Opinion
C. A. 4:21-2301-JD-KDW
12-19-2022
Nikia Thomas, Plaintiff, v. American Security Insurance Company, Defendant.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge
This matter is before the court for consideration of the Motion for Summary Judgment filed by American Security Insurance Company (“Defendant,” sometimes also referred to as “Assurant”), in which it seeks judgment as a matter of law as to the Complaint filed by its employee, Nikia Thomas (“Plaintiff” or “Thomas”). ECF No. 38. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation (“R&R”). Having reviewed the Motion, including supporting memorandum and exhibits, ECF No. 38 through 38-5; Plaintiff's opposition and exhibits, ECF No. 40 through 4127; Defendant's Reply, ECF No. 42; and the applicable law, the undersigned recommends that Defendant's Motion for Summary Judgment, ECF No. 38, be granted and this matter be ended.
As it must, the court considers the facts in the light most favorable to Plaintiff, the nonmoving party. These facts are derived from Defendant's Motion and Plaintiff's Response thereto. Additional facts are set out in relevant portions of this Report.
A. Plaintiff's employment by Defendant
Plaintiff began working for Assurant in 2004. Pl. Dep. 24, ECF No. 38-2. Plaintiff works from home and has been working virtually since approximately 2012. Id. Plaintiff testified that, throughout her employment, she has had access to, been familiar with, and “followed the handbook” and Defendant's discrimination and non-retaliation policies. Id. at 11-12, 24-25. Plaintiff indicated she was aware there were multiple ways in which she or other employees could raise concerns such as discrimination. Id. at 24-25. Plaintiff has attached the Anti-harassment Policy and several pages from a “Frequently Asked Questions” section concerning the raising of issues. ECF No. 41 at 1-3.
According to Defendant Plaintiff began working on manager Brandi Howard's team (sometimes referred to as “Team Howard”) around January 2019.Def. Mem. 2, ECF No. 38-1. Howard encouraged Plaintiff to apply for the position of senior quality control specialist and promoted her to that position from that of quality control (“QC”) specialist. Howard Dep. 6-7, ECF No. 38-5.
Defendant cites to Plaintiff's Deposition at page 54 and Howard's Deposition at pages 6-7. Howard's cited testimony relates to the promotion to senior QC specialist. None of the referenced pages includes information about when Plaintiff began working for Howard. Plaintiff does not dispute that she began working with Howard around January 2019. In any event, this precise timeline is not necessarily germane to the issues before the court.
B. Plaintiff's 2019 EEOC Charge and events surrounding it
On November 22, 2019 Plaintiff digitally signed and submitted a Charge of Discrimination against Defendant. The Charge, submitted to the Equal Employment Opportunity Commission (“EEOC”) and South Carolina Human Affairs Commission (“SCHAC”) concerns discrimination that Plaintiff alleged took place on July 29, 2019 “at the earliest” and August 8, 2019 “at the latest.” 2019 Charge, ECF No. 38-3 at 9. The “continuing violation” box was not checked. 2019 Charge. Checking the “retaliation” box on the Charge form, Plaintiff provided the following “particulars” of her claim:
I began my employment with Assurant Specialty Property May 24, 2004 and was later promoted to senior quality control specialist. I have always received satisfactory performance evaluations and never have been written up or received any disciplinary action. On or around July 25, 2019, I was spoken to in a disrespectful manner by Brandi Howard, quality control manager, white, due to me questioning being required to attend a training that I already did and the training being unpaId. I reported this to treatment to Brian Kovach, quality control operations manager, white, David Susag, director of quality control, white, and Christine Bieller, HR Associate, White.
July 25, 2019, I spoke with Brian Kovach regarding this issue and then I reached out to Christine Bieller to advise what was going on between me and Brandi. July 26, 2019, I spoke with Brandi and she was aware that I had reached out to HR and she was upset. I reported to Brian that she knew and was upset that I went to HR regarding this situation. August 8, 2019, I met with Brian, and advised him that I was been [sic] bullied, intimidated, pressured, harassed, and retaliated against by my manager following the incident that occurred on July 25th, resulting in my manager telling me to clock out. I advised him of the retaliation that took place since the last time him [sic] and I spoke on July 29, 2019, when Brandi falsely accused me [of] not attending the training.
I believe I have been discriminated against in violation of Title VII of the Civil Rights Act of 1964, as amended, due to retaliation.2019 Charge, ECF No. 38-3 at 9-10.
Plaintiff acknowledged that, in the discussions with Kovach and Bieller referenced in the 2019 Charge, she had made no reference to race. Pl. Dep. 88.
Plaintiff recalled her Thursday, July 25, 2019 telephone call with Howard about attending training on the following Saturday. Plaintiff indicates Howard advised her she would not be paid for the Saturday training because she could not receive overtime pay. Plaintiff indicates she asked Howard whether she needed to attend the training because it seemed it may be duplicative of training she had already received. Plaintiff says that once Howard advised her it was training that Plaintiff needed to attend “through the lens of a senior associate,” Plaintiff was “fine with that.” Pl. Dep. 65-70.
In Plaintiff's deposition she indicated Howard initially had told her that she could not receive overtime pay for attending the training so she would not be paid for the Saturday training. Pl. Dep. 70-71. When Plaintiff advised Howard that her expectation was that she would be paid when she came into work, Howard asked her what was “going on” with her and indicated she believed Plaintiff had something “going on” that she did not want to tell Howard about. Pl. Dep. 71. Howard again asked Plaintiff if she was saying she did not want to attend the training. Howard got “very loud” and was “yelling and screaming” at Plaintiff. Pl. Dep. 72. Plaintiff suggested ending the call; however, Howard did not end it until Howard decided it was time to end it. Pl. Dep. 72-73. Howard advised Plaintiff that she needed to clock out for the day because there was “something going on” with her. Pl. Dep. 73. Plaintiff inquired as to whether she would be paid if she stopped working for the day; Howard advised that she did not know but would figure it out tomorrow. Pl. Dep. 73. Before clocking out Plaintiff sent messages to Kovach and to Bieller in HR regarding whether she would be paid. Pl. Dep. 73-74. Bieller got back with Plaintiff and advised that she would be paid if she clocked out for the day. Plaintiff said she was paid for that day. Pl. Dep. 74. Plaintiff indicates she did end up receiving pay for attending the training at issue. She says she was advised by Kovach that she should leave early on the Friday before the Saturday training so that she would be paid on Saturday but not be in an overtime situation. Pl. Dep. 65-67, 75.
In a Dismissal and Notice of Suit Rights (sometimes referred to as a Right to Sue (RTS) letter) dated January 28, 2020, the EEOC dismissed Plaintiff's 2019 Charge, finding that “the facts alleged in the charge failed to state a claim under any of the statutes enforced by the EEOC.” Jan. 28, 2020 RTS Letter, ECF No. 38-3 at 13. Plaintiff did not file a lawsuit after receiving the notice of right to sue for the 2019 Charge in January 2020. Pl. Dep. 104. Plaintiff's time for filing suit on that charge has expired.
