UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-1313

ANTHONY D. HARRIS,

Plaintiff - Appellant,

v.

THE HOME SALES COMPANY,

Defendant - Appellee,

and

THE MARYLAND HOME SALES COMPANY, INCORPORATED; APARTMENT 

SERVICES, INCORPORATED,

Defendants.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Richard D. Bennett, District Judge. 

(1:09-cv-01109-RDB)

Argued: September 20, 2012 Decided: December 14, 2012 

Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: George Alphanso Rose, ROSE LAW FIRM LLC, Baltimore, 

Maryland, for Appellant. Kelly Culp Lovett, KOLLMAN & SAUCIER, 

PA, Timonium, Maryland, for Appellee. ON BRIEF: Peter S. 

Saucier, KOLLMAN & SAUCIER, PA, Timonium, Maryland, for 

Appellee. 
2

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM: 

Appellant Anthony Harris appeals the district court’s award 

of summary judgment to Appellee Apartment Services, Inc. and its 

corporate affiliates. Harris claims that Apartment Services

discriminated against him, wrongfully demoted him, and 

wrongfully terminated his employment because of his race and in 

retaliation for his complaints of discrimination. For the 

reasons that follow, we affirm the district court’s grant of 

summary judgment to Apartment Services. 

I.

A.

The following facts are presented in the light most 

favorable to Harris. See Howard v. Winter, 446 F.3d 559, 562

(4th Cir. 2006). Apartment Services, a property management 

company, owns and manages more than forty apartment and townhome 

communities in Maryland and Pennsylvania. Each property has an 

on-site leasing and service staff headed by a full-time 

supervisor. Apartment Services employed Harris, an African 

American, from 1997 until his termination in May 2005. Harris 

initially served as a maintenance technician for the company at 

a number of properties. In 2000, he was promoted to maintenance 

supervisor of the Rosalind Gardens property in Baltimore, 

Maryland. During this time, Harris lived rent-free in a 
4

townhome supplied by Apartment Services on one of its 

properties, McDonogh Village, which was a short drive away from 

Rosalind. Harris remained at this job until April 2005 and

performed satisfactorily as Rosalind’s maintenance supervisor. 

In reviews, however, his supervisor noted that Harris had issues 

with punctuality and accessibility during work hours.

At some point in March 2005, Harris’s supervisor, Jeff 

Steinhoff, informed Rosalind employees that a new property 

management company, CT Management, would take over operation of 

the property as of May 1, 2005. In return, Apartment Services 

would assume management of Somerset Woods, one of CT 

Management’s properties in Severn, Maryland. Steinhoff then 

offered the employees the opportunity to stay with Apartment 

Services at a different property, not necessarily Somerset, at 

the same pay and benefits, or to remain at Rosalind as a CT 

Management employee. All of the employees, including Harris, 

chose to remain an Apartment Services employee at one of the 

other properties. 

Because Apartment Services planned to take over 

responsibility for Somerset Woods on May 1, 2005, it needed to 

fill the maintenance supervisor position and technician 

positions for the property by that date. Steinhoff spoke with 

Todd Hamlett, who was scheduled to become Somerset’s manager, 

and Ray Wilkens, Apartment Services’s Vice President of 
5

Operations, regarding new positions for the Rosalind employees. 

Based on Steinhoff’s recommendation, Hamlett agreed to offer 

Harris the position of maintenance supervisor at Somerset. 

Accordingly, either in March or early April, Steinhoff, on 

Hamlett’s behalf, offered the position to Harris. At that time, 

Harris indicated he was interested in the position, but he 

expressed concerns, particularly about the increase in his 

commute time, and sought additional pay and benefits. Indeed, 

in mid-April Harris contacted Trudy Via, Director of Human 

Resources for Apartment Services, seeking to discuss additional 

pay and benefits. Harris nevertheless asserts he accepted the 

offer without reservation. 

At some point several weeks thereafter, Hamlett offered the 

position to Mike King, a Caucasian supervisor in training. 

