Susan Engler v. Harris Corporation

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1444
SUSAN ENGLER,
Plaintiff − Appellant,
and
JACQUELINE HAMRICK; ANTOANNA ROMANIUK,
Plaintiffs,
v.
HARRIS CORPORATION,
Defendant − Appellee,
and
HARRIS RF COMMUNICATIONS DIVISION (HARRIS RFCD),
Defendant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:11-cv-03597-GLR)
Argued: September 16, 2015 Decided: October 8, 2015
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.

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ARGUED: James R. Klimaski, KLIMASKI & ASSOCIATES, P.C.,
Washington, D.C., for Appellant. Lynn E. Calkins, HOLLAND &
KNIGHT, LLP, Washington, D.C., for Appellee. ON BRIEF: John P.
Racin, Lynn I. Miller, KLIMASKI & ASSOCIATES, P.C., Washington,
D.C., for Appellant.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In this Title VII action Susan Engler claims that her
former employer, Harris Corporation (“Harris”), discharged her
as part of a reduction in force (“RIF”) because she complained
to Harris management about gender discrimination in the
workplace. The district court entered summary judgment in
Harris’s favor, concluding that Engler failed to present
sufficient evidence to establish that Harris’s legitimate,
nondiscriminatory reasons for dismissing her were pretextual.
Finding no error, we affirm.
I.
A.
On September 5, 2006, Engler began working for Harris as a
first-level contracts manager in Harris’s Columbia, Maryland
office. Harris is a defense contractor and communications and
information technology company headquartered in Rochester, New
York. Harris hired Engler to support the Communications Security
Products (“CSP”) group within the company’s RF Communications
Division (“RFCD”). Engler is the only contracts manager ever
employed in the Columbia office. Harris created the position
anticipating an increase in CSP business from U.S. Department of
Defense contracts.
During the first year of her employment, Engler created an
informal meeting group called “Women in Business.” The

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organization served as a support system for female employees
seeking career advancement within the company. In August 2008,
several women in the group asked Engler to speak with RFCD’s
president Dana Mehnert about “mistreatment by the male
employees.” J.A. 1116-17. Engler relayed the grievance to her
immediate supervisor Paul Wilson, who subsequently brought the
issue to Mehnert’s attention. Mehnert ordered an internal
investigation of the matter in March 2009.
Meanwhile, CSP’s anticipated surge in Defense Department
business failed to materialize. RFCD reported a thirty-seven
percent drop in sales for the first three quarters of 2009. From
January 2009 to March 2009, RFCD decreased its projected revenue
for the upcoming fiscal year by nearly $200 million. In May
2009, RFCD forecast a $230 million reduction in revenue from
Department of Defense contracts. J.A. 198.
In light of these economic challenges, Harris executives
determined that “significant restructuring” through the use of a
RIF was necessary. J.A. 199. Harris considered 1,900 RFCD
employees for inclusion in the RIF. To evaluate those
individuals, Harris utilized a process known as Banding
Analysis, which organized employees according to job function
and assigned scores associated with a number of criteria:
customer and program experience, job performance, skill
criticality and versatility, technical and professional

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knowledge, leadership skills, and anticipated contributions.
J.A. 627. After the Banding Analysis identified the layoff
selections, Harris conducted an additional statistical
investigation known as Adverse Impact Analysis to confirm that
the Banding Analysis did not have a disproportionate effect on a
protected class.
Harris considered two RFCD contracts managers for inclusion
in the RIF -- Engler and a male senior contracts manager from
the Rochester office. Harris executives believed it economically
imprudent to retain both positions; other personnel were capable
of absorbing any work that could not be accomplished by a single
manager. The contracts manager in Rochester held a position one
level senior to Engler, received a higher Banding Analysis
score, and had at least two more years of experience.
Ultimately, Harris dismissed a total of 179 employees as a
result of the RIF. Ninety-seven of those employees were
involuntarily released -- seventy-one men and twenty-six women.
Engler was one of six people, four men and two women, discharged
from the Columbia office. J.A. 628.
B.
In her Title VII suit Engler pressed claims of age and
gender discrimination as well as retaliation on the part of
Harris for Engler’s complaints to her immediate supervisor about
gender discrimination in the Columbia office. The district court

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granted summary judgment to Harris on all counts. On appeal,
Engler challenges only the district court’s decision to award
summary judgment to Harris on her retaliation claim. We review a
district court’s grant of summary judgment de novo, viewing all
facts and reasonable inferences therefrom “in the light most
favorable to the party opposing summary judgment.” Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 601
(1986) (internal quotation marks omitted); see Smith v.
Gilchrist, 749 F.3d 302, 307 (4th Cir. 2014).
II.
Title VII prohibits an employer from “discriminat[ing]
against any of [its] employees . . . because [the employee] has
opposed any practice made an unlawful employment practice by
[Title VII].” 42 U.S.C. § 2000e-3(a) (2012). Plaintiffs can
prove Title VII violations either through direct or
circumstantial evidence of retaliatory animus. The basic proof
schemes for discriminatory and retaliatory animus are much the
same. See Adams v. Anne Arundel Cnty. Pub. Sch., 789 F.3d 422,
430 (4th Cir. 2015). In this case Engler did not offer direct
evidence of retaliation, and the district court thus assessed
her claim under the familiar McDonnell Douglas framework. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The
initial burden rests on the plaintiff to make out a prima facie
case of discrimination or, as in this case, of retaliation by

