Virginia Whitaker v. Nash County
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:11-cv-00055-FL Copies to all parties and the district court/agency. [999020283]. Mailed to: Virginia Whitaker. [12-2128, 12-2181]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2128
VIRGINIA DIEPHEAL WHITAKER,
Plaintiff – Appellant,
v.
NASH COUNTY; NASH COUNTY DEPARTMENT OF SOCIAL
MELVIA BATTS, Director; JOSIE GREEN, Food and
Supervisor,
SERVICES;
Nutrition
Defendants - Appellees.
No. 12-2181
VIRGINIA DIEPHEAL WHITAKER,
Plaintiff – Appellant,
v.
NASH COUNTY; NASH COUNTY DEPARTMENT OF SOCIAL
MELVIA BATTS, Director; JOSIE GREEN, Food and
Supervisor,
SERVICES;
Nutrition
Defendants - Appellees.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:11-cv-00055-FL; 5:11-cv-00015-FL)
Submitted:
January 3, 2013
Decided:
January 11, 2013
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Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Virginia Diepheal Whitaker, Appellant Pro Se. Mary Nell Craven,
WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Winston-Salem, North
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM
Virginia
Diepheal
Whitaker
appeals
the
district
court’s order granting summary judgment to the Defendants in her
civil action under Title VII of the Civil Rights Act of 1964, as
amended (“Title VII”), 42 U.S.C.A. §§ 2000e to 2000e-17 (West
2003 & Supp. 2012), and her state law libel claims.
Whitaker
challenges
the
district
court’s
grant
On appeal,
of
summary
judgment on her claims for retaliation, racial discrimination,
creation
of
discrimination.
a
hostile
work
environment,
and
religious
We affirm.
We review a district court’s grant of summary judgment
de
novo,
drawing
reasonable
inferences
favorable to the non-moving party.
in
the
light
most
PBM Prods., LLC v. Mead
Johnson & Co., 639 F.3d 111, 119 (4th Cir. 2011).
Summary
judgment is proper “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).
To
withstand a motion for summary judgment, the non-moving party
must produce competent evidence to reveal the existence of a
genuine
issue
of
material
Potomac
Elec.
Power
Co.,
fact
312
for
F.3d
trial.
645,
See
649
(4th
Thompson
Cir.
v.
2002)
(“Conclusory or speculative allegations do not suffice, nor does
a
mere
scintilla
party’s] case.”
of
evidence
in
support
of
[the
(internal quotation marks omitted)).
3
non-moving
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Title VII prohibits employers from “discriminat[ing]
against
any
individual
with
respect
to
[her]
compensation,
terms, conditions, or privileges of employment, because of such
individual’s . . . race.”
42 U.S.C.A. § 2000e-2(a)(1).
Where
there is no direct evidence of discrimination, “a plaintiff may
proceed under the [McDonnell Douglas] ‘pretext’ framework, under
which the employee, after establishing a prima facie case of
discrimination,
demonstrates
that
the
employer’s
proffered
permissible reason for taking an adverse employment action is
actually a pretext for discrimination.”
Diamond v. Colonial
Life & Accident Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005)
(internal quotation marks and brackets omitted); see McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).
Title VII also
forbids an employer from retaliating against an employee through
adverse
protected
employment
conduct
discrimination.
Cir.
2003).
actions
such
as
because
filing
the
employee
grievances
engaged
alleging
in
racial
King v. Rumsfeld, 328 F.3d 145, 150-51 (4th
It
is
well
established
that,
even
under
the
McDonnell Douglas burden-shifting scheme, the ultimate burden of
persuasion remains on the plaintiff at all times.
Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
The
district
court
properly
suffered two adverse employment actions:
termination.
found
that
Whitaker
failure to promote and
See James v. Booz-Allen & Hamilton, Inc., 368 F.3d
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371, 375 (4th Cir. 2004) (“An adverse employment action is a
discriminatory
conditions,
act
or
which
benefits
adversely
of
the
affects
plaintiff’s
the
terms,
employment.”)
(internal quotation marks and brackets omitted).
We conclude
that Whitaker has failed to demonstrate that the Defendants’
legitimate,
and
her
non-discriminatory
termination
were
reasons
for
pretextual,
failure
to
promote
either
for
racial
for
hostile
work
(1)
she
discrimination or retaliation.
In
environment,
order
to
Whitaker
establish
must
a
claim
demonstrate
that:
experienced unwelcome harassment; (2) based on race; (3) that
was “sufficiently severe or pervasive” to alter the conditions
of her employment and to create an “abusive atmosphere”; and
(4) that
employer.
this
conduct
it
imputable
on
some
basis
to
her
EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167, 175
(4th Cir. 2009).
when
was
We find that the district court did not err
dismissed
Whitaker’s
claims
because
she
did
not
establish the presence of conduct severe or pervasive enough to
create a work environment both that she perceived as abusive and
that a reasonable person would find hostile and abusive.
See
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993).
Finally, we conclude that the district court did not
err when it dismissed Whitaker’s religious discrimination claim
for failure to exhaust her administrative remedies.
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Under 42
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U.S.C. § 2000e-5(e)(1) (2006), a Title VII charge must be filed
with
the
EEOC
within
180
days
“after
the
alleged
unlawful
employment practice occurred,” or with a state or local agency
within 300 days of such practice.
551
F.3d
297,
300
(4th
Cir.
Jones v. Calvert Grp., Ltd.,
2009).
“[A]
failure
by
the
plaintiff to exhaust administrative remedies concerning a Title
VII
claim
deprives
the
federal
jurisdiction over the claim.”
her
EEOC
complaint
discrimination.
be
barred
if
Id.
that
courts
of
subject
matter
Whitaker did not indicate on
she
had
suffered
religious
“[A] claim in formal litigation will generally
the
EEOC
charge
alleges
discrimination
on
one
basis, such as race, and the formal litigation claim alleges
discrimination on a separate basis.”
Id.
Accordingly, we affirm the district court’s judgment.
We
dispense
contentions
with
are
oral
argument
adequately
because
presented
in
the
facts
and
the
materials
legal
before
this court and argument would not aid the decisional process.
AFFIRMED
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