UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1090

CLINTON W. JONES,

Plaintiff - Appellant,

v.

CONSTELLATION ENERGY PROJECTS & SERVICES GROUP, INC., merged 

with Constellation Newenergy, Inc.,

Defendant - Appellee.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Roger W. Titus, Senior District Judge. 

(8:13-cv-00850-RWT)

Submitted: September 29, 2015 Decided: October 22, 2015

Before NIEMEYER, SHEDD, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Barton David Moorstein, BLANK, MOORSTEIN, & LIPSHUTZ, LLP, 

Rockville, Maryland, for Appellant. John M. Remy, Michael N. 

Petkovich, JACKSON LEWIS P.C., Reston, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Clinton W. Jones appeals the district court’s order 

granting summary judgment to Constellation Energy Projects & 

Services Group, Inc. (“CEPS”) on his (1) racial and age 

discrimination claims under Title VII of the Civil Rights Act of 

1964, see 42 U.S.C. §§ 2000e-2000e-17 (2012), 42 U.S.C. § 1981 

(2012), and the Age Discrimination in Employment Act (ADEA), see

29 U.S.C. §§ 621-634 (2012) (Counts 1, 3, 5); (2) retaliation 

claims under Title VII and 42 U.S.C. § 1981 (Counts 2, 4); and 

(3) various state law claims sounding in contract law (Counts 6-

10). On appeal, Jones argues that the district court erred in 

holding that he failed to present direct or indirect evidence of 

retaliation and that he failed to make out a prima facie case of 

racial and age discrimination and of retaliation.1 Finding no 

error, we affirm.

“We review the district court’s grant of summary judgment 

de novo, viewing the facts and the reasonable inferences 

therefrom in the light most favorable to the nonmoving party.” 

 1 Although Jones’ opening brief mentions his state law 

claims in passing, Jones presents no arguments regarding why the 

district court’s order erred in granting summary judgment on 

these claims. Accordingly, Jones has waived appellate review of 

his state law claims in Counts 6-10 of his amended complaint. 

See United States v. Bartko, 728 F.3d 327, 335 (4th Cir. 2013) 

(holding that issue not raised in opening brief, as required by 

Fed. R. App. P. 28(a)([8])(A), is waived). 
3

Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011). “Summary 

judgment is appropriate where there are no genuine issues of 

material fact and the moving party is entitled to judgment as a 

matter of law.” Hoschar v. Appalachian Power Co., 739 F.3d 163, 

169 (4th Cir. 2014). Where the moving party makes an initial 

showing that there is no genuine issue of material fact, the 

nonmoving party must “go beyond the pleadings” and rely on 

affidavits, depositions, answers to interrogatories, and 

admissions on file to demonstrate that a genuine issue of 

material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 

324 (1986). Finally, “[i]t is well established that [a] genuine 

issue of material fact is not created where the only issue of 

fact is to determine which of . . . two conflicting versions of 

the plaintiff's testimony is correct.” S.P. v. City of Tacoma 

Park, 134 F.3d 260, 274 n.12 (4th Cir. 1998) (internal quotation 

marks omitted).

I.

A plaintiff may prove discrimination under Title VII, 42 

U.S.C. § 1981, or the ADEA “either through direct and indirect 

evidence of [discriminatory] animus, or through the burdenshifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 

792 . . . (1973).” Foster v. Univ. of Md.-Eastern Shore, 787 

F.3d 243, 249 (4th Cir. 2015); see Love-Lane v. Martin, 355 F.3d 

766, 786 (4th Cir. 2004) (holding that claims of racial 
4

discrimination under § 1981 are evaluated under the Title VII 

framework). On appeal, Jones alleges he made out a prima facie 

case of discrimination under the McDonnell Douglas test. To 

advance a discrimination claim beyond the summary judgment stage 

under McDonnell Douglas, a plaintiff must put forth a prima 

facie case by showing that (1) “he belongs to a protected 

class;” (2) “he suffered an adverse employment action;” (3) “at 

the time of the adverse action, he was performing his job at a 

level that met employer’s legitimate expectations;” and (4) the

adverse employment action occurred under circumstances giving 

rise to an inference of unlawful discrimination. Adams v. Trs. 

of the Univ. of N.C.-Wilmington, 640 F.3d 550, 558 (4th Cir. 