C. Plaintiff's August 2019 meeting and follow up
The record includes an email from Plaintiff to Director David Susag that she sent to Susag on August 28, 2019 in follow-up to a meeting she had with him on August 23, 2019. Aug. 28, 2019 email from Pl. to Susag, attaching Skpe IM printout, ECF No. 38-3 at 39-47; copy of email also found at 41-2 at 10-11. In the email Plaintiff notes that during the August 23, 2019 meeting she had advised Susag of the “retaliation complaint that was initiated on July 25, 2019, as well as an incident in which [Howard] yelled, demeaned, bullied, and disrespected [her] in front of the team as well as [Kovach], and it was not resolved.” Aug. 28, 2019 email, ECF No. 38-3 at 40. In large part, the substance of the August 28, 2019 email seems to be a long list of Plaintiff's “to-do” items from various days. Id. Plaintiff also includes a printed version of a Skype IM session, which she seems to include as an example of Howard's “management style, bullying, demanding, intimidating, retaliatory tactics [that are] too much.” Id. Plaintiff notes she needs to “move forward” and that she was not demoted and did not lose her job. She ends by noting she “cannot work in a hostile work environment that has been created by [her] manager, as well as causing disharmony to the team, and the extra weight and stress that this is causing me.” Id. She says she “can no longer deal with the pressure of being forced to work under [Howard].” Id.
Susag responded to Plaintiff's email to thank her for the update. Id. at 39. Later that day Susag forwarded the email to Kovach and Bieller. ECF No. 41-2 at 10. Susag indicated Plaintiff's commentary was “a little tough to translate,” but “appear[s] to display an employee that is challenging the direction she is receiving from her manager or at least not making it easy.” Id. See also Pl. Dep. 188 (characterizing the email as detailing the things she was to be doing and the messages she was receiving from team and how her work was changing).
The record does not seem to include any further information regarding this August 2019 exchange.
D. Plaintiff's 2020 EEOC Charge and surrounding events
Plaintiff filed a second EEOC charge on March 19, 2020 (the “2020 Charge”). 2020 Charge, ECF No. 38-3 at 14-16. Plaintiff checked the “race” box on the Charge form, indicating the Charge concerned race-based discrimination. The Charge indicates the discrimination took place on November 13, 2019 at the “earliest” and at the “latest.” The “continuing action” box was not checked. 2020 Charge. Plaintiff included the following “particulars” in the 2020 Charge:
I filed a charge of discrimination against the above named employer on November 22, 2019. Since that time my duties have increased substantially and I have been assigned tasks inconsistent with my job description. To my knowledge, I am the only employee assigned these additional tasks.
According to my employer[']s management these assignments are workflow development however; I believe this is pretext, as a White co-worker with the same position, has not been assigned additional duties[.]
I believe I have been discriminated against based []on my race (Black) and retaliated against for engaging in protected activity, in violation of Title VII of the Civil Rights Act, as amended.2020 Charge.
In her deposition, Plaintiff indicated the white coworker she referenced was Brett Tonkin. Pl. Dep. 147. Plaintiff indicated she had been “given extra job duties that [were] not part of [her] job function.” Pl. Dep. 157.
The record also includes a January 30, 2020 email from Plaintiff to EEOC investigator Andrew Davis with the subject line “Increased Work” in which Plaintiff outlined her “reasoning for filing the complaint.” Jan. 30, 2020 email, ECF No. 38-3 at 24-25. The relatively long email indicates she is filing the claim “for discriminatory practices and increasing [her] work functions based on the complaint filed.” Jan. 30, 2020 email. Plaintiff recounts having received emails beginning December 6, 2019 that assigned her extra duties that had not been assigned to Tonkin, who is also a Senior. Id. Plaintiff indicated the emails forced her to “change/adjust [her] work schedule” to an earlier time to oversee a function called “open items.” Plaintiff indicates her pay was not increased. Id. Plaintiff says the “emails have increased” since she filed the complaint, and she felt her “job was in jeopardy.” Id. Plaintiff indicates she had just been advised that all of her job duties were changing, and she felt she was being “set up to fail.” Id.
In the interest of concision, Plaintiff's specific allegations of discriminatory conduct are discussed in more detail in the analysis section of this R&R.
The EEOC, through Senior Investigator Davis, wrote Plaintiff on October 7, 2020, and advised her the EEOC had reviewed the matter in which she alleged she was subject to “unlawful discrimination, because of [her] race and in retaliation for a previous complaint of discrimination[,]” and was dismissing her Charge and issuing her a RTS letter. Oct. 7, 2020 EEOC Letter to Pl., ECF No. 38-3 at 31. The letter provided in relevant part, “[t]he evidence obtained by the Commission is insufficient to show a nexus between your previous complaint of discrimination and your assignment of additional job duties. The evidence is also insufficient to show any employee (regardless of race), was treated more favorably, or not assigned collateral duties, based on race. Finally, no evidence suggests you were subjected to any adverse employment action, after you filed a charge of discrimination.” Id.
The EEOC issued Plaintiff's RTS Letter as to the 2020 Charge on April 27, 2021. RTS Letter, ECF No. 38-3 at 21.
E. Plaintiff's June 2020 complaints and Defendant's following investigation
In June 2020, Plaintiff sent a formal written complaint to Defendant's executives because she wanted to “make them aware of what was going on.” Pl. Dep. 189-90. Plaintiff indicated she did not endeavor to include all of her concerns of discrimination and retaliation in that complaint because she felt they would also get information from HR and others. Pl. Dep. 190. The page-and-one-half complaint was addressed to Garrett Hale and Alan Colberg. June 11, 2020 Complaint Letter, ECF No. 38-3 at 59-60. Plaintiff began her complaint letter by indicating she was “reaching out after exhausting all hopes of resolving an ongoing problem.” ECF No. 38-3 at 59. Plaintiff indicated she had never had disciplinary issues in her prior 16 years with the company but the past year had been her “most challenging, difficult, and the most stressful.” Id. Plaintiff indicated she had been “ridiculed, disrespected, harassed, and retaliated against” during her time working for Howard. Id. Plaintiff expressed concern that she was known as a troublemaker and an employee who runs to HR. She indicates she had been “advised that [she] shouldn't want to come across as the Black angry disgruntle[d] woman.” Id. See also Pl. Dep. 118-19 (testifying to a conversation in which Thomas advised Plaintiff she was “coming across as a strong, black, angry, disgruntled woman” and advising her to take her time before reacting to things). Plaintiff set out various complaints about her work assignments and her work schedule, indicating she had tried to resolve the issues with Howard to no avail. ECF No. 38-3 at 59-60. Plaintiff closes the letter complaint by stating, “I feel as a Black woman that my complaints have [fallen] on deaf ears with upper management as well as Human Resources.” Id. at 60.
Hale's and Colburg's positions within Assurant are unclear.
Plaintiff learned that the June 11, 2020 complaint was going to be investigated by the then-VP of Employee Relations, Georgie Cummins; she heard from Cummins within that same week. Pl. Dep. 191-92. Plaintiff said she met with Cummins four or five times. Pl. Dep. 192. Cummins interviewed Plaintiff and 13 other employees as part of her investigation, which also included review of emails and materials Plaintiff provided, her 2019 performance review, and her job description. Cummins Decl. ¶ 6, ECF No. 38-8. Cummins concluded that Howard had “not subjected Thomas to harassment, discrimination, or retaliation in violation of Assurant policies.” Cummins Decl. ¶ 7.Cummins determined, though, that “Howard and Thomas did have a contentious relationship where some of their interactions with each other could be construed as disrespectful.” Id. To address the relationship between Plaintiff and Howard, Cummins asked that Yolanda Hill, then an HR Partner, act as a facilitator by meeting separately with Plaintiff and Howard to discuss expectations and rules of engagement for working together, and then to facilitate conversations between Plaintiff and Howard to address these issues. Id. ¶ 8. Cummins also recommended coaching for Howard on effective management skills and conducted multiple sessions with Howard on that subject after her investigation. Id. Plaintiff was out on leave in July and August of 2020; Cummins met with Plaintiff on September 1, 2020 to discuss the investigation's findings and next steps. Cummins also asked Plaintiff what she was seeking in terms of resolution. Id. ¶ 9.
