Filed: Nov. 20, 2002
Latest Update: Mar. 28, 2017
Summary: Filed: November 20, 2002 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 01-1675 (CA-00-1264-A) Jano M. Siraj, Plaintiff - Appellant, versus The Hermitage in Northern Virginia, Defendant - Appellee. O R D E R The court amends its opinion filed November 15, 2002, as follows: On page 2, opening line of text - “PER CURIAM” is corrected to read “BROADWATER, District Judge.” For the Court - By Direction /s/ Patricia S. Connor Clerk UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH
Summary: Filed: November 20, 2002 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 01-1675 (CA-00-1264-A) Jano M. Siraj, Plaintiff - Appellant, versus The Hermitage in Northern Virginia, Defendant - Appellee. O R D E R The court amends its opinion filed November 15, 2002, as follows: On page 2, opening line of text - “PER CURIAM” is corrected to read “BROADWATER, District Judge.” For the Court - By Direction /s/ Patricia S. Connor Clerk UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH ..
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Filed: November 20, 2002
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-1675
(CA-00-1264-A)
Jano M. Siraj,
Plaintiff - Appellant,
versus
The Hermitage in Northern Virginia,
Defendant - Appellee.
O R D E R
The court amends its opinion filed November 15, 2002, as
follows:
On page 2, opening line of text -- “PER CURIAM” is corrected
to read “BROADWATER, District Judge.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
JANO M. SIRAJ,
Plaintiff-Appellant,
v. No. 01-1675
THE HERMITAGE IN NORTHERN
VIRGINIA,
Defendant-Appellee.
4444444444444444444444444444444444444444444444448
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonard D. Wexler, Senior District Judge,
sitting by designation.
(CA-00-1264-A)
Argued: April 4, 2002
Decided: November 15, 2002
Before NIEMEYER, Circuit Judge, HAMILTON,
Senior Circuit Judge, and W. Craig BROADWATER,
United States District Judge for the
Northern District of West Virginia, sitting by designation.
____________________________________________________________
Affirmed in part, reversed in part, and remanded by unpublished opin-
ion. Judge Broadwater wrote the majority opinion. Senior Judge
Hamilton joined and wrote a separate concurring opinion as to Part
III. Judge Niemeyer wrote an opinion concurring in the judgment
reached in Part III and dissenting as to Parts IV and V.
____________________________________________________________
COUNSEL
ARGUED: Michael Patrick Deeds, KESTELL & ASSOCIATES,
Falls Church, Virginia, for Appellant. David Clay Simmons, Wash-
ington, D.C., for Appellee. ON BRIEF: James L. Kestell, KESTELL
& ASSOCIATES, Falls Church, Virginia, for Appellant. Thomas A.
Cooper, KANE, JEFFRIES, GAYLE, MCGARTH & COOPER,
Richmond, Virginia, for Appellee.
____________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
____________________________________________________________
OPINION
BROADWATER, District Judge:
Jano M. Siraj sued her employer, The Hermitage in Northern Vir-
ginia, alleging discriminatory treatment in violation of Title VII of the
Civil Rights Act, 42 U.S.C. § 2000e et seq. The district court granted
the employer's motion for judgment as a matter of law at the conclu-
sion of the plaintiff's case, finding no evidence to support Siraj's
claim of race discrimination or national origin. We affirm in part,
reverse in part, and remand.
I.
Judgment as a matter of law is proper only if "there can be but one
reasonable conclusion as to the verdict." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). In considering the merits of a motion
for judgment as a matter of law, the district court "should review all
of the evidence in the record," but "draw all reasonable inferences in
favor of the nonmoving party, and it may not make credibility deter-
minations or weigh the evidence." Reeves v. Sanderson Plumbing
Products, Inc.,
530 U.S. 133, 150 (2000). All evidence in the record
that the jury is not required to believe must be disregarded. Id. at 151.
"That is, the court should give credence to the evidence favoring the
nonmovant as well as that evidence supporting the moving party that
is uncontradicted and unimpeached, at least to the extent that that evi-
dence comes from disinterested witnesses." Id. (internal quotation
marks omitted). We review a district court's granting of a motion for
2
judgment as a matter of law de novo. Anderson v. Russell, 247 F.3d
125, 129 (4th Cir. 2001).
II.
The following facts are presented in accordance with the manner
in which, as set forth above, our court is required to view the evidence
in this case.
A. Siraj's Background
Siraj was born and raised in Ethiopia from where she immigrated
to the United States in 1979. She is black and holds a bachelor's
degree in finance from Long Island University.
