USCA4 Appeal: 23-2268 Doc: 31 Filed: 04/14/2025 Pg: 1 of 8
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-2268
CURTIS LAWRENCE, individually and as owner of Skyward Transportation, LLC; SKYWARD TRANSPORTATION, LLC,
Plaintiffs - Appellants,
v.
DAP PRODUCTS, INC.,
Defendant - Appellee.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Albert David Copperthite, Magistrate Judge. (1:22-cv-00651-ADC)
Submitted: March 4, 2025 Decided: April 14, 2025
Before WILKINSON and WYNN, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
ON BRIEF: John O. Pieksen Jr., BAGNERIS, PIEKSEN & ASSOCIATES, LLC, New Orleans, Louisiana, for Appellant. Stephanie K. Baron, Brianna D. Gaddy, Baltimore, Maryland, Bradford Bernstein, MILES & STOCKBRIDGE PC, Rockville, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-2268 Doc: 31 Filed: 04/14/2025 Pg: 2 of 8
PER CURIAM:
Skyward Transportation, LLC and Curtis Lawrence, individually and as owner of
Skyward (together “Skyward”), appeal the magistrate judge’s orders granting summary
judgment in favor of DAP Products, Inc., on Skyward’s 42 U.S.C. § 1981 and breach of
contract claims and denying Skyward’s motion to withdraw or amend admissions under
Fed. R. Civ. P. Rule 36. These claims arose when DAP terminated a contract between
Skyward and DAP. Skyward alleged the termination was motivated by racial animus and
in retaliation for reporting racial discrimination. For the following reasons, we affirm in
part, vacate in part, and remand.
With respect to Skyward’s admissions, it failed to respond to DAP’s request for
admissions. DAP then filed a motion for summary judgment, and one month later,
Skyward filed a motion to withdraw or amend its objections and answers in response to
DAP’s request for admissions. The magistrate judge denied Skyward’s motion to
withdraw the admissions, finding that Skyward was properly served with the requests,
failed to file any motions to extend the deadline for a response, and had not been diligent
in responding to discovery or in seeking to withdraw the admissions after DAP moved for
summary judgment.
Pursuant to Fed. R. Civ. P. 36(a), a party may serve a written request for admissions
on another party, and “[a] matter is deemed admitted unless, within 30 days after being
served, the party to whom the request is directed serves on the requesting party a written
answer or objection . . . .” Moreover, a matter admitted “is conclusively established unless
the court, on motion, permits the admission to be withdrawn or amended.” Fed. R. Civ. P.
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36(b). A “court may permit withdrawal or amendment if it would promote the presentation
of the merits of the action and if the court is not persuaded that it would prejudice the
requesting party in maintaining or defending the action on the merits.” Fed. R. Civ. P.
36(b). District courts enjoy considerable discretion over the withdrawal of admissions, and
we review a denial of such a request for abuse of discretion. See Banos v. Chicago, 398
F.3d 889, 892 (7th Cir. 2005). Here, the magistrate judge considered the Rule 36(b) factors
and reasonably determined that they did not favor granting Skyward’s motion. We
conclude that the magistrate judge did not abuse its discretion.
With respect to the magistrate judge’s order granting summary judgment to DAP,
we review de novo a grant of summary judgment, viewing “the facts in the light most
favorable to” the nonmoving party and “drawing all reasonable inferences in [its] favor.”
Dean v. Jones, 984 F.3d 295, 301 (4th Cir. 2021). Summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Moreover “[w]hen a
party fails to establish the existence of an element essential to that party’s case, there is no
genuine issue of material fact.” Perkins v. Int’l Paper Co., 936 F.3d 196, 205 (4th Cir.
2019).
To demonstrate a prima facie claim of discrimination, a plaintiff must demonstrate
that it is a member of a protected class, its performance met the defendant’s legitimate
expectations, the defendant terminated the contract, and the defendant contracted with a
company outside of the protected class. A “plaintiff can prove retaliation under . . . § 1981
if he shows that (1) he engaged in protected activity, (2) he suffered an adverse employment
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action at the hands of [the defendant,] and (3) [the defendant] took the adverse action
because of the protected activity.” Bryant v. Aiken Reg’l Med. Ctrs., Inc., 333 F.3d 536,
543 (4th Cir. 2003). If the plaintiff meets this standard, the burden shifts to the defendant
to articulate a legitimate, nondiscriminatory reason for the termination. Bryant, 333 F.3d
at 544. If the defendant does so, the plaintiff then has the burden to demonstrate that the
stated reason was merely a pretext for discrimination or retaliation. Bryant, 333 F.3d at
544.
