Mascone v. American Physical Society, Inc. , 404 F. App'x 762 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2158
PATRICIA MASCONE,
Plaintiff - Appellant,
v.
AMERICAN PHYSICAL SOCIETY, INCORPORATED,
Defendant – Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Roger W. Titus, District Judge. (1:07-
cv-00966-RWT)
Submitted: November 3, 2010 Decided: December 10, 2010
Before AGEE and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
L. Jeanette Rice, WALSH BECKER MOODY & RICE, Bowie, Maryland,
for Appellant. Deborah Murrell Whelihan, JORDAN, COYNE &
SAVITS, LLP, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Patricia Mascone appeals the district court’s order
granting summary judgment to American Physical Society, Inc.
(“APS”), and the court’s order denying reconsideration of her
claims alleging employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, and striking
portions of an affidavit she submitted in opposition to summary
judgment. We review the district court’s order granting summary
judgment de novo. Jennings v. Univ. of N.C., 482 F.3d 686, 694
(4th Cir. 2007) (en banc). In doing so, we generally must view
all facts and draw all reasonable inferences in the light most
favorable to the nonmoving party. Scott v. Harris, 550 U.S.
372, 378 (2007). Finding no reversible error, we affirm.
First, Mascone contends that the district court erred
by granting summary judgment to APS on the wrongful termination
claim. A plaintiff can defeat summary judgment by either of two
avenues: (a) through direct or circumstantial evidence that sex
discrimination motivated the decision to terminate her, or (b)
through the burden-shifting scheme established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 807 (1973). See Hill v.
Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th
Cir. 2004)(en banc).
Because Mascone has failed to demonstrate, through
either direct or circumstantial evidence, that her employer used
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a forbidden consideration with respect to any employment
practice, her attempts to defeat summary judgment through the
first avenue of proof fail. In order for Mascone to succeed on
her wrongful termination claim under the burden-shifting scheme
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807
(1973), she must establish that:
(1) she is a member of a protected class; (2) she
suffered adverse employment action; (3) she was
performing her job duties at a level that met her
employer’s legitimate expectations at the time of the
adverse employment action; and (4) the position
remained open or was filled by similarly qualified
applicants outside the protected class.
Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285
(4th Cir. 2004) (en banc). If Mascone establishes a prima facie
case, she is entitled to an inference of discrimination that can
be rebutted if the employer articulates a legitimate,
nondiscriminatory reason for its actions. See Reeves v.
Sanderson Plumbing Prods., 530 U.S. 133, 142 (2000). “[T]he
burden [then] shifts back to the plaintiff to prove by a
preponderance of the evidence that the employer’s stated reasons
‘were not its true reasons, but were a pretext for
discrimination.’” Hill, 354 F.3d at 285 (quoting Reeves, 530
U.S. at 143).
Assuming arguendo that Mascone established a prima
facie case, she failed to show that APS’ proffered reasons for
her dismissal were pretextual. Dr. Alan Chodos hired Mascone to
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serve as APS’ Special Publications manager. Chodos extended
Mascone’s probationary period due to her numerous performance
deficiencies, chief among them her inability to manage her staff
effectively and her poor work product and time management. When
Chodos terminated Mascone, the rationale for the dismissal was
consistent with the deficiencies supporting the extension of her
probation. Mascone simply failed to proffer sufficient evidence
to suggest that APS’ reasons for terminating her were
pretextual.
Although Mascone suggests that Chodos did not support
her in handling difficult employees, Chodos permitted her to
include written disciplinary reports in two employees’ records,
and both employees resigned, in part, because they felt Chodos
and Joseph Ignacio, the Director of Human Resources, always
sided with Mascone. Mascone also points to an alleged statement
from Dr. Judith Franz, APS’ Executive Officer, that she
(Mascone) needed to be more calm, sensitive, and feminine in her
management style. However, that remark alone is insufficient to
establish pretext. See Holland v. Wash. Homes, Inc., 487 F.3d
208, 215 (4th Cir. 2007) (“[A] key factor for courts to consider
[in determining whether an employer’s reasons were pretextual]
is ‘the probative value of the proof that the employer’s
explanation is false.’”) (quoting Reeves, 530 U.S. at 149).
Accordingly, we conclude that the district court did not err in
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granting summary judgment on Mascone’s wrongful termination
claim.
Next, Mascone argues that the district court erred in
rejecting her pre-termination, gender-based disparate treatment
claim. Her claim centered on the contention that she was
treated differently than Dr. Theodore Hodapp, a co-worker. Our
review of the record leads us to conclude that the district
court correctly found Mascone could not establish a prima facie
case because Mascone and Dr. Theodore Hodapp were not similarly
situated. See Lightner v. City of Wilmington, 545 F.3d 260, 265
(4th Cir. 2008) (rejecting disparate discipline claim where
plaintiff could not show he was similarly situated to other
disciplined employee). Thus, the district court did not err in
rejecting this claim.
Mascone also challenges the district court’s grant of
summary judgment on her mixed-motive claim. To prove a mixed-
motive claim under Title VII, Mascone must show that gender was
a motivating factor in her termination. See Hill, 354 F.3d at
284. Although Mascone relies primarily on Franz’s statement
that Mascone should adopt a more sensitive and caring management
style, there is no evidence that Franz, herself a female,
communicated this critique to Chodos. Moreover, Mascone did not
show that “the protected trait . . . actually motivated the
employer’s decision.” Reeves, 530 U.S. at 141 (internal
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quotation marks omitted). We therefore conclude that the
district court correctly granted summary judgment on this claim.
Mascone next asserts that the district court erred in
granting summary judgment on her retaliation claim.
Essentially, Mascone contends that she was given negative
references in retaliation for engaging in protected activity.
Mascone’s claim centered upon the statements that Ignacio and
Chodos gave to Global Verification Services (“GVS”), a company
Mascone hired to contact APS pretending to be a potential
employer. In order to establish a prima facie case of
retaliation, a plaintiff must show that: (1) she engaged in a
protected activity; (2) the employer took a materially adverse
action against her; and (3) there is a causal connection between
the protected activity and the adverse action. King v.
Rumsfeld, 328 F.3d 145, 150-51 (4th Cir. 2003). To satisfy the
second element, Mascone must show that a reasonable employee
would have found the challenged action materially adverse,
meaning that the action “might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.”
Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68
(2006)(quotation omitted).
With this standard in mind, we conclude that the
district court properly granted summary judgment on Mascone’s
retaliation claim. Ignacio provided only neutral information in
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response to the GVS inquiry and, while Chodos disclosed the
reasons that APS terminated Mascone, his comments were truthful.
Cf. Szymanski v. County of Cook, 468 F.3d 1027, 1029 (7th Cir.
2006)(stating that to show adverse action in the context of
negative references, plaintiff must demonstrate under an
objective standard, “the dissemination of false reference
information that a prospective employer would view as material
to its hiring decision”). Thus, the district court did not err
in rejecting this claim.
Finally, Mascone contends that the district court
improperly granted the motion to strike portions of her
voluminous affidavit. We consistently have enforced the
requirements set forth in Fed. R. Civ. P. 56(e), and affirmed a
district court’s ability to strike affidavits that do not comply
with that rule. See, e.g., Evans v. Technologies Applications &
Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996). Our review of the
record leads us to conclude that the district court did not
abuse its discretion in striking a portion of the affidavit.
Id. (stating standard of review).
Accordingly, we affirm the district court’s orders
granting summary judgment and denying reconsideration. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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