Ezeh v. Fresenius Medical Care Kami Partners, LLC, No. 1:2011cv03441 - Document 58 (D. Md. 2013)

Court Description: MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 5/1/13. (bmhs, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND PERPETUA U. EZEH, : Plaintiff, : v. : BIO-MEDICAL APPLICATIONS OF MARYLAND, INC. d/b/a FRESENIUS MEDICAL CARE OF PORTER DIALYSIS ROSEDALE, : Civil Action No. GLR-11-3441 : : Defendant. : MEMORANDUM OPINION Plaintiff Perpetua U. Ezeh ( Ezeh ) commenced this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (2012), alleging discrimination on the basis of race and national origin (Count I), retaliation (Count II), and wrongful termination in violation under Maryland common law (Count III). Count III on August 8, 2012. of public policy The Court dismissed (See ECF Nos. 34-35). Currently pending before the Court is Defendant Bio-Medical Applications of Maryland, d/b/a Fresenius Medical Care of Porter Dialysis Rosedale s ( FMC ) Motion for Summary Judgment. (ECF No. 47). The Court, having reviewed the pleadings and supporting documents, finds no hearing necessary pursuant to Local Rule 105.6 (D.Md. 2011). FMC s Motion will be granted because Ezeh failed to produce sufficient direct or circumstantial evidence showing that discrimination was a motivating factor in her departure from FMC, and she failed to produce evidence of a causal link between her alleged protected activity and her departure. BACKGROUND1 I. FMC operates 2,700 kidney dialysis clinics world-wide, including 27 in the State of Maryland. The clinics are staffed by and Patient Care Technicians ( PCTs ) Registered Nurses supervised by a Medical Director and Clinical Manger ( CM ). The CM at each FMC clinic is also a registered nurse and is responsible for ensuring the care and safety of patients, hiring and firing staff, scheduling staff, maintaining an emergency plan for patient care, and responding to all emergencies. On October 20, 2008, FMC employed Ezeh, an African-American woman of Clinic. Nigerian national origin, as a CM in its Rosedale Markswell Nwachinemere ( Max ), FMC Area Manager of Operations, hired Ezeh and became her immediate supervisor. In February 2009, FMC promoted Carol Miller ( Miller ) to Director of Operations, which made Miller Ezeh s immediate supervisor in lieu of descent. Max. Miller is Caucasian and Max is of Nigerian Ezeh s tenure at FMC ended in September 2009. The parties disagree on the events that led to her departure. 1 Unless otherwise noted, the following facts are taken from the Amended Complaint, depositions, and affidavits in the record. 2 A. Ezeh s Allegations According to Ezeh, Miller held a bias against African- Americans, particularly those originating from African nations. Due to her bias, subordinates Miller from FMC allegedly by sought treating to remove non-African African employees favorably and discriminatorily instituting disciplinary actions. Ezeh and former FMC CM Rashidat Taiwo ( Taiwo ) claim that Miller openly discriminated against FMC s African employees. According to Taiwo, it was widely known throughout the company that Miller wanted to terminate African employees. Taiwo testified that during a CM meeting at FMC s Bestgate Clinic, Miller was so condescending and disrespectful participants that at least one CM began to cry. to the According to Taiwo, all of the CMs in that meeting were African-American. Miller also allegedly commented about the accents and mannerisms of African CMs during staff meetings. would characterize animated while the presentations complimenting Caucasian counterparts. According to Ezeh, Miller the of African presentations CMs of as their Taiwo testified that Miller stated she could not understand African employees accents, directed them to speak English, and stated it was as if they never learned English. Taiwo also testified that Miller often called the African PCTs stupid and once told her that Max was dumb. 3 According to Taiwo, Miller often made inappropriate facial and hand gestures behind strangling gestures. African employees backs, including Taiwo also testified that Miller pit African employees against each other to make them quit. This allegedly included a method of placing African nurses on the floor to frustrate them to the point of quitting. Miller also allegedly