Diamond v. Bea Maurer, Inc. , 128 F. App'x 968 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1216
MORELAND JOANNE DIAMOND,
Plaintiff - Appellant,
versus
BEA MAURER, INCORPORATED,
Defendant - Appellee,
and
BEA MAURER,
Defendant.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, District
Judge. (CA-03-43-6)
Argued: February 4, 2005 Decided: April 25, 2005
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: William Jeffrey Dinkin, DINKIN, PURNELL & JOHNSON,
P.L.L.C., Richmond, Virginia, for Appellant. Frank Kenneth
Friedman, WOODS ROGERS, P.L.C., Roanoke, Virginia, for Appellee.
ON BRIEF: Jaime H. Blackmon, DINKIN, PURNELL & JOHNSON, P.L.L.C.,
Richmond, Virginia, for Appellant. Agnis C. Chakravorty, WOODS
ROGERS, P.L.C., Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Moreland J. Diamond brought this action, alleging that her
former employer discharged her because of her race. The district
court granted summary judgment to the employer. For the reasons
set forth within, we affirm.
I.
On May 13, 2002, Diamond, an African-American woman, began
work as a sewing machine operator at Bea Maurer, Inc. (BMI), which
produces quick shelter tents for the Armed Services. Diamond
received an above-average employee evaluation after thirty days.
Three months later, although Diamond did not have any entitlement
to sick leave, BMI permitted her to take an unpaid leave of absence
for previously scheduled surgery. After a month’s leave, Diamond
returned to work at BMI on October 3, 2002. Upon her return,
although not required to do so, BMI assigned Diamond light-duty
work, paying her at the same rate of pay that she earned when she
had worked without restrictions.
Soon after she returned to work, Diamond began to have clashes
with BMI’s owner, Bea Maurer. Diamond maintains that on November
8, 2002, after she and a white co-worker had attempted to get a flu
shot while at work, Maurer reprimanded Diamond, but not the co-
worker. When Diamond remonstrated, Maurer assertedly told Diamond
that she “didn’t like [Diamond’s] attitude.”
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Diamond also asserts that at about the same time “Maurer began
standing around with various Caucasian employees, watching Diamond
work, and making comments about Diamond to BMI’s supervisors in an
attempt to influence their opinion of Diamond.” Ultimately,
according to Diamond, Maurer “approached [her] in a rage” on the
plant floor, criticized Diamond for the way she “was acting,”
particularly her “strutt[ing] around.” When Diamond maintained
that she did not have an “attitude,” Maurer assertedly became
“outraged” and “went and wrote” a reprimand of Diamond. Diamond
contends that BMI has treated no other employees in this manner.
On November 12, BMI supervisors attempted to give Diamond this
reprimand, citing her “negative attitude,” “poor work performance,”
and “disrespect[]” for Maurer. Although Diamond refused to sign
the written reprimand, she acknowledged that BMI supervisors read
it to her. The reprimand warned Diamond that “if improvement in
attitude and work performance [is] not seen by the end of [the]
week, results will be termination.” A supervisor also specifically
told Diamond that Maurer objected to Diamond’s disruptive behavior,
such as chewing gum and singing aloud on the plant floor while
listening to music on headphones. On November 14, 2002, seven
months after she began work, Diamond was fired.
Within six months, Diamond, acting pro se, filed this Title
VII action, asserting that BMI had illegally fired her because of
her race. In support of her claim, Diamond submitted a written
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statement from a former BMI supervisor affirming that Diamond had
performed her work adequately while under his supervision; a
cassette and transcript of a taped conversation in which another
former supervisor also indicated that Diamond had performed her
work adequately; and a declaration from a former co-worker stating
that BMI permitted other employees to wear headphones and chew gum.
Diamond also submitted her own affidavit in which she attested
inter alia that, during her employment at BMI, the company employed
only one other person of color; the company permitted white
employees to sing loudly at work; and Maurer made various
statements assertedly indicating racial bias. The district court
granted summary judgment to BMI, and Diamond appeals.1
II.
