Kearns v. Northrup Grumman
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 5/23/14. (mps, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. ELH-11-1736
Plaintiff Michael Kearns alleges that his former employer, defendant Northrup Grumman
Systems Corporation (“Northrup Grumman”), violated Title VII of the Civil Rights Act of 1964,
codified, as amended, at 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. §§ 621 et seq. See Second Amended Complaint (“SAC,” ECF 44). In
particular, Kearns claims that he was subjected to adverse employment actions and a hostile
work environment in retaliation for his opposition to workplace discrimination against a coworker, and for filing his own complaint regarding discrimination. Kearns, who was 66 years
old during the events relevant to this case, also alleges that he was subjected to a hostile work
environment because of his age, in violation of the ADEA.
Currently before the Court is defendant’s Motion for Summary Judgment (“Motion,”
ECF 55), supported by a Memorandum of Law (“Memo,” ECF 55-1), and exhibits. Plaintiff
filed a response in opposition (“Opp.” or “Opposition”, ECF 62), also with exhibits.1 Defendant
Kearns’s arguments in opposition to summary judgment do not precisely track the
allegations set forth in the SAC. For example, the SAC appears to set forth a claim for
constructive discharge under the ADEA. However, Kearns’s Opposition does not address
replied (“Reply,” ECF 63), and submitted additional exhibits. No hearing is necessary to resolve
the Motion. See Local Rule 105.6. For the reasons that follow, I will grant the Motion.
Kearns, a Caucasian, began working for Northrop Grumman in 2002 as a Help Desk
Analyst. See Deposition of Michael Kearns (“Kearns Dep.,” ECF 55-2) at 12.3 At the time
Kearns began working for defendant, he signed an Employment Agreement, which provided, in
relevant part: “I will work any shift . . . to which I am assigned.” Ex. 1 to Kearns Dep. In
September 2006, Kearns became an Incident Handler, also known as an Incident Analyst, within
Northrop Grumman’s Security Incident and Analysis Center (“SIAC”). Id. at 15. Incident
Analysts are responsible for identifying suspicious activity on Northrop Grumman’s IT network.
See Ex. 6 to Kearns Dep. The manager of the SIAC was Grant Jewell, and Kearns’s shift
manager was Mike Mundi. See Ex. 5 to Kearns Dep.; Kearns Dep. at 16, 31.
On March 26, 2007, Jewell drafted a performance assessment for Kearns for the 2006
calendar year. Jewell wrote, Ex. 4 to Kearns Dep.:
Michael Kearns joined the SIAC from the helpdesk at ES and . . . his
learning curve is greater coming into Information Security because of his lack of
experience in networking and incident response. Michael has displayed his
dedication to the job asking the appropriate questions and ensure he reports to
work even through difficult times. Michael has been a good addition to the team
constructive discharge; he indicates that his claim under the ADEA is a hostile work
The facts set forth are undisputed, unless otherwise noted. As required in the context of
a motion for summary judgment, I have construed the facts in the light most favorable to
In August 1999, Kearns began working for a company that apparently was acquired by
Northrop Grumman. In terms of his length of employment with defendant, he received credit for
his work dating from August 1999. ECF 55-2 at 12.
he just needs to focus a little further on attention to detail when completing RT
However, by February 2008, Jewell and Mundi had less favorable views of Kearns. On
February 27, 2008, Mundi emailed Jewell about Kearns, stating, Ex. 5 to Kearns Dep.:
I have done the best I can to work with Michael Kearns. . . . I now give up
on trying to work with him because it is rather counter productive. What is even
worse is his demeanor when tasked. He is constantly mumbling, swearing and in
so doing, makes our work environment uncomfortable. I have talked to him about
this before, but again he does not hold on to what I say for long. This is
frustrating for me and I really hate giving up on people.
Jewell responded to Mundi the same day. He advised: “This is something I’m addressing
with Mary Jo from HR and we are putting together a performance improvement plan. . . . If he
isn’t able to turn around the performance after being presented with the PIP then we will address
this accordingly via HR.” Id. at 5.
Shortly thereafter, Jewell gave Kearns a “Below Expectations” performance rating on his
annual evaluation for the 2007 calendar year. See Kearns Dep. at 36. On March 18, 2008,
Jewell placed Kearns on a Performance Improvement Plan (“PIP”). See Ex. 6 to Kearns Dep.
The PIP stated that Kearns had “not progressed along the learning curve as expected,” did “not
follow the outlined procedures,” and should be “identifying a higher volume of suspicious
activity in the system.” Id. The PIP also noted that Kearns’s “stats are among the lowest in the
In addition, a number of SIAC employees complained about plaintiff making
inappropriate comments in the workplace. See Exs. 7–9 to Kearns Dep. Jewell gave plaintiff a
written warning in March 2008 and, in December 2008, issued a Final Written Warning to
Kearns regarding his inappropriate comments. Kearns Dep. at 39–40. In the Final Written
Warning, Jewell noted that plaintiff had made “an extremely disrespectful comment” on
November 20, 2008, which violated Northrop Grumman’s policy against “[u]sing epithets, slurs,
or explicit or offensive language directed at persons or protected characteristics.” Ex. 8 to
Kearns Dep. The Final Written Warning provided: “Any future incidents of this nature or failure
to abide by company policies, procedures, and conduct standards will result in your termination
from the company.” Id.
In early 2009, Jewell gave Kearns a “Below Expectations” performance rating for the
2008 calendar year. See Kearns Dep. at 37. And, Jewell placed Kearns on another PIP on April
22, 2009. See Ex. 7 to Kearns Dep. Once again, the PIP noted that Kearns had not progressed
along the learning curve as expected, did not follow procedures, should have identified a higher
volume of suspicious activity, and was rated at the bottom of the department. Id.
In May 2009, Kearns and the other SIAC members were moved to the Cyber Security
Operations Center (“CSOC”) in Annapolis Junction, Maryland. Kearns Dep. at 45. After the
move, Jewell assigned plaintiff and another employee, Jeannette Simpkins,4 the task of “server
log monitoring.” Kearns Dep. at 46. In this role, rather than looking for suspicious activity on
Northrop Grumman’s networks, Kearns and Simpkins were responsible for monitoring the
system logs for all of the servers within Northrop Grumman and attempting to find anomalies
and infected servers. See Deposition of Roderick Press, Kearns’s supervisor from July 2009
through Kearns’s termination (“Press Dep.,” ECF 55-4) at 36. Kearns and Simpkins were
assigned to work a shift from 12:00 p.m. to 8:30 p.m. Kearns Dep. at 17.
