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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
------------------------------------------------*
ALFRED G. KING,
Plaintiff-Appellant,
v.No. 02-1313
DONALD RUMSFELD, Secretary,
United States Department of
Defense,
Defendant-Appellee.
------------------------------------------------*
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Chief District Judge. (CA-01-1152-A)
Argued: February 24, 2003
Decided: May 8, 2003
Before WILKINS, Chief Judge, and LUTTIG and GREGORY, Circuit Judges.
____________________________________________________________
Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Chief Judge Wilkins joined. Judge Gregory wrote an opinion
concurring in part and dissenting in part.
____________________________________________________________
COUNSEL
ARGUED: Susan M. Andorfer, SUSAN M. ANDORFER, L.T.D.,
Belleville, Illinois, for Appellant. Rachel Celia Ballow, Assistant
United States Attorney, Alexandria, Virginia, for Appellee. ON
BRIEF: Carolyn P. Carpenter, CARPENTER LAW FIRM, Rich-
mond, Virginia, for Appellant. Paul J. McNulty, United States Attor-
ney, Alexandria, Virginia, for Appellee.
____________________________________________________________
OPINION
LUTTIG, Circuit Judge:
Appellant Alfred G. King appeals the district court's order granting
summary judgment in favor of his former employer, the United States
Secretary of Defense, on his race and sex discrimination and retalia-
tion claims brought under Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. §§ 2000e to 2000e-17. Because King has not
presented a prima facie case as to his race and sex discrimination
claims and because he has not overcome his employer's asserted
legitimate motive in terminating him with respect to his retaliation
claims, we affirm.
I.
The relevant facts of this case are straightforward. In 1996, King,
a black man, was hired as a teacher by the Department of Defense
(DOD) Dependent Schools, subject to a two-year probationary period.
During the time of his probationary employment, King was repri-
manded and counseled on multiple occasions by different superiors
for using profanity around the students and for belittling them. King's
first supervisor, Thomas Whitaker, was the first to take notice of and
to confront King about this behavior. When Whitaker took medical
leave, his successor, Douglas Carlson, heard similar reports of King's
unsuitable conduct and similarly reprimanded and counseled King.
Because King was a probationary teacher and because his conduct
concerned Carlson, Carlson began to review other aspects of King's
work, including his lesson planning. Ultimately, Carlson concluded
that King's job performance was inadequate, as reflected by his les-
son planning, among other factors.1 Carlson shared his conclusion
____________________________________________________________
1 For example, in one particular instance, King left identical worksheets
for three different classes at different grade levels when he had to be
absent. Carlson concluded that the uniform worksheet for such disparate
classes reflected inadequate preparation on King's part.
2
with King and counseled him as to how he might improve his perfor-
mance. Following a subsequent performance review - which this
time culminated with Carlson telling King he could be terminated
based upon his performance - Carlson received notice from the
DOD Office of Complaint Investigations that King had filed an Equal
Employment Opportunity (EEO) complaint against him.
Before Carlson took any definitive action with respect to King's
employment, Whitaker returned from his medical leave. Upon return-
ing, Whitaker met with Carlson to discuss King's performance.
Whitaker reviewed the many notes Carlson kept of his conferences
with King and of King's job performance. Whitaker then met with
King on two occasions and asked King to explain his side of the
events that occurred while Whitaker was away. Following these meet-
ings, Whitaker decided to evaluate King himself before making a
decision regarding his termination. Whitaker observed King's classes
on several occasions and talked to several of King's students. Follow-
ing his own review, Whitaker decided to terminate King prior to the
end of his two-year probationary period.
King then brought this action alleging that he was terminated for
discriminatory motives and that his termination was a retaliatory
action against him for filing an EEO complaint. To support his claim,
King proffered evidence (1) that another probationary teacher, a white
man, whose conduct had generated complaints from students and par-
ents was not fired;2 (2) that Carlson picked on him; (3) that a substi-
tute teacher had been pressured by Carlson into providing a critical
review of King after substituting for him; (4) that upon learning of
King's EEO complaint Carlson said to him, "[t]hat's what you people
always say when you screw up;" and most importantly, as will
quickly become evident, (5) that other teachers at the school consid-
ered King's lesson plans not to be substantially different from their
own plans.
Upon motion for summary judgment, the district court granted
judgment to appellee. The court determined that King's proffer failed
____________________________________________________________
2 The record, however, also discloses that this teacher, who had been
asked not to tickle the students after two reported incidents of such, cor-
rected his behavior following reprimand, unlike King.
3
to establish a prima facie case of race or sex discrimination because
it did not contain evidence that King's job performance was satisfac-
tory at the time of his discharge. The court also determined that King
failed to establish a prima facie retaliatory discharge claim.
II.
We review an award of summary judgment de novo. Higgins v. E.I.
DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988).
Summary judgment is appropriate only if there are no material facts
in dispute and the moving party is entitled to judgment as a matter of
law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). We view the evidence in the light most favorable to the
non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986).