performance allowed Caucasian records to transfer, origins for comparable told her the clinic employees while terminating behavior. was with Taiwo poor employees testified short-staffed because of other that the Miller African employees did not pass the requisite exams. Ezeh avers that one of Miller s first instances of wrongful conduct against her specifically arose on January 29, 2009. That day, the water system malfunctioned at the Rosedale Clinic, which precluded the clinic from treating patients (the water crisis ). and That morning, Ezeh was out tending to a tooth ache attempted to instruct the charge ( Barton ), on how to handle the situation. nurse, Sue Barton Upon hearing of the water crisis, Max instructed Ezeh to report to the clinic, but Ezeh did not do so until after her dental appointment. As a result of this incident, Max issued Ezeh a written reprimand and counseled her. According to Ezeh, Miller encouraged Max to issue the reprimand. 4 Ezeh also avers that Miller verbally counseled and harassed her for issuing a written reprimand to Barton, a Caucasian nurse, who allegedly twice directed a PCT to inject her with the drug Phenergan without authorization. Miller allegedly removed the written reprimand from Barton s file. Miller also allegedly instructed Ezeh to report to work at 10:00 a.m. every morning while allowing counterparts to enjoy flexible schedules. her Caucasian Ezeh also alleges that Miller treated Caucasian CMs more favorably by failing to issue a written reprimand when another CM called out sick, without a doctor s note, and by attempting to have her work short-handed several staff, while assisting a Caucasian CM who was only short one staff member. B. FMC s Allegations According to FMC, Ezeh was an ineffective manager whose problems with her primarily stemmed subordinates. from Max Ezeh s testified strained that relationship Ezeh s employees complained that she was disrespectful and perpetuated a general lack of communication. This lack of communication allegedly included Ezeh s failure to inform her staff of changes regarding the schedule. According to Miller and Max, Ezeh s scheduling mishaps often resulted in an inability to keep her clinic fully staffed and prompted staffing agencies. the expensive of temporary FMC discouraged agency usage because of the 5 contracting cost and, in March 2009, required prior approval. According to Max, Ezeh continued to use agency staff without approval. Max testified that the staffing issues Ezeh encountered were not present prior to her arrival. Max also stated that he counseled Ezeh several times regarding the various issues. When questioned about the water crisis, Max testified that he issued the written reprimand to Ezeh without any coaxing from Miller. According to Max, Ezeh reported directly to him at the time of the incident. FMC Regional Max, Miller, and Susan Wilson ( Wilson ) outcomes. Quality Finally, Manager aver that when about asked Ezeh garnered Miller s low alleged discriminatory animus, Max testified that he had no knowledge of such conduct. informed Max also testified that, on one occasion, Ezeh him intellect, of but Miller s when he alleged asked statement Miller regarding and other his meeting participants about the statement, everyone denied its existence. Similarly, bringing her Miller team testified together, which accountability and attendance. recapitulated identified. several failed Ezeh included a difficulty problem with During her deposition, Miller the aforementioned issues Max to As for accountability, Miller testified that relieve her workers as promised available for clinic issues as they arose. 6 had Miller also testified that Ezeh s clinic had a high turnover rate. Ezeh of that and was not Due to Ezeh s poor performance, Miller developmental and action Max plan allegedly after a intended meeting to execute scheduled a for September 14, 2009. Regarding the water crisis, Miller denied any involvement in the written reprimand. When asked about the Barton incident, Miller testified that she disagreed with the way Ezeh reported the situation, not the act of disciplining Barton. According to Miller, Ezeh failed to identify all of the salient facts when discussing the incident. Namely, that Dr. Al-Talib, Medical Director of the Rosedale Clinic, gave Barton permission