Moreover, “[t]o prevail [on a 42 U.S.C. § 1981 claim], a plaintiff must initially plead
and ultimately prove that, but for race, [it] would not have suffered the loss of a legally
protected right.” Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 589 U.S. 327,
341 (2020). “A cause need not work in isolation to be a but-for cause”; rather, the plaintiff
only bears the burden of showing “that the protected activity was a but-for cause of [the
contract] termination, not that it was the sole cause.” Strata Solar, LLC v. Fall Line
Construction, LLC Arch Insurance Company, 683 F.Supp.3d 503 (E.D. Va., 2023)
(quoting Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216-18 (4th Cir. 2016)).
Here, the magistrate judge found that Skyward failed to make out a prima facie case
of discrimination because Skyward failed to demonstrate that it was meeting DAP’s
legitimate expectations. We agree. DAP demonstrated multiple safety incidents involving
Skyward employees. Moreover, Skyward relies on the alleged racial bias of one of DAP’s
employees. However, that employee was not the decisionmaker responsible for hiring or
firing Skyward. See Hill v. Lockheed Martin Logistics Mgmt., Inc. 354 F.3d 277, 291 (4th
4 USCA4 Appeal: 23-2268 Doc: 31 Filed: 04/14/2025 Pg: 5 of 8
Cir. 2004) (noting bias of employee cannot be imputed to employer unless that employee
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USCA4 Appeal: 23-2268 Doc: 31 Filed: 04/14/2025 Pg: 1 of 8
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-2268
CURTIS LAWRENCE, individually and as owner of Skyward Transportation, LLC; SKYWARD TRANSPORTATION, LLC,
Plaintiffs - Appellants,
v.
DAP PRODUCTS, INC.,
Defendant - Appellee.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Albert David Copperthite, Magistrate Judge. (1:22-cv-00651-ADC)
Submitted: March 4, 2025 Decided: April 14, 2025
Before WILKINSON and WYNN, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
ON BRIEF: John O. Pieksen Jr., BAGNERIS, PIEKSEN & ASSOCIATES, LLC, New Orleans, Louisiana, for Appellant. Stephanie K. Baron, Brianna D. Gaddy, Baltimore, Maryland, Bradford Bernstein, MILES & STOCKBRIDGE PC, Rockville, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-2268 Doc: 31 Filed: 04/14/2025 Pg: 2 of 8
PER CURIAM:
Skyward Transportation, LLC and Curtis Lawrence, individually and as owner of
Skyward (together “Skyward”), appeal the magistrate judge’s orders granting summary
judgment in favor of DAP Products, Inc., on Skyward’s 42 U.S.C. § 1981 and breach of
contract claims and denying Skyward’s motion to withdraw or amend admissions under
Fed. R. Civ. P. Rule 36. These claims arose when DAP terminated a contract between
Skyward and DAP. Skyward alleged the termination was motivated by racial animus and
in retaliation for reporting racial discrimination. For the following reasons, we affirm in
part, vacate in part, and remand.
With respect to Skyward’s admissions, it failed to respond to DAP’s request for
admissions. DAP then filed a motion for summary judgment, and one month later,
Skyward filed a motion to withdraw or amend its objections and answers in response to
DAP’s request for admissions. The magistrate judge denied Skyward’s motion to
withdraw the admissions, finding that Skyward was properly served with the requests,
failed to file any motions to extend the deadline for a response, and had not been diligent
in responding to discovery or in seeking to withdraw the admissions after DAP moved for
summary judgment.
Pursuant to Fed. R. Civ. P. 36(a), a party may serve a written request for admissions
on another party, and “[a] matter is deemed admitted unless, within 30 days after being
served, the party to whom the request is directed serves on the requesting party a written
answer or objection . . . .” Moreover, a matter admitted “is conclusively established unless
the court, on motion, permits the admission to be withdrawn or amended.” Fed. R. Civ. P.