Plaintiff identifies Ms. Simpkins’s first name as “Chiquita.” See Opp. at 4, ¶ 2. In a
suit filed by Simpkins in this Court, CCB-10-3523, and in her Affidavit, ECF 62-2, Ms.
Simpkins uses the first name of Jeanette.
Roderick Press, “a middle age black male,” Opp. at 2, replaced Jewell as manager of the
CSOC in July 2009 and became Kearns’s supervisor. See Kearns Dep. at 45. Kearns described
Press’s managerial style as “intimidating” and testified that other employees also found Press to
be intimidating. Id. at 49. Similarly, Mundi testified that Press utilized a “military style of
management,” had a “strong personality,” and could be “very patronizing.” Deposition of
Michael Mundi (“Mundi Dep.,” ECF 55-5) at 17.
Press gave Kearns a “Meets Expectations” evaluation for the 2009 calendar year. Ex. 12
to Kearns Dep. As a result of the evaluation, Kearns received a raise for the first time since
March 2007. Kearns Dep. at 58–59.
Press emailed Kearns on April 26, 2010, asking Kearns to confirm that Press had
discussed with Kearns and Simpkins that “there may be a change in the direction of the Server
Security Log monitoring.” Ex. 22 to Kearns Dep. Kearns confirmed that he and Press had
discussed the topic, but wrote that he “cannot speak for Jeanette and [does] not feel comfortable
commenting about her role on things.” Id. Kearns forwarded the email chain to Human
Resources on April 30, 2010, claiming, id.:
[Press] has continuously used intimidation tactics to pull me in and turn me
against Jeanette Simpkins. . . . Per the following email he did not provide
additional information that took place during our conversation and questioning me
in regards to her. Rod has threatened that if I do not go against Jeanette that he
will place me on a 30 day PIP. I do not feel comfortable with this type of
intimidating/harassing behavior to turn me against my co worker Jeanette that I
work with on a daily basis . . . . It appears since I did not reply to his [attached]
email in according to his liking on Monday, that he has constantly made
intimidating comments such as “Are you my Corporate Spy.”
Kearns sent another email to Human Resources on May 4, 2010, claiming that Press “is
continuing to harass [him]” and “made degrading comments of [Kearns’s] job knowledge.” Id.
Stacey Wyland, an employee in Northrup Grumman’s HR department, emailed Kearns to
“set up some time to talk” about Kearns’s concerns. Ex. 23 to Kearns Dep. In his reply, Kearns
stated: “In all due respect, I do not feel comfortable discussing conditions with you. This is
based on several incidents of Rod berating another employee. I have witnessed these incidents
on more than one occasion.” Id. Kathy Floyd, another HR employee, also reached out to
Kearns. Floyd and Kearns met on May 17, 2010, but the meeting “lasted for less than 5
minutes” before Kearns told Floyd that “everything I need to say is in the emails” and then
walked out of the office. Id.
On May 3, 2010, Kearns filed a charge of discrimination (the “Charge”) with the Equal
Employment Opportunity Commission (“EEOC”), Ex. 39 to Kearns Dep. at 6, which he
supplemented on July 8, 2010. Id. at 7. In the initial charge, Kearns stated, id. at 6:
Recently, a co-worker had filed a formal complaint of abusive treatment
against my Supervisor. As a result I believe I have been unjustly implicated in
the issues that have occurred between the Supervisor and my co-worker. I am
now being subjected to retaliatory treatment from Mr. Press. The retaliation has
taken the form of being intimidated, subjected to a hostile work environment, and
threatened with disciplinary actions. . . . Furthermore, I have been asked on
several occasions about my plans to retire; therefore, this leads to me believe Mr.
Press has taken issue with me and may be subjecting me to age discrimination.
Press sent Kearns an email on May 5, 2010, expressing disapproval of Kearns’s job
See Ex. 25 to Kearns Dep.
In particular, Press questioned Kearns’s “job
awareness,” expressed concern about Kearns’s failure to follow guidelines, and pointed out
Kearns’s “lack of knowledge and lack of initiative.”
Additionally, Press noted his
Ms. Simpkins was the co-worker to whom Kearns made reference. At some point in
2010, Simpkins filed an EEOC charge of discrimination against Press, alleging retaliation and
hostile work environment. See Affidavit of Jeanette Simpkins, ECF 62-2 ¶¶ 2, 4. She had
previously filed a complaint with EEOC in 2008, pertaining to alleged “gender discrimination,”
unrelated to Mr. Press. Id. ¶ 2.
displeasure at Kearns’s practice of “recording what [Press says] in a green notebook” and then
“sharing [Press’s comments] with third parties.” Id. The next day, May 6, 2010, Press sat with
Kearns at his desk and reviewed a number of issues related to Kearns’s job duties and
performance. See Press Dep. at 67, 70–71; Ex. 31 to Kearns Dep.; Kearns Dep. at 150. Press
also wrote a summary of the meeting, in which he noted that “Kearns needs to show significant
improvement . . . in his ability to apply accepted industry methodology to event detection and
analysis, improve his situational awareness . . . , and follow  policies, processes and guidelines
for event detection and triage.” Ex. 31 to Kearns Dep. Press added that he had not “seen the
initiative and commitment from Mr. Kearns to excel in his current role. Mr. Kearns may be able
to function in another area under [Northrop Grumman] and that opportunity should be
explored . . . .” Id.
Floyd contacted Kearns on June 9, 2010, to talk further with him about Press. Ex. 26 to
Kearns Dep. According to Floyd, Kearns told her that “things were going good” and that he
wanted to “hold off” on further discussing the situation. Id. Kearns met with Floyd again on
June 28, 2010. See Ex. 27 to Kearns Dep. According to Kearns, he was courteous in the
meeting and “answered what he felt were the direct relevant elements.” Kearns Dep. at 125.
Kearns again directed Floyd to various emails he had already provided to HR and asked Floyd
not to contact him (Kearns) again. Kearns Dep. at 126; see Ex. 27 to Kearns Dep.
Nevertheless, plaintiff and Floyd met again on July 23, 2010. Ex. 29 to Kearns Dep.
According to Floyd’s notes, Kearns detailed numerous complaints about Press, most of which
relate to above-described incidents or other similar encounters in which Press questioned
Kearns’s efficiency and/or effectiveness. Id. Kearns also told Floyd that “he felt like there is
age discrimination” because “he’s the oldest person in the section and that all the new people
seem to be college age. He feels he is perceived as slower and that doesn’t help him.” Id.
Kearns told Floyd that in October of 2009, Press asked Kearns when he was going to retire, and
that in January 2010, a different Northrup Grumman employee asked him the same question. Id.