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demonstrating “(1) engagement in a protected activity; (2)
adverse employment action; and (3) a causal link between the
protected activity and the employment action.” Coleman v. Md.
Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2004). If the
plaintiff does so, the burden shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its
action. McDonnell Douglas, 411 U.S. at 802. The plaintiff is
then afforded an opportunity to prove that “the legitimate
reasons offered by the defendant were not its true reasons, but
were pretext for discrimination.” Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981).
Even assuming arguendo that Engler can demonstrate a prima
facie case of retaliation, we agree with the district court that
Engler failed to present sufficient evidence that Harris’s
nondiscriminatory reasons for firing her -- Harris’s economic
reversals and Engler’s declining performance -- were pretextual.
The Supreme Court has made clear that to be pretextual, a reason
must be false and wrongful animus must be “a but-for cause of
the challenged employment action.” Univ. of Tex. Sw. Med. Ctr.
v. Nassar, __ U.S. __, 133 S. Ct. 2517, 2532-34 (2013); see
Foster v. Univ. of Maryland-Eastern Shore, 787 F.3d 243, 253
(4th Cir. 2015). Engler has not satisfied that requirement.
Engler asserts that she was terminated because she raised
concerns about gender discrimination in the Columbia office.

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This bare assertion fails to create an issue of triable fact. As
the district court noted, “the CSP group, for which Engler was
hired to provide support, was experiencing a downward trend in
projected revenue and profit.” Engler, 2014 WL 1370320 at *6.
Indeed, management had forecast a nearly $200 million decline in
revenue for fiscal year 2010. Ante at 2. No less than 179 men
and women were laid off. Engler has not put forth any evidence
showing that Harris’s poor financial outlook was a bogus
projection or that terminating her employment was anything other
than a legitimate business decision of a company that had fallen
on hard times. See Birkbeck v. Marvel Lighting Corp., 30 F.3d
507, 513 (4th Cir. 1994) (employment discrimination statutes are
“not intended to obstruct the ability of a commercial enterprise
to make necessary adjustments in the face of economic
challenges.”).
Moreover, “Engler’s declining performance in the months
preceding the RIF is well documented in various email
communications.” Engler, 2014 WL 1370320 at *7. From late 2008
until the RIF, Harris management expressed concerns about
Engler’s productivity, efficiency, and willingness to work
effectively with co-workers and customers. This court has made
clear that “[j]ob performance . . . [is] widely recognized as
[a] valid, non-discriminatory bas[is] for any adverse employment

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decision.” Evans v. Techs. Applications & Serv. Co., 80 F.3d
954, 960 (4th Cir. 1996).
Furthermore, “Engler offers no evidence to establish that
the Banding Analysis was not consistently employed as to all
employees considered for the RIF.” Engler, 2014 WL 1370320 at
*7. Engler has failed to place into genuine dispute her belief
that she deserved a higher score in the Banding Analysis
categories or that on a comparative basis she was a more
deserving candidate for retention than the contracts manager who
was not dismissed. Simply put, the contracts manager in
Rochester “was the better qualified candidate for the position
sought” -- he had more experience, a more senior position, and a
better Banding Analysis score than Engler. Evans, 80 F.3d at
960; see also id. at 960-61 (“It is the perception of the
decision maker which is relevant, not the self-assessment of the
plaintiff.”).
Finally, “Harris employees located in the Rochester office
absorbed Engler’s duties, and no contracts manager has been
hired or assigned to the Columbia office since the RIF.” Engler,
2014 WL 1370320 at *8. The fact that other employees could
assume additional tasks only bolsters Harris’s contention that
Engler’s position was expendable. See, e.g., Roge v. NYP
Holdings, Inc., 257 F.3d 164, 171 n. 2 (2d Cir. 2001). While
Engler suggests that it would ultimately have been more cost-

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effective to retain her position and terminate a different
employee in her stead, this court is not empowered to second-
guess an employer’s personnel decisions so long as they are
based on something other than discrimination. See DeJarnette v.
Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998) (“when an
employer articulates a reason for discharging the plaintiff not
forbidden by law, it is not [the court’s] province to decide
whether the reason was wise, fair, or even correct”).
III.
Based substantially on the reasons given in the district
court’s opinion, we affirm the judgment entered in favor of
Harris on Engler’s Title VII retaliation claim.*
AFFIRMED
* The court denies Harris’s motion to redact a portion of
the oral argument.

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