2011).

Jones, as an African-American in his 50s at the time of his 

termination, is a member of two protected classes for purposes 

of the first element. Regarding the second element, Jones 

identifies four potential adverse employment actions: (1) CEPS 

issuing him a “basic performance” performance review for 2009; 

(2) CEPS placing him on a performance improvement plan (“PIP”); 

(3) CEPS shortchanging him on commissions; and (4) CEPS 

terminating his employment. “The requirement of an adverse 

employment action seeks to differentiate those harms that work a 

significant detriment on employees from those that are 

relatively insubstantial or trivial.” Adams v. Anne Arundel 
5

Cty. Pub. Sch., 789 F.3d 422, 431 (4th Cir. 2015) (internal 

quotation marks omitted). Although “[c]onduct short of ultimate 

employment decisions can constitute adverse employment action,” 

James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375-76 (4th 

Cir. 2004) (internal quotation marks omitted), “adverse 

employment action . . . denotes some direct or indirect impact 

on an individual’s employment as opposed to harms immaterially 

related to it,” Anne Arundel Cty. Pub. Sch., 789 F.3d at 431. 

Thus, the plaintiff must demonstrate “a significant change in 

employment status, such as hiring, firing, failing to promote, 

reassignment with significantly different responsibilities, or a 

decision causing a significant change in benefits.” Hoyle v. 

Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (internal 

quotation marks omitted).

Jones has not demonstrated how his “basic performance” 

evaluation or his placement on a PIP changed his employment 

status or his compensation. Further, although shortfalls in 

commissions do constitute the denial of compensation and could 

qualify as an adverse employment action, the record supports 

CEPS’ contention that it did not shortchange Jones on any of the 

three commissions occurring after January 2009.2 On appeal, 

 2 Although the “Statement of Issues” section in Jones’ 

opening brief identifies as an issue the district court’s ruling 

that most of his commission claims were time-barred, the 

(Continued)
6

Jones does not cite any evidence in the record that creates a 

genuine issue of material fact regarding whether CEPS 

shortchanged Jones on commissions. Accordingly, we conclude 

that while Jones has satisfied the second element, only Jones’ 

termination qualifies as an adverse employment action.

Turning to the third element, whether an employee met his 

employer’s legitimate expectations at the time of termination 

depends on the “perception of the decision maker . . ., not the 

self-assessment of the plaintiff.” Hawkins v. PepsiCo, Inc., 

203 F.3d 274, 280 (4th Cir. 2000). And because it is the 

plaintiff’s burden to persuade the trier of fact that he met his 

employer’s legitimate subjective employment expectations, at the 

prima facie stage we must consider the employer’s “evidence that 

the employee was not meeting those expectations.” Warch v. Ohio 

Cas. Ins. Co., 435 F.3d 510, 515-16 (4th Cir. 2006). Having 

reviewed the record, we conclude that Jones has not demonstrated 

that he was satisfying CEPS’ legitimate job expectations. 

 

argument section of the brief makes no reference to this issue. 

Accordingly, Jones has waived appellate review of the district 

court’s decision that the majority of his claims were timebarred and only those claims after January 2009 can constitute 

an adverse employment action for purposes of establishing a 

prima facie case under 42 U.S.C. § 1981. See Eriline Co.

S.A. v. Johnson, 440 F.3d 648, 653 n.7 (4th Cir. 2006) (holding 

one-sentence assignment of error in opening brief insufficient 

to raise issue for purposes of appellate review).
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Accordingly, Jones has not satisfied the third element of the 

McDonnell Douglas test. Therefore, Jones has not made out a 

prima facie case of racial or age discrimination, and the 

district court properly granted summary judgment on Counts 1, 3, 

and 5 of Jones’ amended complaint.