A.
To establish a prima facie case of discriminatory discharge, King
must show: (1) that he is a member of a protected class; (2) that he
suffered from an adverse employment action; (3) that at the time the
employer took the adverse employment action he was performing at
a level that met his employer's legitimate expectations; and (4) that
the position was filled by a similarly qualified applicant outside the
protected class. See Brinkley v. Harbour Recreation Club, 180 F.3d
598, 607 (4th Cir. 1999). This case turns on King's inability to dem-
onstrate the third factor -that at the time of his discharge he was per-
forming at a level that met appellee's legitimate expectations.
Appellee offered substantial evidence that King was not in fact
meeting legitimate job performance expectations, chronicling in detail
King's poor performance and his supervisors' numerous concerns.
King's response to appellee's evidence is limited to his own claim of
satisfactory job performance and to testimony he elicited from his fel-
low teachers to the effect that his lesson plans were substantially com-
parable to their own. Neither testimony can sustain a challenge to
appellee's proffer that King was not in fact meeting appellee's legiti-
mate performance expectations.
4
King's own testimony, of course, cannot establish a genuine issue
as to whether King was meeting appellee's expectations. See Evans
v. Technologies Applications & Serv. Co., 80 F.3d 954, 960-61 (4th
Cir. 1996) ("It is the perception of the decision maker which is rele-
vant, not the self-assessment of the plaintiff." (citations omitted)). Nor
can the fact testimony of King's co-workers that his lesson plans were
comparable to theirs establish this genuine issue. Proof that King's
performance was comparable to his co-workers' is not proof that
King's performance met appellee's legitimate job performance expec-
tations. It is only proof that his work looked like that of his co-
workers, a fact that, without more, does not bear on the critical inquiry.3
For this reason we have long rejected the relevance of such testimony
and held it to be insufficient to establish the third required element of
a prima facie discrimination case. See, e.g., Hawkins v. Pepsico, Inc.,
203 F.3d 274, 280 (4th Cir. 2000) ("The alleged opinions of Hawkins'
co-workers as to the quality of her work are [ ] close to irrelevant."
(citation omitted)); Tinsley v. First Union Nat'l Bank, 155 F.3d 435,
444 (4th Cir. 1998) ("[A]lthough the affidavits put forth by Tinsley
document the fact that certain co-workers, Bank customers, and attor-
neys believed Tinsley was doing a good job, they fail to address
whether management honestly believed that Tinsley was doing a good
job." (emphasis added)).
The irrelevance of King's co-workers as fact witnesses does not, as
King contends, foreclose employees like him from ever proving a
prima facie case of race and sex discrimination. King argues that our
rule only allows employees to satisfy the prima facie standard in the
unique, and employer-controlled, circumstance where the employer
either (1) concedes that the employee was performing satisfactorily at
the time of discharge, or (2) has previously given the employee posi-
tive performance reviews that establish this third element. But such
is not the case. For King to establish that his work met appellee's
legitimate job performance expectations he had only to offer qualified
expert opinion testimony as to (1) appellee's legitimate job perfor-
____________________________________________________________
3 That King's co-workers thought his work substantially similar to their
own is simply not the smoking gun King believes. By way of example,
the co-worker's testimony, taken as fully accurate, might simply reflect
that their job performance too was lacking.
5
mance expectations and (2) analysis and evaluation of King's perfor-
mance in light of those expectations.
It is not inconceivable that a plaintiff's co-workers could qualify as
expert witnesses to testify as to their employer's legitimate job perfor-
mance expectations and as to their own analysis and evaluation of the
plaintiff's performance in light of those expectations. But King never
proffered his co-workers in this capacity. And, even had the co-
workers been so proffered, their testimony never touched on either of
these two critical inquiries. King's co-workers' testimony was limited
to the fact observation that King's lesson plans looked like theirs, and,
arguably, to the fact that they believed King's work met appellee's
expectations. Since testimony as to the fact that King's work looked
like that of his co-workers, or even as to the fact that they believed
his work met appellee's expectations, does not establish what expec-
tations appellee could legitimately have, it cannot begin to answer the
first step of the inquiry. Nor, obviously, can it answer the second step
of the inquiry - an evaluation of King's work under appellee's as-of-
yet unidentified legitimate expectations. Failing to address what
expectations of King appellee could legitimately maintain and failing
to analyze King's work in light of such opined expectations, the co-
workers' fact testimony cannot build a prima facie case for King.4
Because King cannot establish that his job performance satisfied
appellee's legitimate expectations, and so cannot establish a prima
facie case, his other allegations - that a similarly situated white, pro-
bationary teacher was not fired after complaints were raised about
him, and that Carlson picked on him, asked a substitute to critique
him, and ultimately told him "[t]hat's what you people always say
when you screw up" - are irrelevant to the inquiry. These allega-
____________________________________________________________
4 King's argument is really no more than an argument for the admissi-
bility of expert opinion testimony from unqualified, non-expert wit-
nesses. For, King's conclusion - that the fact that his co-workers
thought he met appellee's expectations is probative of whether he did
meet those expectations - necessarily relies on the implicit assumption
that the co-workers' have reliable and admissible (i.e., expert) opinions
as to what expectations appellee could legitimately maintain and as to
whether analysis of King's work shows satisfactory performance under
those expectations.
