                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 08-1647


STEPHEN SCHAFER,

                Plaintiff – Appellant,

           v.

STATE OF MARYLAND DEPARTMENT OF HEALTH AND MENTAL HYGIENE,

                Defendant – Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (1:07-
cv-01213-AMD)


Argued:   September 23, 2009             Decided:   December 30, 2009


Before NIEMEYER and SHEDD, Circuit Judges, and Mark S. DAVIS,
United States District Judge for the Eastern District of
Virginia, sitting by designation.


Vacated and remanded by unpublished opinion. Judge Shedd wrote
the opinion, in which Judge Niemeyer and Judge Davis joined.


ARGUED: Darren Margolis, BIERER & MARGOLIS, Baltimore, Maryland,
for Appellant.   John S. Nugent, OFFICE OF THE ATTORNEY GENERAL
OF MARYLAND, Baltimore, Maryland, for Appellee.       ON BRIEF:
Douglas F. Gansler, Attorney General of Maryland, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:

       Stephen Schafer filed this employment discrimination action

under Title VII of the Civil Rights Act of 1964 claiming that

the    Maryland     Department     of     Health   and   Mental      Hygiene     (the

“Agency”) failed to promote him because of his gender and race.

The    district     court    granted    summary    judgment   in   favor    of    the

Agency, concluding that (1) Schafer failed to present probative

“direct evidence” of discrimination, and (2) the Agency offered

legitimate nondiscriminatory reasons for not promoting Schafer

and, therefore, there was no genuine dispute of material fact as

to pretext.        Because we find that the district court erroneously

held       there   was      no   direct    evidence      of   race     or      gender

discrimination, we vacate the summary judgment order and remand

for further proceedings. 1




       1
       Summary judgment is appropriate “if the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c).    We review the district court's order
granting summary judgment de novo. Jennings v. U.N.C., 482 F.3d
686, 694 (4th Cir. 2007) (en banc).   In doing so, we generally
must view all facts and draw all reasonable inferences in the
light most favorable to the nonmoving party.   Scott v. Harris,
550 U.S. 372, 378 (2007).



                                           2
                                             I

        Schafer, a Caucasian male, has been employed by the Agency

since 1975.      He is currently the Medical Care Program Supervisor

with the Agency’s Beneficiary Enrollment Services, a position he

has held since 1998.               In January 2006, a Program Manager III

position as the Division Chief of the Beneficiary Enrollment

Call Center became available within the Agency.                        Schafer was one

of 40 persons to apply for the position and was among the 13

applicants who were deemed “qualified.”                      A five-member Selection

and Evaluation Committee interviewed eight of the 13 “qualified”

applicants and thereafter recommended four applicants, including

Schafer, to be considered by a Final Selection Committee.                              The

final    selection          was   then    submitted      to    the    Agency’s      Deputy

Executive Director Mary Dehart and Executive Director Charles

Lehman.

        The   Final    Selection         Committee     consisted      of    three   Agency

employees: Patricia Nowakowski, Lisa M. Kulishek, and Patricia

Rutley-Johnson.              Kulishek      was   the     Director      of    Eligibility

Operations, Nowakowski was the Deputy Director of Eligibility

Operations,      and        Rutley-Johnson       was    a    senior    staff    advisor.

Nowakowski      reported          to   Kulishek,       and    Kulishek      reported    to

Dehart.

     Although         the    Final     Selection       Committee      was   tasked     with

recommending a finalist for the position, Nowakowski testified

                                             3
that the ultimate decision would have to be approved by Dehart

and Lehman.        J.A. 87.      Nowakowski further testified that while

Dehart would usually just give “a formal ‘okay’ at the end” of

the    process,    Dehart     was    more        involved      than    normal    in    this

instance.      Id.     Rutley-Johnson also believed that Dehart was

heavily involved in the decision-making of who was to be hired

for this position.          She testified that “regardless of who was

chosen    as   a     candidate,       Mary       Dehart       was     the   person     that

ultimately     had    decision-making            power    because       that    was    Lisa

Kul[is]hek’s supervisor.”            J.A. 217.

