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McCallum v. Archstone Communities LLC

United States District Court, Fourth Circuit

October 2, 2013

AIEDA McCALLUM,
v.
ARCHSTONE COMMUNITIES LLC.

MEMORANDUM

J. FREDERICK MOTZ, District Judge.

Plaintiff Aieda McCallum[1] brings this suit against defendant, Archstone Communities LLC ("Archstone"), her former employer, for alleged pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1991 ("Title VII"), 42 U.S.C. § 2000e et seq. Archstone now moves for summary judgment. The parties have fully briefed the issues, and no oral argument is necessary. See Local R. 105.6. For the reasons set forth below, the motion is denied.

BACKGROUND

This court must "view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion." Scott v. Harris, 550 U.S. 372, 378 (2007) (internal quotation marks and alterations omitted). During the relevant period, Archstone owned and operated several apartment communities located in the Washington, D.C. metropolitan area. In March 2007, Archstone hired McCallum to be a Resident Concierge, an entry-level position, at its Connecticut Avenue property in Washington, D.C. Shortly thereafter, McCallum transferred to Archstone's facility in Bowie, Maryland, and later, she transferred to the Archstone facility in Laurel, Maryland, called Westchester at Cherry Lane. When McCallum arrived at Westchester at Cherry Lane, the property had no residents, so she assisted with efforts to begin leasing the property's apartments. In August 2007, Duane Wooldridge, an Archstone Operations Manager, asked McCallum if she would like to accept a promotion to become a Leasing Consultant, and McCallum accepted. As a Leasing Consultant, McCallum worked with prospective residents to lease apartments, recorded information about prospective residents in Archstone's database, and responded to inquiries and requests from current residents.

McCallum was never a perfect employee during her time at Archstone. On November 30, 2007, McCallum received a formal performance appraisal, the only one she received during her tenure at Archstone, and it was representative of her uneven performance over the course of the roughly fifteen months that she worked there. On the one hand, the appraisal highlighted McCallum's strengths as a Leasing Consultant, calling her "a great communicator, " "dynamite, " and "a defender and provider for the residents." (ECF No. 21-9.) On the other hand, the review recognized some of McCallum's shortcomings. The appraisal stated that she had "times when she [did] not consider accuracy and neatness with her leasing paperwork, " she struggled with following attendance rules, she had "some issues with properly fitting jackets and shirts, " she had trouble multitasking, she was not genuine with her coworkers and prospective residents, and she did not always work well with others because she "[did] what she want[ed] to do then apologize[d] later for it." (ECF No. 21-9.) The appraisal also noted that, as of November 2007, McCallum led the office in leases but also led in the number of people who cancelled their plans to move in to the property. In spite of these critiques of McCallum's performance, the evaluator gave her an overall evaluation of "Meets Expectations, " concluding that McCallum was a "strong Leasing Consultant" who nonetheless needed to improve in certain areas. (ECF No. 21-9.)[2] When she received this evaluation, McCallum wrote that she "[felt] most of my evaluation [was] accurate." (ECF No. 21-9.)

McCallum's day-to-day existence as an Archstone Leasing Consultant was similarly mixed-on some days, she received praise, on others, criticism. According to McCallum, she was regularly told she was doing well in her position from the various individuals who supervised her between August 2007 and June 2008. In one specific instance from September 2007, Wooldridge, who was McCallum's supervisor at the time, responded to a new tenant who had written a complimentary email about McCallum. Wooldridge's reply email stated he and others at Archstone had also been "impressed with [McCallum's] ability to make people feel at home with her sincere customer service approach." (ECF No. 26-4.) McCallum also recalled an instance when Leisa Wolfe, who was her supervisor beginning in March 2008, took time out of a staff meeting to read aloud an email from a satisfied resident complimenting McCallum's hard work. Wolfe then said, again in front of the staff, "she was proud of the work that [McCallum] was doing" and told her to keep up the effort. (McCallum Dep. 126:9-18, ECF No. 26-1.)