Although a copy of the Investigative Report is available at ECF No. 41-25, there is no visible date on the Report.
Later on September 1, 2020, Plaintiff emailed a response to Cummins. Sept. 1, 2020 email from Pl. to Cummins, ECF No. 38-8 at 59-60. Plaintiff reiterated some of her complaints and the response she had received and detailed her requested “actions needed to move forward” as including being “made whole by being compensated for the stress [she has] endured.” Id. at 49. On September 30, 2020 Cummins and HR Director Donna Jones again met with Plaintiff to respond to Plaintiff's requested action. Cummins Decl. ¶ 9; Pl. Dep. 212; see also Cummins typewritten notes of the Sept. 30, 2020 meeting, Cummins Decl. ¶ 9 & ECF No. 38-8 at 62-66. Plaintiff indicated that she believed she was “kind of going around in circles,” meeting with various people. Pl. Dep. 212-13. Cummins and Jones denied Plaintiff's request that her complaint be resolved with “compensation,” advising her they did not find anything that had been done wrong. Cummins Decl. ¶ 9; Pl. Dep. 213-14. Cummins and Jones advised Plaintiff that they wanted to have Yolanda Hill work to facilitate the relationship between Plaintiff and Howard. Cummins Decl. ¶ 9; Pl. Dep. 214. Cummins noted that Plaintiff indicated she did not believe the plan could work, she did not want to work with Howard, and she did not have faith in HR; however, Plaintiff advised Cummins and Jones that she was not resigning from her position. Cummins Decl. ¶ 9; Pl. Dep. 214-17.
On October 1, 2020, Plaintiff sent a “final follow up” email to various executives of Defendant, repeating her previous concerns and noting her dissatisfaction with the facilitation plan and with having to continue working with Howard. Cummins Decl. ¶ 10; Oct. 1, 2020 email from Pl. to Garrett Hale, Michael Campbell, Alan Colberg, Gene Mergelmeyer, ECF No. 38-8 at 68-70. The letter included Plaintiff's claims that Howard “has no sense of what it is like to be a Black woman in the workforce, and to make sarcastic jokes are very racist[,]” and that Howard had “recently started referencing [Plaintiff] as ‘HEY YOU.'” Plaintiff characterized the “HEY YOU” phrase as having “racial undertone,” particularly “right now with all of the Black Lives Matter” activity. Id. at 69. Plaintiff also indicated Howard had treated an unnamed employee the same way within the past week. Id. Plaintiff concluded that email with what she termed her “final requests.” ECF No. 38-8 at 70. Plaintiff indicated she was not seeking “mediation,” but was “seeking compensation/severance of over a year and a half of pain and suffering.” Id.
Cummins had Hill investigate the activity toward another employee. Hill learned Howard had “talked over” Tonkin during a conference call; coaching was recommended for Howard regarding this. Cummins Decl. ¶ 10; Oct. 23, 2020 email from Hill regarding findings, ECF No. 38-8 at 72.
In a November 19, 2020 follow-up meeting of Plaintiff; Jones; and Kovach's supervisor, Merrifield, Jones advised Cummins that Plaintiff had missed meetings with both Hill and Jones. Cummins Decl. ¶ 11; Nov. 19, 2020 Mem. from Jones to Cummins, ECF No. 38-8 at 75-77. Plaintiff indicated she had postponed or rescheduled some meetings and indicates she had never agreed to meet with Hill and Howard. Pl. Dep. 222, 226. Plaintiff scheduled a meeting with Hill and Howard for December 2020; however, Plaintiff went out on leave and the meeting did not take place. Pl. Dep. 230.
Howard's role changed in April 2021 “for business reasons unrelated to [Plaintiff], and [Plaintiff] and the rest of Howard's team were assigned a new manager. Cummins Decl. ¶ 12.
As of the time of the summary-judgment briefing Plaintiff continues to work for Defendant.
II. Standard of review
A. Motions for summary judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own affidavit or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact). In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002) (Title VII). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court must determine whether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See Id. at 148 (stating that “[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory”).
B. Burden of proof in Title VII claims
Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e-2(a)(1). A plaintiff may demonstrate a violation of either statute through direct or circumstantial evidence. A plaintiff offers direct or indirect evidence of discrimination using “ordinary principles of proof.” Burns v. AA F-McQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996) (in ADEA context) (internal quotations omitted). Under this method, a plaintiff will only survive summary judgment if he or she “produce[s] direct evidence of a stated purpose to discriminate and/or [indirect] evidence of sufficient probative force to reflect a genuine issue of material fact.” Rhoads v. F.D.I.C., 257 F.3d 373, 391 (4th Cir. 2001) (ADA retaliation claim) (citation and quotation omitted) (alteration in original).
When direct evidence is lacking, a plaintiff may produce circumstantial evidence and proceed under the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Pursuant to this framework, once the plaintiff establishes a prima facie case of a violation of Title VII, the burden of production shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for its employment action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010). If the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason for its employment action, the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence that the proffered reason was “not its true reason[ ], but [was] a pretext.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
While intermediate evidentiary burdens shift back and forth, the ultimate burden of persuasion that the defendant engaged in intentional discrimination remains at all times with the plaintiff. See Reeves, 530 U.S. at 146-47 (“The ultimate question is whether the employer intentionally discriminated, and proof that ‘the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct.'”) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993)). Nonetheless, in considering an employee's pretext argument, there is nothing in the “McDonnell Douglas burdenshifting framework that says ‘a plaintiff must always introduce additional, independent evidence of discrimination.'” Guessous v. Fairview Prop. Investments, LLC, 828 F.3d 208, 220 (4th Cir. 2016) (quoting Reeves, 530 U.S. at 149)). “To the extent that the evidence supporting a plaintiff's prima facie case also undermines the employer's non-retaliatory justification, that evidence may be called upon by the trier of fact in determining whether or not the proffered justification is pretextual.” Id. at 220. The court is ever mindful, too, that such inquiry is “meant only to aid courts and litigants in arranging the presentation of evidence.” Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 515-16 (4th Cir. 2006) (quoting Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 986 (1988)).
III. Analysis
A. Scope of claims at issue
1. The 2019 Charge is not before the court
As an initial matter, the court agrees with Defendant that the particular claims asserted in Plaintiff's 2019 Charge are not before the court because she failed to file a Title VII lawsuit within 90 days of her receipt of her right to sue letter from the EEOC. See 42 U.S.C. § 2000e-5(f)(1). The EEOC dismissed the 2019 Charge and issued a RTS Letter on January 28, 2020. Plaintiff admitted she did not file a suit related to that Charge. Pl. Dep. 104. The instant litigation was filed on July 26, 2021. Accordingly, Plaintiff's claims of retaliation set out in the 2019 Charge are not before the court. See Cockfield v. S.C. Dep't of Pub. Safety, No. CIV.A. 4:05-277, 2007 WL 954131, at *6 (D.S.C. Mar. 27, 2007) (dismissing claims set out in prior Charge because no suit was timely filed).