6
tions, as King recognizes, go to the issue of whether appellee's expla-
nation of King's discharge is pretextual. But, since King never
established a prima facie case as to his discrimination claims, appellee
is under no duty to supply an explanation for King's discharge. See
Brinkley, 180 F.3d at 607 ("Once the prima facie case is established,
the burden shifts to the employer to articulate a legitimate, nondis-
criminatory reason for the adverse employment action." (emphasis
added)). Because appellee is freed from having to justify the dis-
charge (with respect to the discrimination claims), King's evidence-
in-waiting, prepared to rebut any justification, is of no moment.
B.
The district court also concluded that King failed to make out a
prima facie case of retaliatory discharge. We disagree. We conclude
that King did indeed make out a prima facie case of retaliation. How-
ever, appellee offered a legitimate, non-retaliatory motive for King's
termination, as to which proffer King has not offered evidence of pre-
text.
To make out a prima facie case of retaliation, King must show (1)
that he engaged in a protected activity; (2) that his employer took an
adverse employment action against him; and (3) that a causal connec-
tion existed between the protected activity and the asserted adverse
action. See Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir.
1999). Here, King's filing of the EEO complaint was protected activ-
ity, and his termination indisputably constituted adverse employment
action. Moreover, that his termination came so close upon his filing
of the complaint gives rise to a sufficient inference of causation to sat-
isfy the prima facie requirement. See id. ("Appellant's proof of a
causal connection between the protected activity and her discharge
was that she was fired after her employer became aware that she had
filed a discrimination charge. While this proof far from conclusively
establishes the requisite causal connection, it certainly satisfies the
less onerous burden of making a prima facie case of causality.").5
____________________________________________________________
5 King's firing came two months and two weeks following Carlson's
receipt of notice that King had filed an EEO complaint with DOD's
Office of Complaint Investigations. This length of time between Carl-
7
Appellee, however, proffered a legitimate, non-retaliatory dis-
charge motive - that King was not meeting appellee's job perfor-
mance expectations - after King shifted the burden to it by
establishing his prima facie case. See id. ("Once this prima facie evi-
dence [of retaliatory discharge] is established, it must be rebutted by
legitimate nonretaliatory reasons[.]"). Appellee thus shifted the bur-
den back to King with his proffer. See Womack v. Munson, 619 F.2d
1292, 1296 (4th Cir. 1980) (following the employer's proffer of a
legitimate, non-retaliatory reason for an adverse employment action
the burden of persuasion remains with the plaintiff to prove that the
employer's reason is pretext, a cover-up for retaliation).
None of King's various allegations - that a similarly situated
white, probationary teacher was not fired after complaints were raised
about him, and that Carlson picked on him, asked a substitute to cri-
tique him, and ultimately told him "[t]hat's what you people always
say when you screw up" - contradict appellee's proffered discharge
motive.
Nor are they probative in the manner that the dissents suggests. For
example, the dissent says:
[T]hat Whitaker was aware of reports of ongoing miscon-
duct by Moore - post reprimand . . . establishes a solid
basis for the permissible inference . . . that the administra-
tors knew that Moore's misconduct continued beyond repri-
mand[.]
Post at 16. But, evidence that a parent wrote to the school to complain
about this other teacher after that teacher was reprimanded cannot
____________________________________________________________
son's notice of the complaint and the adverse employment action is suffi-
ciently long so as to weaken significantly the inference of causation
between the two events. Yet, in the context of this particular employment
situation, this length of time does not undercut the inference of causation
enough to render King's prima facie claim unsuccessful. Here, Carlson
and Whitaker committed to ongoing reviews of King's performance that
set the end of the academic school year as the natural decision point, thus
making likely that any discharge, lawful or unlawful, would come at that
time.
8
establish that King and that teacher were similarly situated. To estab-
lish that King and that teacher were similarly situated, King must
proffer evidence that school administrators believed that the other
teacher had, like King, continued his misconduct beyond reprimand.
To prove this, either King must directly proffer evidence of the
administrators' beliefs, or he must proffer evidence that the other
teacher's misconduct did in fact continue beyond reprimand. Of
course, the latter proof form is relevant only insofar as it might make
possible the inference that despite the administrators' protestations to
the contrary, they did in fact know about the misconduct.
