Felicia Strothers v. City of Laurel, Maryland

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 8:14-cv-03594-PWG. [1000325100]. [17-1237]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-1237

FELICIA STROTHERS,
Plaintiff - Appellant,
v.
CITY OF LAUREL, MARYLAND, (Mayor & City Council),
Defendant - Appellee.

Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Paul W. Grimm, District Judge. (8:14-cv-03594-PWG)

Argued: March 21, 2018

Decided: July 6, 2018

Before GREGORY, Chief Judge, DIAZ, and HARRIS, Circuit Judges.

Reversed and remanded by published opinion. Chief Judge Gregory wrote the opinion, in
which Judge Diaz and Judge Harris joined.

ARGUED: Megan Keenan, Joseph Charlet, UNIVERSITY OF VIRGINIA SCHOOL
OF LAW, Charlottesville, Virginia, for Appellant. Kevin Bock Karpinski,
KARPINSKI, COLARESI & KARP, P.A., Baltimore, Maryland, for Appellee. ON
BRIEF: Stephen L. Braga, Appellant Litigation Clinic, UNIVERSITY OF VIRGINIA
SCHOOL OF LAW, Charlottesville, Virginia, for Appellant.
Sandra D. Lee,
KARPINSKI, COLARESI & KARP, P.A., Baltimore, Maryland, for Appellee.

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GREGORY, Chief Judge:
From day one of her employment at the City of Laurel, Felicia Strothers was singled
out for harassment by her direct supervisor, Carreen Koubek. When Strothers complained
to the director of her department, he revealed that Koubek had wanted to hire someone of
a different race than Strothers, who is black. Strothers then submitted an informal memo
detailing what she described as “harassment” and a “hostile environment.” She soon told
the City that she intended to file a formal grievance. The City fired Strothers the very next
day, before Strothers could submit her grievance. Strothers then filed a retaliation claim
under Title VII of the 1964 Civil Rights Act. The district court dismissed the claim on
summary judgment under the burden-shifting framework for failure to establish a prima
facie case of retaliation.
On appeal, we are asked to determine whether a reasonable jury could find that
Strothers complained about conduct she reasonably believed to be a Title VII violation and
that her complaint caused her firing. Viewing the facts in the light most favorable to
Strothers, we conclude that Strothers engaged in protected activity under Title VII when
she complained about what she reasonably believed to be a hostile environment and that
her engagement in protected activity caused the City to fire her. Accordingly, Strothers
has established a prima facie case of retaliation, and the district court’s grant of summary
judgment was improper. We therefore reverse the district court’s decision and remand for
further proceedings.

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I.
A.
In August 2013, the City of Laurel interviewed Felicia Strothers, a black woman,
for an administrative assistant position in the City’s Department of Communications. She
was interviewed by four representatives from the City, including Peter Piringer, the
Communications Director, and Carreen Koubek, the Community Services Officer.
Director Piringer would later reveal to Strothers that Koubek did not want to hire Strothers
and that Koubek “wanted someone of a different race.” J.A. 91. Despite Koubek’s
opposition, Piringer and others thought Strothers, who had over 20 years of experience,
was the strongest and “most qualified” applicant and hired her anyway. J.A. 245. This
case centers on Koubek’s alleged harassment of Strothers starting from her first day on the
job.
1.
When Piringer offered Strothers the job and before she accepted, Strothers informed
him that she could not report to work until 9:05 a.m. each morning because of her children’s
bus schedule. Because the workday normally began at 9:00 a.m., Strothers offered to make
up the five-minute difference by shortening her lunch break.

Piringer accepted the

proposed arrangement, and Strothers began as a six-month probationary employee, with
her retention thereafter subject to evaluation. J.A. 72–73, 180.
Strothers’ troubles began on day one and indeed, ten minutes before her start time.
On her first day, October 7, Strothers reported to Koubek, her direct supervisor, at 9:05
a.m. Unbeknownst to Strothers, Koubek already marked her tardy. Although Koubek
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knew that Piringer approved Strothers’ modified work schedule, she decided that Strothers
had to be in the office by 8:55 a.m. Indeed, Koubek effectively superseded the director’s
decision and had begun keeping a detailed log of Strothers’ daily arrival time. J.A. 545–
50. Koubek then told Strothers that she would have a few weeks during which she could
arrive at 9:05 a.m. but would then have to find alternative arrangements for her children.
J.A. 73, 545–46.
Despite purporting to give Strothers a few weeks to adjust her schedule, Koubek
faulted Strothers for every arrival after 8:55 a.m., including on Strothers’ first day. J.A.
545. According to the arrival log that Koubek maintained, Strothers arrived between 8:54
a.m. and 9:06 a.m. each day, with four occasions on which Strothers called ahead and
arrived five to twenty minutes later than usual. 1 J.A. 545–50. Koubek submitted the arrival
log to Strothers’ personnel file and told human resources, Piringer, and other City officials
about Strothers’ perceived tardiness. J.A. 545, 555. Koubek’s memo indicated that every
entry, including arrivals before 9:00 a.m., exemplified problematic behavior. J.A. 545.
Koubek’s notes also revealed that she tracked and faulted Strothers’ every absence
from her desk, including bathroom breaks. For instance, Koubek once noticed that
Strothers had stepped away from her desk at 11:15 a.m. on a Wednesday and began to
search for Strothers throughout the office before finding her in the bathroom. J.A. 670
(“Went out looking and she was in the bathroom. Reminded her to please let me know