to take the drug the first time. Miller denied discriminating against FMC employees on the basis of race or national origin. Taiwo that Africans had issues Miller also denied telling passing the requisite exams. Miller, however, did admit to asking two employees whether they thought she discriminated against employees stated she was racist. them when she heard those According to Miller, the two employees allegedly denied making the statements. C. Ezeh s Departure from FMC On September 14, 2009, Ezeh sent an e-mail to Gary Booth ( Booth ), Regional Vice President, and Wilson requesting some intervention to get control of her clinic. detailed stated Ezeh s that grievances Miller s regarding alleged treatment 7 The e-mail also Miller s of her behavior and stemmed from Ezeh s refusal to be a CM at her previous clinic, DaVita. In response, Wilson e-mailed Ezeh a copy of FMC s HR grievance policy. That day, Ezeh attended a Control Quality Indicator ( CQI ) meeting for the Rosedale Clinic. The CQI meeting participants included Max, Miller, nutritionist, Dr. and a Al-Talib, social CM Dr. worker. Kathy Lijewski, Al-Talib began a to discuss the staffing, scheduling, and employee morale issues at Ezeh s clinic and Max followed with staffing issues. According to FMC, Ezeh became upset during the discussion and began to yell and scream at Miller and Max. Moreover, FMC avers that Ezeh told Miller and Max that they could give the CM position to someone else, stated that she was done, and proceeded to her office to clear personal belongings from her desk before departing from the building. According to Ezeh, she did not resign, meeting but merely left the medication for her heart condition. hours after the CQI meeting, she to go home and take Ezeh avers that several left a message for Max informing him that she would not be at work for the next two days. Max testified that he forwarded Ezeh s message to Miller. Per Miller s request, September 17, 2009. Ezeh met with Max and Miller on During that meeting, Miller informed Ezeh that FMC accepted her resignation allegedly given during the September 14 meeting. Ezeh insisted that she did not resign, 8 but Miller resignation. remained steadfast in accepting the alleged Miller asked Ezeh whether she had any personal items in the office and, when Ezeh answered in the affirmative, Miller informed her that an FMC employee would mail the items. On October 2, 2009, Ezeh filed a discrimination charge with the U.S. Equal Employment Opportunity Commission ( EEOC ). The EEOC issued a Dismissal and Notice of Right to Sue on August 31, 2011. Ezeh commenced this action against FMC on November 29, 2011 (ECF No. 1), and filed an Amended Complaint on January 9, 2012 (ECF No. 10). FMC filed a Motion to Dismiss Counts II and III or, in the alternative, for Partial Summary Judgment on March 12, 2012. (ECF No. 18). dismissed Count III. On August 8, 2012, the Court (ECF Nos. 34-35). After discovery, FMC filed the pending Motion for Summary Judgment. II. STANDARD OF REVIEW Summary judgment is only appropriate 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. Fed.R.Civ.P. 56(a). A material fact outcome of a party s case. is a fact that might affect the Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). Whether a fact is considered to be material is determined by the substantive law, and [o]nly disputes over 9 facts that might affect the outcome of the suit under the governing preclude the entry of summary judgment. law will properly Anderson, 477 U.S. at 248; Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001). In ruling justifiable including on this inferences questions of motion, in the favor credibility Court of the and of must draw nonmoving the weight all party, to be accorded particular evidence. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520 (1991) (citing Anderson, 477 U.S. at 255). III. DISCUSSION A. Race & National Origin Discrimination (Count I) The Court finds summary judgment in favor of FMC to be appropriate on Ezeh s discrimination claim because she failed to raise a genuine issue of material fact that Miller s alleged discriminatory animus towards Africans had a direct bearing on her departure from FMC. Under Title VII, an employer may not discharge any individual, or otherwise [] discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual s race . . . or national origin. 