King does not present the first form of proof here - testimony that
the administrators believed the two teachers were similarly situated in
the relevant respect. The administrators testified they believed the
other teacher had ceased his misconduct. King proffered no evidence
to contradict their testimony directly. The letter from the vexed parent
that the dissent cites does not, and cannot, directly establish that the
administrators thought as the parent thought. It establishes only that
the administrators were informed as to the parent's thoughts. Indeed,
that very letter reports that the administrators disagreed with its author
and believed the other teacher had ceased his misconduct.
The second form of proof - proving by inference from the fact
that the other teacher's misconduct had continued beyond reprimand
that the administrators knew such to be the case - is not met here
either. The only evidence King proffers on this score is the same letter
as discussed above. King argues, in essence, that the letter proves two
different facts: (1) that the teacher did in fact continue his misconduct
beyond reprimand; and (2) that the administrators were given knowl-
edge of this fact. It should be readily apparent that until evidence that
can establish the fact of continuing misconduct is proffered, the letter
cannot establish the second fact. For if there is no proof that the mis-
conduct continued, the letter cannot establish that the administrators
were given knowledge that it continued since the foundation of any
such knowledge is the actual fact that the misconduct continued.
The letter, however, cannot establish that the misconduct in fact
continued. As an initial matter, the letter-writer concedes he is a par-
ent of a child who had not been inappropriately touched by the
teacher following his reprimand. See J.A. at 333-34. Consequently,
9
the aspect of the letter to which King, and the dissent, cling is the
hearsay assertion by that parent that another parent's child had been
inappropriately touched after the teacher's reprimand. The letter
writer claimed to have "learned" of that alleged instance (and most
importantly of the time it occurred) via a hearsay report from his son.
He did not learn of the incident (and again, most importantly, of the
time it occurred) from either the allegedly inappropriately touched
child or from the parent of that child. Indeed, the letter-writer notes
that in another hearsay conversation with the parent of the allegedly
touched child, while the parent of that child confirmed his child had
been "poked," he could not confirm that such had occurred after the
teacher had been reprimanded. See J.A. at 333. Furthermore, and of
greatest import, King proffered no evidence either from the student
who was allegedly poked after the teacher's reprimand, or from that
student's parent. And, we note as well, neither that student nor his
parents filed a complaint with the school alleging that the student was
inappropriately touched following Moore's reprimand. There is thus
no reliable, proffered basis on which to conclude that the teacher's
misconduct continued past reprimand.
Since the letter cannot establish the fact of continuing misconduct,
and since no other evidence was presented to establish this fact, the
letter cannot establish that it gave the administrators knowledge of
such a fact. With no valid evidentiary basis on which to infer that the
administrators knew, despite their denial, that the other teacher's mis-
conduct continued, King cannot establish inferentially that he was
similarly situated to that other teacher.
Likewise, the dissent places too much weight on the testimony by
Donna Fontenot (a substitute teacher at the school) that Carlson asked
her to be "critical" of, or make "derogatory comments" about, King's
lesson plans in her post-substituting evaluation forms. See J.A. at 381.
As an initial matter, that an employer asks, or even coerces, a subordi-
nate to evaluate another's work critically is not sufficient on its own
to establish evidence of pretext. Employers are entitled to demand
that subordinates provide critical reviews of their employees when
such are justified by sub-par work. And, even if Carlson's demand of
Fontenot is the least bit probative that he harbored an unlawful motive
for firing King and so desired that she provide a pretext under which
he could fire him, the fact is that Carlson did not fire King. Whitaker
10
fired King after conducting his own independent investigation of the
matter, and after Carlson had left the school. No evidence links to
Whitaker the motive King uses Fontenot's testimony to ascribe to
Carlson. Since Carlson did not fire King, and since any motive Carl-
son had for pressuring Fontenot is not attributable to Whitaker, Fonte-
not's testimony could only be relevant if the record contained
evidence that Fontenot provided reviews of King's work that falsely
attributed sub-par performance to him and that King was fired at least
partially on that basis. But, the record contains no suggestion at all
that the reviews Fontenot provided were in any way inaccurate
reviews of King's work.
The dissent also points to King's co-worker testimony as evidence
that King was treated differently than similarly situated colleagues.
But again, for similar reasons as governed our discussion in section
II.A., cf. infra pp. 4-7, the opinion of King's colleagues that his work
was equivalent to theirs is probative only of the fact that those co-
workers believed their work was equivalent to his. It is not probative
of whether King's work actually was equivalent to theirs, and thus of
whether King actually was similarly situated to them. For King to
prove that he was similarly situated to his colleagues in terms of his
job performance would, in the absence of evidence to that effect from
the employer or its job performance reviews, require an expert to
form an opinion based on reasoned analysis as to how King and the
other teachers were performing and as to how their performances
measured against one another. Such is not the stuff of lay, fact testi-
mony. Compare Fed. R. Evid. 701 (opinion testimony by lay wit-
nesses allowed only where that opinion is "rationally based on the
perception of the witness," and not where the opinion is based on
"specialized knowledge"), with Fed. R. Evid. 702 (Testimony by
Experts). Thus, just as it would take an expert witness to provide an
opinion as to whether any given teacher had met legitimate job per-
formance expectations, as the dissent agrees, see post at 13, 17, so too
it would take an expert to provide an opinion as to whether any given
teacher's work was equivalent to that of another teacher's.
