Kimberly McKinnish v. Patrick Donahoe
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cv-00087-MOC-DLH. Copies to all parties and the district court/agency. [999694402].. [14-2092]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2092
KIMBERLY J. MCKINNISH,
Plaintiff - Appellant,
v.
MEGAN J. BRENNAN, Postmaster General, U.S. Postal Service, 1
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Max O. Cogburn, Jr.,
District Judge. (1:13-cv-00087-MOC-DLH)
Argued:
October 7, 2015
Before TRAXLER,
Judges.
Chief
Decided:
Judge,
and
KING
and
November 6, 2015
THACKER,
Circuit
Affirmed by unpublished per curiam opinion.
ARGUED: Christopher Douglas Vaughn, THE VAUGHN LAW FIRM, LLC,
Decatur, Georgia, for Appellant.
Paul Bradford Taylor, OFFICE
OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.
ON BRIEF: Anne M. Tompkins, United States Attorney,
1
Megan J. Brennan is substituted as Defendant-Appellee for
her predecessor, Patrick Donahoe, as Postmaster General of the
United States. See Fed. R. App. P. 43(c)(2).
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OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
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PER CURIAM:
Kimberly
district
court’s
McKinnish
entry
of
(“Appellant”)
summary
appeals
judgment
in
United States Postmaster General (“Appellee”).
from
favor
of
the
the
Appellant filed
a Title VII lawsuit against Appellee based on alleged sexual
harassment by David Duncan, an individual she refers to as her
supervisor.
The district court, however, ruled that Duncan was
not her supervisor as a matter of law, based on the Supreme
Court’s recent decision in Vance v. Ball State University, 133
S. Ct. 2434 (2013).
Therefore, Appellant was required to show
that Appellee was negligent, which the district court concluded
she did not do.
Even
Appellant
has
assuming
not
Duncan
produced
was
Appellant’s
sufficient
evidence
supervisor,
that
Duncan’s
actions culminated in a tangible employment action, and Appellee
is entitled to the benefit of the affirmative defense set forth
in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
We
affirm the district court on this ground.
I.
A.
Appellant worked for the United States Postal Service
in its Asheville, North Carolina office.
Employee
(“TE”),
and
her
duties
3
She was a Transitional
included
delivering
mail
on
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various routes when a permanent employee “was on vacation or
sick leave, or where a route did not have an assigned permanent
J.A. 34. 2
carrier.”
All TEs were expected to deliver mail on
any available routes, including walking and riding routes.
While in the Asheville office, Appellant worked with
David Duncan.
Appellant refers to Duncan as her “supervisor,”
but his legal status as to her is a matter of dispute.
classified
by
Customer
Service
subordinate
duties.”
the
Postal
and
employees
J.A. 170.
Service
was
in
as
an
EAS-17
responsible
the
Supervisor
for
performance
of
He was
of
“supervising
their
assigned
Specifically, his job description included
“evaluat[ing] the daily workload”; “mak[ing] carrier and route
assignments”;
schedules”;
“mak[ing]
temporary
“authoriz[ing]
changes
overtime
in
work”;
routes
and
time
“[e]stablish[ing]
work schedules”; and “allocat[ing] work hours to meet service
requirements.”
Id. at 114.
Beginning
approximately
ten
in
January
months,
Duncan
numerous text messages and videos.
sexually explicit in nature.
2010
and
and
continuing
Appellant
for
exchanged
The exchanges were often
During this time frame, Duncan
2
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
4
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also
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made
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requests
that
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seemed
based
on
his
authority
over
Appellant, as well as suggestions that he would reward Appellant
for her responses.
See, e.g., J.A. 185 (“Even if I did have
them lined up, you would be in the front of the line!!!!!”); id.
at 190-91 (“Do you know rt 115?” 3
“I might can get you on it
tomorrow.”); id. at 192 (“Think you might can take a picture for
your ‘Master’ tonight?”).
Appellant
claims
that,
generally,
she
responded
to
Duncan’s requests by sending photos she found on the Internet or
text messages copying words from pornographic magazines.
The
record also includes some of her messages from early November
2010, including the following texts: “WOW!! You definitely know
how to put a smile on my face”; “Good morning :)”; “LOL! You are
too funny :)”; and “OMG . . . I just saw it, sorry! I just adore
you :).”
J.A. 59-60, 95.
Appellant did not report this conduct to her employer;
rather, her husband found the messages on November 16, 2010, and
reported them to the Postal Service.