Although King had worked for the company two years longer than 

Harris, he had not previously held a supervisory position. King 

promptly accepted the position. The record shows that Hamlett 

(1) waited several weeks after Steinhoff offered the position to 

Harris before offering it to King and (2) was unaware of 

Harris’s willingness to work at Somerset when he offered the 

position to King. 

After work on Friday, April 29, 2005, Steinhoff instructed 

Harris to report for work at Somerset on Monday, May 2, 2005. 

Harris appeared for work at Somerset on May 2, 2005, five 
6

minutes past his scheduled start time of 8:00 AM. Harris’s 

medical records show that, before coming in to work on this 

date, Harris went to a medical center for a pre-employment drug 

test for Maryland Management Corporation, another property 

management company. 

After Harris arrived at the property, he greeted Mike King 

in the leasing office and claims he overheard Hamlett on the 

phone say to King, “Tell that nigger to get to work on time.” 

Harris asserts that King then said, “Todd says to get to work on 

time.” Both Hamlett and King deny making and hearing the 

offensive remark, respectively. Deborah Baldauf, the property 

leasing manager, was also present in the office and denies 

hearing Hamlett’s derogatory remark. 

Upon his arrival, Harris found out he had been assigned to

the position of a maintenance technician, although he was given 

the same pay and benefits as his previous position. Harris also 

discovered that the supervisory maintenance position had been 

filled by a white employee. Upon learning this information, 

Harris claims he became distraught. He reports that he asked to 

speak to Hamlett about his concerns, but that Hamlett failed to 

contact him. After working for three days at Somerset and 

becoming increasingly anxious about the work situation and 

racial epithet, Harris left early on May 5, 2005, to visit a 

doctor about his anxiety. Harris faxed a letter to Apartment 
7

Services explaining his sick leave for three business days.

Harris’s doctor released him to return to work on May 10, 2005. 

While on sick leave, Harris continued to take steps to 

secure employment with Maryland Management. On May 9, 2005, he 

completed employment paperwork at the company’s office. His 

offer letter, dated May 9, 2005, indicated a start date of May 

16, 2005. At his deposition, Harris claimed he felt he had to 

seek alternative employment while on sick leave because he 

feared for his job after his demotion. 

Although his doctor released him to work on May 10, 2005, 

Harris failed to report for work thereafter because he claims he 

felt “emotionally sick” about his employment situation and had 

not yet spoken with Hamlett. According to Harris, on May 11, 

2005, he had a lawyer call Apartment Services concerning his 

employment status. In response, Hamlett contacted Harris by 

phone. However, Hamlett states that he spoke with Harris, 

without prompt, by phone on May 10, 2005, or May 11, 2005, when 

Harris failed to appear for work. 

Harris and Hamlett provide conflicting descriptions of 

their phone conversation. Harris concedes that Hamlett offered 

to install Harris as a maintenance supervisor at another 

property, Lawyers Hill. Harris also reports that he complained 

at that time about Hamlett’s use of a racial epithet. Harris 

contends that Hamlett told him to take the rest of week off on 
8

personal leave, and that Hamlett would contact him later in the 

week about the Lawyers Hill position. When deposed, Hamlett 

agreed that he offered Harris the position at Lawyers Hill but 

noted that Harris did not accept the offer. Hamlett claims that 

Harris stated he would get back to Hamlett with a final decision 

on the opportunity. Hamlett denies instructing Harris to remain 

at home for the remainder of the week.

On May 12, 2005, Harris faxed completed sign-in sheets to 

Apartment Services showing the he was taking personal leave for 

the remainder of the week. On the cover sheet, he asked to 

speak with Trudy Via “about [his] employment and unfair job 

treatment by a property [manager].” Although he addressed the 

fax to Hamlett, he sent it to the payroll department, in which 

Hamlett did not work. Hamlett claims that he did not see the 

fax. 

Hamlett testified that because he had not heard from Harris 

by May 13, 2005, he concluded that Harris had abandoned his job. 

Accordingly, Hamlett sent Harris a letter, dated May 13, 2005, 

terminating his employment. Three days later, on May 16, 2005, 

Harris began his new job at Maryland Management. On June 13, 

2005, Hamlett hired Dante Logan, an African American, to replace 

Harris as Somerset’s maintenance technician. 
9

B.