42 U.S.C. § 2000e-2(a)(1). may prove Title VII discrimination in two ways. A plaintiff First, under the mixed-motive framework, a plaintiff may present direct or 10 circumstantial evidence that raises a genuine issue of material fact as to whether an impermissible factor such as motivated the employer s adverse employment decision. race Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005) omitted).2 (citation This evidence directly on the contested employment decision. must bear Volochayev v. Sebelius, No. 11-2229, 2013 WL 871193, at *3 (4th Cir. Mar. 11, 2013) (citing Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995), abrogated on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)). Second, a plaintiff may proceed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, plaintiff, 411 U.S. after discrimination, 792 (1973). establishing demonstrates that Under a this prima the framework, facie employer s case the of proffered permissible reason for taking an adverse employment action is actually a pretext for discrimination. Diamond, 416 F.3d at 318 (citation omitted). As a preliminary matter, one inquiry subject to each method of proof is whether Ezeh suffered an adverse employment action. The parties disagree on whether FMC terminated Ezeh or whether 2 42 U.S.C. § 2000e-2(m) provides: Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race . . . or national origin was a motivating factor for any employment practice, even though the other factors also motivated the practice. 11 she resigned. The Court will not address this issue, however, because its resolution is not dispositive in this case. 1. Mixed-Motive Analysis Ezeh avers that she is not required to proceed under the second method of discrimination. proof because Ezeh further she has avers direct that evidence this of evidence establishes the existence of genuine issues of material fact related to disagrees. Miller s discriminatory conduct. The Court Although Ezeh purports to offer direct evidence, much of the proffered evidence is circumstantial, and, although permissible, it nevertheless fails to establish that Miller s alleged discriminatory conduct had a direct bearing on Ezeh departure from FMC. Ezeh s evidence includes: (1) a declaration from former CM Taiwo stating that Miller openly discriminated against African employees (Taiwo Decl. ¶ 3, ECF No. 51-8); (2) testimony from Taiwo that Miller was condescending and disrespectful to a group of African-American CMs during a meeting at FMC s Bestgate Clinic, which prompted at least one CM to cry (Taiwo Dep. 32:1333:17, 36:22-37:15, 144:13-146:11, Sept. 24, 2012, ECF No. 4725); (3) Miller s alleged statement to a Caucasian employee that the Africans have got to go (Am. Compl. ¶¶ 4, 25); (4) Ezeh and Taiwo s testimony that Miller often commented on the presentation skills and accents of African employees, including 12 statements that Miller couldn t understand them and it was as if the African employees never learned English (Ezeh Dep. 192:414, June 14, 2012, ECF No. 47-3; Taiwo Dep. 149:1-151:12; Taiwo Decl. ¶ African 4); (5) employees Taiwo s when testimony discussing that Miller performance singled issues, out often calling them stupid, and only spoke with her favorite, nonAfrican, employees 93:7-94:2, when visiting 104:13-106:16); (6) Taiwo s Taiwo s clinic testimony (Taiwo that Dep. Miller often made inappropriate facial and hand gestures behind African employees backs, including strangling gestures (Taiwo Dep. 159:12-160:10; Taiwo Decl. ¶ 10)3; (7) Taiwo s declaration that Miller told her Max was dumb (Taiwo Decl. ¶ 11);4 (8) Taiwo s 3 Ezeh s use of often and only in the pleadings appears to exaggerate the frequency of several of these occurrences. For example, Taiwo testified that there were so many examples of Miller making inappropriate facial and hand gestures (see Taiwo Dep. 106:18-22), but when asked for specific examples, she stated she only saw it once. (See id. 159:12-160:6). Moreover, Taiwo testified she was not sure whether Miller behaved the same way with non-African employees as she did not observe Miller s interactions with them. (See id. 107:13-18). Similarly, Taiwo testified that Miller only spoke with non-African employees when visiting the clinics, but later testified that she did not see Miller speak with non-African employees that often. (Id. 105:8-106:16). 