2 USCA4 Appeal: 23-2268 Doc: 31 Filed: 04/14/2025 Pg: 3 of 8
36(b). A “court may permit withdrawal or amendment if it would promote the presentation
of the merits of the action and if the court is not persuaded that it would prejudice the
requesting party in maintaining or defending the action on the merits.” Fed. R. Civ. P.
36(b). District courts enjoy considerable discretion over the withdrawal of admissions, and
we review a denial of such a request for abuse of discretion. See Banos v. Chicago, 398
F.3d 889, 892 (7th Cir. 2005). Here, the magistrate judge considered the Rule 36(b) factors
and reasonably determined that they did not favor granting Skyward’s motion. We
conclude that the magistrate judge did not abuse its discretion.
With respect to the magistrate judge’s order granting summary judgment to DAP,
we review de novo a grant of summary judgment, viewing “the facts in the light most
favorable to” the nonmoving party and “drawing all reasonable inferences in [its] favor.”
Dean v. Jones, 984 F.3d 295, 301 (4th Cir. 2021). Summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Moreover “[w]hen a
party fails to establish the existence of an element essential to that party’s case, there is no
genuine issue of material fact.” Perkins v. Int’l Paper Co., 936 F.3d 196, 205 (4th Cir.
2019).
To demonstrate a prima facie claim of discrimination, a plaintiff must demonstrate
that it is a member of a protected class, its performance met the defendant’s legitimate
expectations, the defendant terminated the contract, and the defendant contracted with a
company outside of the protected class. A “plaintiff can prove retaliation under . . . § 1981
if he shows that (1) he engaged in protected activity, (2) he suffered an adverse employment
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action at the hands of [the defendant,] and (3) [the defendant] took the adverse action
because of the protected activity.” Bryant v. Aiken Reg’l Med. Ctrs., Inc., 333 F.3d 536,
543 (4th Cir. 2003). If the plaintiff meets this standard, the burden shifts to the defendant
to articulate a legitimate, nondiscriminatory reason for the termination. Bryant, 333 F.3d
at 544. If the defendant does so, the plaintiff then has the burden to demonstrate that the
stated reason was merely a pretext for discrimination or retaliation. Bryant, 333 F.3d at
544.
Moreover, “[t]o prevail [on a 42 U.S.C. § 1981 claim], a plaintiff must initially plead
and ultimately prove that, but for race, [it] would not have suffered the loss of a legally
protected right.” Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 589 U.S. 327,
341 (2020). “A cause need not work in isolation to be a but-for cause”; rather, the plaintiff
only bears the burden of showing “that the protected activity was a but-for cause of [the
contract] termination, not that it was the sole cause.” Strata Solar, LLC v. Fall Line
Construction, LLC Arch Insurance Company, 683 F.Supp.3d 503 (E.D. Va., 2023)
(quoting Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216-18 (4th Cir. 2016)).
Here, the magistrate judge found that Skyward failed to make out a prima facie case
of discrimination because Skyward failed to demonstrate that it was meeting DAP’s
legitimate expectations. We agree. DAP demonstrated multiple safety incidents involving
Skyward employees. Moreover, Skyward relies on the alleged racial bias of one of DAP’s
employees. However, that employee was not the decisionmaker responsible for hiring or
firing Skyward. See Hill v. Lockheed Martin Logistics Mgmt., Inc. 354 F.3d 277, 291 (4th
4 USCA4 Appeal: 23-2268 Doc: 31 Filed: 04/14/2025 Pg: 5 of 8
Cir. 2004) (noting bias of employee cannot be imputed to employer unless that employee
was responsible for the decision to terminate plaintiff’s employment).
The magistrate judge also found that Skyward failed to demonstrate that DAP
terminated the contract in retaliation for Skyward employees’ protected activity. “To prove
a causal connection [for retaliation, the Skyward had] to show that [DAP terminated the
contract] because [Skyward employees] engaged in a protected activity.” Holland v.
Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007). Here, one of the protected
activities took place 11 months before DAP terminated the contract, and eight months
before the decision-maker made the decision to terminate the contract. This eight-month
delay is insufficient to create an inference of causation. See Causey v. Balog, 162 F.3d
795, 803 (4th Cir. 1998) (noting that four-month delay between protected action and
termination not sufficient to justify inference of causation). Moreover, there was no other
evidence in the record to support a finding that the protected activity was a but-for cause
of DAP’s termination of the contract. See id. In addition, the second protected activity
occurred just before DAP terminated the contract, and therefore occurred three months
after DAP decided to terminate the contract. Therefore, Skyward failed to demonstrate
that DAP terminated the contract based on these activities.