Harris brought suit in the United States District Court for 

the District of Maryland, alleging that Apartment Services 

demoted and terminated him because of his race and in

retaliation for his complaints about racial discrimination, in 

violation Title VII of the Civil Rights Act, 42 U.S.C. § 2000e2(a)(1) and 42 U.S.C. § 1981.

On March 7, 2011, the district court granted summary 

judgment in favor of Apartment Services. The court determined 

that Harris failed to put forth sufficient direct or 

circumstantial evidence that his termination was based on race. 

Additionally, the court determined that Harris failed to present 

a prima facie case for discriminatory discharge because he was 

replaced by another African American individual, and he 

presented no evidence that could show that Apartment Services’s 

legitimate proffered reason for firing Harris was disingenuous. 

The district court concluded that no issue of material fact 

existed with respect to pretext. The district court also 

rejected Harris’s retaliation claim, finding that he failed to 

show he engaged in protected activity as required to establish a 

prima facie case of retaliation. However, the district court 

failed to consider Harris’s protest of the racist remark in his 

phone conversation with Hamlett when determining whether Harris 

had engaged in protected conduct. Further, it appears that the 
10

district court overlooked the issue of Harris’s demotion as a 

distinct aspect of his discrimination claim. Harris timely 

appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291. 

II.

We review de novo the district court’s order of summary 

judgment in favor of Apartment Services, applying the same 

standard as the district court. See Holland v. Wash. Homes, 

Inc., 487 F.3d 208, 213 (4th Cir. 2007). We affirm the order 

only if, viewing the evidence and drawing all reasonable 

inferences therefrom in favor of the nonmovant, there are no 

disputed material facts and the moving party is entitled to 

judgment as a matter of law. Henry v. Purnell, 652 F.3d 524, 

531 (4th Cir. 2011) (en banc). However, “[t]he mere existence 

of some alleged factual dispute between the parties will not 

defeat an otherwise properly supported motion for summary 

judgment.” Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 

289, 300 (4th Cir. 2010) (alteration in original) (quoting 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)) 

(internal quotation marks omitted). Instead, “factual disputes 

must be both material and genuine.” Id. “A mere ‘scintilla of 

evidence’ is not sufficient to withstand a motion for summary 

judgment.” Phillips v. CSX Transp., Inc., 190 F.3d 285, 287 

(4th Cir. 1999) (per curiam). “Summary judgment will not lie if 
11

the dispute about a material fact is ‘genuine,’ that is, if the 

evidence is such that a reasonable jury could return a verdict 

for the nonmoving party.” Anderson, 477 U.S. at 242. 

III.

Harris contends that the district court erred when it 

granted summary judgment to Apartment Services on his claims 

that he was discriminated against because of his race when he 

was demoted and ultimately terminated. Harris asserts his 

claims under two federal statutes: Title VII and § 1981. These 

statutes impose identical requirements to evaluate race 

discrimination claims. See Love-Lane v. Martin, 355 F.3d 766, 

786 (4th Cir. 2004). Therefore, the district court was correct 

in analyzing the statutes together. 

A.

A plaintiff may establish a claim of race discrimination in 

one of two manners. First, he may do so “by demonstrating 

through direct or circumstantial evidence that his race was a 

motivating factor in the employer’s adverse employment action.”

Holland, 487 F.3d at 213. “The second method of averting 

summary judgment is to proceed under a ‘pretext’ framework, 

under which the employee, after establishing a prima facie case 

of discrimination, demonstrates that the employer’s proffered 
12

permissible reason for taking an adverse employment action is 

actually a pretext for discrimination.” Id. (quoting Hill v. 

Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th 

Cir. 2004)(en banc)) (internal quotation marks omitted). 

Harris seeks to use both avenues of proof. First, Harris

asserts that the district court erred because he produced 

sufficient direct and circumstantial evidence that 

discrimination led to his demotion and termination to establish 

a case of race discrimination without applying the McDonnell 

Douglas pretext framework. See McDonnell Douglas Corp. v. 

