In Kubas v. 331B, LLC d/b/a Rockwell Fitness, No. MJM-20-2456, 2022 WL 4608147 (D.Md. Sept. 30, 2022), the court denied defendant’s motion for summary judgment on plaintiff’s claim that defendant terminated her employment in retaliation for reporting sexual harassment by another employee, in violation of Title VII of the Civil Rights Act of 1964.
After finding that plaintiff presented sufficient evidence to demonstrate a prima facie case of retaliation and that defendant proffered a legitimate, non-retaliatory reason for terminating plaintiff, the court turned to the third step of the analysis: pretext.
It likewise held that plaintiff presented sufficient evidence to raise a genuine issue of material fact:
Upon Defendant’s showing of a non-retaliatory reason for discharge, the burden shifts to Plaintiff to present sufficient evidence for a jury to conclude that Defendant’s non-retaliatory explanation is merely pretextual and not its true reason for firing Plaintiff, and that its true motivation was retaliation for Plaintiff’s complaints of sexual harassment by Conway. See Foster, 787 F.3d at 250; Westmoreland, 924 F.3d at 726; Navy Fed. Credit Union, 424 F.3d at 407. A showing that the employer “at different times, gives different and arguably inconsistent explanations” may permit an “infer[ence] that the articulated reasons are pretextual.” E.E.O.C. v. Sears Roebuck and Co., 243 F.3d 846, 853 (4th Cir. 2001) (quoting Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 432 (1st Cir. 2000)). Likewise, “a factfinder could infer from the late appearance of [employer’s] justification that it is a post-hoc rationale, not a legitimate explanation for [its] decision.” Id. (citing Tyler v. Re/Max Mountain States, Inc., 232 F.3d 808, 813 (10th Cir. 2000)). “If a plaintiff can show that she was fired under suspicious circumstances and that her employer lied about its reasons for firing her, the factfinder may infer that the employer’s undisclosed retaliatory animus was the actual cause of her termination.” Foster, 787 F.3d at 250 (citing Reeves, 530 U.S. at 148).
Viewing the evidence in the light most favorable to Plaintiff, a reasonable factfinder may conclude that Defendant’s proffered non-retaliatory reason for terminating Plaintiff was pretextual. First, during more than 13 years of work at Rockwell Fitness, Plaintiff never had any disciplinary problems, and her employer had not raised any timekeeping issues with her until June 2019, after she reported allegations of sexual harassment by Conway. (Kubas Dep. 140:2–141:15, ECF No. 53-1 at 18). Plaintiff also points out that other employees at Rockwell Fitness had timekeeping errors, but none was formally disciplined or terminated for these errors except Plaintiff. (See, e.g., Conway Dep. 93:18–110:20, 113:6-15, ECF No. 53-1 at 29–34). Defendant offers no evidence or testimony to disprove this fact. It was not until after Plaintiff’s conversation with Beers about Conway in May 2019 and Plaintiff’s phone conversation with Chisholm reporting her allegations, that Conway decided to confront Plaintiff about her timekeeping issues. (Conway Aff. ¶ 16, ECF No. 53-1 at 59). “A factfinder could infer from the late appearance of [the] current justification that it is a post-hoc rationale” rather than legitimate explanation for Plaintiff’s termination. Sears Roebuck, 243 F.3d at 853.
Moreover, there are inconsistencies in the record regarding Defendant’s articulated reason for terminating Plaintiff. According to a record from the Maryland Division of Unemployment Insurance regarding Plaintiff’s unemployment claim, Chisholm is reported to have explained Plaintiff’s termination by stating that Plaintiff “was supposed to work in the office [on the day she was terminated]” and that “[s]he was required to tell [Chisholm] beforehand if she was working at home,” but she failed to do so that day. (ECF No. 53-1 at 106). According to the record, Chisholm further stated that he “told [Plaintiff] why she was being let go…that she had logged in while out of the office after being told she must physically clock in at the office.” (Id.) The foregoing statements attributed to Chisholm are inconsistent both with the email exchange between him and Plaintiff on June 19, 2019, and with the explanation of Plaintiff’s termination proffered in Chisholm’s affidavit and Defendant’s briefing on summary judgment. In his email to Plaintiff on June 19th, Chisholm specifically granted Plaintiff permission to work from home for two weeks. (ECF No. 53-1 at 102-104). And Defendant’s current explanation for terminating Plaintiff is not that Plaintiff “logged in while out of the office” when she was required to “physically clock in at the office[,]” but that she failed to clock in and out properly while working from home and fraudulently clocked in and claimed hours while not working. (Chisholm Aff. ¶ 34, ECF No. 53-1 at 68; Def.’s Br. Summ. J. 14; ECF No. 51-1 at 17). The foregoing inconsistencies in the reasons offered for Plaintiff’s termination would permit a reasonable inference “that the articulated reasons are pretextual.” Sears Roebuck, 243 F.3d at 853.
Furthermore, with a view of the facts in the light most favorable to Plaintiff, the circumstances under which Plaintiff was terminated may allow a factfinder to be suspicious of Defendant’s motives and to conclude reasonably that Plaintiff’s complaints of sexual harassment was an actual cause of her termination. The record suggests that, up to June 20, 2019, Chisholm did not intend or expect for Plaintiff to be terminated for her timekeeping errors. Although, in an email to Plaintiff on the prior date, Chisholm asked Plaintiff to clock in consistently, he asked her to do this to “avoid any possible conflict” between Plaintiff and Conway. (ECF No. 53-1 at 102). There was nothing in this communication that came close to warning Plaintiff that any further errors could result in termination or even that the timekeeping issue was of any actual importance to Chisholm. According to his affidavit, after concluding his investigation of Plaintiff’s sexual harassment complaints on June 20th, Chisholm believed that management “would be able to have [Plaintiff] return to work without incident.” (Chisholm Aff. ¶ 22, ECF No. 53-1 at 66-67).
The next morning, around 7:00 a.m., Conway informed Chisholm about a gym member’s discussion with a gym employee about a rumor concerning Plaintiff’s sexual harassment allegations. Shortly thereafter, Chisholm made urgent demands on Plaintiff to complete unexpected work duties. Plaintiff informed Chisholm that she was at a doctor’s appointment for her daughter that morning but began responding to Chisholm’s needs and clocked in to record her time working at 10:03 a.m. Plaintiff remained clocked in while continuing to work, but Chisholm apparently embraced an assumption that Plaintiff was not working, severed Plaintiff’s access to Rockwell Fitness’s system, and likely formed an intention to fire Plaintiff at that time, as he expressed to Saab in a text message at 12:27 p.m. (ECF No. 53-1 at 93). When meeting with Plaintiff in her office that afternoon, Chisholm demanded not only an explanation for Plaintiff remaining clocked in that morning, but also confronted Plaintiff about the rumor relayed to him early that morning, expressing concern about the rumor spreading like a “cancer” at the Gym. Based on this record, a factfinder could reasonably conclude that Plaintiff’s timekeeping was not a significant issue to Chisholm but that he was more concerned about Plaintiff’s sexual harassment allegations and simply used a colorable assumption that Plaintiff was not working while clocked-in as a pretext to fire her. Such a finding could support a reasonable inference that Plaintiff was terminated in retaliation for her sexual harassment complaints.
Based on this, the court concluded that in view of all the facts, including reasonable inferences to be drawn from them, in the light most favorable to Plaintiff, the record taken as a whole could lead a rational trier of fact to find for plaintiff, and therefore denied defendant’s motion.