Virginia Lawyers Weekly VA Lawyers Weekly
Where individuals who made the decision to end a woman’s employment with Old Dominion University’s Office of Development had no knowledge that she had previously complained to Human Resources, and the decision was part of a department reorganization, the university prevailed on the retaliation claim.
Background
This case arises out of the termination of Glenda Maynard by Old Dominion University, or ODU. Plaintiff alleges that ODU terminated her because of her race and in retaliation for protected conduct. ODU has moved for summary judgment as to all claims.
Discrimination
To establish a prima facie case of discriminatory termination, plaintiff must show: (1) she is a member of a protected class; (2) she suffered from adverse employment action; (3) at the time the employer took the adverse employment action she was performing at a level that met her employer’s legitimate expectations and (4) the position remained open or was filled by a similarly qualified applicant outside the protected class.
Viewing the evidence in the light most favorable to plaintiff, plaintiff has failed to establish that ODU filled the position or attempted to do so after her termination. At most, the online directory establishes that plaintiff’s former position is vacant. But the document does not establish or even suggest that ODU is seeking to fill the position and plaintiff does not otherwise introduce any evidence that ODU solicited or intends to solicit applications to fill the vacant position.
Similarly, the evidence, considered in a light most favorable to plaintiff, does not establish that plaintiff’s position was filled by a similarly qualified applicant outside the protected class. Since plaintiff has not established a prima facie case, the court need not go further under the McDonnell Douglas analysis, and an award of summary judgment to ODU is appropriate on plaintiff’s discriminatory termination claim.
Disparate treatment
To establish a prima facie claim for disparate treatment, plaintiff must show: (1) she is a member of a protected class; (2) she suffered from adverse employment action; (3) at the time the employer took the adverse employment action she was performing at a level that met her employer’s legitimate expectations and (4) she was treated differently than similarly situated employees outside of the protected class. Additionally, if a plaintiff raises both discrimination and disparate treatment claims she must demonstrate that she suffered an adverse employment action other than termination to support her disparate treatment claim.
The only evidence plaintiff has provided of an occurrence that meets the standard for an adverse employment action is her termination. Because plaintiff cannot establish that she suffered an adverse employment action other than her termination, the claim is duplicative of her discriminatory termination claim and ODU is entitled to judgment as a matter of law on plaintiff’s disparate treatment claim.
Retaliation
A plaintiff can prove illegal retaliation under Title VII or § 1981 if she shows that “(1) she engaged in a protected activity; (2) the employer acted adversely against her; and (3) there was a causal connection between the protected activity and the asserted adverse action.”
Even assuming that plaintiff engaged in protected activity, plaintiff cannot show that any of the individuals involved in the decision to eliminate her position knew she had complained to HR, let alone that those individuals terminated plaintiff because of her HR complaint. Thus, even assuming plaintiff’s HR complaint constituted protected activity, plaintiff cannot establish a causal connection between her protected activity and her termination, and she cannot state a prima facie claim for retaliation as a result.
Further, even if plaintiff could establish a prima facie case of retaliation, ODU has presented a legitimate, non-discriminatory reason for terminating plaintiff: to eliminate her position to reorganize the Office of Development and create the Philanthropy Director position. Plaintiff must offer evidence to satisfy her burden to show that ODU’s stated reason for terminating her constitutes pretext. Plaintiff fails to do so, and the court must therefore grant ODU’s motion for summary judgment on plaintiff’s retaliation claims.
Defendant’s motion for summary judgment granted.
Maynard v. Old Dominion University, Case No. 2:20-cv-597, Feb. 28, 2023. EDVA at Norfolk (Hanes). VLW 023-3-099. 27 pp.