A plaintiff can establish a Title VII violation in two ways:
through “ordinary principles of proof using any direct or indirect
evidence relevant to and sufficiently probative of the issue” or
through the burden-shifting method of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) . See Brinkley v. Harbour Recreation
Club, 180 F.3d 598, 607 (4th Cir. 1999). No matter which method of
proof is used, the ultimate question “is a straightforward one--
whether plaintiff[] successfully demonstrated that [she was] the
1
We appointed counsel to represent Diamond on appeal and very
much appreciate their excellent efforts on her behalf.
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victim[] of . . . discrimination on the part of [her employer].”
Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 511 (4th Cir.
1994). Diamond contends that she has produced enough evidence to
withstand a motion for summary judgment using either method of
proof.
A.
“To survive summary judgment on the basis of direct and
indirect evidence, [the plaintiff] must produce evidence that
clearly indicates a discriminatory attitude at the workplace and
must illustrate a nexus between that negative attitude and the
employment action.” Brinkley, 180 F.3d at 608. Diamond
unsuccessfully seeks to meet this burden by pointing to the small
number of African-American employees at BMI; to instances in which
BMI purportedly treated her more harshly than her white co-workers;
and to allegedly racist statements made by Maurer.
Under Fourth Circuit precedent, a dearth of African-American
employees, without evidence as to the number of qualified African-
Americans in the “relevant labor pool,” does not establish even a
circumstantial “prima facie case of discrimination,” let alone
direct or indirect evidence of purposeful discrimination. Carter
v. Ball, 33 F.3d 450, 456 (4th Cir. 1994). Diamond offered no
evidence as to the composition of the relevant labor pool.
Moreover, BMI notes, without contradiction from Diamond, that it is
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located in Rockbridge County, Virginia, where the population is
only 3% African-American. See Brief of Appellee at 9.
Nor do the incidents in which BMI allegedly treated Diamond
differently than white coworkers -- the flu shot incident, Maurer’s
criticism of Diamond’s attitude and performance, and Diamond’s
reprimand -- “clearly indicate[]” intentional discrimination
leading to unlawful termination. Brinkley, 180 F.3d at 608.
Diamond has not demonstrated any nexus at all between the flu shot
incident and her discharge. As to the other occurrences, we
recognize that Diamond argues that she did nothing different than
other employees and so did not deserve any criticism or reprimand.
BMI counters that although the company permitted all employees to
listen to headphones and to chew gum, it permitted no employees to
do so in the inappropriate manner assertedly employed by Diamond,
i.e., swaying and singing so others could see and hear, and popping
gum loudly. The record, even entirely crediting Diamond’s account,
actually indicates that the two had a mutually testy relationship
in which Diamond, by her own account, felt free to “question”
Maurer’s assertion of authority. Moreover, Diamond has conceded
that even after she was warned by a BMI supervisor that Maurer did
not like the manner in which she sang and chewed gum, she continued
to do so because no one had forbidden it. BMI maintains that it
discharged Diamond for this reason. Diamond offers no suggestion
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or evidence that a white employee, after a warning, continued the
criticized activity and yet was not discharged.
When an employer gives a “non-discriminatory reason for
discharging the plaintiff, it is not our province to decide whether
the reason was wise, fair, or even correct, so long as it truly was
the reason for plaintiff’s termination.” Hawkins v. Pepsico, Inc.,
203 F.3d 274, 279 (4th Cir. 2000) (internal quotations marks and
citation omitted). Like the plaintiff in Hawkins, Diamond “cannot
show” that her employer’s “stated reasons for terminating her were
not the reasons for her discharge.” Id. Indeed, the record here
contains undisputed evidence that, as long as it believed she was
performing well, her employer treated Diamond well, permitting her
to be absent for a month after working for only five months and
providing her light duty work on her return.
Diamond’s objections to three statements made by Maurer -- one
prior to Diamond’s discharge, and two made after the discharge when
representatives from the NAACP visited BMI -- also fail to provide
direct or indirect evidence of discrimination “that bear directly
on the contested employment decision.” Brinkley, 180 F.3d at 607
(internal quotation marks and citation omitted). Specifically,
Diamond points to a remark Maurer made about the fact that
Diamond’s son has the same last name as Diamond herself. She also
cites Maurer’s July 2003 statements to the NAACP representatives
visiting the plant on Diamond’s behalf that the only single
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African-American woman employed at BMI “was not black, but a woman
who happen[s] to be black,” and that if a federal contract required
BMI to hire a certain number of minorities, she would close her
shop.