As noted, Press had previously advised Kearns about a “change in the direction of the
server log monitoring team.” Ex. 22 to Kearns Dep. Press’s plan was to reintegrate Kearns and
Simpkins with the rest of the Incident Analysts and not to limit server log monitoring to the
hours between noon and 8:30 p.m. See Kearns Dep. at 131–32. Press explained at his deposition
that he wanted to reintegrate Kearns and Simpkins into the overall analyst team “rather than just
having two individuals that were responsible for covering [all] three shifts.” Press Dep. at 88;
see Kearns Dep. at 131–32. Press sent Kearns and Simpkins an email on June 3, 2010, asking
them which shift they would like to work once they were reintegrated with the rest of the team.
See Ex. 32 to Kearns Dep.
The ensuing email chain between Press, Kearns, and Simpkins was somewhat
contentious; Press insisted that Kearns and Simpkins provide an immediate response, while
Kearns and Simpkins repeatedly requested extra time to decide their shift preference. Id. At one
point, Press wrote that Kearns had previously informed him that “he preferred to work 2nd
shift,” i.e., from 4:00 p.m. to 12:30 a.m. Id. Kearns requested that Press forward him the email
to which he referred; Press responded: “The email was sent by you. I apologize if you cannot
find it but I will not forward the email.” Id. On June 28, 2010, Press again asked Kearns and
Simpkins to let him know which of the three standard shifts in the CSOC they wanted to work
after their reintegration on July 31, 2010. Ex. 33 to Kearns Dep.; see Kearns Dep. at 160.
Kearns did not respond to this email because he “was going to wait and see what [Press] did on
July 31st to try and make adjustments.” Kearns Dep. at 162. Plaintiff’s shift did not change on
July 31, 2010. Kearns Dep. at 160.
Kearns and Press were involved in another dispute in July of 2010. Kearns enrolled in a
job-related course with Learning Tree and requested approval from Press. See Ex. 13 to Kearns
Dep. Press disapproved the request because “proper procedures were not followed,” but because
of a miscommunication, Kearns was never notified of the disapproval. See Ex. 14 to Kearns
Dep.; Kearns Dep. at 68, 74. Kearns attended the course and, upon his return to the office, was
informed by Press that he would have to account for the time spent in the course as
personal/vacation time and that the course would have to be paid for through Ed Assist, Northrop
Grumman’s tuition assistance program, as opposed to another source of training funds, Training
Advantage. See Ex. 15 to Kearns Dep. Tuition assistance through Ed Assist was contingent on
the employee remaining with Northrup Grumman for at least one year after the course, whereas
assistance through Training Advantage was not subject to reimbursement. Kearns Dep. 71–72.
Eventually, and with the help of Northrup Grumman’s Human Resources team, the dispute was
resolved in Kearns’s favor—the time would be marked as “Training” rather than
“Personal/Vacation” and the tuition would be paid through the Training Advantage program.
See Exs. 15–16 to Kearns Dep.
Floyd contacted Kearns on August 13, 2010, and asked him to attend a meeting to discuss
the findings of her investigation into Kearns’s complaints about Press. Ex. 35 to Kearns Dep.
Plaintiff refused to attend, advising that “the concerns with Rod are still ongoing!” Id.
On August 16, 2010, Press provided Kearns with an Interim Performance Evaluation.
Ex. 17 to Kearns Dep. The evaluation did not contain an overall rating, but instead included
ratings in a number of different individual categories. Id.
Press rated Plaintiff “Meets
Expectations” in eight categories and “Below Expectations” in two categories. Id. Press also
told Kearns that he was going to put him on another PIP because his work was “subpar.” Press
Dep. at 27. However, Press never actually placed Kearns on a PIP. Kearns Dep. at 80–81.
Press approached Kearns on August 18, 2010, and informed him that he would be moved
to the third shift, from 11:00 p.m. to 7:30 a.m. See Ex. 34 to Kearns Dep. In an email to Floyd,
Kearns described the interaction as follows, id.:
Today Rod came to my desk and without warning about 2:20 p.m. and
brusquely informed me I would be going to 3rd shift after labor day. That is the
11 PM to 7:30 AM shift. When I protested, he said that’s where my need is and
walked away. Subsequently (15 minutes later) he sent me an e-mail asking me to
detail the reasons why that shift would not work for me. I told him it would be an
extreme financial hardship to do so and also that I was originally 2nd shift. . . .
About 30 minutes after I sent him that response, Rod came to my desk and
verbally in a loud voice demanded private information in my financial and
personal life. When I said that he had no right to ask such questions he said “I am
asking you as your manager[.]” He then started harassing me as to how many
tickets I had done today.
I told him “I do not feel comfortable with the way you are asking me these
questions. I wish you would stop[.]” I said this in the way school kids are asked
to respond to a bully. When he kept talking in a harassing and intimidating
manner, I could feel my heart rate increasing and that I did not feel well. I
indicated I need to leave for the day. He quipped “Are you taking your vacation
As I left he followed me out into the hall and demanded that I clean up my
desk area. He bellowed that if I did not, he would have the few binders I had
neatly stacked on the desk put in the trash can by the janitor. I removed the
binders, mopped up the desk top with some watered napkins and departed. I felt
extremely angry and dizzy and fear coming in tomorrow.
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In all the 11 years I have worked for Northrup Grumman, I have never
been so intimidated and harassed by such an abusive manager. It stupefies me
why he is still here and supported by the company.
Although Press told Kearns that Kearns was moving to the third shift, Kearns’s shift never
actually changed. Kearns Dep. 168.
Kearns’s last day of work at Northrop Grumman was August 27, 2010, and he ultimately
retired in March 2011.6 Plaintiff testified that he did not feel he could return to work in any part
of Northrop Grumman because he had a “general feeling” that he was a “marked man.” Kearns
Dep. at 180. Kearns received a “right to sue” letter from the EEOC on March 30, 2011.
Additional facts are included in the Discussion.
Standard of Review
Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. It
provides, in part: “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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322–24 (1986). A fact is
“material” if it “might affect the outcome of the suit under the governing law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“A party opposing a properly supported motion for summary judgment ‘may not rest
upon the mere allegations or denials of [its] pleadings,’ but rather must ‘set forth specific facts’”
showing that there is a triable issue. Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514,
The parties do not cite any evidence in the record to substantiate these dates, and I have
found none. However, defendant includes the dates in its “Statement of Facts as to which There
is no Genuine Dispute,” see Memo at 10, and plaintiff did not interpose any objection.
Moreover, the SAC states that Kearns was employed by Northrup Grumman “until August 27,
2010.” SAC ¶ 5. In any event, the precise date that Kearns left Northrup Grumman’s employ is
not material to the issues in the Motion.
