Sara Fox v. Leland Volunteer Fire/Rescue

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:12-cv-00354-FL Copies to all parties and the district court/agency. [999813454].. [15-1364]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1364

SARA L. FOX,
Plaintiff - Appellant,
v.
LELAND VOLUNTEER FIRE/RESCUE DEPARTMENT, INC.; JOHN GRIMES,
in his individual and official capacities as Chief of the
Department,
Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:12-cv-00354-FL)

Argued:

March 21, 2016

Decided:

May 5, 2016

Before AGEE and THACKER, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of
Virginia, sitting by designation.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

ARGUED:
Sara
Lyn
Faulman,
WOODLEY
&
MCGILLIVARY,
LLP,
Washington, D.C., for Appellant.
Paul H. Derrick, DERRICK LAW
GROUP, Raleigh, North Carolina, for Appellees. ON BRIEF: Thomas
A. Woodley, WOODLEY & MCGILLIVARY, LLP, Washington, D.C., for
Appellant.
Melody J. Jolly, CRANFILL SUMNER & HARTZOG LLP,
Wilmington, North Carolina, for Appellees.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Until

her

termination

on

January

5,

2011,

Sara

L.

Fox

(“Fox”) was a lieutenant with the Leland Volunteer Fire/Rescue
Department

(“the

Carolina.

The

Department”)
Department

in

is

Brunswick

staffed

by

County,

North

nineteen

career

firefighters and approximately eighty-five other individuals who
serve on a volunteer basis.

Fox was the first female career

employee to be promoted to the position of lieutenant.

In that

capacity, she served as a shift supervisor overseeing not only
firefighting

operations,

but

also

training

and

administrative

duties.
In her complaint, Fox alleges that during her service as a
shift supervisor, she was subjected to continuous condescending
and

disrespectful

behavior

from

her

male

subordinates.

The

persistent hostility, she contends, resulted in a hostile work
environment, which she attributes to her gender.

She further

alleges that she was subsequently terminated in retaliation for
filing complaints about her workplace treatment.

Fox named both

the Department and its Chief, John Grimes (“Chief Grimes”), as
defendants.
Finding that Fox failed to either forecast evidence linking
the alleged hostile work environment to her sex, or demonstrate
that the true motivation for her termination was retaliation,
the district court granted the Defendants’ motion for summary
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judgment

as

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to

the

hostile

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work

environment

and

retaliatory

discharge claims under Title VII of the Civil Rights Act; her
claim for retaliation for speaking out about her alleged sexual
harassment as a matter of public concern, in violation of the
First

Amendment;

and

her

claim

of

violations

of

the

Equal

Protection Clause of the Fourteenth Amendment.
While we agree that Fox’s evidence fails, as a matter of
law, to support her hostile work environment, First Amendment,
and Equal Protection claims, we vacate and remand as to Fox’s
claim of retaliatory discharge, in violation of Title VII of the
Civil Rights Act.
The
Chief

Department

Grimes

serves

oversees

five

the

counties

in

Department’s

North

Carolina.

operations.

The

Department is governed by a seven person board of directors, of
which

Chief

Grimes

is

not

a

member.

The

chain

of

command

consists of Chief Grimes, an assistant chief, two captains, and
eight lieutenants.
firefighters.

Four of the eight lieutenants are career

Each lieutenant supervises a shift of paid and

volunteer employees.
Fox

began

her

firefighter/paramedic.

career
After

in
her

July
first

year

2008
of

as

a

service,

following a competitive application process, she was promoted to
lieutenant and placed in charge of “D” shift, which, according
to the record, had a reputation for being dysfunctional.
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From the inception of her command, she experienced what she
describes

as

disparate

subordinates.

treatment

and

harassment

from

her

This included declining to eat food which she

purchased and prepared at her own expense, ignoring her attempts
to organize or facilitate training, and leaving the fire station
without

her

permission.

subordinates,

the

disrespectful.

relief

The

Fox

maintained

supervisors,

relief

shift

that

were

her

immediate

impertinent

supervisors,

in

her

and
view,

avoided interaction with her and refused to perform tasks she
assigned.

They

also

complained

to

her

superiors

about

her

leadership.
Fox contends that Chief Grimes treated her differently from
her male counterparts.
to

the

lieutenant’s

following

her

For example, she was not provided access
computer

promotion,

was

for

approximately

required

to

one

complete

month

tasks

not

required of male lieutenants, and was not permitted to give her
subordinate firefighters their performance evaluations, unlike
other lieutenants.
In June 2010, approximately one year after her promotion to
lieutenant, Fox received a negative performance evaluation, as a
result
period.

of

which

she

was

placed

on

a

ninety-day

probationary

The evaluation noted that she had failed to meet four

training goals identified in her 2009 evaluation, missed several

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staff

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meetings,

and

was

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ineffective

in

communicating

with

members of her shift.
In

December

2010,

Chief

Grimes

met

with

Fox

to

discuss

continuing reports from firefighters on her shift concerning her
leadership

and

performance.

Chief

Grimes

remarked

that

her

subordinates were “throwing [her] under the bus” and that she
“must feel like [she] was in a hostile working environment.”
(J.A. at 709 (alterations in original).)