Appellant claims that she
only participated in the exchanges “due to a change in my work
status when I did not participate and for fear that I would be
retaliated
against
if
I
did
not.”
3
J.A.
180.
Appellant
Route 115 was a desirable route because of the ease of
access to the boxes and relatively flat terrain.
5
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explained
that
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she
received
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“favorable
treatment”
when
she
complied with Duncan’s requests, id., and when she did not honor
Duncan’s requests, Duncan brought her in to work after the other
workers and gave her “bad” routes, id. at 182, 73.
Nonetheless,
Appellant testified that overall, in 2010 her “hours of work
remained fairly constant” and she “made more money [that year]
than [she] ever made.”
Id. at 74.
At no point did Appellant tell anyone at the Postal
Service about the messages or otherwise avail herself of the
protections
sexual
and
procedures
harassment
laid
policy.
out
She
in
the
claimed
Postal
she
Service’s
was
afraid
“management[] would look at me like I was a troublemaker and I
would lose my job.”
J.A. 79.
B.
Appellant filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”) alleging that she was sexually
harassed
by
Duncan.
The
EEOC
issued
a
decision
finding
no
actionable claim, and the Postal Service reviewed and adopted
that decision, concluding, “[Y]ou have not shown that you were
the victim of illegal discrimination.”
J.A. 12.
On March 28, 2013, Appellant filed an action in the
Western District of North Carolina against Appellee, alleging
one count of sexual harassment.
On April 28, 2014, Appellee
filed a motion for summary judgment, which the district court
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granted on August 15, 2014.
See McKinnish v. Donahoe, 40 F.
Supp. 3d 689 (W.D.N.C. 2014).
The district court concluded that
Duncan
was
a
coworker,
not
a
supervisor,
under
the
Supreme
Court’s recent decision in Vance v. Ball State University, 133
S. Ct. 2434 (2013).
It then decided Appellant presented no
evidence that the Postal Service’s investigation was inadequate;
therefore, Appellee was not negligent in controlling Appellant’s
working conditions.
See McKinnish, 40 F. Supp. 3d at 697.
II.
We may affirm the district court’s decision “on any
grounds apparent from the record.”
United States v. Price, 777
F.3d
700,
omitted).
707
(4th
Cir.
2015)
(internal
We
review
the
district
court’s
quotation
grant
of
marks
summary
judgment de novo, “drawing reasonable inferences in the light
most favorable to the non-moving party.”
Butler v. Drive Auto.
Indus. of Am., Inc., 793 F.3d 404, 407 (4th Cir. 2015) (internal
quotation
marks
omitted).
This
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 judgment as a
matter of law.”
Fed. R. Civ. P. 56(a).
We have held, “A mere
scintilla of proof . . . will not suffice to prevent summary
judgment; the question is ‘not whether there is literally no
evidence,
properly
but
whether
proceed
to
there
find
a
is
any
verdict
7
upon
for
which
the
a
jury
party’
could
resisting
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summary judgment.”
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Peters v. Jenney, 327 F.3d 307, 314 (4th
Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251 (1986)).
III.
The
parties
dispute
whether
Duncan
was
Appellant’s
supervisor as a matter of law pursuant to Vance v. Ball State
University,
133
S.
Ct.
2434
(2013).
Even
assuming
he
was,
however, we conclude that Appellant has not marshaled sufficient
evidence to demonstrate that Duncan’s conduct culminated in a
tangible employment action, and Appellee has successfully raised
the affirmative defense set forth in Faragher v. City of Boca
Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742 (1998) (the “Faragher-Ellerth defense”).
Title
permeated
with
VII
is
violated
discriminatory
“when
the
intimidation,
workplace
ridicule,
is
and
insult, that is sufficiently severe or pervasive to alter the
conditions
of
the
victim’s
employment
working environment . . . .”
and
create
an
abusive
Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 116 (2002) (internal quotation marks and
alteration omitted).
The district court construed Appellant’s
complaint to contain two causes of action under Title VII: a
hostile work environment claim and a quid pro quo harassment
claim.
For both causes of action, there must be some basis for
imputing liability to the employer.
8
See Freeman v. Dal-Tile
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Corp., 750 F.3d 413, 420 (4th Cir. 2014); Okoli v. City Of
Baltimore, 648 F.3d 216, 222 (4th Cir. 2011).
Vance
explains
that
if
the
alleged
harasser
is
a
supervisor,
[and] the supervisor’s harassment culminates
in
a
tangible
employment
action,
the
employer is strictly liable.