Though the dissent would rely upon Conkwright v. Westinghouse
Electric Corp., 933 F.2d 231 (4th Cir. 1991), to reach the contrary
conclusion, that case does not support the dissent. In Conkwright, we
considered the employment discrimination claims of a worker who
11
was laid off after his employer enacted firm-wide cutbacks by first
rating all its employees, and then discharging those on the bottom of
the ratings list. Conkwright's co-workers testified that they thought he
did a good job, that he did not deserve his ratings, and that he did not
deserve to get laid off. We concluded that this co-worker testimony
was close to irrelevant, but in dicta in a footnote observed that:
It is only close to irrelevant because if the ratings were
wildly out of line with other indicia of an employee's per-
formance then one may question whether the rating system
has a bias in its implementation. But that is not the case
here.
Id. at 235 n.4.
As is readily apparent from the language of that footnote, we were
there concerned with the relevance of "indicia of an employee's per-
formance" in an inquiry as to pretext. We did not there address the
reliability of co-worker testimony as a means of proving that an
employee's work performance was either adequate or that it was
equivalent to that of other workers.
Here, we accept that indicia of King's performance might be rele-
vant to the pretext inquiry. But, as explained above, King has not
proffered any reliable and admissible testimony as to such indicia,
and King cannot qualify the testimony of his co-workers as a reliable
assessment of the relative competence of him and his co-workers. The
dissent's effort to backdoor the co-worker testimony into the case
under Conkwright thus fails and King may not ground his proof of
pretext on such testimony.
For all the reasons given above, none of the evidence King proffers
is sufficiently demonstrative of retaliatory intent to establish that the
unrebutted poor performance discharge motive is pretext. As a result,
King's proffer is insufficient for his action to survive appellee's
motion for summary judgment. And while the district court improp-
erly found King not to have made out a prima facie case, it properly
granted summary judgment for appellee.
12
CONCLUSION
For the reasons stated herein, the judgment of the district court is
affirmed.
AFFIRMED
GREGORY, Circuit Judge, concurring in part and dissenting in part:
I join the majority's opinion with respect to King's failure to estab-
lish a prima facie case of discriminatory discharge. As the majority
finds, King has not adduced sufficient evidence of satisfactory perfor-
mance vis-a-vis his employer's legitimate expectations to survive
summary judgment. Additionally, I concur in the majority's reversal
of the district court's conclusion that King failed to make out a prima
facie case of retaliatory discharge. However, for the reasons that fol-
low, I dissent from the majority's conclusion that King's allegations
of discriminatory treatment are insufficient to create a genuine issue
of material fact with respect to pretext.
The majority identifies King's allegations regarding differential
and discriminatory treatment at the hands of his employer. The major-
ity then posits that this treatment, even if assumed to be true, fails to
contradict the Secretary's proffered discharge motive. To survive
summary judgment, however, King need not squarely rebut his
employer's explanation. Instead, King must cast sufficient doubt upon
the genuineness of the explanation to warrant a jury's consideration
of possible alternative and discriminatory motivations for the firing.
As a basic proposition, it is not terribly difficult to imagine a work-
place where, confronted with a group of underperforming employees,
an employer who is improperly motivated by discriminatory and
retaliatory animus, singles out the minority employee for firing after
he files a complaint. Because he has made out a prima facie case, if
King also has cast doubt upon the real motivations behind his unique
treatment, he has adduced sufficient evidence to survive summary
judgment.
In Hawkins v. Pepsico, Inc., 203 F.3d 274, 280 (4th Cir. 2000), a
panel of this Court addressed the exact nature of the evidence neces-
13
sary to establish pretext. Writing for the Court, Judge Wilkinson
noted, "[I]nstead of producing evidence that shows [ ][the employer's]
assessment of [ ][the employee's] performance was dishonest or not
the real reason for her termination - as the law requires - [ ][the
employee] disputes the merits of [ ] [the] evaluations." Id. (emphasis
added). In Hawkins, the employee simply took issue with the employ-
er's assessment of her performance deficiencies. The Court required
that the employee actually offer some evidence suggesting that an
alternative reason existed for the termination. In Hawkins, beyond the
employee's self-serving and conclusory allegations of racism, there
was no such evidence. Hence, in reviewing for pretext at the summary
judgment stage, we should assess whether the plaintiff has adduced
evidence sufficient to create a genuine doubt in the mind of a reason-
able jury regarding the veracity of the proffered justification. Our
analysis must be limited to whether the evidence is competent and
sufficient to create a genuine issue of material fact for the jury to
resolve - as opposed to whether the evidence will overcome cross-
examination and the rigors of trial to carry a jury. King maintains that
he was treated differently than his similarly situated co-employees. To
support this proposition, he offers several factual illustrations, which
I find genuinely troubling and deserving of a jury's consideration.