4 Ezeh s Opposition states that Miller told Ezeh, Weaver, Taiwo, and Fuoud Chehade that Max was dumb. (Pl. s Opp n at 7). Although the declaration claims Miller told Taiwo that Max was dumb, Taiwo testified that Miller did not use that exact word in conversation with her, but that she heard about this alleged statement through Chehade and Weaver, who also heard it from another CM. (Taiwo Dep. 109:4-22, 160:18-163:4). This statement is, therefore, hearsay and cannot be considered on a motion for summary judgment. Greensboro Prof l Fire Fighters 13 testimony that Miller allowed Caucasian employees with poor performance records to transfer while terminating employees of other origins for comparable behavior (Taiwo Dep. 128:15-132:7; Taiwo Decl. ¶ 17); (9) Ezeh s testimony that Miller held her to stricter standards than her Caucasian counterparts, including work hours (Ezeh Dep. 141:4-147:22); (10) Taiwo s testimony that Miller pit African employees against one another to make them quit, which included a method of placing African nurses on the floor to frustrate them to the point of quitting (Taiwo Dep. 100-03, 110:19-111:6, 112:17-113:15, 115-16, 117:5-8, 120:19- 121:3; Taiwo Decl. ¶¶ 8, 12-14); and (11) Taiwo s declaration that it was widely known throughout the company that Miller wanted to terminate African employees (Taiwo Decl. ¶ 9). Of the proffered evidence, the only allegations to have a plausible direct bearing on Ezeh s departure from FMC are (1) Miller s alleged statement that the Africans have got to go, (2) Miller s alleged transfer of Caucasian employees in lieu of the termination she would render to African employees in the same position, (3) testimony that Miller allegedly held Ezeh to stricter performance standards than her Caucasian counterparts, (4) Miller s alleged method of pitting African employees against each other, and (5) the alleged company-wide knowledge Ass n, Local 3157 v. City of Greensboro, 64 F.3d 962, 967 (4th Cir. 1995); see also Bennett v. Kaiser Permanente, --- F.Supp.2d ---, 2013 WL 1149920, at *3 (D.Md. Mar. 20, 2013). 14 that Miller wanted to terminate African employees. The Court will address the proffered evidence in turn. First, Miller s alleged statement that the Africans have got to go is only cited in the Complaint (see Am. Compl. ¶¶ 4, 25), and is not corroborated by the record. The statement is, therefore, hearsay evidence and barred from consideration in a motion for summary judgment. City of Greensboro, 64 F.3d at 967. Second, the alleged transfer of a Caucasian CM with low performance outcomes occurred after Ezeh departed, as she was Ezeh s replacement, and there is a dispute as to whether she left or was transferred. Max testified voluntarily for an unknown location. 15, 2012, ECF No. 47-4). that the CM left (Max Dep. 109:14-19, June Conversely, Taiwo testified that Miller allowed the CM to transfer in lieu of being fired despite her low outcomes. (Taiwo Dep. 129-31; Taiwo Decl. ¶ 17). Irrespective of whether this CM left voluntarily or whether FMC transferred her, however, it occurred after Ezeh s departure and, therefore, has no direct bearing on her separation from FMC. Furthermore, although both deponents referenced the Caucasian CM s low outcomes, neither mentioned that she garnered 15 complaints, or exhibited behavior in a meeting, similar to Ezeh.5 The record is also void of any evidence suggesting the same. Third, Ezeh s allegations that Miller held her to stricter standards than her Caucasian counterparts also fail to establish a motivational link between animus and Ezeh s departure. Ezeh identified favorably. three CMs Miller s alleged discriminatory In support of this allegation, she believed were treated more According to Ezeh, Miller did not reprimand the first CM, K.L., for failing to come to work due to illness. (See Ezeh Dep. 141:4-19). not ill during a water Ezeh admits, however, that K.L. was crisis. (See Ezeh Dep. 144:2-5). Moreover, the record shows that, as Ezeh s immediate supervisor at the time, Max instituted the disciplinary action, not Miller.6 (See Miller Dep. 46:13-49:22, June 14, 2012, ECF No. 47-2; Ezeh Dep. 141:20-143:10; Max Dep. 59:21-61:21). Miller allegedly treated the second CM, M.L., differently than Ezeh by attempting to allow Ezeh to work short of several staff while assisting M.L. with her shortage although M.L. was only short one staff member. (See Ezeh Dep. 144:6-147:11). Again, there is no 5 The record also intimates that Miller permitted an African employee to return to work after he submitted a letter of resignation. (See Miller Dep. 100:12-102:9). 