But if no
tangible employment action is taken, the
employer
may
escape
liability
by
establishing, as an affirmative defense,
that (1) the employer exercised reasonable
care to prevent and correct any harassing
behavior
and
(2)
that
the
plaintiff
unreasonably failed to take advantage of the
preventive or corrective opportunities that
the employer provided.
133 S. Ct. at 2439 (citing Faragher, 524 U.S. at 807; Ellerth,
524 U.S. at 765); see also Boyer-Liberto v. Fontainebleau Corp.,
786 F.3d 264, 278 (4th Cir. 2015) (en banc).
Therefore, we
first turn to whether Duncan’s alleged harassment culminated in
a tangible employment action.
A.
A
“tangible
employment
action”
is
“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.”
at 761).
Vance, 133 S. Ct. at 2442 (quoting Ellerth, 524 U.S.
There is no record evidence demonstrating that Duncan
had the authority to hire, fire, promote, or reassign Appellant
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to
a
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position
with
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significantly
different
responsibilities.
Therefore, we look to whether Duncan made a “significant change
in [Appellant’s] benefits.”
the
Eleventh
Circuit’s
This court has quoted with favor
statement
that
“[a]
reduction
in
an
employee’s hours, which reduces the employee’s take-home pay,
qualifies
as
a
tangible
employment
action.”
Dulaney
v.
Packaging Corp. of Am., 673 F.3d 323, 331 n.7 (4th Cir. 2012)
(quoting Cotton v. Cracker Barrel Old Country Store, Inc., 434
F.3d 1227, 1231 (11th Cir. 2006)).
On this point, Appellant presents an attachment to her
EEOC complaint, wherein she stated, “During the course of []
Duncan’s
.
reduce[d],
alter[ed], and change[d] my working hours . . . .”
J.A. 167.
She
also
repeated
stated
solicitations,
that
Duncan
.
.
“started
.
he
.
.
[b]ringing
[her]
in
at
9:30-10:00 A.M. and the other TE’s were [b]eginning work at 7:30
A.M.”
Id. at 182.
Appellant’s fellow carriers also submitted affidavits
in
support
of
her
claim.
An
affidavit
from
fellow
carrier
Kimberly Taylor stated, “[Duncan] would bring her in late at 10
and the rest of the TE’s would be starting at 7:30.”
J.A. 183.
Another, from Cassandra Pee, stated, “I saw that she was coming
in later than the other TE.
I also notices [sic] she was not
working as much as the other TE’s.”
declared,
10
Id. at 184.
Taylor also
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[Appellant] would always get the worst
routes and when she would question [her]
supervisor she would be told that[’]s how it
is.
The reason I know this is we (other
carriers) would question why [Appellant]
would get dumped on all the time.
I have
worked for the Post Office for 15+ years and
I have never seen someone treated as poorly
as she was treated.
Id. at 183.
Appellant also admitted, however, that TEs “kind of
fill in where they need a carrier on a transitional basis,” and
she did not always “have the same route every day,” but her
routes would “change by the day.”
J.A. 71.
Indeed, Duncan
stated that all TEs were sometimes scheduled to work five days,
and sometimes six days, and if a TE “was going to work six days
in a week, they would be scheduled to come in later in the day
on some days that week to keep their basic weekly hours around
forty.”
Id. at 228.
this testimony.
Appellant has presented nothing to dispute
Therefore, the fact that Appellant was coming
in later on certain days, or that an employee observed that she
was “not working as much,” does not necessarily mean that her
hours were reduced.
In fact, Appellant herself admitted that
her “hours [] remained fairly constant.”
Id. at 74.
Moreover,
the record includes timesheets from each of the 16 weeks that
Appellant
worked
a
six-day
workweek
in
2010,
and
these
timesheets show that during these pay periods, she was receiving
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anywhere
from
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3.5%
to
22.9%
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overtime,
and
she
never
dropped
below a 40-hour workweek.
Appellant
timesheets
during
has
presented
periods
when
no
she
means
to
succumbed
requests to periods when she did not.
delineate
to
Duncan’s
Appellant has presented
no gauge of how her hours converted to pay during the time she
was texting with Duncan, and how that pay may have decreased or
increased.
To the extent the case law dictates that a tangible
employment action can be a positive change in benefits (an issue
we do not decide today), we have nothing, besides Appellant’s
bare
assertions,
demonstrating
that
her
after responding to Duncan’s requests.
hours
were
increased
See Thompson v. Potomac
Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (holding
“[c]onclusory
or
speculative
allegations
do
not
suffice”
to
demonstrate a genuine issue of material fact).
