which a reasonable jury
could conclude, by a preponderance of the evidence, that the reasons
given by Lowthers for his decision were false, that Murray was
treated in a disparate fashion from his minority counterparts, or that
Murray’s race otherwise motivated Local 400’s decision to terminate
him.
2.
Next, we turn to Murray’s claim under the mixed-motive method-
ology. See 42 U.S.C.A. § 2000e-2(m). Under this method of proof,
Murray may establish a claim of racial discrimination if he can dem-
onstrate that, although Lowthers’ decision may have been based upon
MURRAY v. UNITED FOOD & COMMERCIAL WORKERS UNION 15
legitimate, nondiscriminatory reasons, it was also at least in part moti-
vated by racial bias on the part of a relevant decisionmaker. See Hill,
354 F.3d at 284. Regarding such a claim, "[t]he employee . . . need
not demonstrate that the prohibited characteristic was the sole moti-
vating factor to prevail," id. (emphasis added), but must "present suf-
ficient evidence for a reasonable jury to conclude, by a preponderance
of the evidence, that race . . . was a motivating factor for [the]
employment practice," Desert Palace, Inc. v. Costa, 123 S. Ct. 2148,
2155 (2003) (internal quotation marks omitted). "In such cases, . . .
it is sufficient for the individual to demonstrate that the employer was
motivated to take the adverse employment action by both permissible
and forbidden reasons." Hill, 354 F.3d at 284.
Determining whether one who harbors a discriminatory bias may
be deemed a "decisionmaker" for purposes of Title VII is a separate
inquiry. We are not limited to the actions and statements of only the
formal decisionmakers for an employer. See id. at 288. However, "an
employer will be liable not for the improperly motivated person who
merely influences the decision, but for the person who in reality
makes the decision." Id. at 291.
Under the mixed-motive theory, Murray asserts that race was a
motivating factor in his dismissal by Local 400 because Cash, who is
African-American, was motivated by racial bias to provide Lowthers
with negative evaluations of him and that these biased evaluations
influenced, at least in part, Lowthers’ ultimate decision to terminate
him. In order to survive summary judgment on this theory, however,
it was incumbent upon Murray to present sufficient evidence that
Cash harbored racial animus against him and that Cash’s racial ani-
mus was properly imputed to Local 400. See id. (holding that "to sur-
vive summary judgment, an aggrieved employee who rests [his]
discrimination claim . . . upon the discriminatory motivations of a
subordinate employee must come forward with sufficient evidence
that the subordinate employee possessed such authority as to be
viewed as the one principally responsible for the decision or the
actual decisionmaker for the employer"). Murray has failed to estab-
lish either the requisite racial bias or power on the part of Cash to
present this theory to a jury.
First, Murray’s claim that Cash harbored racial animus against
Caucasian employees in general, and him in particular, is extraordi-
16 MURRAY v. UNITED FOOD & COMMERCIAL WORKERS UNION
narily weak. Murray points to (1) an alleged telephone call received
by Murray on the evening of his termination, in which a Local 400
business agent told him (without explanation or elaboration) that he
and several other Local 400 representatives believed "it’s a black
thing"; (2) Cash’s support during an earlier campaign in Virginia for
a paid Martin Luther King, Jr., holiday for all employees in the work-
place "because we’ve been held down too long or we’ve been held
down enough," J.A. 239-40; (3) Cash’s statement to Sauter, also dur-
ing the earlier campaign, that Cash felt they could rotate Murray off
of the campaign to give another organizer experience "if you’ve got
another experienced white male," J.A. 241; and (4) Cash’s involve-
ment in a minority coalition within the union. This evidence (assum-
ing its admissibility in the first instance) is a patently insufficient
basis upon which a reasonable jury could conclude that Cash harbored
racial animus that motivated him to provide Lowthers with negative
evaluations of Murray’s organizing skills and long-term prospects of
being an effective lead organizer.
Second, even if we were to presume racial animus on the part of
Cash, Murray cannot prevail under his mixed-motive theory because
he has also failed to present sufficient evidence upon which the jury
could conclude that Cash was the actual decisionmaker or the one
principally responsible for Local 400’s decision to terminate him. It
is undisputed that Lowthers made the decision to hire Murray on a
probationary basis and to transfer him to full-time permanent status
before assigning Murray to lead the K-Mart campaign. It is undis-
puted that Lowthers made the decision to terminate Murray only after
he had personally observed Murray’s performance on that campaign
and received less than favorable evaluations regarding Murray’s per-
formance in the K-Mart campaign from both Sauter and Cash. And,
it is undisputed that Lowthers decision occurred immediately after he
met with Sauter regarding the events surrounding the confrontation by
Murray and Sauter’s frustration with Murray’s continued reluctance
or inability to properly prepare the organizational charts and other-
wise perform the tasks expected of him. In short, although Murray has
presented evidence that Cash had expressed reservations about Mur-
ray’s long-term potential to be an effective lead organizer to Lowthers
MURRAY v. UNITED FOOD & COMMERCIAL WORKERS UNION 17
prior to Lowthers decision, such evidence is inadequate to impute any
racial motivations held by Cash to Local 400.4
For the foregoing reasons, we hold that Murray has failed to pre-
sent sufficient evidence for a reasonable jury to conclude, by a pre-
ponderance of the evidence, that Cash was motivated to remove Mur-
ray based on race, or that Cash was the actual decisionmaker or the
one principally responsible for his termination. Accordingly, we
affirm the district court’s grant of summary judgment to the defen-
dants on this claim as well.