1

Although the log contained what appears to be precise arrival times down to the
minute, Koubek’s counsel admitted at oral argument that Koubek may have backfilled a
portion of the arrival log. Oral Arg. 23:00–23:30.
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when she steps away from the desk.”). Koubek then reportedly told Strothers, “Didn’t I
tell you to tell me when you leave your desk?” J.A. 575. Koubek’s notes confirm that
Strothers would call, as instructed, before using the bathroom and that Koubek would
record these breaks. J.A. 671–75. Even when Strothers received permission to use the
restroom, Koubek faulted Strothers for not reporting when she was done. J.A. 669.
Similarly, Koubek also tracked and timed Strothers’ lunch breaks, as well as errands and
other appointments.
Inexplicably, Koubek also faulted Strothers for lack of teamwork because Strothers
did not ask her if she would like to have a massage appointment. Strothers had apparently
cancelled her own appointment and made one for Director Piringer instead. Taking
offense, Koubek wrote, “Nothing was said to me if I wanted to be included. Seems petty,
but speaks volumes to lack of team work[.]” J.A. 668. Based on the record, there is no
indication that the appointment was intended to be a group or work-related event.
Finally, Koubek confronted Strothers regarding Strothers’ dress on casual Fridays
at the office. On casual Fridays, City employees could wear “business casual,” which
meant “no capris, no leggings, [and] no sweats,” though jeans were permitted. J.A. 288.
On one such casual Friday, Strothers wore a pair of black pants that she asserted were jeans
but that Koubek insisted were leggings. 2 According to Strothers, Koubek grabbed and
tugged Strothers’ pants without asking permission to do so. J.A. 103–04. Koubek also
allegedly circled Strothers, lunged at her, and loudly berated her in front of the entire office

2

The pants were labeled “Nine West Jeans.” J.A. 14. Koubek later described the
pants as “jeggings”—a jean-legging mix that is formfitting. J.A. 521–22.
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for wearing those pants. J.A. 574. Though Strothers maintained that she had worn the
same pants on past casual Fridays without incident, she offered to change her pants.
Koubek then required that Strothers deduct from her personal leave time the amount of
time it took for her to go home and change. J.A. 575. Koubek also reported the dress code
incident to other City officials. The head of human resources for the City noted that he had
never received a dress code complaint about anyone else. J.A. 288–89.
Koubek then cited lateness and dress-code violations when giving Strothers a
negative three-month performance evaluation. J.A. 561. However, at her deposition,
Koubek conceded that Strothers did everything she was asked to do. J.A. 513–14. Indeed,
Piringer, despite letting Strothers go, wrote a laudatory recommendation letter for her. He
wrote, “[A]s the very first Administrative Assistant in this position, her background, life
experiences and ability served her well and she was an asset to our organization during her
short tenure with the office. She made friends quickly, has great interpersonal skills, is
well-organized and can work independently. . . . She would be an asset to any employer.”
J.A. 12. The director also refused to endorse Koubek’s negative evaluation of Strothers.
Strothers had several meetings and exchanges with Director Piringer and other City
officials about Koubek’s behavior. During one of these interactions, Piringer disclosed
that Koubek had wanted to hire “someone of a different race,” even though Piringer and
the head of human resources thought Strothers was the strongest candidate. J.A. 91, 245,
354. Strothers also raised her concerns with City Council Member Frederick Smalls, who
is black. J.A. 110–13. She told Smalls that Koubek was being hostile towards her because

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of her race. Smalls reportedly indicated that he was going to speak with the Mayor because
he did not want a discrimination suit to come out of the dispute.
During Strothers’ employment with the City, she was the only black employee that
Koubek supervised. J.A. 445–47, 455, 504–05. However, in 2015, Koubek did supervise
another black employee, Joan Anderson. Koubek admitted that Strothers and Anderson,
her only two black subordinates, were the only two employees that she had ever disciplined
or reported to her superiors. J.A. 121, 530–31. Joan Anderson also told Strothers her belief
that Koubek did not like black people and recommended that Strothers speak with Council
Member Smalls about the harassment. J.A. 110. Oliver Willford, a former part-time
employee who is also black, similarly told Strothers that Koubek would treat him and his
wife, who volunteered for the City, “like scum,” and that they had previously complained
to the City. J.A. 118–19.
2.
On February 26, 2014, Strothers sent an internal memorandum to Piringer
complaining about Koubek’s actions. J.A. 574–76. The memo cited the dress code dispute
as well as what Strothers perceived to be nonstop harassment from her first day, including
Koubek’s enforcement of the desk and bathroom policy. Strothers also objected to
Koubek’s submission of negative evaluations to her personnel file without her knowledge.
Strothers characterized Koubek’s actions as “harassment” and claimed that Koubek created
a “hostile environment,” one that she has never been subjected to in twenty years of office
experience. J.A. 575–76. She indicated that Koubek’s actions had made going to work