Appellant
scintilla
of
has
proof”
failed
that
to
present
Duncan’s
more
conduct
than
a
resulted
“mere
in
a
“significant” change in her benefits, and we conclude that there
is no evidence “upon which a jury could properly proceed to find
a verdict” in her favor on this issue.
F.3d
307,
314
(4th
Cir.
2003)
(quoting
Lobby, Inc., 477 U.S. 242, 251 (1986)).
has
not
created
a
genuine
dispute
12
Peters v. Jenney, 327
of
Anderson
v.
Liberty
Therefore, Appellant
fact
on
the
issue
of
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whether
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Duncan’s
actions
Pg: 13 of 15
culminated
in
a
tangible
employment
action.
B.
We
supervisor,
doctrine
defense
have
the
of
employer
respondeat
applies.”
Appellee
explained,
can
“[W]hen
is
presumptively
superior,
Dulaney,
escape
the
unless
673
F.3d
liability
by
harasser
liable
the
323,
is
under
a
the
Faragher–Ellerth
330
n.7.
Thus,
establishing,
by
a
preponderance of the evidence: (1) it exercised reasonable care
to prevent and correct any harassing behavior; and (2) Appellant
unreasonably
corrective
failed
to
take
opportunities
advantage
that
the
of
the
employer
preventive
provided.
or
See
Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807.
1.
We first address whether there is any dispute that the
employer
exercised
reasonable
care
to
prevent
and
correct
Duncan’s harassing behavior.
We have held that “dissemination of an effective antiharassment policy provides compelling proof that an employer has
exercised
reasonable
harassment.”
care
to
prevent
and
correct
sexual
Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d
261, 268 (4th Cir. 2001) (internal quotation marks omitted).
Here,
Appellee
had
a
clear
and
comprehensive
policy.
explained, first, to “[t]ell the [h]arasser to [s]top!”
13
It
J.A.
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139.
It
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also
gave
Pg: 14 of 15
supervisors
direction
to
“[c]onduct
a
thorough inquiry” and “[t]ake prompt action to put an end to the
harassment.”
that
Id. at 141.
employees
supervisor,
who
manager,
are
And most importantly, it explained
being
Human
harassed
Resources
should
report
personnel,
to
or
a
the
inspector; or “if [the employee is] uncomfortable,” he or she
could “ask a union representative or coworker” to help report
the conduct.
Id. at 140. 4
Further, the Postal Service clearly
took swift action to correct the harassment.
After Appellant’s
husband made his report, Duncan was terminated, and there was no
further harassment.
2.
Next, we look to whether Appellant unreasonably failed
to take advantage of the preventive or corrective opportunities
that the Postal Service provided.
did
not
want
to
report
the
Appellant contends that she
harassment
because
it
made
her
uncomfortable and she feared negative repercussions at her job.
See, e.g., J.A. 58 (“I didn’t want to . . . ruffle any feathers,
4
Appellant claims the policy was not effective and calls
the investigation into her case a “sham,” but she produces no
evidence to support this claim. Appellant’s Br. 7. Rather, the
evidence shows that management responded rapidly to complaints
from another employee regarding Duncan’s alleged harassment, and
in Appellant’s case, Investigator Charles Fiske conducted a
thorough yet swift investigation, culminating in Duncan’s
termination.
14
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get anybody mad at me or anything.”); id. at 147 (“I don’t like
confrontation especially with my supervisor who controls my work
life.”).
However, “an employer cannot be expected to correct
harassment
unless
the
employee
makes
a
concerted
inform the employer that a problem exists.”
Radiant
Energy
(internal
correct
Corp.,
quotation
th[e]
240
marks
262,
omitted).
objectionable
blows the whistle on it.
confrontation,
F.3d
to
Barrett v. Applied
268
(4th
“Little
behavior
effort
unless
can
the
Cir.
be
2001)
done
victim
to
first
An employee’s subjective fears of
unpleasantness
or
retaliation
thus
do
not
alleviate the employee’s duty . . . to alert the employer to the
allegedly hostile environment.”
quotation marks omitted).
Id. (alteration and internal
Based on this precedent, Appellant’s
reasons for not reporting the alleged harassment are simply not
sufficient.
For these reasons, Appellee has satisfied the elements
of
the
Faragher-Ellerth
affirmative
defense,
and
Appellant
cannot defeat the motion for summary judgment.
IV.
For
the
foregoing
reasons,
we
affirm
the
district
court.
AFFIRMED
15
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