Filed: Dec. 03, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1047 MIRIAM GRICE, Plaintiff - Appellant, v. BALTIMORE COUNTY, MARYLAND; FRED HOMAN, Individually and in his official capacity; SUZANNE BERGER, Individually and in her official capacity, Defendants - Appellees. Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, District Judge. (1:07-cv-01701-JFM) Argued: October 28, 2009 Decided: December 3, 2009 Before TRAXLER, Chief
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1047 MIRIAM GRICE, Plaintiff - Appellant, v. BALTIMORE COUNTY, MARYLAND; FRED HOMAN, Individually and in his official capacity; SUZANNE BERGER, Individually and in her official capacity, Defendants - Appellees. Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, District Judge. (1:07-cv-01701-JFM) Argued: October 28, 2009 Decided: December 3, 2009 Before TRAXLER, Chief ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1047
MIRIAM GRICE,
Plaintiff - Appellant,
v.
BALTIMORE COUNTY, MARYLAND; FRED HOMAN, Individually and in
his official capacity; SUZANNE BERGER, Individually and in
her official capacity,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:07-cv-01701-JFM)
Argued: October 28, 2009 Decided: December 3, 2009
Before TRAXLER, Chief Judge, and DUNCAN and AGEE, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Kathleen Mary Cahill, LAW OFFICES OF KATHLEEN CAHILL,
Towson, Maryland, for Appellant. Jeffrey Grant Cook, BALTIMORE
COUNTY OFFICE OF LAW, Towson, Maryland, for Appellees. ON
BRIEF: John E. Beverungen, County Attorney, BALTIMORE COUNTY
OFFICE OF LAW, Towson, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
I. FACTS
The appellant, Miriam Grice, worked as a claims manager for
Baltimore County, Maryland (“the County”) from March 1998 until
August 2005, when her position was converted from a part-time
classification to one within the County’s merit system. During
the relevant timeframe, co-defendant Fred Homan was a senior
administrator with the County and co-defendant Suzanne Berger
was employed as an attorney with the County. Before
transitioning to the County’s merit system in 2005, Grice held
the title of “Claims Manager” and was responsible for handling
workers’ compensation claims for the County.
As required during the transition to the merit system, the
County reclassified and “posted” the job of Claims Manager for
competitive application. 1 Co-defendants Homan and Berger, along
with the County’s Insurance Administrator, Bob Behler,
interviewed the candidates. 2 Despite Grice’s rating by the
County’s human resources department as the best qualified
applicant prior to the candidates’ interviews, she was not
1
To avoid confusion due to the pre- and post-merit system
job titles of “Claims Manager,” we will refer to the merit
system position as that of “Claims Manager” and to Grice’s
former job as her “former position.”
2
The County’s procedure in hiring for a “posted” position
was to interview the top three candidates.
2
hired. Instead, the County hired Kent Underwood, a male who had
no prior experience handling government claims but who had
twenty-three years as claims manager and assistant vice-
president at a large private insurer.
Grice was appointed Assistant Claims Manager, in which she
remained the supervisor of workers’ compensation claims for the
County and reported to Underwood. Grice viewed this position as
a demotion because the salary was less than her salary prior to
the transition to the merit system. 3 Her salary was, however,
the highest allowed for her pay grade under the legislatively
enacted pay scale applicable to the merit system and, unlike her
former position, had additional benefits including a property
interest in her employment.
A month after taking the job as Assistant Claims Manager
Grice complained to the County Executive that she had been the
3
The County contends that the Claims Manager position under
the merit system was, in fact, Behler’s former job (previously
titled Insurance Administrator) which supervised not only
workers’ compensation claims but also all the general liability
claims involving the County. As such, the County insists the
Claims Manager position would have been a promotion for Grice.
Grice insists the Claims Manager position was, in fact, her
“old” position supervising the unit handling worker’s
compensation claims. We do not consider this factual dispute
important, however, because if the County unlawfully
discriminated against Grice in the selection process, it is
immaterial whether the job was the same or would have been a
promotion. Nonetheless, the County’s position appears to be
correct.