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522 (4th Cir. 2003) (quoting former Fed. R. Civ. P. 56(e)), cert. denied, 541 U.S. 1042 (2004);
see also Celotex Corp., 477 U.S. at 322–24. Accordingly, “the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment.” Anderson, 477 U.S. at 248. In other words, “[f]actual disputes that are
irrelevant . . . will not be counted.” Id.
In resolving a motion for summary judgment, a district court must view all of the facts,
including reasonable inferences to be drawn from them, in the light most favorable to the
nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Greater Baltimore Ctr. For Pregnancy Concerns, Inc. v. Mayor and City Council of
Balt., 721 F.3d 264, 283 (4th Cir. 2013); FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013).
Moreover, in resolving a summary judgment motion, the district court’s “function” is not “to
weigh the evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Id. at 249.
Fed R. Civ. P. 56 “is a mechanism to obviate trial . . . .” Boyer-Liberto v. Fontainbleau
Corp., ____ F.3d ____, No. 13-1473, slip op. at 9 (4th Cir. May 13, 2014). As the Fourth Circuit
recently observed, “‘the very mission of the summary judgment procedure is to pierce the
pleadings and to assess the proof in order to see whether there is a genuine issue for trial.’”
Boyer-Liberto, slip op. at 8-9 (quoting Advisory Committee’s notes to Fed. R. Civ. P. 56)
(emphasis in Boyer-Liberto). In supporting or opposing summary judgment, a party must rely on
facts that would be admissible at trial. Id. at 9. If “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party,” then a dispute of material fact precludes
summary judgment. Anderson, 477 U.S. at 248. But, “the mere existence of a scintilla of
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evidence in support of the plaintiff’s position will be insufficient; there must be evidence on
which the jury could reasonably find for the plaintiff.” Id. at 252. And, a court must award
summary judgment if the evidence “is so one-sided that one party must prevail as a matter of
law.” Id. Of import here, the court should “prevent factually unsupported claims and defenses
from proceeding to trial.” Bouchat, 346 F.3d at 526 (citation and internal quotation marks
Kearns alleges three types of employment discrimination.
First, he alleges that his
employer retaliated against him for his refusal to join in the workplace discrimination and
retaliation against a co-worker, and for opposing it, in violation of Title VII. Second, he alleges
that, in violation of Title VII, he was subjected to a hostile work environment, also in retaliation
for opposing and complaining about workplace discrimination. Third, he alleges that he was
subjected to a hostile work environment because of his age, in violation of the ADEA.
Defendant disputes Kearns’s allegations on numerous grounds.
1. Title VII Framework
Title VII prohibits an employer from, inter alia, taking an “adverse employment action”
against “any individual with respect to his compensation terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e–2(a)(1); see Freeman v. Dal-Tile Corp., No. 13-1481, slip op. at 13 (4th Cir.
May 1, 2014). The Supreme Court has referred to discrimination based on one of these five
characteristics as “status-based discrimination.” Univ. of Texas Sw. Med. Ctr. v. Nassar, ___U.S.
___, 133 S. Ct. 2517, 2525 (2013).
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Title VII also contains an antiretaliation provision that “prohibits an employer from
retaliating against an employee who exercises his Title VII rights.” Thorn v. Sebelius, 766 F.
Supp. 2d 585, 600 (D. Md. 2011), aff’d, 465 Fed. App’x 274 (4th Cir. 2012); see generally
Nassar, 133 S. Ct. at 2525–27; Okoli v. City of Baltimore, 648 F.3d 216, 223 (4th Cir. 2011).
The purpose of Title VII’s antiretaliation provision is to “[m]aintain unfettered access to
statutory remedial mechanisms” for employees who fear reprisal. Robinson v. Shell Oil Co., 519
U.S. 337, 346 (1997). Thus, an employer violates Title VII by taking an adverse employment
action against an employee because that employee exercised his rights under Title VII.
In addition to prohibiting discrete acts of discrimination, Title VII prohibits “the creation
or perpetuation of a discriminatory work environment.” Vance v. Ball State Univ., ___ U.S. ___,
133 S. Ct. 2434, 2440 (2013). An actionable hostile work environment exists when “‘the
workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.’” Boyer-Liberto, supra, slip op. at 11–12 (quoting Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993)).
When a plaintiff claims that he has been subjected to discrimination or retaliation, there
are “two avenues” at trial by which he may prove that an adverse employment action amounts to
intentional employment discrimination. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d
277, 284 (4th Cir. 2004) (en banc). The first is to offer “‘direct or indirect’” evidence of
discrimination, under “‘ordinary principles of proof.’” Burns v. AAF–McQuay, Inc., 96 F.3d
728, 731 (4th Cir. 1996) (citation omitted). “To avoid summary judgment” when proceeding
under ordinary principles of proof, “‘the plaintiff must produce direct evidence of a stated
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purpose to discriminate and/or [indirect] evidence of sufficient probative force to reflect a
genuine issue of material fact.’” Rhoads v. FDIC, 257 F.3d 373, 391 (4th Cir. 2001) (internal
citations and quotation marks omitted; alteration in original).
The second avenue available to the plaintiff is to follow the burden-shifting approach
articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The McDonnell Douglas scheme is “a procedural device, designed only to establish an order of
proof and production.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 521 (1993) (emphasis
omitted). Under the McDonnell Douglas approach, the “ultimate burden of persuasion [at trial]
never ‘shifts’ from the plaintiff” to prove intentional unlawful discrimination.
Cerberonics, Inc., 871 F.2d 452, 456 n. 2 (4th Cir. 1989) (citation omitted).
Under the McDonnell Douglas proof scheme, the plaintiff at trial must first establish, by
a preponderance of the evidence, a “prima facie case of discrimination.”
Merritt v. Old
Dominion Freight Line, Inc., 601 F.3d 289, 294 (4th Cir. 2010); see Laing v. Fed. Exp. Corp.,
703 F.3d 713, 719 (4th Cir. 2013). Although the precise formulation of the required prima facie
showing will vary in “different factual situations,” McDonnell Douglas, 411 U.S. at 802 n. 13,
the plaintiff is generally required to show that the employer took adverse action against an
employee who was qualified for employment, “under circumstances which give rise to an
inference of unlawful discrimination.” Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248,
If the plaintiff establishes a prima facie case, “a presumption of illegal discrimination
arises, and the burden of production shifts to the employer” to produce evidence of a legitimate,
non-discriminatory reason for its adverse employment action. Hoyle v. Freightliner, LLC, 650
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F.3d 321, 336 (4th Cir. 2011); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142
(2000). “If the defendant carries this burden of production, the presumption raised by the prima
facie case is rebutted.” Burdine, 450 U.S. at 255. In that circumstance, “the McDonnell Douglas
framework—with its presumptions and burdens—is no longer relevant” and “simply drops out of
the picture.” St. Mary’s Honor Ctr., 509 U.S. at 510–11. Stated another way, if the employer
produces evidence that could persuade a fact finder that it had a legitimate, non-discriminatory
reason for its actions, “the defendant has done everything that would be required of [it] if the
plaintiff had properly made out a prima facie case,” and therefore, “whether the plaintiff really
did so is no longer relevant.” U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983).