In an age in which schools are acutely aware of the dire conse-
quences that may follow from allegations of inappropriate touching
of students by teachers, one would expect school administrators to
respond rapidly and decisively to any such allegation. Yet, it is pre-
cisely in this highly charged context that we observe a case of laissez-
faire and differential treatment by the school. Specifically, I am dis-
turbed by the differential treatment of King's white co-worker, Rich-
ard Moore, who violated the school's policies by inappropriately
poking and tickling students, yet was not terminated, nor even for-
mally written-up for the incident.
The Secretary claims that Moore stopped his objectionable conduct
once warned, yet King proffers evidence that undermines this
defense. To wit, King offers the testimony of Robert Inaba, whose son
Keith had been inappropriately touched by Moore throughout the
year. See J.A. at 333-334. Inaba brought this conduct, along with
other complaints regarding Moore, to the attention of Whitaker during
a June 2, 1997 meeting. Id. Whitaker acknowledged that another par-
14
ent had notified him of similar misconduct, and indicated that he had
already counseled Moore regarding the inappropriate touching. Dur-
ing the same meeting, once Moore had left the room, Whitaker
assured Inaba that, "[Moore] should not have touched any students
within the last seven days." Id. When Inaba returned home and related
Whitaker's assurance that the inappropriate touching would stop, his
son informed him that Moore had touched another student, Damon
Dukes, earlier that very day. On the morning of June 3, 1997, Inaba
telephoned Whitaker and related his son's report of the ongoing
touching, which clearly undermined his assurances. Id. Whitaker
stated that he would investigate the matter. After follow-up conversa-
tions with Whitaker on June 4 and June 6, Inaba reported that
Whitaker's investigation of the matter was limited to asking a third-
party whether he too had observed the June 2 touching. Id. Whitaker
did not ask the alleged victim of Moore's conduct about the incident.
Finally, frustrated with Whitaker's apparent unwillingness to take his
concern seriously, Inaba contacted Damon Dukes' father on June 9.
During this conversation, Mr. Dukes confirmed that the touching had
occurred sometime during the previous week, although he could not
specify precisely when it occurred. Id.
The majority argues that to prove that King and Moore were simi-
larly situated for purposes of discipline, King would have to show that
Moore's misconduct continued beyond reprimand, which would per-
mit the inference that the administration did in fact know of the con-
tinuing misconduct. Supra at 9. The majority turns to the Inaba
incident discussed above and concludes that it does not demonstrate
that the misconduct continued beyond the reprimand. Id. at 10. How-
ever, this conclusion simply does not follow from the relevant facts.
The majority notes that Inaba learned of the incident on June 2
through his son, rather than from Damon Dukes or his father. The
majority then acknowledges that Inaba spoke to Mr. Dukes, and con-
firmed that Damon had been touched. The majority places great
emphasis upon its observation that Mr. Dukes did not indicate that the
touching had "occurred after the teacher had been reprimanded." Id.
Finally, the majority notes that neither the victim nor his parent filed
a complaint alleging the touching. Hence, according to the majority,
there is no basis upon which the inference of knowledge of continued
touching may rest.
15
Indeed, Inaba's letter reports no express confirmation by Mr.
Dukes that his son had been touched after the reprimand. However,
Inaba's letter does not report that he requested such a confirmation.
Indeed, Inaba relates that Mr. Dukes indicated that his son had been
touched sometime during the previous week. See J.A. at 333. This
conversation occurred on June 9, 1997. Hence, we can assume that
the touching occurred sometime on or after June 2, 1997. However,
on June 2, 1997, Whitaker had assured Inaba that he had already spo-
ken to Moore regarding the touching, and that he should not have
touched any student within the last seven days. It is hardly a great
leap to infer from this that Whitaker was on notice regarding the
reported touching by Moore during late May 1997. Therefore, Inaba's
June 3, 1997 report to Whitaker regarding an incident alleged to have
occurred on June 2, 1997, establishes that Whitaker was aware of
reports of ongoing misconduct by Moore - post-reprimand.
This fact establishes a solid basis for the permissible inference, to
adopt the majority's logical approach, that the administrators knew
that Moore's misconduct continued beyond reprimand, yet failed to
discipline him as they would ultimately discipline King. Hence, King
has established a genuine issue of material fact warranting a jury's
consideration of differential treatment. The majority validly observes
that Inaba's testimony is indirect, that neither Damon Dukes nor his
father filed a complaint, and we might well expect the Secretary to
present just such a challenge to King's evidence at trial. However, we
must limit our inquiry at present to whether King may survive sum-
mary judgment, not prognosticate whether his evidence will ulti-
mately sway a jury. King's evidence of the differential treatment vis-
a-vis his white colleague alone constitutes sufficient evidence of pre-
text to deny summary judgment.