For a little more than six years, VUMH employed Siraj at its nurs-
ing home facility known as "The Hermitage in Northern Virginia"
(the Nursing Home).1 From June 19, 1990, until her discharge on Sep-
tember 25, 1996, Siraj held the position of Personnel Coordinator at
the Nursing Home. In this position, Siraj was responsible for all per-
sonnel functions at the Nursing Home with respect to the Nursing
Home's approximately 250 employees. Siraj's specific duties
included processing payroll, maintaining personnel files, coordinating
health insurance benefits, and coordinating retirement benefits.
Siraj also held the position of Business Office Assistant at the
Nursing Home from September 1992 until her discharge by Christo-
pher Henderson (Henderson) in September 1996. In the position of
Business Office Assistant, Siraj was responsible for accounts receiv-
able, which included keeping accounting records of all the payments
and entry fees of the Nursing Home's approximately 250 residents.
After performing the accounts receivable function for approximately
____________________________________________________________
1
The Hermitage in Northern Virginia is merely a trade name for
VUMH. As such the Hermitage in Northern Virginia is not a separate
legal entity capable of being sued. Snowden v. Checkpoint Check Cash-
ing, 290 F.3d 631, 634 (4th Cir. 2002) (a trade name "is not a separate
legal entity capable of being sued"). Thus, for purposes of this separate
opinion, VUMH, as the real party in interest, will be treated as the proper
defendant/appellee.
3
two months, Siraj received a $2,392 per annum raise to compensate
her for the additional responsibility. She also received a $1,040 per
annum raise two months later. Thus, by November 1992, Siraj's
annual pay was $25,480.2
Siraj consistently received above average performance evaluations
and coinciding pay raises during her employment at the Nursing
Home. Notably, just three months prior to the time Henderson termi-
nated Siraj, he gave her a $1,040 per annum raise; this was the same
amount of raise that he had given her the year before. In the most
recent of Siraj's annual performance evaluations (for the period June
1, 1994 to May 31, 1995), Henderson rated the quality of Siraj's work
"very high, accuracy and thoroughness beyond ordinary job require-
ments." (J.A. 270). He also rated her as "extremely dependable in all
respects" as far as being able to carry out instructions, fulfill responsi-
bilities, and follow established procedures and policies. (J.A. 273). In
all other categories of performance, including "Cooperation," and
"Job Knowledge," Henderson rated Siraj as either meeting or exceed-
ing expectations. (J.A. 271). Henderson also handwrote on the perfor-
mance evaluation that Siraj "is very conscientious about her work
. . .[,] has many demanding peak points[,] and she handles them all
very well."3 (J.A. 270). With the exception of the incident in Septem-
ber 1996, involving the two personnel files for Maintenance Depart-
ment employees that Siraj provided for the inspection by Virginia's
Department of Social Services (the Social Services Department),
Henderson never once complained to Siraj about any problems con-
cerning her performance.
____________________________________________________________
2
Prior to Siraj performing the accounts receivable function, that func-
tion was performed by Toni Ostrowski (Ostrowski), the Nursing Home's
Business Office Manager. Ostrowski left her position at the Nursing
Home in September 1992 and was soon replaced by the woman who had
been her assistant, Linda Mendoza (Mendoza). Thus, even though Men-
doza replaced Ostrowski as Business Office Manager, Siraj rather than
Mendoza performed the accounts receivable function beginning in Sep-
tember 1992.
3
Henderson was not the person who hired Siraj in 1990. Rather, Hen-
derson's predecessor, Ed Burch (Burch), hired her. Henderson became
the Administrator of the Nursing Home in January 1994. Prior to this
time, Henderson had served as Assistant Administrator under Burch.
4
B. Mendoza Resigns in 1995 And Is Not Replaced
In December 1995 Mendoza began a three-month leave of absence.
At the end of such leave of absence, she resigned as the Nursing
Home's Business Office Manager. Beginning in December 1995,
Siraj was expected to perform all functions of the Business Office
except the accounts payable function, which could be done in two
hours per week. Thus, in addition to performing her functions as the
Personnel Coordinator and performing the accounts receivable func-
tion, Siraj now became responsible for physically keeping the Nursing
Home's Business Office open for residents of the Nursing Home from
8:30 a.m. until 12 noon. With respect to the residents, the Business
Office operated like a bank. Thus, residents would line-up to cash
checks, deposit checks, make payments, and deposit and retrieve
valuables from the Nursing Home's vault. With all of the extra Busi-
ness Office functions that Siraj now assumed, she worked between a
fifty and sixty-hour work week, although VUMH only paid her for a
forty-hour work week. Henderson assigned the accounts payable
function to his white, American born administrative assistant, Joan
Watkins (Watkins).4
In December 1995, Henderson gave Siraj a written order that Wat-
kins' salary be raised $5,000 per annum. When shortly thereafter Siraj
asked Henderson why he gave Watkins the raise, Henderson
responded that he did so because Watkins had taken on the additional
responsibility of accounts payable. At trial, Siraj testified, which testi-
mony must be credited in this appeal, that the following exchange
between her and Henderson then took place:
I said, accounts payable is a very small portion of the
Business Office. I am doing two big departments and it is
very hard for me. Even I thought [Mendoza] was coming
[back from her leave of absence] and I was patient. And
even when [Mendoza] was on vacation, I have to cover her,
____________________________________________________________
4
At the time VUMH promoted Henderson to Administrator in January
1994, Watkins held the position of Assistant to the Nursing Home's
Administrator's Assistant, Pearl Kissenger. Watkins continued in that
position for a few months following Henderson's promotion until Pearl
Kissenger left the employ of VUMH.