       Initially, Dehart testified that she was not involved in

the    selection      process.            However,       she    admitted        that    she

instructed     the     Final        Selection          Committee       to   select     the

“candidate they thought best suited for the position.”                                 J.A.

171.     She also admitted that she had to confirm the hire after

the selection was made and that members of the committee came to

her for advice during the selection process.                        J.A. 172, 175.

       After   interviewing         the     finalists,         the     Final    Selection

Committee, voting 2-1, decided that the Division Chief position

should be offered to Elise Green-Watford, an African-American

female.     Nowakowski, the dissenting committee member, voted for

Schafer     because     she    believed           he    was    the      most    qualified

applicant.     Dehart confirmed the recommendation and, thereafter,

the position was offered to Green-Watford, and she accepted.

                                             4
      Among     the       evidence      Schafer    offered         in   support    of   his

discrimination           claim    is    testimony    from       Nowakowski     that     she

attended   a    meeting          with   Lehman,   Dehart,       and     Kulishek    during

which Dehart stated that an African-American female should be

hired as the new Division Chief.                     J.A. 85-86.           Additionally,

Dehart    allegedly        told     Nowakowski      at   a    later     date   “that    the

Department was lacking African-American female management and we

had to hire some.”           J.A. 87.       Nowakowski also testified that she

and Schafer were present at a lunch before the interview process

had even been completed when Rutley-Johnson stated “that this

position      was     a    done     deal,   and     an    African-American          female

candidate was going to be hired.”                 J.A. 89.

      The district court granted summary judgment in favor of the

Agency because it found that Schafer failed to present probative

“direct    evidence”        of     discrimination.            Further,     although     the

district court found that Schafer made a prima facie case of

discrimination under McDonnell Douglas Corp. v. Green, 411 U.S.

792   (1973),       it    found    that   the    Agency      had    offered    legitimate

nondiscriminatory reasons for awarding the position to Green-

Watford instead of Schafer and, therefore, there was no genuine

dispute of material fact as to pretext.                      This appeal followed.




                                             5
                                                II

    Title VII makes it “an unlawful employment practice for an

employer    .    .    .   to    discriminate             against   any       individual    with

respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color, . . . [or]

sex.” 42 U.S.C. § 2000e-2(a).                       A plaintiff can defeat summary

judgment in a discrimination action under Title VII by either of

two avenues of proof: (a) through direct evidence that gender,

race, or both motivated the decision not to promote him, or (b)

through    the       burden-shifting          scheme        established         by    McDonnell

Douglas Corp., 411 U.S. at 802.                          See Hill v. Lockheed Martin

Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th Cir. 2004)(en

banc).     Under the direct proof standard, the plaintiff must only

show that his gender or race was a “motivating factor” in the

decision not to promote him. Id. at 284.                             Further, such proof

includes    evidence        of     conduct       or       statements         that    reflect   a

discriminatory         attitude      and      bear        directly      on     the    contested

employment decision. Id. at 284-85.

     Schafer         contends    that      he    offered      at     least     two    items    of

direct evidence of discrimination.                        Specifically, he claims his

direct    evidence        includes      (1)     Rutley-Johnson’s              statement   that

“this position was a done deal, and an African American female

was going to be hired,” and (2) Dehart’s statements that an

African-American          female    should          be    hired    as    the    new    Division

                                                6
Chief.    The district court concluded that these statements are

not direct evidence.       Specifically, the court held that Dehart

was not an actual decisionmaker under Hill, and there is “no

direct evidence whatsoever to show that Kulishek and Rutley-

Johnson were improperly motivated by race or gender in their

decision.” 2   J.A. 267.