To the extent Plaintiff suggests the continuing violations theory operates to somehow append the allegations of the 2019 Charge to the 2020 Charge, she is incorrect. The continuing violations theory relates to issues of timeliness, not exhaustion. A Charge is not administratively exhausted when, as here, no federal litigation was filed within 90 days of receipt of a RTS letter from the EEOC. The timeliness aspect relates to whether an alleged prior wrong took place within 300 days prior to the filing of the administrative charge at issue. The continuing violations doctrine is considered when claims that are raised in a properly exhausted charge and subsequent federal lawsuit occurred more than 300 days before the filing of the charge. That is not the issue here.
2. Scope of the 2020 Charge
There is no question that this litigation was begun within the requisite 90 days of Plaintiff's receiving the EEOC's April 2021 RTS Letter related to the 2020 Charge. It follows, then, that matters that were presented in the 2020 Charge were exhausted and are appropriately before the court. The parties agree the 2020 Charge may be construed to include claims of race-based discrimination and retaliation based on disparate-treatment theories. They disagree, though, as to whether the 2020 Charge includes any type of hostile work environment claim.
The allegations contained in the administrative charge of discrimination generally limit the scope of any subsequent judicial complaint. King v. Seaboard Coast Line R.R., 538 F.2d 581, 583 (4th Cir. 1976) (stating that a subsequent civil suit “may encompass only the ‘discrimination stated in the [EEOC] charge itself or developed in the course of a reasonable investigation of that charge' ”) (citing Equal Emp. Opportunity Comm'n v. Gen. Elec. Co., 532 F.2d 359, 365 (4th Cir. 1976)); see also Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000) (“A plaintiff's EEOC charge defines the scope of her subsequent right to institute a civil suit.”). One of the primary purposes behind the exhaustion of administrative remedies requirement is to give notice to an employer of the plaintiff's allegations. As stated by the Fourth Circuit:
Congress intended the exhaustion requirement to serve the primary purpose of notice and conciliation. First, an administrative charge notifies the employer of the alleged discrimination. This notice gives the employer an initial opportunity to voluntarily and independently investigate and resolve the alleged discriminatory action. It also prevents the employer from later complaining of prejudice, since it has known of the allegations from the very beginning. Second, the exhaustion requirement initiates agency-monitored settlement, the primary way that claims of discrimination are resolved.Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005) (internal citations omitted); see also id. at 509 (holding that if a discrimination claim “exceed[s] the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof, they are procedurally barred.”) (citations omitted)).
Here, Plaintiff's Complaint references a hostile work environment. See Compl. ¶¶ 14, 15, 21-22. Defendant argues however, that Plaintiff's 2020 Charge does not include allegations that could support a “hostile work environment harassment claim (whether based on race or retaliation).” Def. Mem. 16. Plaintiff submits, though, that the Charge did not need to include the term “hostile work environment” or “retaliation” to include such a claim. Pl. Mem. 16. Rather, Plaintiff submits she “did make a claim of hostile work environment when she alleged that since filing a charge of discrimination in November 2019, she was subjected to unequal work assignments and increased workload and being the only one assigned additional tasks.” Pl. Mem. 16.
Liberally construed, for purposes of this exhaustion argument, the court agrees with Plaintiff that her allegations that she was subjected to unequal assignments and increased workload since she filed her earlier Charge suffices to put Defendant on notice of a potential hostile work environment claim based on race or based on retaliation. Certainly, claims that she was assigned extra work that others were not assigned and that such extra work followed her prior EEOC Charge could reasonably relate to a hostile work environment claim. That she did not check the “retaliation” box and did not use the words “hostile work environment” or “harassment” in the Charge itself are not “necessarily dispositive” of the exhaustion issue, so long as she “alleged relevant facts in the narrative description on the EEOC Charge form.” Fanord v. Washington Metro. Area Transit Auth., No. CV TDC-14-3973, 2017 WL 3887855, at *4 (D. Md. Sept. 5, 2017) (quoting Chacko, 429 F.3d at 509). The undersigned recommends Defendant's Motion for Summary Judgment be denied to the extent it alleges Plaintiff's hostile work environment claims are administratively barred for failure to exhaust. This recommendation is not intended to suggest that Plaintiff has set out viable hostile work environment claims that should survive Defendant's summary-judgment challenge. Those issues are addressed below.
To summarize, the undersigned is of the opinion that Plaintiff's 2020 Charge and her Complaint in this litigation have administratively exhausted Title VII claims of disparate-impact discrimination and retaliation and claims of race-based and retaliatory harassment/hostile work environment.
B. Defendant's substantive challenges
Defendant seeks summary judgment as to all of Plaintiff's claims. The court first considers Plaintiff's claims of harassment/hostile work environment, both race-based and retaliatory. The court then considers Plaintiff's claims of race-based disparate treatment, including claims of discrimination and retaliation. Before considering the legal challenges to these claims the court sets out the parties' argument and evidence concerning the alleged wrongs Plaintiff experienced during the relevant time period.
1. Plaintiff's alleged mistreatment
As with all matters considered at the summary judgment stage, the court is to consider all facts in the light most favorable to Plaintiff, to the extent they are supported by competent evidence. In response to Defendant's proffered list of Plaintiff's alleged adverse actions, see Def. Mem. 5-11,Plaintiff set out the following list of “adverse employment actions” at issue herein, see Pl. Mem. 4-7:
Plaintiff provides her own list of alleged adverse actions in response to a somewhat similar list provided by Defendant in its memorandum, see Def. Mem. 5-11, noting she generally agrees with the list provided by Defendant although she may characterize some points differently, Pl. Mem. 4. The court is somewhat chagrined by Defendant's argumentative presentation of the allegedly adverse actions, particularly in light of their inclusion in Defendant's supposed “Statement of Material Facts Not in Dispute.”
The court's inclusion of Plaintiff's list of allegedly adverse employment actions herein in no way suggests the court is accepting Plaintiff's list at face-value or automatically adjudging allegations in this list to be “adverse actions” for purposes of this legal analysis. As is always the case, a party must support allegations with admissible evidence at the summary judgment stage. Defendant's argumentative presentation notwithstanding, to the extent Defendant has set out undisputed evidence relevant to Plaintiff's alleged adverse actions it also noted in this bulleted list.
• “Plaintiff's work assignments changed constantly in terms of priorities and daily reporting to Brandi Howard and Plaintiff's complaint is documented in the employee relations center,” (citing Thomas Work Assignment Complaint, ECF No. 41-6 at 1-3).
o The cited exhibit is a portion of an internal database that includes Plaintiff's August 8, 2019 complaint about how Howard continues to have Plaintiff “switch gears” as far as what work assignment she should be doing. ECF No. 41-6 at 1.
o Defendant points to testimony of Brett Tonkin, the other Senior in the QC department, in which Tonkin indicated he felt he, too, was subjected to micromanagement and considerable daily oversight by Howard. Tonkin also noted their team needed to communicate often so they could shift roles and responsibilities as needed. Tonkin Dep. 19, 30, ECF No. 38-6.
• “Plaintiff became aware that her manager Brandi Howard was asking other employees like Melissa Rogers about Plaintiff's work performance and encouraging Rogers to be upset about Plaintiff. Plaintiff's complaint is documented in the employee relations center,” (citing Thomas Work Assignment Complaint, ECF No. 41-6 at 1-3).
o In the same cited exhibit, it is noted that Plaintiff indicated on August 8, 2019 that Howard was advising Rogers she “should be upset” about an email Plaintiff had sent her (Rogers).