5
two weeks, three weeks at a time and I wasn't compensated
for it.
So, I asked him why is this? [Watkins] is only given a lit-
tle, once a week just to post these things. And how come
you don't give me anything for everything that I do for two
departments?
He said, you are the highest paid Personnel Coordinator
in the company. And then I tried to tell him, try to under-
stand I am doing two jobs, I am doing accounts receivable,
which [Ostrowski] was paid 26,000 for it, plus my own Per-
sonnel Department.
And he say, I don't have, I don't have money for you.
(J.A. 136).
At the time this conversation took place, Siraj was making $28,496
per annum. The pay raise ordered for Watkins raised her to a salary
of $31,720 per annum. At this time, Siraj did not complain to Hender-
son that his refusal to give her a raise or his decision to give Watkins
a raise was motivated by race or national origin discrimination.
During this same period, Siraj repeatedly asked Henderson for
overtime pay, but he refused. He also refused an alternative request
by Siraj to hire an assistant to help her. Henderson told Siraj that he
did not have money to hire an assistant to help her. Again, Siraj made
no accusations of race or national origin discrimination.
Approximately two months after Henderson told Siraj that he did
not have money to hire an assistant to help her, Henderson hired a
temporary employee for between three and four months to perform
the accounts payable function for which Watkins had received the
$5,000 raise. When asked during her direct examination at trial
whether she had asked Henderson about this new hire, Siraj
responded as follows:
Yeah. I asked him, you don't have money for me, I am
suffering, you don't have money for me to hire assistant, but
6
you hire assistant—I mean, it is not fair, you are doing
something wrong here. And I told him, you have to either
hire somebody in the Business Office or I cannot—I mean,
I am really tired. I couldn't sleep.
I have a small child, I have to be there. Always he called
two, three, four, five times he cry on the phone. He say, all
you care about is your job, and what time are you coming
home.
And I couldn't leave the office, the work has to be done
at least daily basis.
(J.A. 140). Henderson responded that if she was not happy, she could
leave. As before, Siraj did not accuse Henderson at this time of hiring
the temporary assistant to help Watkins as opposed to her on the basis
of race or national origin discrimination.
C. Events Leading Up to Siraj's Discharge
The Commonwealth of Virginia (Virginia) regulates the hiring of
personnel at elderly care facilities. As part of that regulation, Virginia
requires, prior to an elderly care facility hiring a prospective
employee, that the prospective employee must undergo a police back-
ground check and two prior employer reference checks. Virginia law
also requires a precise job description for every position filled. To
ensure compliance with these and other requirements of Virginia law,
Virginia's Department of Health and the Social Services Department
conducts various inspections of elderly care facilities in Virginia.
Department Heads at the Nursing Home bore the responsibility of
submitting the required documentation for new employees to Siraj.
Siraj, in turn, bore the responsibility for maintaining in separate per-
sonnel files the documentation that she received from the Department
Heads with respect to each new employee. If Siraj did not receive the
required documentation with respect to a new employee, she routinely
used several methods of reminding the appropriate Department Head
about the deficiency. This included sending written memoranda, con-
tacting the appropriate Department Head by telephone, and/or speak-
ing to him or her in person.
7
Sometime in 1994, James Fortmuller (Fortmuller) became the head
of the Maintenance Department at the Nursing Home. Fortmuller fre-
quently hired employees into the Maintenance Department without
providing Siraj the necessary job description and paperwork regarding
the police check and reference checks as required by Virginia law.
Siraj regularly reminded Fortmuller both orally and in writing that he
needed to submit the required paperwork for the employees in his
department. In one case, Fortmuller delayed eight months in submit-
ting the required paperwork for three employees even though Siraj
sent him reminder memorandums on a monthly basis.
Frustrated by the failure of Fortmuller and other Department Heads
to submit the required paperwork needed to complete the personnel
files, Siraj informed Henderson at every weekly staff meeting about
the failures. Siraj also stressed to Henderson in July and August 1996
of the urgent need for Department Heads to submit the required
paperwork due to the upcoming annual inspection in September 1996
of the personnel files by the Social Services Department. In this
regard, Siraj told Henderson: "[T]he inspection time is coming, you
have to do something, you are the only one who can enforce these
[D]epartment Heads to submit the missing documents. And if any-
thing happens, I mean, I told you." (J.A. 148).