     When a plaintiff proceeds under a direct evidence claim of

discrimination, we have held that in order for the plaintiff to

survive summary judgment, he must produce sufficient evidence

that the discriminating “employee possessed such authority as to

be viewed as the one principally responsible for the decision or


     2
       The district court also stated that “even assuming that
Nowakowski’s hearsay testimony would be admissible at trial,”
her statements would be “stray remarks.” J.A. 267 (emphasis
added). We disagree with the district court’s characterization
that this testimony is “hearsay.”      See Pitrolo v. County of
Buncombe, N.C., 2009 WL 1010634 (4th Cir. March 11, 2009).
Federal Rule of Evidence 801(d)(2) defines as non-hearsay a
statement “offered against a party” that is “the party’s own
statement, in either an individual or a representative capacity”
or “a statement by the party’s agent or servant concerning a
matter within the scope of the agency or employment.”      Dehart
was the Deputy Executive Director of the Agency; hence, she was
an “agent” within the meaning of Rule 801(d)(2).        Likewise,
Rutley-Johnson’s statement would also be admissible under the
same basis. Rutley-Johnson was a member of the Final Selection
Committee and would be an “agent” within the meaning of Rule
801(d)(2). Therefore, we find that the alleged statements made
by Dehart and Rutley-Johnson are not hearsay and are admissible
under Rule 801(d)(2) as a “party-opponent admission.”    Further,
statements related to the hiring decision made by an actual
decisionmaker are not “stray remarks.” Cf. Price Waterhouse v.
Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring).



                                   7
the actual decisionmaker for the employer.” Hill, 354 F.3d at

291.        With this in mind, we must decide whether Schafer has

presented sufficient evidence to demonstrate that he has been

the victim of intentional discrimination based upon the actions

of an actual decisionmaker.

       We    hold   that    Schafer    has       presented   evidence    tending   to

establish      that    an     actual    decisionmaker         used      an   improper

criterion in making the employment decision.                      First, even were

we to accept the Agency’s argument that only members of the

Final Selection Committee are actual decisionmakers, evidence in

the record tends to show that committee member Rutley-Johnson

used    an      improper      criterion          in   selecting      Green-Watford.

Specifically, Rutley-Johnson’s statement “that this position was

a done deal, and an African-American female candidate was going

to be hired” could reasonable be understood as direct evidence

of discrimination by the committee member who cast the deciding

vote.

       Further, contrary to the Agency’s position that Dehart’s

role was limited to the ministerial function of signing off on

the recommendation of the Final Selection Committee, there is a

genuine factual dispute concerning whether Dehart is an actual

decisionmaker.        Cf. Hill, 354 F.3d at 290 (noting that “[w]hen a

formal decisionmaker acts merely as a cat’s paw for or rubber-

stamps a decision, report, or recommendation actually made by

                                             8
[another         employee],       it    is   not     inconsistent            to    say    that    the

[other          employee]    is        the   actual        decisionmaker            or    the     one

principally responsible for the contested employment decision”).

       Here, there is testimony from which a jury could find that

Dehart was the actual decisionmaker.                             Nowakowski and Rutley-

Johnson         indicated    that       Dehart     was     such     a    decisionmaker,           and

Dehart’s         testimony    itself         establishes          that        (1)    she    had     a

significant degree of supervision over the committee, (2) the

committee sought her advice during the hiring process, (3) she

gave       instructions       to       the    committee,          and        (4)    she    had     to

ultimately confirm its selection.                          Therefore, we hold that a

jury       could     find    that       Dehart       was    an     actual          decisionmaker.

Further,         a   jury    could       find      that     Dehart       used       an     improper

criterion in the employment decision based on her statements

that       an     African-American           female        should       be     hired      for     the

position.

                                                III

       Because       there    is       evidence      that    the    actual          decisionmaker

based the decision not to promote Schafer on his race or gender,

we vacate summary judgment and remand for further proceedings. 3

                                                                        VACATED AND REMANDED


       3
       Because we find direct evidence of discrimination in this
case, we need not address the McDonnell Douglas test.



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