When the defendant meets his or its burden of production, the plaintiff must then prove,
by a preponderance of evidence, “that the proffered reason was not the true reason for the
employment decision,” and that the plaintiff “has been the victim of intentional discrimination.”
Burdine, 450 U.S. at 256; see also Reeves, 530 U.S. at 143; St. Mary’s Honor Ctr., 509 U.S. at
516–20; Adams v. Trustees of Univ. of North Carolina–Wilmington, 640 F.3d 550, 560 (4th Cir.
2011) (“[I]n demonstrating the Defendants’ decision was pretext, [Plaintiff] had to prove ‘both
that the reason was false, and that discrimination was the real reason.’”) (quoting Jiminez v.
Mary Washington Coll., 57 F.3d 369, 378 (4th Cir. 1995)) (emphasis in original).
The relevance of the McDonnell Douglas scheme outside of the trial context is limited,
however. The Fourth Circuit has admonished district courts at the summary judgment stage to
“‘resist the temptation to become so entwined in the intricacies of the [McDonnell Douglas]
proof scheme that they forget that the scheme exists solely to facilitate determination of the
ultimate question of discrimination vel non.’” Merritt, 601 F.3d at 295 (quoting Proud v. Stone,
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945 F.2d 796, 798 (4th Cir. 1991)) (alterations in Merritt; internal quotation marks omitted).
Further, the Fourth Circuit has observed that, “[n]otwithstanding the intricacies of proof
schemes, the core of every [discrimination] case remains the same, necessitating resolution of
‘the ultimate question of discrimination vel non.’”
Id. at 294–95 (citation omitted).
Nevertheless, the Fourth Circuit has referred to the McDonnell Douglas proof scheme in
analyzing the propriety of an award of summary judgment. See, e.g., Warch v. Ohio Casualty
Insurance Co., 435 F.3d 510 (4th Cir. 2006).
Section 2000e-3(a) of 42 U.S.C. provides: “It shall be an unlawful employment practice
for an employer to discriminate against any of his employees . . . because he has opposed any
practice made an unlawful employment practice by this subchapter, or because he has made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this subchapter.” The elements of a prima facie claim of retaliation are: “(1)
engagement in a protected activity; (2) adverse employment action; and (3) a causal link between
the protected activity and the employment action.” Coleman v. Md. Ct. of Appeals, 626 F.3d
187, 190 (4th Cir. 2010); see also Boyer-Liberto, supra, slip op. at 18; Okoli, supra, 648 F.3d at
223; Price v. Thompson, 380 F.3d 209, 212 (4th Cir. 2004).
With regard to the first element of the prima facie claim for retaliation, “[a] protected
activity is one in which the employee opposes an employment practice on the ground that it
violates Title VII.” Johnson v. Giant Food, Inc., No. Civ. JFM–00–3465, 2000 WL 1831962, *6
(D. Md. Nov. 27, 2000); see also Simmons v. Shalala, 946 F. Supp. 415, 420 (D. Md. 1996). As
the Fourth Circuit has explained, “in the context of a retaliation claim, a ‘protected activity’ may
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fall into two categories, opposition and participation.” EEOC v. Navy Federal Credit Union, 424
F.3d 397, 406 (4th Cir. 2005), cert. denied, 547 U.S. 1041 (2006). “An employer may not
retaliate against an employee for participating in an ongoing investigation or proceeding under
Title VII, nor may the employer take adverse employment action against an employee for
opposing discriminatory practices in the workplace.” Laughlin v. Metropolitan Washington
Airports Authority, 149 F.3d 253, 259 (4th Cir. 1998). Protected oppositional activity “may
include ‘staging informal protests and voicing one’s own opinions in order to bring attention to
an employer’s discriminatory activities,’ as well as ‘complain[ts] . . . about suspected
violations’” of Title VII. Id. (citations omitted). And, the Fourth Circuit has held that the filing
of an EEOC complaint generally constitutes protected activity. See, e.g., King v. Rumsfeld, 328
F.3d 145, 151 (4th Cir. 2003), cert. denied, 540 U.S. 1073 (2003); see also Carter v. Ball, 33
F.3d 450, 460 (4th Cir. 1994).
Critically, however, “opposition activity is protected [only] when it responds to an
employment practice that the employee reasonably believes is unlawful.” Jordan v. Alternative
Resources Corp., 458 F.3d 332, 338 (4th Cir. 2006) (emphasis in original); see Boyer-Liberto v.
Fontainbleau Corp., ____ F.3d ____, No. 13-1473, slip op. at 11–12 (4th Cir. May 13, 2014). In
other words, a plaintiff’s complaint to Human Resources or to the EEOC will not qualify as a
“protected activity” unless the plaintiff had an objectively reasonable belief that the challenged
employment action violated Title VII.
In Boyer-Liberto, for example, the plaintiff claimed she was fired in retaliation for
complaining to HR about her supervisor using a racial epithet on two occasions. The Fourth
Circuit held that the plaintiff’s HR complaint did not constitute protected activity because
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plaintiff did not have an “objectively reasonable belief” that the supervisor’s sporadic use of
racial epithets violated Title VII. See Boyer-Liberto, slip op. at 20. The court said, id.: “In short,
we conclude that [plaintiff] could not have had an objectively reasonable belief that, in
complaining to management about the two related conversations, she was complaining about
conduct that was unlawful . . . under Title VII.”
Similarly, in Jordan, 458 F.3d at 337, the plaintiff complained to his supervisors about an
offensive statement made by a co-worker. After the plaintiff was fired, he filed suit under Title
VII, alleging that he was discharged in retaliation for complaining about the co-worker’s
statement. Id. In rejecting the plaintiff’s claim, the Fourth Circuit first noted that “the only
conceivable unlawful employment practice that Jordan could have been opposing [by
complaining to his supervisors] was a hostile work environment.” Id. at 339. According to the
court, however, “no objectively reasonable person could have believed that [the] office was in
the grips of a hostile work environment or that one was taking shape.” Id. at 341. Accordingly,
the plaintiff’s complaint to his supervisors did not constitute protected opposition activity.