3
victim of sex discrimination due to Underwood’s selection for
the Claims Manager position. She also filed a complaint with
the Equal Employment Opportunity Commission. As a result of the
charges, Homan removed himself as Grice’s supervisor and
appointed another employee, Keith Dorsey, to supervise Grice.
In response to a complaint from a co-worker that Grice had been
harassing her for information about Underwood, Dorsey placed
Grice on paid leave pending the outcome of an investigation.
Grice was subsequently issued a written reprimand. As a result,
Grice amended her EEOC charge to allege a claim of retaliation.
On June 13, 2007, Grice was called to a meeting with Dorsey
and Mary Ellen Niles, who had replaced Underwood as Claims
Manager (and thus became Grice’s supervisor). When Grice
arrived she saw disciplinary papers on the desk and immediately
asked that her lawyer be present for the meeting, as Dorsey had
previously allowed. 4 Dorsey acquiesced to this demand but
directed Grice to take the disciplinary papers with her for
review in preparation for the meeting — an order Grice refused.
For disobeying his order to take the papers, Dorsey suspended
4
The papers included “Supervisor’s Notes on Oral
Counseling” and a Written Reprimand which documented various
incidents of sanctionable behavior by Grice between May 22, 2007
and June 13, 2007.
4
Grice and, the next day, terminated her employment for
insubordination. 5
Two weeks after her discharge Grice filed an Amended
Complaint in the United States District Court for the District
of Maryland asserting claims against the County, Homan and
Berger. 6 Count One of Grice’s Amended Complaint asserts claims
against Homan and Berger, individually and in their official
capacities, for violation of Section 1983 of the Civil Rights
Act of 1871, 42 U.S.C. § 1983. Grice contends that Homan and
Berger violated her civil rights by unlawfully discriminating
against her based on gender when they did not select her for the
Claims Manager position. Count Two asserts a claim against the
County for unlawful discrimination in violation of Title VII.
Grice’s Title VII claims are based on allegations that the
County discriminated against her by (a) hiring a less qualified
male, Underwood, as Claims Manager (“non-selection claim”), (b)
demoting her to Assistant Claims Manager (“demotion claim”), (c)
retaliating against her by imposing a suspension based upon her
5
At oral argument, Grice confirmed that no dispute exists
as to this sequence of events at the June meeting.
6
Grice originally filed suit on June 27, 2007, but the suit
was dismissed because she failed to exhaust her administrative
remedies. Grice subsequently exhausted her administrative
remedies and the EEOC issued a right-to-sue letter on April 28,
2008.
5
co-worker’s complaints (“retaliation claim”), and (d) by
terminating her on June 13, 2007 (“discharge claim”).
The district court granted summary judgment to Homan,
Berger and the County on all claims. Specifically, the district
court found Grice’s non-selection claim under Title VII was
time-barred based on her failure to file an administrative
charge with the EEOC within 300 days of the alleged violation. 7
The district court then determined that even if the claim had
not been time-barred, “the Defendants would still be entitled to
summary judgment on this claim as well as on Grice’s timely
filed demotion, suspension, discharge and retaliation claims . .
. . ” Joint Appendix (“J.A.”) at 748.
Grice appeals the district court’s judgment in some, but
not all, respects. She does not challenge the district court’s
finding that her non-selection claim under Title VII was time-
barred. Nonetheless, Grice asserts the district court erred in
granting summary judgment on her claims against Homan and Berger
arising under 42 U.S.C. § 1983. For the reasons set forth
below, we disagree and affirm the district court.
7
Grice learned she had not been selected for the Claims
Manager position on October 13, 2005 but did not file a claim
with the EEOC until 349 days later, September 27, 2006. J.A.
746.
6
As an initial matter we note that Grice’s two “Issues
Presented for Review” as set forth in her opening brief
challenge only the non-selection and discharge claims. Although
the arguments in Grice’s opening brief tend to overlap in
various respects, her failure to address the demotion and
retaliation claims results in the abandonment of those claims on
appeal. See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6
(4th Cir. 1999) (“[T]he argument . . . must contain . . .
‘appellant's contentions and the reasons for them, with
citations to the authorities and parts of the record on which
the appellant relies.’”) (quoting Fed. R. App. P. 28(a)(9)(A)).