However, King offers significant proof beyond the Moore incident
from which we may infer that he was treated differently by his
employer. For instance, King offers the testimony of Donna Fontenot,
a substitute teacher at the school, who testified that she was coerced
by Carlson to prepare reviews denigrating the quality of King's lesson
plans. See J.A. at 381-83. Fontenot testified that she felt pressured, at
the risk of losing future teaching assignments, to produce a negative
evaluation of King's work. Id. The majority dismisses this testimony
because it was Whitaker, rather than Carlson, who made the ultimate
16
decision to discharge King. Thus, according to the majority, any
unlawful motive that legitimately could be inferred from Carlson's
coercive campaign to "paper" the record with negative reviews, can-
not serve as a basis for pretext unless King proffers evidence that
Fonteno's reviews were false and that he was fired, at least in part,
on that basis. Supra at 11.
The majority seems to assume that Fontenot's reviews should be
read independently of the circumstances under which they were pro-
duced. By insisting that King demonstrate that Fontenot's reviews
"falsely attributed sub-par performance to him," supra at 11, the
majority returns again to its insistence that King demonstrate the mer-
its of his performance. However, as noted above, King need not
squarely rebut his employer's performance-based explanation.
Instead, he must introduce evidence casting doubt upon the proffered
explanation. It is to this end that Fontenot's testimony should be
directed. That a teacher was coerced to denigrate the work of her col-
league, contrary to her true impressions and beliefs, must at least raise
genuine issues concerning the credibility of Carlson's putative meri-
tocractic zeal. Although Carlson did not make the ultimate decision
to fire King, these coerced reviews were part of King's teaching
record. Of course, as the majority emphasizes, Whitaker asserts that
he discharged King after conducting his own independent investiga-
tion of the case. However, a jury need not blindly accept this version
of events, and may rightfully infer that Whitaker's decision may have
been tainted by Carlson's misconduct - evidence of which abounds.
The Fontenot testimony reveals differential treatment, whereupon a
jury may legitimately discount the reviews as a pretext for the
employer's true unlawful motive.
Finally, the majority dismisses King's proffer of co-worker testi-
mony regarding the similarity of his work to their own. According to
the Court, King may only establish the equivalence of his work by
introducing expert testimony to this effect. Supra at 11. I agree with
the majority that King would require expert testimony to establish that
his work met the legitimate expectations of his supervisor; however,
it hardly follows a fortiori that he must adduce expert testimony to
demonstrate the similarity of his work product to that of his co-
workers.
17
As we have recognized, "[A] lay witness in a federal court proceed-
ing is permitted under Fed. R. Evid. 701 to offer an opinion on the
basis of relevant historical or narrative facts that the witness has per-
ceived." MCI Telecommunications Corp. v. Wanzer, 897 F.2d 703,
706 (4th Cir. 1990)(quoting Teen-Ed, Inc. v. Kimball International,
Inc., 620 F.2d 399, 403 (3d Cir. 1980)). Although lay opinion testi-
mony was once disfavored and presumed excludable, "The modern
trend favors the admission of opinion testimony, provided that it is
well-founded on personal knowledge [as distinguished from hypothet-
ical facts] and susceptible to specific cross-examination." Id. (alter-
ation in original) (quoting 3 J. Weinstein, Evidence¶ 701[02] at 701-
9 and 701-17 (1978)). However, the testimony of such a witness is
limited to those opinions or inferences which are: 1) rationally based
upon the perception of the witness; 2) helpful to a clear understanding
of the testimony or the determination of a fact in issue; and 3) not
based upon knowledge within the scope of Rule 702. Fed. R. Evid.
701. Additionally, we must be on guard to prevent lay opinion testi-
mony when it involves "meaningless assertions which amount to little
more than choosing up sides." Mattison v. Dallas Carrier Corp., 947
F.3d 95, 110-11 (4th Cir. 1991) (quoting Fed. R. Evid. 701, Advisory
Committee Note).