6 Ezeh avers that Miller prompted Max to execute the corrective action. (See Ezeh Dep. 141:20-143:10). Max denies Miller had any involvement, and, even if she did influence Max to proceed with the disciplinary measure, the incident took place before Miller was Ezeh s supervisor. 16 indication of discriminatory animus in this action and no direct bearing on Ezeh s departure from FMC. Finally, Ezeh testified that Miller required her to arrive at 10:00 a.m., but allowed Caucasian CMs to enjoy flexible schedules. (Ezeh Dep. 147:1222). Miller disputes this allegation. (Miller Dep. 45:3-20). Even after resolving this factual dispute in favor of Ezeh, there is no evidence that this restriction had a direct bearing on her departure.7 Fourth, Miller s alleged method of pitting African employees against each other by having them assign other African employees to the floor to frustrate quitting is also insufficient. them to the point of This allegation is based upon three incidents recounted by Taiwo. The first incident involves the transfer of Grace Mubang ( Mubang ) from Taiwo s clinic. According to Taiwo, Miller labeled Mubang a troublemaker and told Taiwo to get rid of her. (Taiwo Dep. 100-03). This 7 Ezeh also avers that Miller discriminatorily instituted disciplinary actions when she caused Ezeh to be written up for the water crisis incident, but disciplined Ezeh for writing up Barton. (See Am. Compl. ¶ 6). The parties disagree as to whether Miller only requested that Ezeh present Barton s written disciplinary actions to Miller for approval, or if Miller outright forbade Ezeh to write up her employees. (See Ezeh Dep. 110; Miller Dep. 91). Even if Miller requested that Ezeh refrain from writing up employees, there is no evidence offered that this was based on racial motivations. Moreover, there is evidence in the record that Miller also requested that a Caucasian CM submit a written disciplinary note for approval. (See Def. s Mot. Summ. J. Ex. 26, ECF No. 47-26). Finally, Barton is not a plausible comparator because she is a nurse with different job duties and responsibilities, not a CM. 17 incident fails to bear directly on Ezeh s departure from FMC because Mubang was ultimately transferred to another FMC clinic under Miller s supervision, not fired. (Taiwo Dep. 104:9-12). Moreover, Taiwo testified that she had no knowledge of the basis of Miller s alleged request. (Id.) The second incident involves an allegation that Miller told Taiwo to place an older African nurse on the floor to frustrate [her] to the point of quitting. identifies does not 113:15). (Pl. s Opp n at 8). the referenced support the nurse Taiwo s deposition, however, as proposition. Caucasian (See and, Taiwo therefore, Dep. 112:17- The final incident allegedly involves Miller directing Taiwo s nurse, Marianne, to instruct Taiwo to work the floor. (See Taiwo Decl. ¶ 14). Similar to the older nurse referenced above, however, Marianne is Caucasian, not of African descent. (Taiwo Dep. 117:5-8). Finally, throughout the Taiwo declares company that workers of African origin. this declaration is Taiwo s that Miller it was wanted to (Taiwo Decl. ¶ 9). observation of widely known terminate the The basis of Miller s body language and the allegation that she only spoke to non-African employees when visiting the clinics. 106:16). (See Taiwo Dep. 104:13- Again, this evidence fails to raise an inference that national origin was a motivating factor in Ezeh s departure. 18 Taken as a whole, Ezeh s evidence is insufficient for a jury to reasonably conclude that race or national origin were motivating factors in Ezeh s departure. For the foregoing reasons, Ezeh has failed to offer sufficient evidence to survive a motion for summary judgment under the mixed-motive analysis. 