Green, 411 U.S. 792 (1973). Second, Harris asserts that even if 

he failed to produce sufficient evidence to establish a claim of 

race discrimination, he produced evidence sufficient to satisfy 

the McDonnell Douglas burden shifting proof scheme. We will 

address each argument in turn.

B.

Harris first contends that he has put forth sufficient 

direct and circumstantial evidence of discrimination to survive 

a motion for summary judgment. But, the only direct or 

circumstantial evidence Harris has presented that his demotion 

and termination were motivated by race is his claim that he 

overheard Hamlett refer to him using a racial epithet. As an 

initial matter, however, it is highly speculative that Hamlett 
13

ever made the remark. Harris never claims any remark was made 

to him: rather, Harris claims to have overheard Hamlett make the 

comment through Mike King’s cell phone receiver, as Harris was 

greeting him from the other side of the leasing office doorway. 

Moreover, the only person who claims to have heard the remark is 

Harris himself. Two other individuals were also present when 

the comment was allegedly uttered -- King and a leasing manager 

named Deborah Baldauf -- and both deny that the remark was ever 

made. 

In any event, even viewing this evidence in the light most 

favorable to Harris, this evidence is not sufficiently probative 

to raise a genuine issue of material fact on the issue of 

whether Hamlett harbored discriminatory animus toward Harris 

that actually resulted in his demotion and termination. To 

survive summary judgment, Harris must produce evidence that 

illustrates a nexus between the discriminatory remark and the 

adverse employment action. See Brinkley v. Harbour Recreation 

Club, 180 F.3d 598, 608 (4th Cir. 1999). In this case, Harris 

has alleged only one isolated discriminatory statement, and has 

failed to connect this statement with any of the incidents 

concerning his demotion and termination. After all, Harris’s 

demotion took place well before the alleged remark was even 

made. And it was not until nearly two weeks after the remark 

was supposedly made (by which point Harris had failed to show up 
14

to work after the end of his sick leave) that Harris was 

terminated. Again, we have made clear that “stray or isolated” 

remarks are insufficient to prove discrimination, see, e.g.,

Merritt, 601 F.3d at 300, absent some actual relationship to the 

adverse employment actions under challenge. For the reasons 

explained herein, the totality of the record evidence fails to 

raise any triable issue of fact that these actions were taken 

out of discriminatory animus, and the district court’s grant of 

summary judgment was accordingly warranted. 

C.

Next, Harris claims that the district court erred when it 

concluded that he had failed to prove a prima facie case of

discriminatory termination under the McDonnell Douglas

framework. Harris also asserts that the district court erred 

when it failed to consider his claim of discriminatory demotion

pursuant to the McDonnell Douglas.

Under McDonnell Douglas, a plaintiff demonstrates a prima 

facie case of race discrimination by showing that (1) he is a 

member of a protected class; (2) he suffered adverse employment 

action; (3) he was performing his job duties at a level that met 

his employer’s legitimate expectation at the time of the adverse 

employment action; and (4) the position remained open or was 

filled by similarly qualified applicants outside of the 
15

protected class. See McDonnell Douglas, 411 U.S. at 802. If 

Harris makes this showing, the burden shifts to Apartment 

Services to produce evidence of legitimate, non-discriminatory 

reasons for terminating or demoting him. See id. If Apartment 

Services offers legitimate, non-discriminatory reasons for 

demoting or terminating Harris, Harris must then prove that 

Apartment Services’s proffered reasons for terminating or 

demoting him are untrue and instead are a pretext for 

discrimination. See id. at 804. Despite the intricacies of 

this proof scheme, “[t]he ultimate question in every employment 

discrimination case involving a claim of disparate treatment is 

whether the plaintiff was the victim of intentional 

discrimination.” Merritt, 601 F.3d at 295 (alteration in 

original) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 

530 U.S. 133, 153 (2000)) (internal quotation marks omitted). 

The district court correctly determined that Harris failed 

to present a prima facie case with respect to his termination. 