Prompted by Siraj's warnings, Henderson instructed by written
memorandum all Department Heads to submit the required paperwork
to Siraj in order to complete the personnel files for their respective
departments. Although most Department Heads complied with the
memorandum, Fortmuller did not. When Siraj so informed Henderson
of this fact in mid-August 1996, Henderson just told Siraj that he
"will talk to [Fortmuller] again." (J.A. 149). When Fortmuller, shortly
thereafter, still had not submitted the required paperwork, Siraj told
Henderson:
I did everything I can in my power to get the information
from the [D]epartment Heads. And especially from Mr.
Fortmuller.
[F]rom now on if anything happens in the inspection, any
citation or anything, you two are responsible. I have noth-
ing, I cannot force the Directors in the same management
8
level that I was. And you are the one, their boss and my
boss, you can enforce it, but I cannot enforce it.
(J.A. 151-52).
Sometime in September 1996, the Social Services Department
began its inspection of the Nursing Home. The inspectors requested
that Henderson provide the personnel files on two employees from
each department who were hired within the last six months to a year.
(J.A. 154, 203). Henderson in turn ordered Siraj to assemble such
files for inspection "right away." (J.A. 154). Siraj used her best efforts
to assemble the files requested and promptly hand-delivered them to
Henderson's office. The only files from the Maintenance Department
that met the requested criteria were incomplete because Fortmuller
had failed to provide the required paperwork. So upon delivery, Siraj
warned Henderson "these are the files. But as you know, the Mainte-
nance Department files, the two files, that you know and I know they
are not complete." (J.A. 154-55). Siraj also told Henderson that the
two files from the Maintenance Department were on top of the stack
of files that she had hand-delivered. Additionally, Siraj left a yellow
sticky note on top of the two files from the Maintenance Department
indicating that they were not complete. Without further comment,
Henderson told Siraj to give the entire stack of files to Watkins and
leave. Siraj did as instructed.
The very day following the inspection, Henderson called Siraj into
his office and told her that she should resign. When she asked him
why, he responded only that "[the Social Service inspectors] found
the Maintenance [Department] files weren't complete." (J.A. 156).
Siraj tried in vain to remind Henderson that she had repeatedly told
him about the difficulty she had experienced in getting Fortmuller to
respond to her reminders to update his files. Henderson told her that
he did not want to hear her excuses and insisted that she resign. When
Siraj refused to resign, Henderson discharged her.
Siraj then requested that Henderson "give [her] something in writ-
ing why [he was] terminating [her]." (J.A. 158). While Siraj gathered
her belongings, Henderson gave her a document entitled "EM-
PLOYEE DOCUMENTATION." (J.A. 279). In pertinent part, it
stated as follows: "On Wednesday, September 25, 1996, Ms. Jano
9
Siraj was terminated due to poor performance of job duties. When I
discussed this with Ms. Siraj, she blamed all others except herself.
This is a very common defense of Ms. Siraj's." (J.A. 279).
D. Post-Termination
After her termination, Siraj filed for unemployment compensation.
Initially, VUMH successfully challenged her claim on the ground of
poor performance, i.e., that she provided two incomplete files for the
Social Services Department's 1996 inspection. However, after pro-
ducing her performance evaluations showing that she was an exem-
plary employee and copies of the reminder memos to Fortmuller to
update his files, Siraj was awarded unemployment benefits.
E. VUMH's Employee Handbook
VUMH's Employee Handbook provides that there are two levels
of infractions. The first level of infractions includes, inter alia, unsat-
isfactory performance of duties, unexcused absences, and violation of
safety rules. The second level of infractions includes, inter alia, any
deliberate act not in the best interest of VUMH. The first level of
infractions called for a progressive system of discipline: a first offense
was met with an Employee Action Report, a second offense resulted
in one to thirty days probation or one to ten days suspension, and a
third offense resulted in discharge. A second level infraction simply
resulted in dismissal. VUMH's Handbook required that no discipline
would be imposed for an infraction without an investigation by
VUMH.
III.
Addressing the merits of Siraj's retaliatory discharge claim, Title
VII prohibits discrimination against any employee who "has opposed
any . . . unlawful employment practice" under Title VII. 42 U.S.C.
§ 2000e-3(a). Title VII makes it unlawful "to discriminate against any
individual with respect to his compensation . . . because of such indi-
vidual's" race or national origin. 42 U.S.C. § 2000e-2(a)(1).
To prove a prima facie case of retaliatory discharge, Siraj must
show: (1) that she engaged in protected activity; (2) that her employer
10
took adverse employment action against her; and (3) a causal connec-
tion existed between the protected activity and the adverse action. See
Causey v. Balog, 162 F.3d 795, 803 (4th Cir. 1998).