II.

A plaintiff bringing a retaliation claim under Title VII or 

42 U.S.C. § 1981 can prove his claim “through direct and 

indirect evidence of retaliatory animus, or through the burdenshifting framework of McDonnell Douglas.” Foster, 787 F.3d at 

249. On appeal, Jones argues that he presented direct and 

indirect evidence of discriminatory animus and that he made out 

a prima facie case of retaliation under the McDonnell Douglas

framework. We consider both arguments in turn.

A plaintiff seeking to use direct and indirect evidence to 

establish a claim of retaliation following a complaint of racial 

discrimination is required to present “evidence of conduct or 

statements that both reflect directly the alleged discriminatory 

attitude and that bear directly on the contested employment 

decision.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 

562, 577-78 (4th Cir. 2015) (internal quotation marks omitted). 

Even assuming that Jones created a genuine issue of fact 

regarding whether there was a racially discriminatory attitude 

at CEPS, this issue of fact is only material if Jones also 
8

presented some evidence tying the racially discriminatory 

attitude at CEPS to his termination. 

Here, Jones alleges a temporal connection between his 

protected activity of complaining internally about racial 

discrimination and his termination. The record shows Jones 

complained of racial discrimination in November 2009 and CEPS 

terminated him nine months later, in August 2010. We conclude 

that the significant lapse of time between the protected 

activity engaged in by Jones and his termination does not 

support an inference of retaliation. Cf. Foster, 787 F.3d at 

257 (finding inference of causation where termination occurred 

within one month of employee filing complaint); Pascual v. 

Lowe’s Home Cntrs., Inc., 193 F. App’x 229, 233 (4th Cir. 2006) 

(No. 05-1847) (finding no causal connection where three to four 

months passed between claimed protected activities and 

termination); King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir. 

2003) (finding inference of causation where termination occurred 

within two and a half months of employer receiving notice of 

employee’s EEOC filing).

In an effort to overcome this temporal gap, Jones further 

contends that he was placed under scrutiny by CEPS shortly after 

his complaint. To establish a causal link between the alleged 

animus and the adverse employment action, a plaintiff must 

demonstrate that the individuals who expressed animus played a 
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role in the adverse employment action. Crockett v. Mission 

Hosp., Inc., 717 F.3d 348, 356 (4th Cir. 2013). Here, the 

record shows that the individuals responsible for overseeing 

Jones’ performance and for Jones’ termination were Gregory 

Jarosinski, CEPS’ President of Sales, and Walter Godleski, CEPS’ 

Director of Sales. Jones’ amended complaint raises no 

allegations that Godleski made any statements exhibiting 

discriminatory animus, and Jones conceded during his deposition 

testimony Jarosinski made no such statements. Accordingly, 

where Jones has not established any causal connection between 

the alleged statements demonstrating racial animus and Jones’ 

termination, he has not presented sufficient direct and indirect 

evidence of retaliation to survive summary judgment.

Turning to the elements of a prima facie retaliation claim 

under the modified McDonnell Douglas framework, a plaintiff must 

show (1) he engaged in a protected activity, (2) his employer 

took an adverse action, and (3) there was a causal connection 

between the two. Foster, 787 F.3d at 250. Jones’ failure to 

present direct or indirect evidence of a causal connection 

between his complaint, the discriminatory animus at CEPS, and 

his termination, likewise renders Jones unable to satisfy the 

third element of the modified McDonnell Douglas framework. 

Therefore, we affirm the district court’s order granting 

CEPS’ motion for summary judgment. We dispense with oral 
10

argument because the facts and legal contentions are adequately 

presented in the materials before this court and argument would 

not aid the decisional process.

AFFIRMED