The “[f]ailure to comply with the specific dictates of [Rule 28]
with respect to a particular claim triggers abandonment of that
claim on appeal.”
Id. Indeed, Grice confirms in her reply
brief that “[t]here are two issues on this appeal – whether
summary judgment was properly granted on [her] claims (1) that
she was denied the Claims Manager position in September 2005
because of sex discrimination, and (2) that she was fired in
June 2007 because of retaliation for alleging bias in the Claims
Manager selection.” Reply Br. at 1.
Accordingly, we address only the non-selection and
discharge claims.
7
II.
A district court’s grant of summary judgment is reviewed de
novo.” Causey v. Balog, 162 F.3d 795, 800 (4th Cir. 1998)
(citing Henson v. Liggett Group, Inc.,
61 F.3d 270, 274 (4th
Cir. 1995)). “Summary judgment is appropriate when the
evidence, viewed in the light most favorable to the non-moving
party, demonstrates there are no genuine issues as to any
material fact, and the moving party is entitled to judgment as a
matter of law.”
Id. (citing United States v. Leak,
123 F.3d
787, 794 (4th Cir. 1997)). The elements of a prima facie case
under Title VII are the same under 42 U.S.C. § 1983. Gairola v.
Commw. of Va. Dep’t of Gen. Servs.,
753 F.2d 1281, 1285 (4th
Cir. 1985).
Although at the time she filed her Amended Complaint Grice
apparently believed that Berger had been involved in the
decision not to hire her, she admitted during oral argument that
subsequent evidence shows “there is not evidence that Ms. Berger
had a role in the sex discrimination and retaliation claim.” 8 As
such, the district court’s entry of summary judgment in favor of
Berger was correct. See Holland v. Washington Homes, Inc., 487
8
On brief and in oral argument Grice refers to the non-
selection claim as the sex discrimination claim and categorizes
the demotion, suspension and discharge claims as retaliation
claims.
8
F.3d 208, 216 (4th Cir. 2007) (employer put forth evidence that
its decisionmaker fired employee for non-discriminatory reason);
Geiger v. Tower Auto.,
579 F.3d 614, 620–21 (6th Cir. 2009)
(“Any discriminatory statements must come from decisionmakers to
constitute evidence of discrimination.”). Thus, the only
question is whether the district court properly granted summary
judgment as to Homan on Grice’s non-selection and discharge
claims.
A. Grice’s Non-Selection Claim
Lacking direct evidence of discrimination, the district
court assumed without deciding that Grice had made out a prima
facie case under the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which
required Grice to prove that she (1) was a member of a protected
class, (2) had suffered an adverse employment action, (3) had
maintained a satisfactory job performance, and (4) that a
similarly-situated employee outside the protected class received
more favorable treatment. White v. BFI Waste Services, LLC,
375
F.3d 288, 295 (4th Cir. 2004) (citing McDonnell Douglas Corp.,
411 at 802). Pursuant to the McDonnell Douglas framework the
district court then found, and the record clearly supports, that
the County had articulated “legitimate, non-discriminatory
reason[s] for the decision: namely that while both Grice and
Underwood were strong applicants on paper, Underwood had a much
9
better interview; his experience was better suited for the
position; and he did not have a history of problematic employee
relations as did Grice.” J.A. 749-50.
To rebut the County’s legitimate non-discriminatory reasons
for hiring Underwood, Grice argues that Behler, Homan and Berger
(the panelists who conducted her interview) were biased against
her and that their “motivation was discriminatory.” Br. of
Appellant at 23. However, as the district court found, Grice
“does not provide any evidence that the bias was based on her
gender.” J.A. 750.
In her Amended Complaint Grice asserts that in 1999 she
became aware that Behler may have been romantically involved
with another employee. According to Grice, she reported this
allegation to Homan who “rebuked [her] for the manner in which
she had handled the matter, and threatened to abolish her job.”
J.A. 12. According to Grice, Homan removed Behler as her direct
supervisor until 2004. When Behler resumed his supervision of
Grice, she alleges that he “treated [her] disfavorably on
account of her role in reporting his alleged sexual misconduct.”