The second element of the prima facie case for retaliation is an “adverse employment
action.” In the context of a status-based discrimination claim, the Fourth Circuit has explained:
“An adverse employment action is a discriminatory act that adversely affects the terms,
conditions, or benefits of a plaintiff’s employment.” Holland v. Washington Homes, Inc., 487
F.3d 208, 219 (4th Cir. 2007) (internal quotation marks, citation, and alterations omitted). The
Court has described an “adverse employment action” as one that “‘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
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benefits.’” Hoyle, 650 F.3d at 337 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761
In a retaliation claim, however, the standard for an adverse employment action is more
lenient than for a status-based discrimination claim. Burlington Northern & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 64 (2006) (“[T]he antiretaliation provision, unlike the substantive provision,
is not limited to discriminatory actions that affect the terms and conditions of employment.”).
Nevertheless, Title VII’s “antiretaliation provision protects an individual not from all retaliation,
but from retaliation that produces an injury or harm.” Id. at 67. Even under the “lower bar”
applicable to Title VII retaliation claims, a plaintiff must show that a reasonable employee would
have found the challenged employment action “materially adverse,” which “means it well might
have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id.
at 68 (internal quotation marks omitted).
The action must be materially adverse because “it is important to separate significant
from trivial harms.” Id.; see Csicsmann v. Sallada, 211 F. App’x 163, 168 (4th Cir. 2006)
(“[T]his is still a heavy burden for the plaintiff: the alleged adverse action must be material.”
(emphasis in original)). And, the materiality requirement reflects the fact that Title VII “does not
set forth a general civility code for the American workplace” or protect against “petty slights,
minor annoyances, and simple lack of good manners.” Burlington Northern, 548 U.S. at 68
(internal quotation marks omitted); see Thorn v. Sebelius, supra, 766 F. Supp. 2d at 600.
As Judge Paul Grimm of this Court recently noted, “none of the following constitutes an
adverse employment action in a retaliation claim: failing to issue a performance appraisal;
moving an employee to an inferior office or eliminating the employee’s work station;
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considering the employee ‘AWOL’; or issuing a personal improvement plan, ‘an “Attendance
Warning,” ‘a verbal reprimand, ‘a formal letter of reprimand,’ or ‘a proposed termination.’”
Wonasue v. University of Maryland Alumni Ass’n, ___ F. Supp. 2d ___, 2013 WL 6158375, at
*10 (D. Md. Nov. 22, 2013) (quoting Rock v. McHugh, 819 F. Supp. 2d 456, 470–71 (D. Md.
2011)); see Tawwaab v. Virginia Linen Serv., Inc., 729 F. Supp. 2d 757, 784 (D. Md. 2010)
(“While an alleged adverse employment action need not be so severe and pervasive that it alters
the terms or conditions of employment, it nonetheless must be materially adverse.”).
The third element of the prima facie case, that the protected activity was causally
connected to the employer’s adverse action, requires a plaintiff to “establish that his or her
protected activity was a but-for cause of the alleged adverse action by the employer.” Nassar,
133 S. Ct. 2517 at 2534. Mere temporal proximity is not necessarily enough to create a jury
issue as to causation. “‘Where timing is the only basis for a claim of retaliation, and gradual
adverse job actions began well before the plaintiff had ever engaged in any protected activity, an
inference of retaliation does not arise.’” Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299,
309 (4th Cir. 2006) (quoting Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir.
2001)) (affirming summary judgment where the “actions that led to [plaintiff’s] probation and
termination began before her protected activity, belying the conclusion that a reasonable
factfinder might find that [defendant’s] activity was motivated by [plaintiff’s] complaints”).
In this case, Kearns alleges that he was retaliated against for engaging in two allegedly
protected activities. Specifically, he claims that he 1) refused “to join Mr. Press in his unlawful
gender discrimination and retaliation” against Simpkins; and 2) filed a charge of discrimination
with the EEOC on May 3, 2010. Opp. at 11–12. Kearns further alleges that, in retaliation for
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those activities, Press took adverse employment actions against him. Kearns’s retaliation claim
fails because, inter alia, he cannot satisfy the first two of the elements of the prima facie case. In
other words, Kearns did not engage in a protected activity and Kearns did not suffer an adverse
First, Kearns did not engage in a protected activity. The first protected activity in which
Kearns claims he engaged was “his refusal to join Mr. Press in his unlawful gender
discrimination and retaliation” against Simpkins. Opp. at 11–12. In particular, Kearns claims
that “Mr. Press sought the assistance of Plaintiff in retaliating against Ms. Simpkins on or about
April 21, 2010.” Id. at 12. The incident to which Kearns refers occurred when Press emailed
Kearns, writing, Ex. 22 to Kearns Dep.:
I am writing to confirm our conversation from Friday, April 23, 2010
concerning the Server Security Log Monitoring effort. Have I held discussions
with you and Jeanette [Simpkins] about the execution of the Server Security log
monitoring? Have I discussed with you and Jeanette there may be a change in the
direction of Server Security Log monitoring? Finally, have these discussions
occurred on more than one occasion?
Kearns responded by writing, id.: “You and I have discussed the execution and direction
of server log monitoring on at least one occasion. I cannot speak for Jeanette and do not feel
comfortable commenting about her role on things.” According to Kearns, this email response
constituted protected activity under Title VII.
However, Kearns’s email response was not “protected activity” as that term is used in
Title VII. It is true that opposing unlawful discrimination against a co-worker can be a protected
activity under Title VII. See Laughlin, 149 F.2d at 259. But, as the Fourth Circuit explained in
Boyer-Liberto and Jordan, such opposition only qualifies as protected activity if the plaintiff had
an “objectively reasonable” belief that he was opposing conduct that violated Title VII. See
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Boyer-Liberto, slip op. at 20; Jordan, 458 F.3d at 338. Here, it was not objectively reasonable
for Kearns to believe that, by responding to Press’s email, he “was complaining about conduct
that was unlawful . . . under Title VII.” Boyer-Liberto, slip op. at 20. The conduct Kearns
ostensibly opposed was an innocuous email from Press requesting confirmation that a
conversation had taken place. Nothing about Press’s email comes close to violating Title VII.
Thus, Kearns could not have had an objectively reasonable belief that Press’s email violated
Title VII. As a result, Kearns’s email response to Press was not protected opposition activity.