• “Plaintiff's work responsibilities increased in a manner unequal to her co worker Brett Tonkin the other senior quality control specialist. Plaintiff was given additional job duties that were not included in her original job description,” (citing “Assurant Job Description vs Howard's Job Description, ECF No. 41-7).
o The cited exhibit includes an Assurant “Job Description Template” for a Quality Control (QC) Sr. Specialist, ECF No. 41-7 at 4-6, and a May 24, 2019 email from Howard to Plaintiff recapping a May 23, 2019 1:1 meeting and including a list of “Senior job duties and atm goals and objectives/KPI objectives,” id. at 7.
▪ Plaintiff does not provide specific detail regarding what duties were different from the job description and what duties Tonkin did not perform.
▪ When asked about this in deposition, Tonkin indicated he believed he did more work than Plaintiff. Tonkin Dep. 25. Howard testified that Tonkin, as the more experienced of the two Seniors, had a heavier workload than Plaintiff. Thomas Dep. 45-46.
• “Plaintiff was addressed in a disrespectful manner by Brandi Howard who found fault in many of Plaintiff's actions. In one incident in August 2019, Howard badgered Plaintiff about working off the clock, when she had already clocked in. Plaintiff's white co worker Cynthia Butcher even recognized that Howard was being ‘pushy,'” (citing Aug. 23, 2019 Instant Message from Butcher to Plaintiff, ECF No. 41-8).
o The Instant Message includes exchange in which Howard advised Plaintiff to clock in and an exchange between Plaintiff and Butcher in which Butcher characterized Howard as being “pushy.” Id. at 2.
o Plaintiff indicated in deposition that, once Howard listened to her explanation, Howard responded and indicated she would edit Plaintiff's time appropriately. Pl. Dep. 274.
• “Plaintiff received an overall annual evaluation in 2019 of ‘solid' or ‘meets expectations', but in a subcategory, she was rated as ‘approaching expectations' thus affecting overall performance rating and the percentage of merit increase,” (citing Thomas 2018, 2019, 2020 Annual Evaluations, ECF No. 41-1).
o Plaintiff provides no evidence of how the evaluation's rating actually impacted her pay.
o In her deposition, Plaintiff indicated she received a merits-based pay increase based on this evaluation. Pl. Dep. 275.
• “Plaintiff was asked in December 2019 to come to work early to train with Cynthia Butcher, Team Lead, and oversee[] the Open Items Function.” (citing Thomas Additional Training Request 4, ECF No. 41-9 at 4).
o The email asks Plaintiff whether she is willing to begin work earlier to learn a function in the event Butcher is on leave. Id. Follow-up email discussions indicate Plaintiff requested that she not be given this additional role as she focused on other areas identified in her evaluation. Id. at 1-3.
o Plaintiff indicated in her deposition that, after she pushed back on doing this additional role, she did not end up having to do that work. Pl. Dep. 183.
o Plaintiff indicated she went in early for the training on two occasions but did not have to do it after that. Pl. Dep. 150.
• “As a result of the performance review in 2019, Plaintiff asked for more improvement time in the area of OI workflow before assuming the additional job opportunity not included as a job duty,” (citing ECF No. 41-9).
• “In February 2020, Plaintiff had to provide a detailed calendar of her work day when no one else was required to do so,” (citing Feb. 27, 2020 email from Howard to Plaintiff, ECF No. 41-10).
• “In April 2020, Plaintiff requested to use PTO and was told to check with her white co workers first; but Brett Tonkin, a white co worker was not required to check with Plaintiff before taking his PTO,” (citing PTO Request messages, ECF No. 41-11).
o In the cited exchange Howard asked that Plaintiff “partner” with other leaders before requesting PTO. Id. at 3. Plaintiff noted Tonkin had not conferred with her before taking a day off that week. Id. Plaintiff asked whether there was “something
different that he is doing than what you are requesting of me.” Id. Howard responded, “absolutely not, I can surely give him feedback on that.” Id.
o Tonkin testified he was subject to the same process as Plaintiff and noted both he and Plaintiff had been advised they needed to communicate amongst themselves regarding taking days off. Tonkin Dep. 30-31.
• “Plaintiff was accused of working off the clock around October 15, 2020, but Plaintiff had proof to rebut the attempted discipline. Plaintiff believes there were multiple attempts by Brandi Howard to find fault with Plaintiff to support disciplinary action against Plaintiff,” (including no citation to record).
• “Plaintiff was doing increased tasks with no additional compensation such as a change in functions to support OI workflow in November 2020, to which Plaintiff remarked in December 2020 that a pay increase would be needed for tasks in addition to her job description,” (citing Thomas Pay Increase Request, ECF No. 41-12).
• “Plaintiff was referenced as ‘hey you' instead of her name. Plaintiff was also warned of being referenced as ‘an angry black woman'. Plaintiff was also subjected to what Defendant references in its Motion as ‘stray remarks' (‘I like my coffee black like people', ‘I can't say black jokes' and ‘Ohio is full of white people, so I wouldn't know why he would be there, considering the fact that he is black', ‘It's hard to tell you all apart because all you black people look alike'),” (including no citation to record).
• “Plaintiff received a coaching, part of the disciplinary process, regarding taking lunch at the end of her shift when there was no company policy prohibiting this. Plaintiff did not take lunch at the end of the day and believed this to be an example of a disciplinary attempt.” (including no citation to record).
o In an email from Howard's supervisor, Kovach, Plaintiff was advised that “coaching and feedback” is not disciplinary action. April 7, 2020 email, ECF No. 38-3 at 54. Kovach noted the company had flexibility as to when a QC employee took a lunch break but noted they could not be “tag[ged] on” to the time an employee has “essentially complete[d their] workday.” Id.Pl. Mem. 4-7 (with additional notations of information found at Def. Mem. 6-11).
2. Hostile work environment claims
As recently discussed by the Fourth Circuit, hostile work environment claims may be based on claims of status-based harassment (here, that would be harassment based on race) or retaliatory harassment, that is, harassment based on an employee's prior protected activity. Laurent-Workman v. Wormuth, No. 21-1766, __ F.4th__, 2022 WL 17256701, at *5, 9-10 (4th Cir. Nov. 29, 2022) (at motion to dismiss stage; discussing variation in standards applicable to status-based harassment and retaliatory harassment). “[T]o prevail on a Title VII claim that a workplace is racially hostile, ‘a plaintiff must show that there is (1) unwelcome conduct; (2) that is based on the plaintiff's . . . race; (3) which is sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer.'” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (quoting Okoli v. City of Balt., 648 F.3d 216, 220 (4th Cir. 2011) (alteration and internal quotation marks omitted)). Whether the environment is objectively hostile or abusive is “judged from the perspective of a reasonable person in the plaintiff's position.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). This may be determined by “looking at all the circumstances,” which “may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Harris v. Forklift Systs., Inc., 510 U.S. 17, 23 (1993).