J.A. 12.
Grice further asserts in her Amended Complaint that “Homan
and Berger also had significant bias against [her], rendering it
impossible for them to fairly consider plaintiffs’ superior
qualifications for the position.” J.A. 12. However, according
10
to Grice, this bias arose because “[j]ust months before the
selection panel convened . . . [Grice] accidentally interrupted
[Homan and Berger] in an awkward scene after work hours . . . .”
J.A. 12. According to Grice, it was “from that point on [that
Homan and Berger] launched a campaign to get rid of [her].”
J.A. 13.
The general rule is that “a party is bound by the
admissions of his pleadings.” Best Canvas Products &
Supplies v. Ploof Truck Lines, 713 F.2d 618, 621 (11th
Cir. 1983). See also Action Manufacturing, Inc. v.
Fairhaven Textile Corp., 790 F.2d 164, 165 (1st Cir.
1986); PPX Enterprises, Inc. v. Audiofidelity, Inc.,
746 F.2d 120, 123 (2d Cir. 1984); Brown v. Tennessee
Gas Pipeline Co., 623 F.2d 450, 454 (6th Cir. 1980)
(“under federal law, stipulation and admissions in the
pleadings are generally binding on the parties and the
Court.”); State Farm Mutual Automobile Ins. Co. v.
Worthington, 405 F.2d 683, 686 (8th Cir. 1968) (“. . .
judicial admissions are binding for the purpose of the
case in which the admissions are made including
appeals.”).
Lucas v. Burnley, 879 F.2d 1240, 1242 (4th Cir. 1989). Grice’s
allegations establish that any bias on the part of Behler, Homan
and Berger resulted from her discovery of their allegedly
inappropriate activities at work. Grice has provided no
evidence that Homan’s animus towards her, if any, was based on
gender. In short, the record does not show that the County’s
explanation for hiring Underwood is a mere pretext for gender
discrimination. As the district court stated, “[a] showing of
bias is not sufficient to prove that an employer has violated
11
Title VII [or § 1983] unless the bias is based on the
plaintiff’s membership in a protected class.” J.A. 750-51.
For the foregoing reasons the district court did not err in
finding that Grice failed to establish pretext for the
legitimate, nondiscriminatory reasons for selecting Underwood.
See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-
53 (1981); Conkwright v. Westinghouse Elec. Corp.,
933 F.2d 231,
234-35 (4th Cir. 1991). The district court did not err in
granting summary judgment to the defendants on Grice’s non-
selection claim under 42 U.S.C. § 1983.
B. Grice’s Discharge Claim
The County has not disputed, either in this Court or below,
that it was aware of Grice’s EEOC claim (and subsequent
amendments) or that filing the claim constituted protected
activity. In addition, the district court determined that Grice
had “alleged sufficient evidence of retaliatory animus . . . to
meet the minimal burden required . . . .” J.A. 757. Despite
its finding that Grice had made a prima facie case of
discrimination, the district court granted summary judgment on
the discharge claim because, as with her non-selection claim,
Grice failed to provide a preponderance of evidence that the
County’s reasons for her discharge were pretextual. For the
reasons that follow, we agree with the district court.
12
The district court found the County had “consistently
stated that the reason for termination was Grice’s
insubordination in refusing to meet with Dorsey and Niles
without her attorney present and her refusal to take from Dorsey
the materials to be discussed at the meeting.” J.A. 758.
Though Grice argued the County had “ever-shifting reasons” for
firing her, which indicated pretext, the district court
correctly concluded that the “minor discrepancies” she cited
were not evidence of pretext. J.A. 757-58. See Holland v.
Washington Homes, Inc., 487 F.3d 208, 216 (4th Cir. 2007)
(“‘Once an employer has provided a non-discriminatory
explanation for its decision, the plaintiff cannot seek to
expose that rationale as pretextual by focusing on minor
discrepancies that do not cast doubt on the explanation's
validity, or by raising points that are wholly irrelevant to
it.’”) (quoting Hux v. City of Newport News,
451 F.3d 311, 315
(4th Cir. 2006)).