The second opposition activity in which Kearns claims he engaged was filing his Charge
with the EEOC. To be sure, the filing of an EEOC complaint generally constitutes protected
activity. See, e.g., King, supra, 328 F.3d at 151. However, the Charge here does not qualify as
protected activity because Kearns did not have an objectively reasonable belief that the conduct
about which he complained in the Charge violated Title VII. See Boyer-Liberto, slip op. at 20.
The Charge, which was filed on May 3, 2010, made two substantive allegations of illegal
discrimination, neither of which was objectively reasonable. First, it alleged that Press had
retaliated against Kearns because of Kearns’s above-described email, in which Kearns declined
to confirm that Simpkins had been present for a conversation about the future of the server log
monitoring team. As I have already discussed, it was not objectively reasonable for Kearns to
believe that Press’s email violated Title VII. Therefore, it was not objectively reasonable for
Kearns to believe that his email in response was protected activity.
The Charge further alleged that Press and another employee, Verina Davis-Terry,
discriminated against Kearns because of his age. In the Charge, Kearns wrote: “I have been
asked by Mr. [P]ress on October 15, 2009 and by his day Team Lead [sic] who reports to him
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(Ms. Verina Davis-Terry) in January 2010 about my plans to retire.” Kearns’s contention in the
Charge that these two questions violated Title VII’s prohibition on workplace discrimination is
entirely frivolous. As in Jordan, “the only conceivable unlawful employment practice that
[Kearns] could have been opposing” by mentioning the age-related comments in his Charge was
a hostile work environment.
Jordan, 458 F.3d at 339.
However, as I will discuss more
thoroughly in the context of Kearns’s hostile work environment claim, these two innocuous
questions do not come close to establishing a hostile work environment based on Kearns’s age.
If Kearns believed that the two questions violated Title VII, his belief was not objectively
reasonable. Thus, the Charge does not qualify as protected activity because Kearns did not have
an “objectively reasonable belief” that the comments about which he complained violated Title
VII. Therefore, his claim that he was retaliated against for engaging in protected activity cannot
survive summary judgment.
Even assuming, arguendo, that Kearns had engaged in protected activity, his claims
would still fail because he has not identified any materially adverse employment action taken
Kearns alleges that “Press commenced a series of conduct and actions calculated to
punish Plaintiff for refusing to join in the retaliation against Ms. Simpkins and [pursuing] his
EEOC claim filed on May 3, 2010.” Opp. at 12. In particular, Kearns claims that the following
actions were “materially adverse”: (1) “Press threatened Plaintiff that he would be placed on a
[PIP]”; (2) Press “made disparaging comments about Plaintiff for ‘siding with’ Jeanette
Simpkins and also criticized Plaintiff’s work”; (3) Press expressed displeasure with Kearns’s
practice of recording Press’s comments in a notebook; (4) Press “accused Plaintiff of [s]leeping,
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taking extended breaks, disorderly desk area, which were not documented in any form”; (5) Press
told Kearns that Press planned to “disband the Server Log Monitoring team” and move Kearns to
a different shift; and (6) Press initially denied Kearns’s request to attend the Learning Tree
course. See Opp. at 12–15. However, none of the acts identified by Kearns are “materially
adverse” as that term is used in the context of a Title VII retaliation claim.
As noted, placing an employee on a PIP is not materially adverse. Wonasue, 2013 WL
6158375, at *10. It follows that a mere threat to do so is not adverse, either. Likewise, making
disparaging comments or expressing displeasure about an employee’s performance are not
materially adverse. See Burlington Northern, 548 U.S. at 68 (occasional “abusive language” is
insufficient to show retaliation); Cepada v. Bd. of Educ. of Balt. Cnty., 814 F. Supp. 2d 500, 515
(D. Md. 2011) (“[Plaintiff’s] allegations that he was yelled at . . . and ‘criticized’ . . . are not
materially adverse actions. Nor is [plaintiff’s] allegation that the school threatened to officially
reprimand him . . . .”); Tawwaab, 729 F. Supp. 2d at 784 (“[D]emeaning and disparaging
comments by a supervisor . . . do not constitute an adverse employment action.”).
Further, even if disbanding the Server Log Monitoring team and changing Kearns’s shift
would be materially adverse, Kearns concedes that “Press did not disband the Server Log
Monitoring Unit” or change Kearns’s shift. Opp. at 13; see Kearns Dep. at 168. Finally,
although Press initially told Kearns that he would have to use his vacation days for the Learning
Tree course, Press later apologized for the miscommunication. And, he allowed Kearns to label
the time as “training” instead of vacation. See Ex. 15 to Kearns Dep.; Kearns Dep. at 75. 7
Although I do not reach the issue, Kearns likely cannot satisfy the third element of the
prima facie case, which requires a plaintiff to “establish that his or her protected activity was a
but-for cause of the alleged adverse action by the employer.” Nassar, 133 S. Ct. 2517 at 2534.
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Press’s management style and actions may have offended, perturbed, or irked Kearns.
But, as indicated, Title VII “does not set forth a general civility code for the American
workplace.” Burlington Northern, 548 U.S. at 68. And, “an employee’s decision to report
discriminatory behavior cannot immunize that employee from those petty slights or minor
annoyances that often take place at work and that all employees experience.” Id.
In sum, Kearns has not set forth evidence from which a reasonable jury could conclude
that he has established a prima facie case for retaliation. Accordingly, I will grant summary
judgment to defendant with respect to Kearns’s retaliation claim.
3. Hostile Work Environment - Retaliation
A claim of hostile work environment is premised on the notion that “an employee’s work
environment is a term or condition of employment.” EEOC v. Central Wholesalers, Inc., 573
F.3d 167, 174 (4th Cir. 2009) (internal citations and quotation marks omitted). To set forth a
hostile work environment claim based on retaliation under Title VII, a plaintiff must show that
“‘(1) he experienced unwelcome harassment; (2) the harassment was [in retaliation for protected
conduct]; (3) the harassment was sufficiently severe or pervasive to alter the conditions of his
employment and to create an abusive atmosphere; and (4) there is some basis for imposing
liability on the employer.’” Wells v. Gates, 336 F. App’x 378, 387 (4th Cir. 2009) (quoting
Baqir v. Principi, 434 F.3d 733, 745–46 (4th Cir. 2006)) (alteration in Wells); see Pueschel v.
Peters, 577 F.3d 558, 564–65 (4th Cir. 2009); Clarke v. DynCorp Int’l LLC, 962 F. Supp. 2d
Kearns’s work performance had been criticized numerous times by previous supervisors before
any allegedly protected activity, making it unlikely that Press’s dissatisfaction with Kearns’s
work was motivated entirely by retaliatory animus.