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“difficult” and “unbearable.” J.A. 575. This memo did not cite Piringer’s comment about
Koubek’s preference for a white candidate during hiring.
After Strothers submitted the memo, she and Piringer negotiated over whether he
would investigate whether she was being unfairly targeted. J.A. 578–79. Strothers also
indicated that Koubek was “trying to railroad” her. J.A. 567. The record does not show
that any investigative steps were in fact taken. Strothers then sent Piringer an email
expressing her intent to file a formal grievance against Koubek and requested the relevant
forms. J.A. 580 (“Please have the grievance forms for me to complete upon coming in
tomorrow morning.”).
The City fired Strothers the next day. J.A. 637. Koubek sent the termination notice
to Strothers, though the notice was formally drafted by Piringer. The stated reason for
termination was tardiness.
B.
After her termination, Strothers filed two Title VII complaints. Her first complaint
with the Equal Employment Opportunity Commission was dismissed. She then filed suit
in Prince George’s County Circuit Court, alleging both race discrimination and retaliation
claims. See Strothers v. City of Laurel, Maryland, 232 F. Supp. 3d 763, 767 (D. Md. 2017).
The City removed the case to the U.S. District Court for the District of Maryland. Id. The
district court dismissed Strothers’ discrimination claim but allowed her retaliation claim to
proceed. Id. The City then filed a motion for summary judgment on the retaliation claim,
which the district court granted and is now the subject of this appeal.

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Applying the well-known, three-step burden-shifting framework, the district court
concluded that Strothers failed at the first step—that is to show a prima facie case of
retaliation. Id. at 771. According to the district court, Strothers failed to show that her
internal complaints to the City constituted protected activity under Title VII because she
could not reasonably believe that the harassment she experienced was attributable to racial
animus. The district court also concluded that Strothers could not show that her firing was
caused by her engagement in protected activity, because the City was not aware that
Strothers was complaining about a possible Title VII violation. Id.

II.
“We review de novo a district court’s award of summary judgment, viewing the
facts in the light most favorable to the nonmoving party.” Boyer-Liberto v. Fontainebleau
Corp., 786 F.3d 264, 276 (4th Cir. 2015) (en banc). “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 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is
material when it “might affect the outcome of the suit under the governing law.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute arises when “the
evidence is such that a reasonable jury could return a verdict for the non-moving party.”
Id.; Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001).

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III.
Title VII forbids (i) employment practices that discriminate against an employee on
the basis of race, color, religion, sex, or national origin, 42 U.S.C. § 2000e-2, and (ii)
retaliation against an employee for opposing adverse actions that she reasonably suspects
to be unlawful under Title VII, 42 U.S.C. § 2000e-3; Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 62–64 (2006); Boyer-Liberto, 786 F.3d at 276–77, 281. We refer to
the former as the anti-discrimination provision and the latter as the anti-retaliation
provision.
The scope of Title VII’s anti-retaliation provision, § 2000e-3, is broader than the
anti-discrimination provision in at least two respects. First, as the Supreme Court has held,
“the antiretaliation provision extends beyond workplace-related or employment-related
retaliatory acts and harm” because “[a]n employer can effectively retaliate against an
employee by taking actions not directly related to his employment or by causing him harm
outside the workplace.” Burlington, 548 U.S. at 63, 67. Accordingly, retaliatory actions
need not “affect the terms and conditions of employment” to come within Title VII’s
prohibition. Id. at 64. However, retaliatory actions do have to be “materially adverse”—
such that they “might have dissuaded a reasonable worker” from engaging in protected
activity. Id. at 68; see also Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 174 (2011)
(reaffirming same). Second, and more importantly for this case, this Court, en banc, has
held that the anti-retaliation provision protects employees even when they complain of
actions that are not actually unlawful under Title VII. Boyer-Liberto, 786 F.3d at 282.
Instead, complaining employees are protected if, at the time of their complaint, they “have
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an objectively reasonable belief in light of all the circumstances that a Title VII violation
has happened or is in progress.” Id. (citation omitted). Because “Title VII depends for its
enforcement upon the cooperation of employees who are willing to file complaints and act
as witnesses,” Burlington, 548 U.S. at 67, the greater breadth of the anti-retaliation
provision ensures that employees feel free to come forward with their grievances, even
when a violation is not yet conclusive based on what one witness might know. See BoyerLiberto, 786 F.3d at 283.
A plaintiff may prove that an employer took action with discriminatory or retaliatory
intent through direct evidence or through the burden-shifting framework of McDonnell
Douglas Corp. v. Green. Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 249 (4th Cir.
2015) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Under the
burden-shifting framework, the plaintiff must first establish a prima facie case of retaliation
by showing: “(1) she engaged in a protected activity; (2) the employer acted adversely
against her; and (3) there was a causal connection between the protected activity and the
asserted adverse action.” 3 See Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008) (citing

