Janeene J. Jensen-Graf v. Chesapeake Employers' Ins Co
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cv-01427-GLR Copies to all parties and the district court/agency. [999609996].. [14-2081]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2081
JANEENE J. JENSEN-GRAF,
Plaintiff - Appellant,
v.
CHESAPEAKE EMPLOYERS’ INSURANCE COMPANY,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:14-cv-01427-GLR)
Submitted:
June 16, 2015
Decided:
June 26, 2015
Before WILKINSON, AGEE, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Morris E. Fischer, MORRIS E. FISCHER, LLC, Silver Spring,
Maryland, for Appellant. Jefferson L. Blomquist, FUNK & BOLTON,
P.A., Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Janeene J. Jensen-Graf appeals the district court’s order
dismissing her Title VII action for failure to state a claim.
On appeal, Jensen-Graf argues that the district court erred in
finding that she did not suffer any adverse employment actions
and
that
she
failed
to
allege
that
similarly
employees were treated more favorably.
In
her
Jensen-Graf
complaint,
is
employed
male
We affirm.
Jensen-Graf
by
situated
alleged
Chesapeake
the
following.
Employers’
Insurance
Company (“Chesapeake”) as a loss control consultant.
In June
2009, Chesapeake informed her that she was required to come into
the
office
scheduled
if
on
expenses.
a
she
did
day,
not
causing
have
her
two
to
onsite
incur
client
personal
visits
commuting
In October 2009, Chesapeake placed Jensen-Graf on a
performance
improvement
plan
(“PIP”)
because
she
was
not
scheduling enough meetings, did not have enough onsite client
visits, and had overdue job orders.
Jensen-Graf alleges these
deficiencies existed because Chesapeake referred clients to her
male
colleagues
already
overdue.
Jensen-Graf,
but
and
was
assigning
Because
not
her
of
the
male
her
job
PIP,
colleagues,
orders
Chesapeake
to
have
that
were
required
20
onsite
visits per month, 40 “activity points” per month, and attend biweekly meetings to discuss her performance.
She also received
no credit when a client cancelled a scheduled meeting.
2
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On
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December
against
22,
Chesapeake
2010,
Jensen-Graf
alleging
sex
received notice the same day.
asked
to
participate
Chesapeake
denied
in
her
Pg: 3 of 6
a
filed
an
EEOC
discrimination.
charge
Chesapeake
On December 21, 2011, Jensen-Graf
professional
request
because
development
she
was
on
course.
the
PIP.
Jensen-Graf amended her EEOC charge to include a retaliation
claim,
and
alleging
eventually
one
retaliation.
count
filed
of
sex
a
complaint
in
discrimination
district
and
one
court,
count
of
The district court dismissed her complaint on the
grounds that she failed to establish an adverse action as to
both
the
discrimination
and
retaliation
claims
and
that
she
failed to allege that similarly situated male employees were
treated more favorably as to her discrimination claim.
This court reviews dismissals for failure to state a claim
de novo, reviewing the facts in the light most favorable to the
plaintiff.
2008).
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.
A plaintiff need not make out a prima facie case of
employment
discrimination
to
survive
a
motion
to
dismiss.
McCleary-Evans v. Md. Dep’t of Transp., State Highway Admin.,
780 F.3d 582, 584-85 (4th Cir. 2015).
state
a
claim
speculative.
to
relief
that
is
Rather, a plaintiff must
plausible,
and
not
merely
Id. at 585.
While a plaintiff must show the existence of an adverse
employment
action
to
show
a
prima
3
facie
case
of
employment
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discrimination, this requirement “is derived from the statute’s
requirement
that
the
employer’s
practice
relate
to
‘compensation, terms, conditions or privileges of employment’ or
that
the
practice
‘deprive
any
individual
of
employment
opportunities or otherwise adversely affect [her] status as an
employee.’”
Ali v. Alamo Rent-A-Car, Inc., 8 F. App’x 156, 158
(4th Cir. 2001) (quoting 42 U.S.C. § 2000e-2(a)(1)&(2)).
adverse
employment
action
is
an
action
“that
An
‘constitutes
a
significant change in employment status, such as hiring, firing,
failing
to
promote,
reassignment
with
significantly
different
responsibilities, or a decision causing a significant change in
benefits.’”
Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th
Cir. 2011) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S.
742,
761
(1998)).
“[A]
actionable
only
where
the
evaluation
as
basis
to
poor
a
performance
employer
evaluation
subsequently
detrimentally
alter
conditions of the recipient’s employment.”
the
uses
terms
is
the
or
James v. Booz-Allen
& Hamilton, Inc., 368 F.3d 371, 377 (4th Cir. 2004) (internal
quotation marks omitted).
Jensen-Graf’s
complaint
fails
to
state
a
plausible
discrimination claim because she has not alleged any action that
could
She
reasonably
has
failed
be
to
considered
allege
that
an
adverse
she
employment
received
lower
action.
pay,
was
demoted, was passed over for a promotion, failed to receive a
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bonus, or given significantly different responsibilities because
she was placed on the PIP.
Her complaints about additional
requirements being placed on her as a result of the PIP amount
to nothing more than “dissatisfaction with this or that aspect
of
[her]
action.
work”
that
fails
to
allege
James, 368 F.3d at 377.
additional
commuting
employment
action
expenses
that
is
is
an
actionable
adverse
Likewise, incurring small,
not
type
under
cognizable
the
of
Title
adverse
VII.
See,
e.g., Cooper v. United Parcel Serv., Inc., 368 F. App’x 469, 474
(5th Cir. 2010) (collecting cases).
For
similar
reasons,
Jensen-Graf
fails
to
state
a
retaliation claim.
In retaliation cases, “a plaintiff must show
that
employee
a
reasonable
would
have
found
the
challenged
action materially adverse, which in this context means it well
might
have
dissuaded
a
reasonable
worker
supporting a charge of discrimination.”
from
making
or
Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation
marks omitted).
Such actions need not affect the terms and
conditions of employment.
Id. at 64.
Denial of professional
development opportunities could be a materially adverse action.
See id. at 69 (“excluding an employee from a weekly training
lunch
that
contributes
significantly
to
the
employee’s
professional advancement might well deter a reasonable employee
from complaining about discrimination.”).
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The only retaliatory act Jensen-Graf alleged was the denial
of a professional development course.
course because she was on the PIP.
Chesapeake denied her the
Jensen-Graf pled no facts
indicating whether this is a consistent policy of Chesapeake,
whether this was a temporary denial, and whether this course was
indeed required for her professional development.
Moreover, she
has pled no facts showing how she was harmed by the denial of
this course.
See Allen v. Napolitano, 774 F. Supp. 2d 186, 204
(D.D.C. 2011) (dismissing retaliation claim based on refusal to
authorize training courses when plaintiff failed to allege any
significant
harm).
change
in
her
employment
or
objectively
tangible
Without these facts, we cannot reasonably infer that
Jensen-Graf
suffered
an
adverse
action
so
as
to
state
a
plausible retaliation claim.
Accordingly,
dispense
with
contentions
are
we
oral
affirm
the
argument
adequately
district
because
presented
in
court’s
the
the
facts
order.
We
and
legal
materials
before
this court and argument would not aid the decisional process.
AFFIRMED
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