During the meeting,

Chief Grimes offered suggestions about how she could improve her
effectiveness as a leader and assured her that she was not being
considered for termination.

Contrary to this representation,

Chief Grimes and his wife, who was a member of the board of
directors of the Department, represented, after this lawsuit was
initiated,

that

they

were

privately

considering

Fox’s

termination around the time of this December meeting.
Fox did not mention to Chief Grimes at the December 2010
meeting

the

experiencing
following

harassing
from
that

discrimination
unanswered.
formal

her

and

discourteous

subordinates

meeting,

complaints

to

and

behavior

peers.

she

submitted

Chief

Grimes.

In

she
the

three
All

was
month

formal

three

were

At that point, Fox engaged an attorney to file a

complaint

of

gender

discrimination

Employment Opportunity Commission (“EEOC”).

6

with

the

Equal

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On January 2, 2011, Fox disclosed to a female co-worker
that she had consulted with an attorney about filing an EEOC
complaint.

That same day, the co-worker notified Chief Grimes

of her conversation with Fox, including hiring of legal counsel.
Chief Grimes promptly recommended to the board of directors that
Fox be terminated.
terminated

Two days later, on January 5, 2011, Fox was

for

insubordination,

her

poor

work

performance,

unwillingness

and

purported

to

accept

management’s

suggestions for improvement.
By

Memorandum

Opinion

and

accompanying

Order

entered

March 10, 2015, the district court granted Defendants’ motion
for summary judgment as to all counts. 1

The district court found

Fox’s evidence of a sexually-hostile work environment inadequate
to demonstrate that it was both objectively and subjectively
offensive.

(J.A. at 729−31.) The court acknowledged that while

objective hostility is “quintessentially a question of fact, in
certain circumstances summary judgment is appropriate to avoid
creat[ing] a ‘general civility code’ in the workplace.”
at

729

(alteration

in

original)

1

(internal

citations

(J.A.

omitted)

Defendants contend that the district court lacked subject
matter jurisdiction to entertain Plaintiff’s Title VII claim
because it was not included in her original EEOC complaint. The
district court concluded that it was a “close call,” and the
original allegations were sufficient to encompass the Title VII
claim. (J.A. at 727.)
We find no reason to question the
district court’s conclusion.

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(quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
81 (1998); Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 335
(4th

Cir.

2010)).)

The

district

court

concluded

that

the

offensive conduct alleged by Fox was insufficient to alter the
conditions of her employment as required by Oncale.

(J.A. at

729.) 2
With

respect

to

Fox’s

retaliation

claims,

the

district

court found the evidence insufficient to show that Defendants’
true motive in terminating her was retaliation.

(J.A. at 731.)

A grant of summary judgment is reviewed de novo by this
Court.

Desmond v. PNGI Charles Town Gaming, L.L.C., 630 F.3d

351, 354 (4th Cir. 2011).

We are required to view the facts and

all justifiable inferences arising therefrom in the light most
favorable to the non-moving party in order to determine whether
“there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”

Woollard v.

Gallagher, 712 F.3d 865, 873 (4th Cir. 2013) (quoting Fed. R.
Civ. P. 56(a)).

A dispute is genuine if “a reasonable jury

2

In noting the scant evidence of sexual hostility, the
district court identified only two relevant events -- the fact
that a firefighter referred to a coworker as a “hooker” and a
comment by a relief supervisor that Fox was only promoted
because of her gender.
Relying on Faragher v. City of Boca
Raton, 524 U.S. 775 (1998), the district court found these
comments to be neither severe nor pervasive enough to warrant
relief. (J.A. at 730−31.) We agree.

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could return a verdict for the nonmoving party.”

Dulaney v.

Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012).

A

fact is material if it “might affect the outcome of the suit
under the governing law.”

Henry v. Purnell, 652 F.3d 524, 548

(4th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)).
Turning

first

evidence

in

suffered

from

environment,

the
a

in

to

Fox’s

record

to

gender-based
support

discriminatorily
violation

of

claims,

her

we

contention

find
that

no
she

hostile

or

abusive

VII.

Her

subordinates’

Title

work

conduct was discourteous, insubordinate, and perhaps at times
boorish,

but

not

demonstrative

of

sexual

animus.

As

Judge

Wilkinson noted in EEOC v. Sunbelt Rentals, Inc.:
Workplaces are not always harmonious locales, and even
incidents that would objectively give rise to bruised
or wounded feelings will not on that account satisfy
the severe or pervasive standard.
Some rolling with
the punches is a fact of workplace life.
Thus,
complaints
premised on
nothing
more
than
“rude
treatment by [coworkers],” . . . are not actionable
under Title VII.
521

F.3d

306,

315–16

(4th

Cir.

2008)

(first

alteration

in

original) (internal citations omitted).
A similar analysis supports the conclusion that Fox failed
to

show

an

actionable

claim

for

a

violation

of

the

Equal

Protection Clause of the Fourteenth Amendment, which is also
enforced through 42 U.S.C. § 1983.