It is undisputed that Siraj suffered an adverse employment action
and therefore satisfies the second requirement of the prima facie case:
she was terminated. See Hartsell v. Duplex Products, Inc., 123 F.3d
766, 775 (4th Cir. 1997) (noting that termination is an adverse
employment action). As to the first requirement, Siraj voiced her
opinion to Henderson that she was being paid less than Caucasian co-
workers. Protected activities include opposition activities such as uti-
lizing informal grievance procedures as well as staging informal pro-
tests and voicing one's opinions in order to bring attention to an
employer's discriminatory activities. See Laughlin v. Metropolitan
Washington Airports Authority,
149 F.3d 253, 259 (4th Cir. 1998).
Therefore, Siraj has also met the first requirement because her
remarks to Henderson were protected opposition activities.
However, Siraj failed to establish the third requirement of a prima
facie case of retaliatory discharge. She provided no casual connection
between her termination and her complaints concerning disparity in
pay. Siraj testified that she was terminated due to the problem with
the deficient personnel files not because of the opinions she expressed
to Henderson. Thus, the district court was correct in holding, as a
matter of law, that Siraj failed to make a prima facie case of retalia-
tory discharge.
IV.
Turning to Siraj's discriminatory discharge claim, Title VII prohib-
its an employer from, inter alia, discharging an employee because of
such employee's race or national origin. 42 U.S.C. § 2000e-2(a)(1).
Siraj sought to prove that VUMH discharged her because of her race
and national origin in violation of Title VII under the familiar
McDonnell Douglas burden-shifting proof scheme. McDonnell Doug-
las Corp. v. Green, 411 U.S. 792 (1973). Under that proof scheme,
Siraj initially had the burden of establishing a prima facie case of dis-
criminatory discharge. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 142 (2000). To prove a prima facie case of discrimina-
tory discharge, Siraj must show that: (1) she is a member of a pro-
11
tected class; (2) she was qualified for her job and her job performance
was satisfactory; (3) that, in spite of her qualifications and satisfactory
performance, she was discharged; and (4) that the position remained
open to similarly qualified applicants after her dismissal or was filled
by a member outside the protected class. Reeves, 530 U.S. at 142;
Karpel v. Iova Health System Services, 134 F.3d 1222, 1228 (4th Cir.
1998). Once Siraj establishes the elements of her prima facie case, the
burden shifts to VUMH to proffer evidence of a legitimate, non-
discriminatory reason for her discharge. Reeves, 530 U.S. at 142.
"This burden is one of production, not persuasion; it can involve no
credibility assessment." Id. (internal quotation marks omitted).
Once VUMH meets its burden of production, the McDonnell
Douglas framework, with its presumptions and burdens, disappears,
and the sole remaining issue is discrimination vel non. Reeves, 530
U.S. at 142-43. Significantly, under Reeves, "a plaintiff's prima facie
case, combined with sufficient evidence to find that the employer's
asserted justification is false, may permit the trier of fact to conclude
that the employer unlawfully discriminated." Id. at 148. This is
because "once the employer's justification has been eliminated, dis-
crimination may well be the most likely alternative explanation, espe-
cially since the employer is in the best position to put forth the actual
reason for its decision." Id. at 147. The examples that the Supreme
Court gave to illustrate when such a showing is insufficient to get the
plaintiff's Title VII claim to the jury is where "the record conclusively
revealed some other, nondiscriminatory reason for the employer's
decision, or if the plaintiff created only a weak issue of fact as to
whether the employer's reason was untrue and there was abundant
and uncontroverted independent evidence that no discrimination had
occurred." Id. at 148. Applying this burden-shifting proof scheme to
the evidence as our court is required to view it (in the light most
favorable to Siraj and disregarding all evidence the jury is not
required to believe) leads to the conclusion that the district court erred
by granting VUMH's motion for judgment as a matter of law with
respect to Siraj's discriminatory discharge claim based upon race and
national origin.
Siraj presented sufficient evidence to establish a prima facie case
of discriminatory discharge based on her race and national origin.
First, there is no dispute that, as a black person of Ethiopian national
12
origin, Siraj is a member of two protected classes. Thus, she meets the
first element of a prima facie case of discriminatory discharge. Sec-
ond, from her consistently overall above average performance evalua-
tions (including some very complimentary statements about the
quality of her work) and the not insubstantial pay raise that she
received a mere three months before her discharge, a reasonable jury
could find that Siraj established the second element of a prima facie
case of discriminatory discharge, i.e., that at the time of Siraj's dis-
charge she was qualified and her job performance was satisfactory.
Therefore, we conclude that Siraj presented sufficient evidence for a
reasonable jury to believe that she performed satisfactorily with
regard to these two files.