As explored by the Fourth Circuit in Laurent-Workman, in establishing a hostile work environment based on status (such as race or gender), a plaintiff must demonstrate the allegedly harassing behavior altered the terms and conditions of her employment. For claims of retaliatory hostile-work-environment/harassment, the standard by which the complained-of employment action is judged is slightly less onerous. As has long been the law as to other retaliation claims, the complaining employee need not show the terms and conditions of his or her employment were altered. Rather, the employee must demonstrate that the complained-of action was “materially adverse” in that it was one that would dissuade a reasonable employee from participating in a protected activity (such as filing an EEOC charge). See Laurent-Workman, at *9-10 (discussing Burlington Northern and Santa Fe Ry. Co v. White, 548 U.S. 53, 64 (2006), which “impose[d] a less demanding heuristic for retaliation claims”).
Although Laurent-Workman clarified this distinction in the level of “adversity” a disgruntled employee is required to show in the retaliatory harassment area, the court also made clear the similarities among the analyses:
While retaliation claims are not limited to actions that alter the terms and conditions of employment, “severity” and “pervasiveness” are useful units of measurement to determine whether claimed harassment is actionable. After all, the standards for judging hostility must be “sufficiently demanding to ensure that Title VII does not become a ‘general civility code.' ” Faragher v. Cty. of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (internal citation omitted). “Properly applied, they will filter out complaints attacking ‘the ordinary tribulations of the workplace,' ” Id., “that all employees experience,” Burlington N., 548 U.S. at 68, 126 S.Ct. 2405. The severity and frequency of hostility are important factors to consider when determining whether the circumstances would dissuade a reasonable employee from opposing discrimination, just as they are for assessing substantive hostile work environments. See E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008) (listing factors considered in hostile work environment analysis); cf. BurlingtonN., 548 U.S. at 77, 126 S.Ct. 2405 (Alito, J., concurring in judgment) (acknowledging that under the materially adverse standard “employer conduct that causes harm to an employee is permitted so long as the employer conduct is not so severe as to dissuade a reasonable employee from making or supporting a charge of discrimination” (emphasis added)).Laurent-Workman, 2022 WL 17256701, at *10.
At bottom, the Fourth Circuit held that “a retaliatory hostile work environment must be so severe or pervasive that it would dissuade a reasonable worker from making or supporting a charge of discrimination.” Id. Elsewhere, the court noted the following:
We consider several factors to evaluate whether the alleged working conditions are severe or pervasive enough to support a Title VII claim. These factors include the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011). However, “[a]ctivities like simple teasing, offhand comments, and off-color jokes, while often regrettable, do not
cross the line into actionable misconduct.” E.E.O.C. v. Fairbrook Med. Clinic, P.A., 609 F.3d 320, 328 (4th Cir. 2010).Id. at *4.
Accordingly, the court first considers Plaintiff's claim of retaliatory harassment. Plaintiff must show the retaliatory conduct “(1) was unwelcome, (2) was sufficiently severe or pervasive that it would dissuade a reasonable worker from making or supporting a charge of discrimination, and (3) can be attributed to the employer.” Laurent-Workman at *10. No doubt Plaintiff found the complained-of events to be “unwelcome.” The court focuses now on determining whether the complained-of treatment rises to the level of being so “severe or pervasive” that it might dissuade a reasonable person from making charges of discrimination. If Plaintiff has not set out evidence of such treatment, no further analysis of this claim is required.
The court is not persuaded that Plaintiff has provided admissible evidence of treatment that would dissuade a “reasonable person” from complaining about discrimination. To be sure, admissible evidence is to be considered in the light most favorable to Plaintiff. However, Plaintiff s allegations of retaliatory acts amount to little more than her own opinion as to ordinary workplace complaints, such as: “I am having to do more than my peers”; “My supervisor does not like me and is picking on me”; and “I should have been paid more.” Considering all of the circumstances, these are not actionable. See Sunbelt Rentals, 521 F.3d at 315-16 (citing cases holding that complaints based on rude treatment, callous behavior by superiors, or a difference of opinion or personality conflict with a supervisor are not actionable under Title VII); Harvey v. Saluda Smiles Family Dentistry, 210 F.Supp.3d 812, 821 (D.S.C. 2016) (finding that the plaintiff had not established she experienced severe or pervasive harassment where the plaintiff alleged “nitpicking” by her superior, being chastised in front of a patient, and ongoing friction with her superior); Austin v. Boeing Co., No. CV22001142RMGMGB, 2021 WL 6494747, at *13 (D.S.C. Oct. 25, 2021) (finding plaintiff's being assigned “less-desirable” assignments that were temporary and did not impact employment other than fact of reassignment were not materially adverse actions for purposes of retaliation analysis), report and recommendation adopted, No. 2:20-CV-1142-RMG, 2021 WL 5904114 (D.S.C. Dec. 14, 2021).
Further, to the extent Plaintiff's claims of race-based statements are considered in connection with her retaliatory harassment claim, they are not sufficiently severe or pervasive. Rather, as discussed more fully below, they are sporadic and consist of nothing so severe or pervasive so as to dissuade a reasonable person from pursuing a discrimination claim. A court's determination of whether the conduct was sufficiently severe and pervasive to create an obj ectively hostile or abusive environment “is made by looking at all the circumstances, which may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Holloway v. Maryland, 32 F.4th 293, 300-01 (4th Cir. 2022) (quoting Boyer-Liberto, 786 F.3d at 277). Notably, “ ‘[r]ude treatment,' ‘callous behavior,' or ‘routine difference of opinion and personality conflict,' without more, will not suffice.” Id. at 301 (quoting Sunbelt Rentals, 521 F.3d at 315-16).
These statements, taken in the light most favorable to Plaintiff, are that Howard made a joke about liking her coffee “black, like people,” indicated that “all black people look alike,” her admonition to Plaintiff that she not come off looking like a “strong, black, angry disgruntled woman,” and her commitment to permit Plaintiff time to participate in protests based on race-based matters. Pl. Dep. 106-09, 117. Pl. Mem. 6, 20 (indicating the remarks referencing coffee was comparing coffee to being “black like people,” rather than “black like peat” as indicated in Plaintiff's deposition transcript at page 106).
In Holloway, the Fourth Circuit held that allegations that a supervisor criticized the plaintiff's leadership and budget management in meetings, scheduled a meeting to start before the plaintiff was scheduled to arrive and then yelled and slammed documents onto a desk during the meeting, required him to sign a disciplinary evaluation, required him to address the supervisor as “sir,” and failed to honor him at an employee recognition event, and that other employees were surveyed about the plaintiff's leadership and whereabouts during the work day, were insufficient “to establish an abusive environment” so as to withstand dismissal. 32 F.4th at 301. The court notes that the Holloway case was decided prior to the Laurent-Workman decision. Nonetheless, Plaintiff's evidence does not support treatment so “severe” or “pervasive” that it would dissuade a reasonable person from complaining of discrimination. Because Plaintiff cannot satisfy the second prong of a retaliatory hostile work environment further consideration of this claim is unnecessary.