B.
We now turn to Murray’s claim that the district court erred in
granting summary judgment to Local 400 and Sauter on Murray’s
state law claim for defamation. After Murray was discharged, Sauter
and another organizer met with Van Ness and other key K-Mart
employees. When Van Ness expressed dissatisfaction that Murray
was no longer on the campaign, Sauter "leaned over to [Van Ness]
and said, ‘Believe me, he was not a good organizer.’" J.A. 1466.
"Under Maryland law, a defamatory statement is one that tends to
expose a person to public scorn, hatred, contempt or ridicule, thereby
discouraging others in the community from having a good opinion of,
or from associating or dealing with, that person." Samuels v. Tschech-
telin, 763 A.2d 209, 241-42 (Md. Ct. Spec. App. 2000) (internal quo-
tation marks omitted). "To establish a prima facie case of defamation
when the plaintiff is not a public figure, the plaintiff must prove: (1)
that the defendant made a defamatory communication to a third per-
son; (2) that the statement was false; (3) that the defendant was at
4
Murray’s attempt to create a dispute regarding Cash’s prominence in
the decision through his conversation with Ramirez, another organizer,
falls far short of the requisite showing. According to Murray, Ramirez
told Murray that Cash was responsible (a representation that Ramirez
denies). However, Ramirez possessed no authority for Local 400 and the
comment, which was not accompanied by any explanation, is entirely too
speculative to support Murray’s claim that a jury could conclude, based
upon it, that Cash was the person principally responsible for his termina-
tion.
18 MURRAY v. UNITED FOOD & COMMERCIAL WORKERS UNION
fault in communicating the statement; and (4) that the plaintiff suf-
fered harm." Id. at 242.
"While the tort of defamation is generally viewed as one based
upon false assertions of fact, it may also be based upon the expression
of an opinion to a third person if the "‘opinion contains implied asser-
tions of underlying objective fact.’" Murray v. United Food & Com-
mercial Workers Int’l Union, 289 F.3d 297, 305 (4th Cir. 2002)
(quoting Samuels, 763 A.2d at 242). The statement that Murray "was
not a good organizer," if false, is defamatory per se under Maryland
law. Id. at 306. And, as correctly noted by the district court, Murray
has established a genuine issue of material fact as to whether he was,
in fact, a good organizer (as opposed to whether Lowthers believed
he was a good organizer and terminated him for discriminatory rea-
sons). See Murray, 229 F. Supp. 2d at 477. Thus, Murray has suffi-
ciently established the first two elements of the prima facie case of
defamation. The district court granted summary judgment on the
claim, however, because Murray failed to prove that Sauter was at
fault in communicating the statement and that Murray was harmed by
the statement. We agree.
"[W]hen a plaintiff establishes that a statement was defamatory per
se and, by clear and convincing evidence, demonstrates that it was
made with actual malice, a presumption of harm to reputation arises
from the publication of words actionable per se." Samuels, 763 A.2d
at 245 (internal quotation marks and alteration omitted). But, if "the
defendant was merely negligent in making the false statement, the
plaintiff must still prove actual damages." Id. In order to establish
actual malice, Murray was required to demonstrate, "by clear and
convincing evidence," that Sauter "published the statement in issue
either with reckless disregard for its truth or with actual knowledge
of its falsity." Id. at 242 (internal quotation marks omitted). Murray
has failed to produce such clear and convincing evidence of actual
knowledge or reckless disregard on Sauter’s part. Sauter’s comment
was made in private response to Van Ness’s inquiry as to why Murray
was no longer on the campaign, and there is no evidence that the com-
ment was made to or heard by any other K-Mart employee. At most,
Sauter was merely negligent in making the statement to Van Ness.
Because Murray has failed to present any evidence of actual damages
as a result of the statement, his defamation claim fails.
MURRAY v. UNITED FOOD & COMMERCIAL WORKERS UNION 19
III.
For the foregoing reasons, the decision of the district court granting
summary judgment to the defendants is hereby affirmed.
AFFIRMED