With respect to the breach of contract claims, Skyward argues that DAP breached
the contract by immediately terminating the contract rather than giving 30 days’ notice to
cure the alleged safety issues, and by not providing notice of the termination by certified
mail. The magistrate judge found that DAP did not breach the termination provision of the
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contract and that, while DAP failed to comply with the contract’s requirement that notice
be provided by certified mail, Skyward waived compliance with this provision.
Maryland courts adhere to the objective theory of contract interpretation. See
Credible Behav. Health, Inc. v. Johnson, 220 A.3d 303, 310 (Md. 2019); Myers v. Kayhoe,
892 A.2d 520, 526 (Md. 2006). “Under this approach, the primary goal of contract
interpretation is to ascertain the intent of the parties,” and “what a reasonable person in the
position of the parties would have understood the language to mean and not the subjective
intent of the parties at the time of formation.” Johnson, 220 A.3d at 310 (internal quotation
marks omitted).
We agree with the magistrate judge that DAP did not breach the contract’s
termination provision. The contract provided that either party could immediately terminate
the agreement based on the other party’s failure to perform any condition of the contract,
including with respect to safety performance. Thereafter, the terminating party—DAP—
could either provide notice and an opportunity to cure, or the other party—Skyward—could
remit invoices to DAP that DAP would have 30 days to pay. Therefore, DAP’s notice of
immediate termination of the contract based on the safety violations was not a breach of
the contract.
However, the contract provided that all notices had to be provided by certified mail.
The contract further provided that neither party could waive contract provisions by express
or implied waiver. We have found that, “[l]ike other contract provisions, the requirement
of written notice may be waived,” including by implied waiver, where “the acts or conduct
of one party evidences an intention to relieve the other party of his duty to
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strictly comply with the contract terms.” Little Beaver Enters. v. Humphreys Rys., Inc.,
719 F.2d 75, 79 (4th Cir. 1983). Under Maryland law, “[t]o demonstrate the existence of
an implied waiver, there must be evidence that the actions of the purportedly waiving party
were ‘inconsistent with an intention to insist upon enforcing’ the provisions of a contract.”
Woznicki v. GEICO Gen. Ins. Co., 90 A.3d 498, 506 (Md. Ct. Spec. App. 2014) (quoting
Hovnanian Land Grp., LLC v. Annapolis Town Centre at Parole, LLC, 25 A.3d 967, 983
(Md. 2011)). Maryland law disfavors non-waiver clauses, but Maryland courts have stated
that generally, the issue of whether a party has waived a contract provision “must be
considered by the trier of fact. The party alleging waiver must show an intent to waive
both the contract provision at issue and the non-waiver clause.” Hovnanian Land Inv. Grp.,
25 A.3d at 984. Thus, “it is an uncommon case in which the issue [of waiver] can be
resolved by summary judgment.” Id.
Skyward’s compliance with the termination letter’s order to vacate DAP property
may evidence an intention to relieve DAP of its duty to strictly comply with the contract
provision requiring notice sent by certified mail. See Humphreys Rys., Inc., 719 F.2d, at
79. However, DAP also needed to show that Skyward waived the contract’s prohibition
against waivers. Construing the facts most favorably to Skyward as the non-moving party,
it is unclear at this stage of the litigation whether Skyward waived both the non-waiver
clause and the notice by certified mail provision when it vacated DAP property after
receiving the termination letter.
Accordingly, we affirm the magistrate judge’s order denying the motion to
withdraw or amend its admissions. We also affirm the magistrate judge’s order granting
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summary judgment insofar as it granted summary judgment to DAP on Skyward’s § 1981
claims and breach of contract claim based on the allegation that DAP breached the
agreement by not providing Skyward the opportunity to cure. We vacate the order with
respect to the grant of summary judgment on the claim that DAP breached the contract by
not providing notice of the termination by certified mail, and we remand for further
proceedings concerning this breach of contract claim. We dispense with oral
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 IN PART, VACATED IN PART, AND REMANDED