As noted above, the Plaintiff's burden of showing a race-based hostile work environment is more onerous than that required for retaliatory harassment. Plaintiff must demonstrate her complained-of treatment would be considered to have altered the terms and conditions of Plaintiff's employment. Certainly, Plaintiff's complained-of actions related to having been given more work or having been spoken too in harsh tones are not indicative of such an environment. Such actions, found above not to be sufficiently severe or pervasive to dissuade a reasonable person from opposing discrimination plainly cannot satisfy the higher bar required to demonstrate adverse action that impacts the terms or conditions of her employment-the standard required in establishing a race-based hostile work environment. The bar for demonstrating conduct was objectively severe or pervasive is a high one. See Perkins v. Int'lPaper Co., 936 F.3d 196, 208 (4th Cir. 2019) (“[R]ude treatment by [coworkers], callous behavior by [one's] superiors, or a routine difference of opinion and personality conflict with [one's] supervisor, are not actionable under Title VII.” (quoting Sunbelt Rentals, 521 F.3d at 315-16 (alterations in original)). Plaintiff has not demonstrated conduct that rises to the level of severe or pervasive enough to alter the terms and conditions of her employment. Pryor v. Trident Med. Ctr., LLC, No. 221CV01047DCNJDA, 2022 WL 16700447, at *7 (D.S.C. July 18, 2022) (finding plaintiff's complaints that she was confronted, belittled, and yelled at were insufficient to establish hostile work environment), report and recommendation adopted, No. 221CV01047DCNJDA, 2022 WL 15718025 (D.S.C. Oct. 28, 2022); Vedula v. Azar, No. CV TDC-18-0386, 2020 WL 5500279, at *9 (D. Md. Sept. 11, 2020) (finding no adverse employment action when complained-of additional duties or changes were “largely memorialized duties and responsibilities that were already required of employees in [plaintiff's] position.”).
Further, the race-based comments of which Plaintiff complains are not “objectively severe or pervasive” as required for this claim. As set out by Plaintiff, the race-based comments included her being referenced as “hey you,” rather than by name; her being warned about coming across as an “angry black woman”; her being subjected to remarks such as “I like my coffee black like people”; “I can't say black jokes”; and “Ohio is full of white people, so I wouldn't know why he would be there, considering the fact that he is black”; “It's hard to tell you all apart because all you black people look alike.” Pl. Mem. 6-7; 19-20.
Plaintiff submits these remarks satisfy the “severe or pervasive” requirement because she “has been experiencing unequal treatment since July 2019,” including her alleged unequal treatment in work duties. Pl. Mem. 19-21. As discussed above, Plaintiff's allegations regarding work duties and general treatment at work do not rise to the level of severe or pervasive. Focusing on the comments related to race, Plaintiff has proffered no real argument to show that these statements were severe or pervasive. These comments were relatively few in number. As to the “hey you” comment, it is far from a given that it objectively has a race-based connotation. See Robinson v. Colquitt EMC, No. 7:13-CV-92 HL, 2015 WL 1471930, at *12 (M.D. Ga. Mar. 31, 2015) (noting “hey you” may have been meant in a derogatory manner but were not themselves racially charged; finding they did not contribute to a racially hostile environment), aff'd, 651 Fed.Appx. 891 (11th Cir. 2016). In any event, Plaintiff acknowledged that, once she advised Howard it made her uncomfortable, Howard never used that phrase again. Further, and importantly, none of the complained-of race-based comments includes the type of severe race-based epithets on which some such claims typically are based. Cf. Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001) (“Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet . . . by a supervisor in the presence of his subordinates.”). In making this recommendation, the court is mindful that the term “angry Black woman” may at times connote racial hostility. See McIver v. Bridgestone Americas, Inc., 42 F.4th 398, 413 (4th Cir. 2022) (Motz, J., concurring) (concurring in affirmance of the grant of summary judgment but noting being known as an “angry Black woman” was a “harmful and well-rooted racial stereotype”). Nonetheless, in considering the evidence as a whole in this matter, Howard's one conversationwith Plaintiff in which she counseled her to take her time in responding to things so she did not come across as a “strong, black, angry, disgruntled woman,” Pl. Dep. 119, does not rise to the level of establishing a sufficiently severe or pervasive hostile environment so as to survive summary judgment. See Sims v. Univ. of Md. Med. Sys. Corp., 2022 WL 2275891, at *22. Plaintiff has not provided evidence sufficient to demonstrate a race-based hostile work environment. See Brown v. Bratton, No. 211998, 2022 WL 17336572, at *10 (4th Cir. Nov. 30, 2022) (affirming grant of summary judgment as to race-based HWE claim, finding racially disparaging statements such as a race-based epithet and a statement by plaintiff's immediate supervisor that he “did not want to be around black people” to be insufficiently severe or pervasive); Jennings v. Watson, No. 3:17-CV-3040-S-BK, 2019 WL 4359376, at *5 (N.D. Tex. July 9, 2019) (finding comment by supervisor that “all black people have attitudes” was insufficiently severe or pervasive to be part of a race-based hostile work environment), report and recommendation adopted, No. 3:17-CV-3040-S-BK, 2019 WL 4319056 (N.D. Tex. Sept. 12, 2019), affd sub nom. Jennings v. Towers Watson, 11 F.4th 335 (5th Cir. 2021).
Although Plaintiff complains that management generally “perceived her as a trouble maker,” see Pl. Mem. 26, the court is aware of only one instance in which the “perception was explicitly tied to her status as a Black woman.” Sims v. Univ. of Maryland Med. Sys. Corp., No. CV CCB-19-295, 2022 WL 2275891, at *22 (D. Md. June 23, 2022) (granting summary judgment; finding single comment that plaintiff was “argumentative and aggressive like the average Black woman,” combined with the circumstances of the case, insufficient to establish race-based hostile work environment).
Plaintiff cannot establish the severe or pervasive requirement. Both her retaliatory and racebased hostile work environment claims are subject to summary judgment. Based on this recommendation, further analysis of these claims is not needed.
3. Title VII discrimination and retaliation claims considered under McDonnell Douglas proof scheme
In addition to the hostile work environment claims, Defendant seek dismissal of Plaintiff's Title VII race-based claims of disparate treatment and retaliation. As noted above, these claims may be pursued under the familiar McDonnell Douglas burden-shifting rubric or by using the so-called mixed motive rubric, adducing direct evidence sufficient to establish the claims. The court first considers the parties' arguments based on the McDonnell Douglas paradigm.
a) Title VII discrimination claim
Defendant submits Plaintiff cannot establish a prima facie case of race-based discrimination. To establish such a case, Plaintiff must show the following: (1) membership in a protected class, (2) satisfactory job performance, (3) adverse employment action, and (4) different treatment from similarly situated employees outside the protected class. Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010). Defendant argues, inter alia, that Plaintiff has not set out any “adverse employment action,” noting such an action requires a showing of “discrimination that adversely affects the terms, conditions or benefits of employment.” Perkins, 936 F.3d at 207. Def. Mem. 22-24. In support, Defendant refers back to the analysis of the hostile work environment claim.
In response, Plaintiff, too, refers back to earlier arguments in support of her claim that she was subjected to adverse employment action(s). Pl. Mem. 25 (referencing her claim that her work assignments changed constantly, her work assignments increased in a manner unequal to coworker Tonkin, she was asked to go into work early to cross-train, she was micromanaged, and she was subjected to requirements regarding taking PTO that Tonkin was not). As discussed above in connection with the claim of a race-based hostile work environment, the court finds Plaintiff has not established adverse employment actions based on these things because they are little more than workplace annoyances. The court notes Plaintiff's particular focus on caselaw that, in certain situations, job reassignments with “significantly different responsibilities” may rise to the level of an adverse employment action. Pl. Mem. 25-26 (citing, inter alia, Burlington Industs., Inc. v. Ellerth, 524 U.S. 742 (1998)). The court notes that Ellerth related to whether certain actions were “tangible employment actions” for purposes of an employer's defense to a hostile work environment claim.In any event, as discussed above, Plaintiff has not set out evidence to show she was assigned significantly different responsibilities, just that she was cross-trained to assist in other duties. Tonkin, too, was cross-trained and believed he had more work than Plaintiff. Plaintiff's “own naked opinion, without more, is not enough to establish a prima facie case of [] discrimination.” Goldberg v. B. Green & Co., 836 F.2d 845, 848 (4th Cir. 1988). Further, as noted in one of the cases cited by Plaintiff, Boone v. Goldin, 178 F.3d 253, 256 (4th Cir. 1999), any reassignment must be shown to have had a “detrimental effect” on Plaintiff. She has not done so.