3

We note that some cases in this Circuit have continued to recite the standard of a
retaliation claim as requiring an “adverse employment action” or activity rather than simply
an “adverse action.” See, e.g., Foster, 787 F.3d at 250; Boyer-Liberto, 786 F.3d at 281. In
those cases, the “adverse employment action” standard does not appear to have been
necessary to the outcome, and as another panel of this Court has recognized, that
formulation was expressly rejected by the Supreme Court in Burlington Northern. Lettieri
v. Equant Inc., 478 F.3d 640, 650 n.2 (4th Cir. 2007). For purposes of clarity, we adopt
the “adverse action” formulation because the adverse action need not be employment- or
workplace-related in order to sustain a retaliation claim. See Burlington, 548 U.S. at 67
(“The scope of the antiretaliation provision extends beyond workplace-related or
employment-related retaliatory acts and harm.”).
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Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007)). After the prima
facie showing is made, “[t]he burden then shifts to the [employer] to show that its
purportedly retaliatory action was in fact the result of a legitimate non-retaliatory reason.”
Foster, 787 F.3d at 250. “If the employer makes this showing, the burden shifts back to
the plaintiff to rebut the employer’s evidence by demonstrating that the employer’s
purported nonretaliatory reasons were not its true reasons, but were a pretext for
discrimination.” Id. (internal quotation marks and citation omitted).
On appeal, we are concerned only with Strothers’ ability to make a prima facie
showing of retaliation under the burden-shifting framework, as that was the sole basis for
the district court’s decision to grant summary judgment. Further, because it is patently
obvious and undisputed that termination is a materially adverse action, we discuss only the
first and third elements of the prima facie case—protected activity and causation.
A.
We first consider whether Strothers engaged in protected activity under Title VII.
Such activity includes “complaining to superiors about suspected violations of Title VII.” 4
Boyer-Liberto, 786 F.3d at 281 (citation and alterations omitted). To warrant protection,
the employee’s perception of a violation must be “objectively reasonable” under the
circumstances known to her. Id. at 282. Here, Strothers argues that her complaint of a

4

Protected opposition activity can take numerous forms and need not be part of a
formal proceeding. Possibilities include “utilizing informal grievance procedures as well
as staging informal protests and voicing one’s opinions in order to bring attention to an
employer’s discriminatory activities.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d
253, 259 (4th Cir. 1998). Here, Strothers’ internal memorandum and emails come within
that expansive definition.
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hostile environment was protected activity. Thus, our inquiry is whether the circumstances
known to Strothers at the time of her complaint support a reasonable belief that a hostile
work environment existed or was in progress. See id.
To determine whether Strothers had a reasonable basis to oppose what she perceived
as a hostile environment, we examine the elements of a hostile environment claim in light
of what she knew. Ordinarily, to prove a hostile work environment claim under Title VII,
a plaintiff must show “(1) unwelcome conduct; (2) that is based on the plaintiff’s [protected
status]; (3) which is sufficiently severe or pervasive to alter her conditions of employment
and to create an abusive work environment; and (4) which is imputable to the employer.”
Okoli v. City Of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011). Here, because Strothers is
bringing a retaliation claim, she must show that her belief that these elements were satisfied
was reasonable. Viewing the facts in the light most favorable to Strothers, the non-moving
party, a reasonable jury could find that Strothers had reason to believe that she was being
subjected to a hostile environment.
1.
The first element of a hostile environment claim, unwelcome conduct, is not a high
hurdle. As this Court has repeatedly held, an employee can demonstrate that certain
conduct is unwelcome simply by voicing her objection to the alleged harasser or to the
employer. E.g., E.E.O.C. v. Cent. Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009);
E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 314 (4th Cir. 2008); Smith v. First Union
Nat. Bank, 202 F.3d 234, 242 (4th Cir. 2000). The alleged conduct need not be severe, as
severity is better addressed under the third element, pervasiveness. However, the nature of
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the conduct may indicate whether or not the conduct is unwelcome. See Sunbelt Rentals,
Inc., 521 F.3d at 314 (“[I]t is difficult to see how any employee would welcome derisive
behavior directed at his faith.”).
The record shows that Strothers was subjected to numerous types of conduct that
could not have been welcomed. When Koubek accused Strothers of violating the dress
code, Koubek circled Strothers, lunged at her, and grabbed her pants without seeking
permission. Further, Koubek tracked Strothers’ every movement in the office, requiring
Strothers to obtain permission even to relieve herself in the restroom. Evidence also shows
that Koubek considered Strothers late even on days when she arrived before the office’s
9:00 a.m. opening. Among other things, Strothers was faulted for not booking Koubek a
massage appointment, even though there was no discernible reason why Koubek should
have been included. Koubek then compiled these incidents into negative evaluations and
placed them in Strothers’ personnel folder, knowing that she was a probationary employee.
It is hard to imagine a reasonable worker who would not find unwelcome Koubek’s
constant surveillance, badgering, and criticism. See E.E.O.C. v. Navy Fed. Credit Union,
424 F.3d 397, 407 (4th Cir. 2005) (holding that employee’s objection to heightened
scrutiny of another employee was protected activity).
And indeed, Strothers repeatedly informed Director Piringer, Koubek, and others of
her objections. Even Koubek’s own notes record several instances in which Strothers
verbally objected directly to Koubek herself and to Piringer. J.A. 546, 549, 550. Strothers
also put her objections in writing and went as far as to complain to a member of the City
Council.
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We therefore conclude that, at the summary judgment stage, Strothers has
adequately demonstrated her reasonable belief that she was subjected to unwelcome
conduct.
2.
The second element of a hostile environment claim requires that the offending
conduct be based on the employee’s “race, color, religion, sex, or national origin.” 42
U.S.C.A. § 2000e-2; see Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir.
2003) (en banc). In other words, “Title VII does not prohibit all verbal or physical
harassment in the workplace”—it is directed only at actions that occur “because of” one of
the protected statuses. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998).
In determining whether offensive conduct can be attributed to discrimination against the
employee’s race or other protected status, courts must view the behavior in light of the
social context surrounding the actions. See id. Here, Strothers had ample reason to believe
that she was being mistreated “because of” her race.
Indeed, Piringer, the director of her department and Koubek’s supervisor, told her
as much. Against the backdrop of Strothers’ complaint against Koubek, Piringer disclosed
that Koubek wanted to hire someone of a different race than Strothers. Race—not
experience, qualifications, or skills—was the differentiating factor that Piringer chose to
highlight. That Piringer would volunteer such information supports a reasonable inference
that he thought Strothers’ race explained why Koubek was harassing her. In other words,
Strothers’ employer injected Strothers’ race into the equation and gave her reason to think
that her race was relevant to the harassment she was experiencing.
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Even setting aside Piringer’s observations about Koubek, Strothers also heard from
former City employees who explicitly warned her about Koubek’s history of harassing
black employees. Two former black employees told Strothers that Koubek did not like
black people and that she singled them out for differential treatment. Indeed, both
recounted similar stories of how Koubek harassed and micromanaged black employees and
volunteers, even getting into a shoving match with one of them.
Against that history, Strothers was also aware that she was the only black
subordinate employee and that she was the only one whom Koubek chose to surveil and
scrutinize. See Ocheltree, 335 F.3d at 332 (inferring discrimination in part because no
male employee was subjected to same conduct as female plaintiff). Moreover, her being
selected for such scrutiny apparently had nothing to do with her job performance, as
Koubek herself acknowledged that Strothers did everything as instructed. Director Piringer
even lauded Strothers as an exemplary employee in his reference letter.