As an initial matter, it is undisputed that Harris, an African 

American, is a member of a protected class. As the district 

court noted, it is also uncontested that Apartment Services 

ultimately hired an African American to fill the Somerset 

maintenance technician position. Thus, Harris is unable show 

that he was replaced by a person outside his protected class. 
16

Therefore, Harris has failed to establish a prima facie case of 

discriminatory termination.

D.

With respect to his discriminatory demotion, Harris has 

demonstrated a prima facie case. To establish a prima facie 

case for discriminatory demotion, a plaintiff must show that 

“(1) []he is a member of a protected class; (2) []he was 

qualified for [his] job and [his] performance was satisfactory; 

(3) despite [his] qualifications, []he was removed from [his]

position and reassigned to a [lower-level] position,” and (4) 

his original position “remained open” or was filled by a 

similarly qualified applicant outside of the protected class. 

Love-Lane, 355 F.3d at 787. It is acknowledged that Harris (1) 

is African American (2) was qualified and performed the role of 

maintenance supervisor in a satisfactory manner; and (3) was 

demoted to a maintenance technician. As to the final element, 

although his particular position at Rosalind disappeared, he was 

offered a position at Somerset that was later filled by a person 

outside of the protected class. In sum, Harris can establish 

the four elements of a prima facie case of race discrimination

with respect to his demotion.

Because Harris has established a prima facie case of race 

discrimination, the burden shifts to Apartment Services to offer 
17

legitimate, non-discriminatory reasons for Harris’s demotion. 

Apartment Services presented evidence that Harris was demoted 

for a non-discriminatory reason, specifically because Hamlett 

was not informed in a timely manner of Harris’s acceptance of 

the new position. This explanation is sufficient to shift the 

burden to Harris, who must show that “the legitimate reasons 

offered by the defendant were not its true reasons, but were a 

pretext for discrimination.” Tex. Dep't of Cmty. Affairs v. 

Burdine, 450 U.S. 248, 253 (1981). 

Harris fails to submit sufficient evidence of pretext. 

Harris does not dispute that he never informed Hamlett directly 

that he was willing to work at Somerset, but contends instead 

that he told Steinhoff of his acceptance. Steinhoff, meanwhile, 

acknowledges that Harris expressed some interest in the 

position, but maintains that Harris did not commit until the 

last week in April. It is admitted, therefore, that Hamlett (1) 

waited several weeks after Steinhoff offered the position to 

Harris before offering it to King and (2) was unaware of 

Harris’s willingness to work at Somerset when he offered the 

position to King. There is no genuine dispute that Hamlett, the 

decisionmaker with respect to staffing, knew that Harris had 

been offered the position of maintenance supervisor but believed 

that Harris declined or had failed to accept it within a 

reasonable time. Even if this belief arose due to a 
18

miscommunication, “mere mistakes of fact are not evidence of 

unlawful discrimination.” Price v. Thompson, 380 F.3d 209, 215 

n.1 (4th Cir. 2004). Unfortunately for Harris, he has failed to 

put forth sufficient evidence showing that Apartment Services’s

explanation for his demotion was false. Nothing in the record 

supports an inference that Hamlett’s explanation was pretextual

or that Hamlett believed that Harris had accepted the position 

when he offered the position to another employee.

Thus, we agree with the district court’s conclusion that 

Harris failed to prove a case of discriminatory termination, and 

affirm the district court’s grant of summary judgment on the 

discriminatory termination claim. In light of our de novo 

review, we also affirm the grant of summary judgment on the 

discriminatory demotion claim despite the district court’s 

failure to separately analyze the issue of discriminatory 

demotion. 

IV.

Harris further contends that he was terminated in 

retaliation for complaining about unfair treatment in violation 

of Title VII and § 1981. Specifically, Harris claims he was 

fired for complaining about his discriminatory demotion and 

about Hamlett’s racist remark. To state a prima facie case of 

retaliation, Harris must show that (1) he engaged in a protected 
19

activity; (2) Apartment Services acted adversely against him; 

and (3) the protected activity was causally connected to the 

adverse action. See Holland, 487 F.3d at 218. 