In order for derogatory remarks to be indicative of
discrimination, the statements must not be isolated or ambiguous,
and there must be a nexus between the statements and the challenged
employment decision. O’Connor v. Consolidated Coin Caterers Corp.,
56 F.3d 542, 548-49 (4th Cir. 1995), rev’d on other grounds 517
U.S. 308 (1996). Diamond demonstrates no nexus between any of
these statements and her termination. Moreover, all three remarks
are both ambiguous and isolated -- they simply do not provide
evidence that “clearly indicates a discriminatory attitude at the
workplace” with a “nexus” to the “employment action.” Brinkley,
180 F.3d at 608.
Thus Diamond has failed to proffer direct or indirect evidence
of purposeful racial discrimination.
B.
Alternatively, Diamond asserts that she has made out a prima
facie case under the McDonnell Douglas framework. Specifically,
she maintains that she has established: “(1) that she is a member
of a protected class; (2) that she was qualified for her job, and
her job performance was satisfactory; (3) that she was fired; and
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(4) that other employees who are not members of the protected class
were retained under apparently similar circumstances.” Brief of
Appellant at 20 (citing Bryant v. Bell Atlantic Maryland, Inc., 288
F.3d 124, 133 (4th Cir. 2002); Hughes v. Bedsole, 48 F.3d 1376,
1383 (4th Cir. 1995)).
It is undisputed that Diamond has established the first and
third elements. The district court, however, found that she failed
to establish the second. Because we agree with the district court
that Diamond has failed to proffer sufficient evidence to establish
the second element of the prima facie case, we need not reach the
question of the sufficiency of the proffered evidence as to the
fourth element.
Diamond acknowledges that to make out the second element of
the prima facie case, she must demonstrate that “at the time of the
adverse employment action” she “was performing at a level that met
her employer’s legitimate job expectations.” Brief of Appellant at
22 (quoting Brinkley, 180 F.3d at 607) (emphasis added by Diamond).
She maintains that she has done so by offering evidence that
“during her first five (5) months of employment she never received
any reprimands or had any problems” and that her former supervisors
at BMI indicated that they had not had problems with her attitude
or job performance. Brief of Appellant at 22.
This evidence, even if fully credited, does not suffice to
prove the second element of a prima facie case because acceptable
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job performance in the past does not establish acceptable job
performance at the time of the termination. See O’Connor, 56 F.3d
at 547. Diamond received a satisfactory job evaluation one month
after she was hired, and there is no evidence that she received any
reprimand or negative reviews for the next three months. However,
it is undisputed that BMI permitted her to be absent from September
2 through October 2, 2002, and she has offered no evidence, except
her own self-serving affidavit,2 that after she returned to work in
October 2002, her job performance was satisfactory. Thus, Diamond
simply has not demonstrated that her job performance at the time
BMI discharged her -- in November 2002 -- met BMI’s legitimate
expectations. See id. (holding that a positive review in January
was irrelevant to the determination of whether the employee was
performing adequately when terminated in August); Anderson v.
Stauffer Chem. Co., 965 F.3d 397, 401 (7th Cir. 1992) (stating that
positive evaluation five months before termination was not
determinative of the question of whether the employee was meeting
expectations at the time of discharge).
Similarly, the statements Diamond proffered from her former
supervisors did not state that she was performing satisfactorily at
the time BMI discharged her. Indeed, the endorsement of one of
2
“[I]n a wrongful discharge action, ‘[i]t is the perception of
the decision maker which is relevant, not the self-assessment of
the plaintiff.’” Hawkins, 203 F.3d at 280 (quoting DeJarnette v.
Corning Inc., 133 F.3d 293 (4th Cir. 1998).
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these supervisors was less than wholehearted -- the supervisor
noted merely that “most of the time” Diamond did what she was told
to do without “having an attitude.”
III.
For all of these reasons, the judgment of the district court
is
AFFIRMED.
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