These

considerations together support a reasonable inference that Strothers was being subjected
to unlawful discrimination.
The district court arrived at the opposite conclusion after failing to draw all
reasonable inferences in favor of Strothers, the non-moving party. Rather than drawing
any explanatory power from Piringer’s revelation about Koubek, the district court adopted
the most charitable interpretation possible in favor of the City, the moving party.
Specifically, the district court credited Koubek’s testimony that she preferred the white
candidate because of the white candidate’s prior experience working for the City.
Strothers, 232 F. Supp. 3d at 769. The district court then concluded that Koubek preferred
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the white candidate for legitimate reasons; it was only coincidental that the preferred
candidate happened to be white and the employee who was subjected to unwelcome
conduct happened to be black. Id. However, Piringer’s comment about Koubek’s hiring
preference creates at least some ambiguity as to her true motivations, and the jury is not
required to believe Koubek’s rationalization.

Instead, a reasonable jury could well

conclude that Koubek’s reason for preferring the white candidate was pretextual. Not only
did Piringer, who had experience working with Koubek, seem to suspect Koubek of acting
with possible racial bias, but Koubek’s purported rationale for preferring the white
candidate demonstrably carried little weight with the rest of the City officials, who
concluded that Strothers was the most qualified candidate.
Taken together, Strothers knew three things that suggested she was the target of
racial discrimination, rather than a mere “workplace squabble.” See Okoli, 648 F.3d at
224. First, former employees revealed a history and pattern of racial discrimination.
Second, she was singled out for disparate treatment from the moment she arrived on the
job for reasons unrelated to her job performance. Third, the director of her department
cited Strothers’ race when she complained about the disparate treatment and harassment.
And contrary to what the City appears to argue, harassment need not be accompanied by a
contemporaneous statement of animus to be actionable under Title VII—rather, the
connection between animus and conduct may be inferred from the totality of the
circumstances. See Oncale, 523 U.S. at 82 (instructing courts in harassment cases to apply
“[c]ommon sense” and “appropriate sensitivity to social context” to “constellation of
surrounding circumstances, expectations, and relationships which are not fully captured by
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a simple recitation of the words used or the physical acts performed”). Because we are
required to draw all reasonable inferences in favor of Strothers at this stage, we must
conclude that she has demonstrated a genuine dispute of material fact as to her reasonable
belief that racial discrimination motivated Koubek’s actions.
3.
The third element of a hostile environment claim requires that the offending conduct
be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment.” Ocheltree, 335 F.3d at 333 (quoting Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)) (alterations omitted). This element has both
a subjective and objective component, i.e., the employee must both personally and
reasonably believe that the conduct rises to the level of a hostile environment. Id. (citing
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–22 (1993)). In assessing whether harassment
is objectively abusive, courts must examine the totality of the circumstances, including “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, 510 U.S. at 23. In this case, the City contests
only the objective reasonableness of Strothers’ belief that Koubek’s behavior was
actionable under Title VII. 5 As detailed below, we conclude that there are sufficient facts