Siraj's story, which we must credit for purposes of this appeal, is
that: (1) she used every avenue available to her, including enlisting
the direct and willing aid of Henderson as Fortmuller's boss, to
prompt Fortmuller to provide her with the required paperwork to
complete the personnel files for the Maintenance Department; (2)
because all of the Maintenance Department personnel files for
employees hired within six months to a year preceding the inspection
were incomplete on account of Fortmuller, she had no choice but to
select incomplete Maintenance Department files in connection with
the inspection; and (3) she verbally and in writing (i.e., with the yel-
low sticky note) warned Henderson at the time she delivered the files
for inspection that the two Maintenance Department personnel files
were incomplete, due to Fortmuller's omission. This gave Henderson
one last opportunity to obtain the missing paperwork from Fortmuller
before he turned the stack of files over to the Social Services Depart-
ment for inspection. There is no evidence in the record that the jury
would be required to believe to support a finding that VUMH
expected Siraj to act differently than she did in connection with the
incomplete Maintenance Department files.
There is no dispute that because VUMH discharged Siraj, she has
met the third element of a prima facie case of discriminatory dis-
charge. Fourth and finally, the evidence establishes that Watkins
(white and American born) replaced Siraj as Personnel Coordinator
immediately after VUMH discharged Siraj and that Watkins served
in that position for at least one year.
13
At this point, the burden shifts to VUMH to proffer a legitimate,
nondiscriminatory reason for Siraj's discharge. Although the district
court dismissed this case prior to requiring VUMH to meet its burden
of production in this regard, throughout this litigation, VUMH has
maintained that it discharged Siraj because she deliberately sought to
sabotage its performance in the Social Services Department's 1996
inspection by choosing incomplete files for the inspectors to review.5
For purposes of appellate review, VUMH has met its burden of pro-
duction.
With VUMH having met its burden of production, the McDonnell
Douglas framework, with its presumptions and burdens, disappears,
and the sole remaining issue is discrimination vel non. Reeves, 530
U.S. at 142-43. The record reveals that Siraj made a substantial show-
ing that VUMH's proffered reason for discharging her was false.
First, the record shows that in the months and weeks leading up to the
Social Services Department's 1996 inspection, Siraj did everything in
her power, including enlisting the direct aid of Henderson as Fortmul-
ler's boss, to compel Fortmuller to turn over the required paperwork
to complete the personnel files for the Maintenance Department
before the inspection. For example, Siraj regularly reminded Fortmul-
ler of the deficiencies in the files for the Maintenance Department,
both orally and in writing. Siraj also diligently informed Henderson
at every weekly staff meeting about the same deficiencies and the
urgency to correct them due to the upcoming inspection. Henderson
acknowledged that Siraj was powerless to force Fortmuller and the
other department heads to submit the required paperwork when he
instructed them to do so by written memorandum. Moreover, when
Siraj informed Henderson in mid-August 1996 that Fortmuller had
not complied with Henderson's written memorandum, Henderson told
Siraj that he would talk to Fortmuller again. When viewed in the light
most favorable to Siraj, this evidence clearly shows that far from har-
boring an intent to sabotage VUMH in the Social Services Depart-
ment's 1996 inspection, Siraj went to great lengths to insure that
VUMH performed well in the inspection with respect to the personnel
files.
____________________________________________________________
5
In its appellate brief, VUMH seems to suggest that Siraj intended to
deliberately harm VUMH because she was a disgruntled employee.
14
Second, the evidence, viewed in the light most favorable to Siraj,
shows that Siraj used her best efforts to select the most complete files
for the inspection. Through no fault of her own, she had only incom-
plete files to choose from with respect to the Maintenance Depart-
ment. This is in direct conflict with VUMH's proffered sabotage
theory.
Third, and also in direct conflict with VUMH's proffered sabotage
theory, is the fact that when Siraj hand-delivered the stack of files for
the inspection to Henderson, she expressly warned Henderson that the
two files from the Maintenance Department were incomplete, even
going so far as to flag those files as incomplete with a sticky note. If
Siraj had truly intended to sabotage VUMH's performance in the
inspection, she would not have taken these actions.
Fourth, the fact that VUMH shifted its stated reason for discharg-
ing Siraj over time is further proof that VUMH's proffered reason for
Siraj's discharge is unworthy of credence. EEOC v. Sears, 243 F.3d
846, 852-53 (4th Cir. 2001) (employer's shifting reasons for adverse
employment action is, in and of itself, probative of pretext). When
Siraj asked Henderson at the time of her discharge to tell her the rea-
son why he decided to discharge her, Henderson only told Siraj that
it was because "[the Social Service inspectors] found the maintenance
files weren't complete." (J.A. 156). Not a single word was uttered to
the effect that Siraj deliberately selected incomplete files from the
Maintenance Department in an effort to sabotage VUMH's perfor-
mance in the inspection. Similarly, in a document entitled "EM-
PLOYEE DOCUMENTATION" and given to Siraj on the day of her
discharge, Henderson stated that Siraj was being discharged "due to
poor performance of job duties." (J.A. 279). Again, no mention of
sabotage.