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respect

retaliation

for

to

her

Fox’s

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claim

complaints

that

to

she

Chief

was

discharged

Grimes

of

rude

in
and

insubordinate behavior by her subordinates, these claims largely
depend

on

circumstantial

evidence.

Therefore,

the

district

court conducted its analysis under the burden-shifting framework
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973).
Under this three-tiered analytical framework, a plaintiff
must initially demonstrate a prima facie case of retaliation.
This requires proof (1) that she engaged in protected activity;
(2) that her employer took an adverse employment action; and (3)
that a but-for causal connection existed between the protected
activity and the asserted adverse action.

See Univ. of Tex. Sw.

Med. Ctr. v. Nassar, ___ U.S. ___, 133 S. Ct. 2517, 2532–33
(2013); Foster v. Univ. of Md.−E. Shore, 787 F.3d 243, 250 (4th
Cir. 2015).

If a plaintiff succeeds in this threshold showing,

the defendant is afforded an opportunity to produce evidence of
“a

legitimate,

nondiscriminatory

employment action.”

reason

for

the

adverse

Hill v. Lockheed Martin Logistics Mgmt.,

Inc., 354 F.3d 277, 285 (4th Cir. 2014) (en banc).

If the

employer makes this showing, plaintiff may rebut such evidence
by demonstrating that the employer’s purported non-retaliatory
reasons

“were

not

its

true

reasons,

10

but

were

a

pretext

for

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discrimination.”

Id.

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(quoting

Reeves

v.

Sanderson

Plumbing

Prods., Inc., 530 U.S. 133, 143 (2000)).
In

the

arguendo,

immediate

that

Fox

case,

could

the

establish

district
a

prima

court
facie

assumed,
case,

but

concluded that Fox’s “retaliation claim fails because she cannot
demonstrate

that

retaliation.”

her

termination

(J.A. at 732.)

was

truly

motivated

by

Viewing the evidence in the light

most favorable to Fox, we cannot agree that there is no genuine
dispute

of

material

Fox’s termination.

fact

with

respect

to

the

motivation

for

The record reveals conflicting evidence as

to the timing of Chief Grimes’ decision to terminate Fox in
close proximity to learning of her complaint to the EEOC.

The

evidence of Fox’s alleged insubordination during her December 1,
2010 meeting with Chief Grimes is also less than clear.

When

questioned in their depositions about the December 1 meeting,
both

Chief

Grimes

and

the

assistant

chief

declined

to

characterize her deportment as insubordinate.
As this Court noted in EEOC v. Sears Roebuck & Co., a
different

explanation

for

termination,

at

different

times, is “in and of itself, probative of pretext.”

243 F.3d

846, 852–53 (4th Cir. 2001).
only

when

different

an

employer

times,

inconsistent.

but

This inference can be drawn not

provides
also

provided

when

different
the

explanations

explanations

at

appear

Thurman v. Yellow Freight Sys., Inc., 90 F.3d
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1160, 1167 (6th Cir. 1996).

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This Court will therefore vacate

the district court’s award of summary judgment on Fox’s claim
for retaliation under Title VII, 42 U.S.C. § 2000e, et seq, and
remand for further proceedings on this claim.
A

related

strand

of

Fox’s

retaliation

claim

is

Fox’s

contention that her unlawful discharge also violated her First
Amendment right as a public employee to speak on a matter of
public

concern.

This

claim

was

summarily

district court without substantive explanation.

rejected

by

the

First Amendment

retaliation claims brought under 42 U.S.C. § 1983 are reviewed
under

a

different

under Title VII.

analytical

framework

than

those

prosecuted

Campbell v. Galloway, 483 F.3d 258, 270 (4th

Cir. 2007).
A

public

employee’s

speech

is

constitutionally

protected

only when it addresses a matter of public concern, as opposed to
a matter of personal interest.

Kirby v. City of Elizabeth City,

388 F.3d 440, 448 (4th Cir. 2004).

“Speech involves a matter of

public concern when it involves an issue of social, political,
or

other

interest

to

a

community.”

Id.

at

Connick v. Myers, 461 U.S. 138, 146 (1983).

446;

see

also,

Whether speech

addresses a matter of public concern is a question of law for
the court.

Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir.

2000).

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It is well-established in this circuit that “we may affirm
[a] dismissal by the district court upon the basis of any ground
supported by the record even if it is not the basis relied upon
by the district court.”

Ostrzenski v. Seigel, 177 F.3d 245, 253

(4th Cir. 1999); see also, Hutto v. S.C. Ret. Sys., 773 F.3d
536, 549–50 (4th Cir. 2014).
We

are

not

convinced

that

Fox’s

discussions

with

Chief

Grimes concerning personal employment issues rise to the level
of a matter of public concern.

The district court properly

granted summary judgment on Fox’s First Amendment retaliation
claim.
This

Court

will

therefore

affirm

the

district

court’s

dismissal of the hostile work environment claim under Title VII,
her Equal Protection claim and First Amendment claim brought
under 42 U.S.C. § 1983, and vacate the lower court’s dismissal
of the Title VII retaliation claim and remand that claim for
further proceedings.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

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