Harris claims that he engaged in protected activity on May 

12, 2005, the day before he was terminated, when he faxed a note 

to Trudy Via complaining of “unfair treatment.” Further, Harris 

claims that he protested the discriminatory demotion and 

Hamlett’s racist remark when speaking with Hamlett on the phone. 

The district court found that Harris did not engage in protected 

opposition activity because, in his note seeking to speak with 

Trudy Via, he complained only of “unfair treatment,” not 

discrimination. See Barber v. CSX Distrib. Servs., 68 F.3d 694, 

701–02 (3d Cir. 1995) (concluding that a letter complaining 

“about unfair treatment in general” is not protected activity). 

The district court, however, ignored Harris’s claim that he 

protested the alleged discriminatory demotion and Hamlett’s 

racist remark when speaking with Hamlett on the phone. Taking 

these facts into account, Harris has shown that he engaged in 

protected activity and that Apartment Services acted adversely 

against him by terminating his employment.

To prove a causal connection, Harris must be able to prove 

that Apartment Services fired him because he engaged in 

protected activity. See Holland, 487 F.3d at 218. Harris can 

show this by proving that Hamlett had knowledge of the protected 
20

activity. The evidence on this point, namely the phone 

conversation with Hamlett, shows that Hamlett knew of Harris’s 

complaints. Thus, Harris has made out a prima facie case of 

retaliatory discharge. 

Because Harris has made out a prima facie case, the burden 

shifts to Apartment Services to articulate a legitimate 

nonretaliatory reason for his termination to rebut the inference 

of retaliation. See McDonnell Douglas, 411 U.S. at 802. 

Apartment Services has offered that Harris was fired for job 

abandonment because Hamlett believed that Harris failed to show 

for work for several days without a justification for his 

absence. Consequently, the burden shifts back to Harris to show

that the reason proffered is “mere pretext for retaliation by 

proving both that the reason was false, and that discrimination 

was the real reason for the challenged conduct.” Holland, 487 

F.3d at 218 (quoting Beall v. Abbott Labs., 130 F.3d 614, 619 

(4th Cir. 1997)) (internal quotation marks omitted). 

Harris has failed to make this showing. He is unable to 

prove that Hamlett fired him as retaliation as opposed to firing 

him for job abandonment. Harris concedes that he was released 

to work on May 10, 2005, but that he failed to report to work 

thereafter and never alerted his immediate supervisor, Mike 

King, of his absence. Nevertheless, Harris contends that he 

cannot be fired for job abandonment because Hamlett told him to 
21

take the rest of the week off, and because he was merely 

awaiting Hamlett’s call about the Lawyers Hill opportunity. 

Harris, however, has failed to reconcile an inconsistency within 

his own statements and conduct. At the same time he testified 

he was expecting Hamlett’s call to begin work at Lawyers Hill on 

May 16, 2005, he acknowledged that he had already completed 

paperwork to begin work for Maryland Management on May 16, 2005. 

Although we do not make credibility determinations at the 

summary judgment phase, we should also not find a genuine 

dispute of material fact based solely on Harris’s self-serving 

testimony. See Williams v. Giant Food Inc., 370 F.3d 423, 433 

(4th Cir. 2004) (“[A] self-serving opinion . . . cannot, absent 

objective corroboration, defeat summary judgment.”). 

In light of the uncontroverted evidence regarding Harris’s

absences and his new employment, we agree with the district 

court that no reasonable jury could find for Harris on the 

ultimate issue: whether he was terminated in retaliation for 

protected conduct. See Anderson, 477 U.S. at 242. Accordingly, 

we affirm the district court’s grant of summary judgment in 

favor of Apartment Services on Harris’s retaliation claims. 

V.

Harris has presented only a scintilla of evidence from 

which it may be possible to conclude that race played a factor 
22

in his termination and demotion. Harris has failed to raise a 

genuine issue of material fact showing that he was terminated or 

demoted because of his race or that Apartment Services

retaliated against him because of his complaint of racial 

discrimination. Therefore, we affirm the district court’s grant 

of summary judgment to Apartment Services in all respects. 

AFFIRMED