Although the contours of Rule 701 might upon first inspection
appear straight-forward, considerable subtlety is often required to
avoid the mischaracterization of competent lay opinion. See, e.g.,
MCI Telecommunications, 897 F.2d at 706 (citing district court's
error in treating proper lay opinion as expert testimony where witness
offered profit projections based upon her personal knowledge of com-
pany's books); Winant v. Bostic, 5 F.3d 767, 772 (4th Cir. 1993) (not-
ing that sometimes the characterization of testimony as opinion
evidence may be misleading when the focus should be upon rational
inferences drawn from facts of which the witness has personal knowl-
edge). Accordingly, courts have admitted lay opinion testimony under
Rule 701 that goes well beyond the classic confines of physical per-
ception, and which requires the exercise of judgment solidly grounded
in personal knowledge. See, e.g., United States v. Fowler, 932 F.2d
306, 312 (4th Cir. 1991) (admitting lay opinion that defendant knew
rules about treatment of classified documents, upon foundation that
witnesses were familiar with the documents, their classification and
reasons therefor, and the nature of the defendant's work); MCI Tele-
18
communications, 897 F.2d at 706 (profit projections based upon per-
sonal knowledge of company's finances admissible under Rule 701);
Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153 (3d Cir. 1993)
(upholding admission of lay opinion from plaintiff's owner as to dam-
ages, which was based upon personal knowledge and participation in
affairs of business, even if witness relied in part upon report prepared
by outside accountant in preparing opinion); United States v. West-
brook, 896 F.2d 330, 335-336 (8th Cir. 1990) (permitting ex-users to
testify as to the identity of a controlled substance based upon their
past experience with same). What we may derive from these cases is
that the opinion testimony is not admitted due to the "specialized
knowledge," which should be reserved for experts under Rule 702,
but because of the particularized knowledge of a witness by virtue of
his personal experience in a field (legal or not).
The majority's treatment of the distinction between lay and expert
opinion does not do justice to the subtleties of the problem. The
majority oversimplifies this evidentiary issue when it asserts that
King would require an expert witness to "form an opinion based on
reasoned analysis as to how King and the other teachers were per-
forming and as to how their performances measured against one
another." Supra at 11. King has adduced substantial evidence from his
fellow teachers to the effect that their lesson plans were similar. Each
of these teachers and substitute teachers had ample personal knowl-
edge of the subject matter. To allow one teacher to introduce the opin-
ion that his or her colleague's lesson plan "looks similar," as so many
of King's co-workers have testified, would hardly hazard setting Rule
701 adrift from its prudential moorings. If a business owner or book-
keeper, testifying as a lay opinant, may offer such seemingly "special-
ized" insights as profit projections and damage reports, surely an
elementary school teacher can compare two lesson plans, of which he
or she has personal knowledge, without qualifying as an expert. Like-
wise, if an amphetamine aficionado may offer lay opinion comparing
powdery substances of unknown provenance, I do not see why a
teacher must be treated as an expert to compare the appearance of
similar lesson plans. Ultimately, King's proffer of comparative testi-
mony goes not to the merits of the subject work-product, nor to the
legitimate expectations of an elementary school supervisor, but sim-
ply seeks to establish the similarity of two items of evidence, both of
which are personally familiar to the proposed opinant. Therefore, our
19
analysis of pretext should proceed upon the premise that King has
demonstrated a genuine factual question as to whether his work-
product is comparable to that of his colleagues. The ultimate determi-
nation of equivalence, of course, should be reserved for the jury.
Finally, I would take this opportunity to comment upon this Cir-
cuit's precedent, which has been cited by the majority to emphasize
our traditional reluctance to employ the testimony of co-workers to
establish performance merit in unlawful discharge cases. Supra at 5.
Indeed, as the majority correctly explained, an employee may not
introduce the testimony of his co-workers to establish his satisfaction
of his supervisor's legitimate performance expectations. See Hawkins,
203 F.3d at 280; Tinsley, 155 F.3d at 444. I joined the majority's
opinion regarding King's discriminatory discharge claims precisely in
light of such precedent. However, we are now forced to resolve a sep-
arate question altogether: does King's evidence of comparable work
product demonstrate differential treatment by his employers?
The opinion testimony of King's peers establishes a genuine ques-
tion of fact regarding the equivalence of his work product to that of
his peers. This evidence does not establish that his work was meritori-
ous, nor could it under our precedent. We have had occasion, in not-
ing the narrow relevance of co-worker testimony regarding the quality
of a plaintiff's work product, to allow for the admission of such opin-
ion in order to demonstrate the possibility of implementation bias in
an otherwise objectively designed review scheme. See Conkwright v.
Westinghouse Electric Corp., 933 F.2d 231, 235 n.4 (4th Cir. 1991).
In Conkwright, we acknowledged that an "objective" employee rating
system, might be manipulated to generate a neutral looking basis for
discharge. In such a scenario, where co-workers testified that the
employee did not deserve the ratings he received, we observed that
their testimony could be relevant to an argument of pretext. The
majority concedes that such "indicia of King's performance might be
relevant to the pretext inquiry," supra at 12, but goes on to conclude
that King failed to proffer admissible testimony as to such indicia.
Obviously, in light of my discussion of Rule 701, I disagree with this
assessment. King's co-workers' testimony is an indicator of the
equivalence of his performance, and lays the foundation for the infer-
ence that by being singled out for discharge, he was treated differently
on the basis of race, rather than performance.
20
Ultimately, we must recall that we are asked to assess whether
King has raised a genuine issue of material fact on the question of
pretext. On my review of the evidence, I cannot escape the conclusion
that he has done so. I therefore respectfully dissent from the part of
the majority's opinion affirming the district court's summary judg-
ment on King's retaliatory discharge claim.
21