5

We note that it is clear that Strothers subjectively perceived Koubek’s harassment
as pervasive, given her numerous complaints and her characterization of such behavior as
creating a hostile environment. She indicated that the situation made work “unbearable,
making it difficult to come into the office,” and that either she or Koubek needed to be
reassigned. J.A. 575.
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for a reasonable jury to find that Strothers reasonably believed that Koubek’s actions were
sufficiently severe or pervasive as to alter the terms or conditions of Strothers’ employment
and create an abusive environment.
As relevant here, Title VII prohibits discrimination as to “compensation, terms,
conditions, or privileges of employment.” 42 U.S.C. § 2000e-2. “The phrase ‘terms,
conditions or privileges of employment’ in Title VII is an expansive concept.” Meritor,
477 U.S. at 66 (alterations and citation omitted). However, to determine whether Koubek’s
conduct was sufficiently severe or pervasive as to alter conditions of Strothers’
employment, we need not test the definition’s outer limits.
The record clearly shows that Koubek significantly altered terms and conditions of
Strothers’ employment. First, Koubek changed Strothers’ daily arrival time. Although
Strothers accepted Piringer’s job offer with the understanding that her arrival time would
be 9:05 a.m., Koubek effectively overruled that arrangement and began requiring Strothers
to arrive by 8:55 a.m.—five minutes before the office opened. While a difference of ten
minutes may not always constitute a significant change in employment conditions, that
difference here was expressly bargained for by the employee and had a significant effect
on the employee’s decision to accept the job because it affected her capacity to be a
responsible mother. Second, viewing the disputed facts in the light most favorable to
Strothers, Koubek also changed the dress code as applied to Strothers. Although the dress
code allowed jeans on Fridays, Koubek took issue with Strothers’ “Nine West jeans,”
publicly humiliated her, and forced her to take time off to change—not to mention
Koubek’s possible act of battery. Third, Koubek instituted a policy that forbid Strothers
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from leaving her desk, including to use the restroom, without specific approval—a policy
of which Strothers was unaware before accepting the job. And not only did Strothers have
to receive Koubek’s permission for every use of the bathroom, she had to report the length
of each trip. Thus, a reasonable jury could find that the alleged harassment was a daily
occurrence that pervaded numerous aspects of Strothers’ employment.
The net effect of Koubek’s actions was an abusive environment likely to “detract
from employees’ job performance, discourage employees from remaining on the job, or
keep them from advancing in their careers.” See Harris, 510 U.S. at 23 (concluding that
such “tangible” effects are sufficient but not necessary to prove violation of Title VII). For
instance, a reasonable jury could well find that Koubek’s actions were likely to affect the
advancement of Strothers’ career, including any promotion from a probationary position
to a permanent one. In addition to harassing Strothers, Koubek submitted a negative
evaluation, compiled from her list of perceived infractions and slights, to Strothers’ file,
knowing that she was a probationary employee whose continued employment was
contingent on her performance.
A reasonable jury could also find that Koubek’s actions objectively interfered with
Strothers’ ability to do her job. Heightened scrutiny, unfair evaluations, and arbitrary dress
codes are likely to make a job more difficult and trigger responses from workers who feel
compelled to protest their treatment, which may further interfere with their work. Here,
due to Koubek’s actions, Strothers had to take time off of work in order to conform her
dress to Koubek’s standards. She also had to write detailed memoranda to defend herself
against accusations of misconduct. Furthermore, it is difficult to imagine that having to
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report every incident as minor and as personal as using the restroom would not interfere
with productivity. Such reporting is not only time-consuming but requires the disclosure
of highly intrusive and potentially embarrassing details of one’s bodily functions. In light
of these facts, a reasonable jury could easily conclude that the totality of Koubek’s actions
would discourage a reasonable employee from working for the City and that Strothers
reasonably believed that Koubek’s actions were so frequent and severe as to be abusive.
We therefore conclude that Strothers has demonstrated a genuine dispute of material
fact as to her reasonable belief that Koubek created an abusive environment that altered the
“terms, conditions or privileges” of her employment with the City.
4.
The final element of a hostile environment claim requires that the offensive conduct
be imputable to the employer. Boyer-Liberto, 786 F.3d at 278. If the harasser is a coworker, then the employee must show that the employer was “negligent in controlling
working conditions”—that is, the employer “knew or should have known about the
harassment and failed to take effective action to stop it.” Vance v. Ball State Univ., 570
U.S. 421, 424 (2013); Ocheltree, 335 F.3d at 333–34. If the harasser is a supervisor, then
the employer may be either strictly or vicariously liable for the supervisor’s actions. 6 See
Vance, 570 U.S. at 431. In this case, the parties dispute whether Strothers reasonably
believed that Koubek was a “supervisor,” and if not, whether the City was negligent in
responding to the alleged harassment. In our view, a reasonable jury could find that