The instances when McCallum was criticized for her performance are more specific and numerous. From August 2007 until June 2008, McCallum received four disciplinary notices from various supervisors, some of which noted multiple violations of company policy. In each case, the disciplinary notice was a "Verbal Counseling, " which is the least severe recorded disciplinary notice given to Archstone employees. But each of these records also included the following warning: "If performance or conduct is not corrected to an acceptable level or if other unacceptable performance or conduct occurs, further corrective action may be taken up to and including termination." ( See, e.g., ECF No. 21-10 at 2.) McCallum received a verbal counseling on August 30, 2007 for violating Archstone's uniform policy (ECF No. 21-10 at 2); a verbal counseling on October 16 for creating the appearance of a conflict of interest by fraternizing with a current resident (ECF No. 21-10 at 3); a verbal counseling on January 7, 2008 for improperly cancelling lease entries, showing a "complete disregard" for her training, and walking away from and otherwise reacting in a nonchalant way to her supervisor's critique (ECF No. 21-10 at 5); and finally, a verbal counseling on January 18 for a "pattern of unexcused absences" and other violations of Archstone's attendance policy over the course of the prior month (ECF No. 21-10 at 7). In some instances, the verbal counseling indicated only that McCallum would be monitored by supervisors or restated Archstone's expectations of her. The January 7 counseling stands out for its emphasis on the urgent need for improvement. Lori Lanham, McCallum's then-supervisor, wrote that McCallum needed to make immediate improvements because there had been "ample time to make these adjustments" and she had already received the proper training. (ECF No. 21-10 at 5.) But after January 18, McCallum did not receive any other documented disciplinary notice-verbal counseling, written counseling, probation, or suspension-until she was terminated on June 30, 2008.

Leisa Wolfe became the community manager at Westchester at Cherry Lane in March 2008. On April 21, 2008, Wolfe held a meeting with staff at the property and wrote an email giving the staff a "final warning" regarding violations of Archstone's attendance policy. (ECF No. 21-11.) Future violations of the policy, Wolfe wrote, would lead to immediate "written documentation." She requested that all employees at the property sign the attendance policy again, which McCallum did that day.

On June 15, McCallum informed her colleagues that she was pregnant with twins. After her announcement, McCallum alleges that Wolfe and Leticia Taylor, the Assistant Community Manager, exchanged disapproving looks, seemed upset by the news, and did not congratulate her on her pregnancy. (McCallum Decl. ¶ 6, ECF No. 26-2.) According to McCallum, after the pregnancy announcement, Wolfe began to shun her, stopped holding regular morning meetings with her, and changed her smoking habits to time her breaks in order to follow and observe McCallum as she carried out her duties. (McCallum Decl. ¶ 7-9.) McCallum alleges that Taylor also became less accessible after her announcement.

Beyond these general impressions of a change in attitude, McCallum recalls several specific instances when her supervisors treated her differently after the pregnancy announcement. On June 28, two days before she was fired, McCallum claims that Wolfe approached her and told her that her jacket did not fit properly and that she needed to acquire a new one to comply with Archstone's uniform policy. But during this interaction, McCallum also claims that Wolfe said "cover up that baby belly" and patted her stomach. (McCallum Dep. 182:15-183:21, 186:7-9.) Additionally, on some unspecified date after the pregnancy announcement but before her termination, McCallum claims that Taylor expressed concern that McCallum had taken longer than usual to inspect an apartment, and Taylor was worried that McCallum had fainted during the inspection. (McCallum Dep. 199:4-21.) McCallum claims she told Taylor she was treating her differently because of her pregnancy, but Taylor had no response. Later, according to McCallum, Taylor asked her if she thought it was wise to approach visitors in her "condition" after an incident in which a visitor ignored her direction that he could not enter Westchester at Cherry Lane unless she gave him a tour. (McCallum Dep. 205:11-13.) McCallum understood Taylor's alleged reference to her "condition" to mean her pregnancy.