Grice’s Notice of Dismissal states that her “refusal to
meet with her supervisor . . . as well[] as the refusal to take
a copy of the items to be discussed in the meeting constitutes
an act of insubordination.” J.A. 437 (emphasis added). During
his deposition Dorsey confirmed that after asking Grice to
attend the meeting several times he acceded to her demands to
have her attorney present. J.A. 585-86. Grice contends that
13
this admission by Dorsey “should have been dispositive of
summary judgment, because the Appellants did not assert that
Grice would have [been] fired simply – and solely – because she
did not take the materials.” Br. of Appellant at 29. Once it
became clear that Grice was not going to attend the meeting
without her attorney, we fail to see how Dorsey’s acquiescence
to a postponement is material in light of her undisputed refusal
to take the papers as instructed. According to the County’s
rules, an employee can be “dismissed for cause if she fail[s] to
obey any lawful and reasonable direction given by [her]
supervisor.” J.A. 757 (internal quotation marks omitted). Her
failure to take the documents as directed clearly supports the
County’s finding of insubordination while Dorsey’s acquiescence,
under these factual circumstances, does nothing to prove the
County’s rationale for discharging her was a mere pretext for
sex discrimination.
Aside from her failure to come forward with evidence
undermining the County’s legitimate reasons for her termination,
Grice’s discharge claim fails for another reason. As with her
non-selection claim, her own pleadings and testimony prove
fatal. Grice asserts in her Amended Complaint that she
was treated less favorably than other employees . . .
by defendant Homan because defendants Homan and Berger
were involved in a close personal relationship . . .
was treated adversely by defendant Homan in
retaliation for reporting [Behler’s] alleged
14
involvement with a female subordinate . . . and . . .
was removed from her position . . . by defendants
Homan and Berger because she discovered their after-
hours conduct at a time when their close personal
relationship was a tremendously sensitive issue in
county government.
J.A. 14. Grice is bound by her own allegations. See Lucas,
supra.
In addition to the allegations contained in her pleadings,
Grice testified that she “firmly believe[d]” her firing went
“back to April of 2005 when [she] walked in on [Homan and
Berger] after work” in a compromising position. S.J.A. 180-81.
When asked why she thought Berger had discriminated against her,
Grice stated that it was in Berger’s “best interest not to have
[Grice] there because [she] walked in on Fred Homan and Suzanne
Berger in a compromising position.” S.J.A. 208. Asked if she
thought it would have been different “had a man walked in on
them,” Grice testified that “it would have been the same if it
had been anyone, but I also think the sequence of events
afterward were [sic] handled differently with me because I was a
woman rather than someone else if they had been male.” S.J.A.
208 (emphasis added).
Grice’s belief, however, is insufficient to undermine the
legitimate, non-discriminatory reasons put forth by the County,
particularly in light of the fact that the parties do not
dispute the sequence of events at the June 13, 2007 meeting.
15
See Williams, 871 F.2d at 456 (“[A] plaintiff's own assertions
of discrimination in and of themselves are insufficient to
counter substantial evidence of legitimate nondiscriminatory
reasons for an adverse employment action.”) (citing Gairola v.
Comm. of Va. Dep’t of Gen. Servs.,
753 F.2d 1281, 1288 (4th Cir.
1985)).
An examination of the record in this matter does not reveal
evidence to support Grice’s contention that the County’s reason
for her discharge served as a pretext for discrimination based
on gender. Indeed, Grice’s own pleadings and evidence indicate
that Homan’s motivation to retaliate arose, if at all, from an
entirely nondiscriminatory motive (that Grice allegedly
interrupted Homan during inappropriate workplace behavior). Any
such motivation, however, does not support a claim of unlawful
discrimination. “[W]hen an employer articulates a reason for
discharging the plaintiff not forbidden by law, it is not our
province to decide whether that reason was wise, fair, or even
correct, ultimately, so long as it truly was the reason for the
plaintiff's termination.” Giannopoulos v. Brach & Brock
Confections, Inc., 109 F.3d 406, 411 (7th Cir. 1997).
For the reasons set forth above, the district court did not
err in granting summary judgment.
16
III.
For the foregoing reasons we affirm the judgment of the
district court.
AFFIRMED
17