6

Whether the employer is strictly liable depends on whether the supervisor’s
harassment culminates in a “tangible employment action.” Vance, 570 U.S. at 429–30.
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Strothers reasonably believed that Koubek was her supervisor and, alternatively, that she
reasonably believed that the City was negligent in failing to address the ongoing
harassment.
In Vance, the Supreme Court resolved a circuit split and defined “supervisor” for
purposes of imputed liability under Title VII. 570 U.S. at 430–31. Specifically, it held
that a supervisor is an individual who has been empowered “to take tangible employment
actions against the victim, i.e., to effect 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.’” In doing so, the
Court rejected “the more open-ended approach . . . which ties supervisor status to the
ability to exercise significant direction over another’s daily work.” Id. at 431.
However, because Strothers is seeking to prove retaliation, rather than an actual
hostile environment claim, she need only show that it was reasonable for her to believe that
Koubek was her supervisor, not that Koubek actually met all aspects of the standard set
forth in Vance. See Boyer-Liberto, 786 F.3d at 282. As the Supreme Court held in
Burlington, which Vance reaffirmed, the scope of the retaliation provision is broader than
the scope of the anti-discrimination provision. See Vance, 570 U.S. at 439 (applying the
framework set out in Burlington); see also Burlington, 548 U.S. at 63, 67.
Vance’s application of its definition of supervisory status and “tangible employment
actions” to previous Supreme Court cases is instructive. In an earlier case, Faragher v.
City of Boca Raton, the Supreme Court had determined that an employer was vicariously
liable for a supervisor’s harassment of female lifeguards. 524 U.S. 775, 780–81, 808.
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Vance described the harasser in Faragher as a “clear” example of a supervisor because he
“could hire new lifeguards, supervise their work assignments, counsel, and discipline
them.” 570 U.S. at 437 (citing Faragher, 524 U.S., at 781).
Because Koubek’s role bears significant similarities to that of the lifeguard
supervisor discussed in Vance, the record is sufficient for a reasonable jury to conclude
that Strothers at least had reason to believe that Koubek could take “tangible employment
action” against her.
First, Koubek was part of the hiring and interview process and indeed opposed
hiring Strothers. Though her input was not accepted, Koubek nevertheless had the
authority to provide such input. See Vance, 570 U.S. at 437 & n.8 (noting that individual
qualified as supervisor even though his “hiring decisions were subject to approval by higher
management”). And the fact that Koubek had such authority was made clear to Strothers
by Piringer, the head of the department, who disclosed Koubek’s involvement in the hiring
process.
Second, Koubek’s actions suggested that she had the power to discipline Strothers.
For instance, Koubek claimed that she had authority from the head of human resources to
document and monitor Strothers’ arrivals and absences. J.A. 493. That authority, along
with Koubek’s repeated efforts at reprimanding Strothers, could support a reasonable belief
that Koubek had the power to punish Strothers for non-compliance. See id. (citing
counseling and discipline as indicative of supervisory position). Indeed, Koubek told
Strothers repeatedly that arrivals after 8:55 a.m. “can’t happen” and that Strothers had to
make alternative arrangements if she wanted to continue working for the City. These
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actions suggested to Strothers that Koubek could influence her termination, the ultimate
form of workplace discipline. J.A. 545–50.
Third, Koubek’s conduct also indicated that she controlled Strothers’ work
schedule, job responsibilities, and work assignments. Director Piringer, who wielded
ultimate hiring and firing authority, is clearly one of Strothers’ supervisors, and he
determined that Strothers could start at 9:05 a.m. Koubek, on her own initiative, opposed
that arrangement and succeeded in changing Strothers’ start time to 8:55 a.m. Koubek also
determined the scope of Strothers’ job duties, deciding that part of Strothers’ job was to
remain at her desk at all times in order to serve as a receptionist—even though the building
already had a receptionist and Strothers was hired to be an administrative assistant. Koubek
also had the authority to assign Strothers projects, including the creation of a City brochure
and updating of the City website, which Koubek then reviewed. J.A. 463, 467, 469–70.
Fourth, Koubek asserted control over Strothers’ use of her employment benefits.
For instance, she controlled Strothers’ use of the City’s personal leave policy. When
Koubek demanded that Strothers change her pants, she also required that Strothers deduct
the time required to go home and change from her personal leave time. On other occasions,
Koubek approved Strothers’ use of personal leave and her lunch hour. J.A. 547.
And finally, Koubek formally submitted a negative, three-month performance
review to human resources and attempted to influence Strothers’ retention by the City. The
evaluation was especially significant for Strothers, a probationary employee, as her
continued employment depended on her performance. See Vance, 570 U.S. at 437 n.8
(noting that individual would have supervisory status if he “had input on evaluations” that
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carried economic consequences). In light of the full constellation of Koubek’s actions, a
reasonable jury could find that Strothers reasonably believed that Koubek could take
tangible employment actions against Strothers and that Koubek was a “supervisor” for
purposes of Title VII.
Alternatively, even if we were to conclude that Koubek could not reasonably be
considered a “supervisor” under Vance, Koubek’s conduct would still be imputable to the
City because the City knew or should have known of the harassment and failed “to take
prompt remedial action reasonably calculated to end the harassment.” See Freeman v. DalTile Corp., 750 F.3d 413, 423 (4th Cir. 2014) (citing Amirmokri v. Balt. Gas & Elec. Co.,
60 F.3d 1126, 1131 (4th Cir. 1995)). It cannot be seriously disputed that Strothers
diligently kept the City informed of every aspect of Koubek’s harassment, through
numerous phone calls, emails, meetings, and detailed memoranda, throughout the duration
of her employment. Indeed, within the first month, Koubek herself referred to the situation
as a “Mother/Father dynamic” because Strothers would complain to Piringer whenever she
disagreed with Koubek’s actions. J.A. 546. Moreover, Piringer and the City had reason to
suspect that Koubek was motivated by racial bias. Not only did Piringer specifically note
that Koubek wanted to hire someone of a different race, but the City had received other
complaints from black employees about Koubek and was on notice of a possible pattern of
race-based harassment. J.A. 118. Thus, there are sufficient facts to show that Strothers
reasonably believed that the City had actual, or at minimum constructive, knowledge of the
harassment and its racial dimension. See Freeman, 750 F.3d at 423.

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Despite Strothers’ memo and other efforts reporting the harassment, the City neither
reassigned Strothers, as she requested, nor took lesser steps to investigate or prevent the
alleged harassment. For instance, the City accepted Koubek’s modification of Strothers’
start time. It also allowed Koubek to force Strothers to report the timing and duration of
every bathroom visit. The City then failed to even investigate whether Koubek physically
assaulted Strothers by grabbing her pants. See Amirmokri, 60 F.3d at 1131 (holding that
failure to investigate and discipline harasser was indicative of inadequate employer
response). Shortly before she was fired, Strothers requested an investigation into whether
the dress code was being applied discriminatorily but no investigative steps were
apparently taken before the termination. Although the City had a nondiscrimination and
grievance policy, it initially told Strothers that probationary employees could not file such
grievances. J.A. 580. And, when Strothers indicated that she wanted to file a formal
grievance, she was fired the next day. In other words, the facts support a reasonable
conclusion that the City, by failing to take any notable remedial actions after repeatedly
being informed of ongoing harassment, was in part responsible for the hostile environment
that Strothers experienced.
In sum, a reasonable jury could find that Strothers had reason to think that Koubek’s
actions were imputable to the City, either because Koubek was a supervisor or because the
City was negligent in preventing the harassment.
*