The court's earlier recommendation as to Plaintiff's hostile work environment claims rendered consideration of the defense unnecessary in this matter.
Plaintiff also submits the adverse actions she faced “were ongoing attempts to make Plaintiff appear to be insubordinate and a ‘trouble maker.'” Pl. Mem. 26 (citing investigative notes of several witnesses interviewed in the investigation into Plaintiff's complaints). Plaintiff claims this kept her from receiving the highest possible marks on her evaluations and “clearly affected her ability to be promoted within the company.” Pl. Mem. 26. As an initial matter, the court agrees with Defendant that those notes are hearsay as regards what a particular witness said to the investigator or how that witness perceived matters. Reply 2 n.1. Plaintiff's belief that she should have received higher marks in her evaluations is based on her own subjective opinion. Pl. Dep. 278-79. Further, Plaintiff also admitted that she was paid more than Tonkin. Pl. Dep. 160-61.
Plaintiff's Charge does not include a failure to promote claim, and none will be considered here.
Considering all admissible evidence in the light most favorable to Plaintiff, she has set out no more than complaints of workplace annoyances and disagreements with supervisors and others. Plaintiff has not shown she was subjected to an adverse employment action. Because Plaintiff cannot establish the third prong of her prima facie case, consideration of the fourth prong is unnecessary. Based on the McDonnell Douglas framework, Defendant's Motion for Summary Judgment should be granted as to Plaintiff's claim of race-based discrimination.
b) Title VII retaliation claim
An employee can set out a prima facie claim of Title VII retaliation by establishing the following: “(1) that [s]he engaged in protected activity; (2) that [her] employer took an adverse action against [her]; and (3) that a causal connection existed between the adverse activity and the protected action.” Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 578 (4th Cir. 2015) (cleaned up). As correctly noted by Plaintiff (and as discussed above in connection with the retaliatory harassment claim) the adverse action in the retaliation context need not necessarily have impacted the terms and conditions of employment. Rather, the impact must have been materially adverse, such that it “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N., 548 U.S. at 68.
Plaintiff opposes Defendant's motion for summary judgment as to this claim, looking to her earlier arguments regarding the allegedly adverse events. Pl. Mem. 29-30. However, Plaintiff's Title VII retaliation claim is subject to summary judgment for the same reasons her claim for a retaliatory hostile work environment is: she cannot establish she was subject to actions that were “materially adverse.” As discussed more fully above, her claims regarding micro-management, being assigned different tasks and the like would not dissuade a reasonable employee from pursuing or supporting a charge of discrimination. Plaintiff cannot establish a prima facie case of race-based discrimination.
4. Plaintiff's Title VII claims using mixed motive/direct evidence framework
As noted above, Plaintiff can proceed under the McDonnell Douglas framework or may provide direct evidence of discrimination or retaliation.
As recently noted by the Fourth Circuit:
Direct evidence “is evidence which, if believed, would prove the existence of a fact without any inference or presumptions.” O'Connor v. Consol. Coin Caterers Corp., 56 F.3d 542, 548 (4th Cir. 1995) (cleaned up), rev'd on other grounds, 517 U.S. 308 (1996). It is evidence of conduct or statements that reflect the alleged discriminatory attitude and that bear directly on the contested employment decision. Cline v. Roadway Express, Inc., 689 F.2d 481, 485 (4th Cir. 1982).Walton v. Harker, 33 F.4th 165 (4th Cir. 2022) (finding comments insufficient to provide direct evidence of Title VII or ADEA retaliation as they had no nexus to the adverse employment action at issue). The Fourth Circuit has noted that “[su]ch unaided proof may consist of direct evidence that the employer announced, or admitted, or otherwise unmistakably indicated that race was a determining factor.” Cline, 689 F.2d at 485.
“Importantly, under either [the mixed-motive/direct evidence or the McDonnell Douglas] framework, Plaintiff must show some adverse employment action to prevail on his discrimination claim.” Hubbard v. S.C. Dep't of Mental Health, No. 3:20-CV-002482-JMC, 2022 WL 832570, at *5 (D.S.C. Mar. 21, 2022) (citing Holland v. Washington, 487 F.3d 208, 219 (4th Cir. 2007) (noting plaintiff had not provided evidence of his claims the employer “treated him unfairly, falsified his income level, failed to properly treat injuries sustained at work, failed to submit the proper paperwork for Plaintiff to receive worker's compensation for his injuries, paid him lower wages than other nurses despite having a higher education, gave him unfair work assignments, denied fringe benefits of employment, and denied Family Medical Leave Act (“FMLA”) rights”)). Plaintiff acknowledges as much in her brief. Pl. Mem. 23 (noting that under mixed-motive framework, she may “present direct or circumstantial evidence that creates a genuine issue of material fact as to whether an impermissible factor such as race solely or partially motivated the employer's adverse employment decision.”).
Here, the direct evidence to which Plaintiff refers includes already-discussed comments about race and the alleged treatment of Black coworkers such as herself and Magon Tisdale. Pl. Mem. 23-24. For completeness, the court notes that Tisdale testified that she performed duties similar to those of a senior QC Specialist but was not receiving additional pay for additional tasks. She also testified that she had issues with Howard. Tisdale Dep. 9, 11-14, 18-19, 20-22, 23-24, ECF No. 41-21. It is far from clear how this might be characterized as direct evidence in support of Plaintiff's claims.
Elsewhere in her brief Plaintiff provided information about Black coworker Melissa Rogers, citing Rogers' deposition testimony concerning her own treatment by Howard. Pl. Mem. 9-10 (citing Rogers Dep., ECF No. 41-20). Plaintiff labels Rogers and Tisdale as “pattern and practice” witnesses. Plaintiff has raised no separate pattern and practice claim. To the extent the court even considers the testimony of Rogers and Tisdale, it does nothing to bolster Plaintiff's Title VII claims.
In any event, and as discussed in more detail above, Plaintiff simply has not set out adverse employment decisions or actions that are cognizable under Title VII. Without a wrong to which any direct evidence may be focused Plaintiff cannot succeed. Further, none of the cited evidence could satisfy the requisite standard: that, without more, there is a clear nexus between such evidence and the complained-of actions. Hubbard, 2022 WL 832570, at *6 (granting summary judgment because, even assuming adverse employment action, plaintiff had shown “no clear nexus between any alleged discrimination and the [complained-of] adverse employment conduct[.]”). To the extent Plaintiff seeks to prove any of her Title VII claims using the direct evidence/mixed-motive framework, summary judgment is appropriate.
IV. Conclusion and Recommendation
For the reasons set forth above, the undersigned recommends Defendant's Motion for Summary Judgment, ECF No. 38, be granted and this matter be ended.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4thCir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court Post Office Box 2317 Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).