2. Burden-Shifting Analysis As previously mentioned, Ezeh did not engage in the burdenshifting analysis presented in McDonnell Douglas Corp. Pl. s Opp n at 18). That framework first requires (See Ezeh to establish a prima facie case of employment discrimination by showing that (1) she is in a protected class; (2) she suffered an 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 employment action; and (4) the position remained open or was filled by applicants outside the protected class. similarly qualified Bonds v. Leavitt, 629 F.3d 369, 386 (4th Cir. 2011) (citation and internal quotation marks omitted). The record shows that Ezeh was not meeting FMC s legitimate expectations at the time of her departure. To the contrary, the record provides that Ezeh had difficulty managing her team and their schedules (see Miller Dep. 22:20-35:21, 42:8-46:12, 55:856:19, 64:14-65:1, 98:19-99:22; Max Dep. 28:14-41:20, 44:11- 46:22, 67:9-69:15, 90:2-21, 114:15-115:18, 118:3-119:2; Schultz 19 Dep. 60:4-61:13, Nov. 2, 2012, ECF No. 47-10), produced low outcomes Wilson (see Aff. Miller ¶ 4, Dep. ECF 36:3-42:7; No. 47-14; Max Dep. Developmental 112:10-113:8; Action Plan [ DAP ], ECF No. 47-17), and yelled at her supervisors during the September 14, 2009 meeting before walking out (see Miller Dep. 65:7-13; Ezeh Dep. 186:17-187:16; 94:22), among other things. Max Dep. 91:3, 92:7- The record also shows that Miller and Max intended to present Ezeh with a developmental action plan, outlining several of the aforementioned issues, after the September 14 meeting. 117:13-18; DAP). regarding her (Miller Dep. that Ezeh Max Dep. Moreover, Ezeh does not refute FMC s evidence performance nor does regarding the level of her performance. finds 58:18-59:16; would not be she produce evidence Accordingly the Court successful under the burden- shifting analysis presented in McDonnell Douglas Corp. because, at the time of her departure, she was not performing her job duties at a level that met FMC s legitimate expectations. B. Retaliation (Count II) Summary judgment is appropriate on Ezeh s retaliation claim because the record provides no causal link between her alleged protected activity and her departure from FMC. Title VII prohibits an employer from discriminat[ing] against any of [its] employees . . . because [the employee] opposed any practice made an unlawful employment practice by 20 this subchapter . . . . 42 U.S.C. § 2000e-3(a). The initial burden is on Ezeh to establish a prima facie case of retaliation under Title VII. E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). Ezeh to demonstrate This prima facie showing requires that (1) she engaged in a protected activity; (2) FMC took an adverse employment action against her; and (3) the adverse employment action was causally connected to Ezeh s protected activity. Holland v. Wash. Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007). burden, FMC legitimate, can defend itself non-discriminatory employment action. Once Ezeh has met this initial by reason producing for evidence taking the of a adverse Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 188 (4th Cir. 2008) (citation and internal quotation marks omitted). Ezeh fails to produce evidence that satisfies the causal element of the prima facie test. In Count II Ezeh alleges that FMC retaliated against her by terminating her in response to the September 14, 2009 e-mail to Booth and Wilson. nor Max departure. 18). were aware of Ezeh s e-mail at the Neither Miller time of her (See Wilson Aff. ¶ 7; Booth Aff. ¶ 4, ECF No. 47- Therefore, there is no causal link between the September 14 e-mail and Ezeh s departure from FMC. See, e.g., Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998) (stating the employer s knowledge that the 21 plaintiff engaged in a protected activity is absolutely necessary to establish the third element of the prima facie case ). Moreover, although Ezeh called FMC s human resources line to complain about the alleged discriminatory treatment, she did not do so until after her separation from FMC. (See Schultz Dep. 49:2-7). Accordingly, FMC s Motion is granted as to Ezeh s retaliation claim. IV. CONCLUSION For the foregoing reasons, the Court GRANTS FMC s Motion for Summary Judgment. (ECF No. 47). A separate Order follows. Entered this 1st day of May, 2013 ________/s/_________________ George L. Russell, III United States District Judge 22

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