On June 30, only two days after the alleged "baby belly" comment, Wolfe met with McCallum to inform her that she was fired effective immediately. The termination memorandum contained a litany of alleged violations of Archstone rules committed by McCallum over the course of more than two months. The memorandum first cited McCallum for reporting to work late on two occasions-on May 10, McCallum was twenty minutes late, and on June 7, she was fifteen minutes late. The memorandum also alleged that on June 8 McCallum failed to follow proper procedures for calling out of work, a violation of the Archstone attendance policies. Third and perhaps most importantly, the memorandum cited McCallum for falsifying company records. The memorandum explained that McCallum received an inquiry, or lead, that appeared to be sent by a prospective tenant but was actually a monitored and fake lead sent by Archstone's own marketing department. Although this monitored lead contained no phone number in the contact information section, Archstone discovered an entry in its database made by McCallum noting that she had left a voicemail in response to the lead. (ECF No. 21-12 at 4.) According to the termination memorandum, McCallum was "approached" about the discrepancy but was "unable to provide any additional documentary support to this lead." (ECF No. 21-10 at 9.) The memorandum cited an additional violation, this time regarding McCallum's uniform. According to the memorandum, Wolfe told McCallum on June 28 her jacket did not fit, and she needed to purchase a new jacket in order to comply with the Archstone uniform policy.[3] The memorandum went on to say McCallum came to work on June 30 with a jacket that still did not fit her properly, putting her in violation of the uniform policy despite the warning from two days earlier. Finally, the memorandum cited McCallum for making a direct request to cleaning contractors to add apartments to their schedule in violation of Archstone policy.

McCallum offered her own written comments during the termination meeting. She acknowledged that she "made a few mistakes." (ECF No. 21-10 at 10.) She claimed the reason she approached the cleaning contractors directly was because she could not communicate with Taylor in time to set up the cleaning schedule for her apartments, but acknowledged that she should have spoken with Taylor. She also explained that she did buy a new jacket and did not purposefully buy a wrong-fitting one. Finally, with regard to the falsification of records accusation, she claimed she simply "mistakenly messed up" the lead and said she would "never knowingly disrespect the company or its practices." (ECF No. 21-10 at 11.)

Since her termination, McCallum has offered more details about the termination meeting. McCallum now claims she told Wolfe she felt her termination was related to her pregnancy, and Wolfe responded by saying that had this concern been raised earlier, the termination decision may not have been made. (McCallum Dep. 180:14-22.) She also claims that Wolfe pressured her to admit her fault in the termination meeting and did not even give her an opportunity to review her own emails or documentation to defend against the falsification of records accusation. (McCallum Decl. ¶ 13, 18.) On July 1, McCallum claims she called Michele Levix, an Archstone human resources officer, and inquired about what recourse she could take to appeal the decision made by Wolfe. McCallum claims she told Levix about her concerns about pregnancy discrimination, but Levix told her she supported Wolfe's termination decision. (McCallum Dep. 261:16-263:4.) Archstone has no documentation of McCallum's contemporaneous complaints to either Wolfe or Levix regarding pregnancy discrimination, and consequently has no evidence of a contemporaneous investigation into possible discrimination. (Lynch Decl. ¶ 7, ECF No. 21-2.)

McCallum has also disputed several issues raised in the termination memorandum, the most important being her claim that she was never approached by Wolfe prior to the June 30 termination meeting about the falsification accusation. According to McCallum, the first she heard of this charge was June 30, notwithstanding the notation in the termination memorandum indicating she had been approached on an earlier date to get her side of the story. (McCallum Dep. 217:13-219:13.) For its part, Archstone has provided no record evidence or testimony that a meeting between Wolfe and McCallum took place except for very brief testimony by Wolfe from an audio recording of an unemployment benefits hearing. (ECF No. 29-3.) The only other evidence relating to the alleged falsification of records is an email from Christina Hershey, an Archstone marketing employee, calling the questionable database entry to Wolfe's attention ...


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