*

*

We therefore conclude that Strothers has demonstrated, at the summary judgment
stage, sufficient facts to support a reasonable belief that she was subjected to a hostile
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environment. Accordingly, the district court erred when it determined that Strothers’
complaints did not constitute protected activity and that she had not satisfied the first
element of prima facie retaliation.
B.
We next address the third element of the prima facie case, causation. Here, we ask
whether Strothers adequately demonstrated that her engagement in protected activity
caused her firing. As this Court has held, establishing a “causal relationship” at the prima
facie stage is not an onerous burden. See Foster, 787 F.3d at 251; Burgess v. Bowen, 466
F. App’x 272, 282 (4th Cir. 2012) (“[V]ery little evidence of a causal connection is required
to establish a prima facie case of retaliation.” (citation omitted)). Purported victims of
retaliation do not have to show at the prima facie stage that their protected activities were
but-for causes of the adverse action. Foster, 787 F.3d at 251 (holding that plaintiff need
not establish but-for causation until pretext stage of burden-shifting framework). An
employee may establish prima facie causation simply by showing that (1) the employer
either understood or should have understood the employee to be engaged in protected
activity and (2) the employer took adverse action against the employee soon after becoming
aware of such activity. See Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994); Williams v.
Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989); Burgess, 466 F. App’x at 282. For
the reasons below, we conclude that a reasonable jury could find that the City knew or
should have known that Strothers was complaining about a Title VII violation and that her
complaints caused her termination.

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1.
As this Court has held, no causal connection can exist between an employee’s
protected activity and an employer’s adverse action if the employer was unaware of the
activity. Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th
Cir. 1998). An employer is aware of an employee’s protected activity when he learns of
an employee action that he understood or should have understood to be opposition against
a Title VII violation. See Burgess, 466 F. App’x at 282. When determining whether the
employer should have understood the nature of the employee’s action, courts examine not
just the employee’s complaint but also the factual context that is known to the employer.
Okoli, 648 F.3d at 224.
The City primarily argues that it had no reason to think that Strothers was engaged
in protected activity because her informal memorandum did not explicitly cite racial
discrimination. However, this Court rejected a similar argument in Okoli, where the
employer argued that it was not on notice because a female employee only alleged
“harassment” but not “sexual harassment” in her complaining email. See id. This Court
held that “[t]he City surely should have known that [the employee’s] complaints of
‘harassment’ likely encompassed sexual harassment,” in part because the plaintiff
described “unethical,” “degrading and dehumanizing” conduct and the term “harassment”
is generally understood as a “term of art.” Id. at 224 & n.9. In this case, Strothers’ informal
memo, submitted on February 26, 2014, complained of both “harassment” and a “hostile
environment,” both of which can be considered terms of art. Just as the terms should be
understood, in certain contexts, to encompass sexual harassment, they should also be
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understood, in certain contexts, to encompass possible discrimination on the basis of other
recognized protected statuses.
The City should have known that the alleged harassment and hostile environment
pertained to racial discrimination given what it knew about Koubek and her relationship
with Strothers. Quite simply, Director Piringer was the one who pointed out that Koubek
wanted to hire someone of a “different race” when Strothers complained about how
Koubek was treating her. In doing so, Piringer suggested that Strothers’ race was relevant
to the harassment. This obviated the need for Strothers to regurgitate back to Piringer what
he already knew. See id. at 224 (concluding that supervisor also “surely would have
known” nature of employee complaint because he was alleged harasser).
For these reasons, we conclude that Strothers has demonstrated a genuine dispute of
material fact as to the City’s awareness of her engaging in protected activity.
2.
The only remaining question is whether the City took adverse action against
Strothers soon after learning of her complaint, as temporal proximity is sufficient to
establish a causal connection at the prima facie stage. See Carter, 33 F.3d at 460. In this
case, Strothers submitted her informal memo on February 26 and sent an email on March
6, asking for grievance forms and saying that she intended to file a formal grievance on
March 7. J.A. 580. The City fired Strothers on March 7, the very next day. Because the
lapse of one or even nine days is well-within what this Court has found to be a causally
significant window of time, we conclude that Strothers has met her burden of showing
causation at the prima facie stage. Carter, 33 F.3d at 460 (“This court found a causal
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connection between a plaintiff’s protected activity and her discharge where the employer,
with knowledge of a pending discrimination complaint, fired plaintiff approximately four
months after the complaint was filed.” (citing Williams, 871 F.2d at 457)).
*

*

*

We therefore conclude that Strothers has shown, at the summary judgment stage,
sufficient facts to support a causal connection between her complaints about Koubek’s
harassment and her termination by the City. Accordingly, the district court erred when it
determined that Strothers failed to establish the third element of prima facie retaliation.

IV.
For the aforementioned reasons, we hold that the district court erred when it
concluded that Strothers failed to demonstrate a prima facie case of retaliation under the
burden-shifting framework. We therefore reverse the district court’s grant of summary
judgment and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED

30