While a reasonable jury, viewing the evidence in the light most
favorable to VUMH, could find that sabotage is encompassed by the
term "poor performance," and thus, VUMH has not really shifted its
reason over time for discharging Siraj; such a view of the evidence
is impermissible on our review from the district court's grant of judg-
ment as a matter of law. As stated previously, we are required to view
the evidence in the light most favorable to Siraj. So viewing shows
that a reasonable jury could find that when Henderson gave poor per-
15
formance as the reason for discharging Siraj on the day of her dis-
charge, he meant that she was negligent in maintaining the personnel
files and negligent in selecting the personnel files for the inspection.
This means that the reason VUMH now proffers as its legitimate non-
discriminatory reason for discharging Siraj, i.e., sabotage, is a signifi-
cant change from the reason Siraj was given at the time of her
discharge. The reason given at the time of her discharge rests on unin-
tentional carelessness, while, in contrast, the reason proffered by
VUMH throughout this litigation rests upon deliberate acts taken with
the intent to harm. Dennis v. Columbia Colleton Medical Center, Inc.,
290 F.3d 639, 647 (4th Cir. 2002) ("The fact that an employer has
offered inconsistent post-hoc explanations for its employment deci-
sions is probative of pretext . . . .").
Henderson knew that Siraj had done everything in her power to
insure the completeness of all personnel files before the inspection.
He also knew that VUMH's Employee Handbook required progres-
sive levels of discipline before an employee could be discharged for
poor performance. However, the Employee Handbook did not require
progressive levels of discipline for a deliberate act by an employee
who intended to harm VUMH. Thus, a reasonable jury could expect
that at the time of Siraj's discharge Henderson would have given sab-
otage as the reason for her discharge, if it was the actual reason. The
evidence just outlined is more than sufficient for a reasonable jury to
find that VUMH's proffered reason for discharging Siraj is not true.
This is a situation where the plaintiff's prima facie case, combined
with the above outlined evidence which is sufficient for a reasonable
jury to find that the employer's proffered reason is false, permits the
trier of fact to infer that VUMH discharged Siraj in violation of Title
VII, 42 U.S.C. § 2000e-2(a)(1). Furthermore, this is certainly not the
type of case suggested by Reeves in which "no rational factfinder
could conclude that the action was discriminatory." Reeves, 530 U.S.
at 148. The record in this case does not conclusively reveal some
other, nondiscriminatory reason for VUMH's decision to discharge
Siraj. This is also not a case where the plaintiff only created a weak
issue of fact as to whether VUMH's proffered reason was false and
the record contained abundant and uncontroverted independent evi-
dence that no discrimination has occurred. Id. Thus, there was suffi-
cient evidence with respect to Siraj's discriminatory discharge claim,
16
and therefore, the district court improperly granted judgment as a
matter of law.
V.
Siraj's final claim is that she established a prima facie case of wage
discrimination. In order to make out a prima facie case of wage dis-
crimination, the plaintiff must show: (1) that she is a member of a
protected class and (2) that the job she occupied was similar to higher
paying jobs occupied by employees outside the protected class. See
Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 343 (4th Cir.
1994). Once a prima facia case has been established, the burden then
shifts to the employer to articulate a legitimate reason for the pay dis-
parity. See id.
As a black Ethiopian female, Siraj is clearly a member of a pro-
tected class. Thus, she has clearly established the first element of a
wage discrimination claim. Siraj also established that the job she
occupied was similar to the position held by Watkins and that she was
paid less than Watkins. Under Marist College, two parties are simi-
larly situated if their job requirements are similar in the level of com-
petency, education, and requirements. See McEleney v. Marist
College, 239 F.3d 476 (2nd Cir. 2001). Siraj offered ample evidence
that her job required at least equal skill, effort and responsibility as
Watkins' job. Therefore, the burden shifted to VUMH to articulate a
legitimate reason for the pay disparity. Because no reason was articu-
lated by VUMH, the district court improperly granted judgment as a
matter of law on Siraj's wage discrimination claim. Accordingly, we
must remand this issue to the district court.
VI.
In sum, we affirm the district court's granting of VUMH's motion
for judgment as a matter of law as to Siraj's claim of retaliatory dis-
charge. We reverse the district court's dismissal of Siraj's claims of
racial discrimination or national origin and wage discrimination. We
remand these issues to the district court.
AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED
17
HAMILTON, Senior Circuit Judge, concurring in part and concurring
in judgment:
I concur in all parts of Judge Broadwater's opinion with the excep-
tion of Part III, which addresses Siraj's retaliatory discharge claim.
While I agree with the opinion's affirmance of that claim, I would
affirm on the ground that Siraj's discharge did not follow any activity
on her part protected by Title VII.
I.
Siraj's retaliatory discharge claim fails because she cannot estab-
lish that she engaged in protected activity under Title VII. Gibson v.
Old Town Trolley Tours of Washington, D.C., Inc., 160 F.3d 177, 180
(4th Cir. 1998) ("In order to prove retaliation [,] a plaintiff must show
that he engaged in protected activity, that his employer took adverse
employment action against him, and that the employer did so because
of the protected activity."). Siraj's retaliatory discharge claim rests on
her allegation that VUMH unlawfully discharged her because she
complained to Henderson about the pay disparity between her and
Watkins. However, the uncontradicted evidence, supplied primarily
through the testimony of Siraj herself, shows that Siraj never com-
plained to Henderson or even suggested to Henderson that the pay
disparity between herself and Watkins resulted from race or national
origin discrimination. Rather, the undisputed evidence in the record
shows that Siraj only complained to Henderson in general that she
was being paid less than Watkins, who Siraj asserted at the time had
a less demanding job. In short, there is no evidence that Siraj
expressed opposition to the pay disparity on the basis that it resulted
from race or national origin discrimination. Thus, she did not engage
in protected activity under Title VII before her discharge. For this rea-
son, her retaliation claim fails. Winchester v. Galveston Yacht Basin,
943 F. Supp. 776, 781-82 (S.D. Tex. 1996) (female employee failed
to establish that she was engaged in protected activity when she com-
plained about allegedly being compensated at lower rate than other
male managers, where there was no evidence that her complaint was
related to her gender), aff'd by,
119 F.3d 1 (5th Cir. 1997) (unpub-
lished) (no discussion).
18
II.
In conclusion, I concur in all parts of Judge Broadwater's opinion
with the exception of Part III. While I agree with the opinion's affir-
mance of Siraj's retaliatory discharge claim, I would affirm that claim
on the ground that Siraj's discharge did not follow any activity on her
part protected by Title VII. Accordingly, with respect to Siraj's retal-
iatory discharge claim, I concur only in the court's judgment.
NIEMEYER, Circuit Judge, concurring in part in the judgment and
dissenting in part:
Because I would affirm entirely the judgment of the district court
for the reasons given by the court, I concur in the judgment reached
in Part III of the majority opinion and dissent from Parts IV and V.
As Personnel Coordinator and Business Office Assistant at the
Hermitage, a nursing home in Northern Virginia, Jano Siraj was
required to keep personnel files up to date and in compliance with
Virginia State regulations. When Social Services inspectors arrived at
the Hermitage in September 1996 to conduct their annual inspection,
they requested the personnel files of two new hires from each depart-
ment. Siraj produced several incomplete files, together with her yel-
low "post-it" note on the files' covers indicating that the files were
incomplete, which substantially embarrassed the Hermitage and led to
the inspectors' conclusion that the Hermitage's files were out of com-
pliance. After the inspectors left, the administrator of the nursing
home asked Siraj to resign, and when she refused to resign and tried
to blame others, accepting no responsibility for the failures, the
administrator discharged her.
Siraj thereafter contended that the facility should have used pro-
gressive discipline, as was its policy. She also contended that, in fir-
ing her, the Hermitage discriminated against her based on her race
and national origin — black and Ethiopian.
After Siraj presented her evidence at trial, the district court granted
the defendant's motion for judgment as a matter of law. The court
explained:
19
I find there is no evidence whatsoever for any jury to
believe there was race discrimination or national origin [dis-
crimination]. There is no testimony whatsoever of any racial
or national origin discrimination.
The only testimony is she was treated differently than a
Ms. Watkins, who was white. But under the law, she had a
different job. They were not related, the same job, as the
Fourth Circuit has said. And even the Second Circuit, which
relied upon the Fourth Circuit in Barbara Levin McLenney,
M-c-L-e-n-n-e-y, versus Marist College, decided on Febru-
ary 2001 citing the Fourth Circuit, that you cannot rely upon
discrimination of a particular party if the jobs are not
related. And they were not related.
And what they did with one has nothing to do with what
they did here. There is just no evidence of intentional dis-
crimination of any kind. None was said.
In fact, the plaintiff twice in her direct said she was not
angry with anyone from top to bottom. In fact, she said
when she got fired, she thought they were playing a joke on
her, things were so great.
Where is there discrimination? Up until the last moment,
everything was great.
(J.A. 262-63.)
Because the record supports the district court's conclusions, I
would affirm for the reasons given by the court. Accordingly, I con-
cur in the conclusion that no claim of retaliatory discharge was
proved and I respectfully dissent from those portions of the opinion
that reverse the judgment of the district court.
20