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781, 790–91 (D. Md. 2013); see also EEOC v. Xerxes Corp., 639 F.3d 658, 668 (4th Cir. 2011);
Okoli, supra, 648 F.3d at 220.
As the Supreme Court explained in Harris, 510 U.S. at 22, a court must examine “all the
circumstances” to determine whether an employer has created an abusive working environment,
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.” See also Boyer-Liberto, slip op. at 12; Okoli, 648 F.3d
at 220. Notably, “[t]his element of a hostile work environment claim has both subjective and
objective components.” Cent. Wholesalers, 573 F.3d at 175; see Bonds v. Leavitt, 629 F.3d 369,
385 (4th Cir. 2009). A plaintiff must show that she “did perceive, and a reasonable person would
perceive, the environment to be abusive or hostile.” Cent. Wholesalers, 573 F.3d at 175. “These
standards for judging hostility are sufficiently demanding to ensure that Title VII does not
become a ‘general civility code.’ Properly applied, they will filter out complaints attacking ‘the
ordinary tribulations of the workplace, such as the sporadic use of abusive language, genderrelated jokes, and occasional teasing.’” Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998) (citations omitted).
Kearns alleges that defendant, through Press, subjected him to a hostile work
environment because Kearns opposed Press’s unlawful discrimination and retaliation against
Simpkins and because Kearns filed a charge of discrimination with the EEOC. Opp. at 11–12.
However, as discussed, Kearns has not identified any protected activity in which he engaged.
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Therefore, his claim that he was subjected to a hostile work environment in retaliation for
engaging in protected activity cannot survive summary judgment.8
4. Hostile Work Environment - ADEA
As noted, Kearns also alleges that he was subjected to a hostile work environment
because of his age, which he claims violated the ADEA. See 29 U.S.C. § 623; Opp. at 17. The
ADEA does not expressly prohibit the creation of a hostile work environment, however. Nor has
the Fourth Circuit expressly held that a claim of hostile work environment is actionable under the
ADEA. Nonetheless, the Fourth Circuit has “assumed, without deciding, that a hostile work
environment claim is generally cognizable under the ADEA for plaintiffs age forty or older.”
Baqir, 434 F.3d at 746 n.14; see Burns v. AAF-McQuay, Inc., 166 F.3d 292, 294 (4th Cir. 1999);
Causey v. Balog, 162 F.3d 795, 801 n.2 (4th Cir. 1998)); see also Wells, 336 F. App’x at 387.
And, defendant does not dispute that a cause of action exists when a plaintiff alleges that he was
Defendant also argues that the alleged harassment was not sufficiently severe or
pervasive to constitute a hostile work environment. Because I rule that Kearns has not engaged
in any protected activity, I need not address this argument.
In any event, the incidents about which plaintiff complains are not sufficiently severe or
pervasive to rise to the level of a hostile work environment. See, e.g., Combs-Burge v. Rumsfeld,
170 Fed. App’x 856, 862 (4th Cir. 2006) (“[A]ssigning individuals remedial tasks to correct their
job performance and assigning individuals to difficult jobs are not objectively abusive actions,
particularly considering that we ‘do not sit as a kind of super-personnel department weighing
the prudence of employment decisions made by [employers] charged with employment
discrimination.’”) (quoting DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998))
(alterations in original). Indeed, the incidents at issue are far from the conduct necessary to
establish actionable harassment. Compare, e.g., Collier v. Ram Partners, Inc., 159 F. Supp. 2d
889 (D. Md. 2001) (denying summary judgment for employer as to plaintiff’s claim of hostile
work environment where (1) racial epithets were used repeatedly; (2) were coupled with physical
threats; and (3) evidence supported the conclusion that racial epithets were knowingly tolerated
by management) with Hall, 2012 WL 3536755, at *11 (concluding that criticism of plaintiff’s
job performance, accusation that plaintiff intentionally broke her own laptop, and requirement
that plaintiff submit weekly faxes to report her visits and distribution of product samples to
physicians did not constitute actionable harassment).
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subjected to a hostile work environment because of his age. Accordingly, I will assume that such
a cause of action exists.
In addressing hostile environment claims under the ADEA, the Fourth Circuit has relied,
in part, on the standards for hostile work environment claims under Title VII. See, e.g., Burns,
166 F.3d at 294; see also Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834 (6th Cir. 1996)
(“Bearing the similarity of the ADEA and Title VII in mind, then, it is unsurprising that the
standards, methods, and manner of proof established in Title VII case law are persuasive
authority in cases arising under the ADEA, and that courts routinely employ Title VII and ADEA
case law interchangeably.”). Moreover, the parties rely on Title VII cases in addressing the
ADEA hostile work environment claim. See Memo at 22; Opp. at 17–20. Accordingly, I will
rely on Title VII hostile work environment jurisprudence in evaluating Kearns’s ADEA hostile
work environment claim.
In order to establish a claim for hostile environment under the ADEA, Kearns must show
(1) that he is at least 40 years old; (2) that he was harassed based on his age; (3) that the
harassment had the effect of unreasonably interfering with his work, creating an environment
that was both objectively and subjectively hostile or offensive; and (4) that he has some basis for
imputing liability to his employer. Wells, 336 F. App’x at 387; see also Baqir, 434 F.3d at 746;
Burns, 166 F.3d at 294.
With regard to the second element, an employee is harassed “based on” his age if, but for
his age, he would not have been the victim of the discrimination. See Gross v. FBL Financial
Services, Inc., 557 U.S. 167, 176 (2009) (“To establish a disparate-treatment claim under the
plain language of the ADEA, therefore, a plaintiff must prove that age was the ‘but-for’ cause of
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the employer's adverse decision.”); Smith v. First Union Nat. Bank, 202 F.3d 234, 242 (4th Cir.
2000) (Title VII case); Hoyle, 650 F.3d at 331 (Title VII case). But, “harassment due to
personality conflicts will not suffice. Some persons, for reasons wholly unrelated to [age],
manage to make themselves disliked.” Ziskie v. Mineta, 547 F.3d 220, 226 (4th Cir. 2008) (Title
VII case). Therefore, in order to survive summary judgment, there must be sufficient evidence
for a reasonable jury to conclude that the alleged harassment stemmed not from personal
animosity, workplace competition, or general boorishness, but rather from age-based animus.
The record in this case does not contain sufficient evidence from which a reasonable jury
could conclude that Kearns’s work environment was made hostile because of age discrimination.
Kearns points to only two instances in which supervisors mentioned Kearns’s age. On both
occasions, innocuous questions were posed about when Kearns planned to retire.
questions, standing alone, cannot establish that the workplace was permeated with age-based
animus. Indeed, “a company has a legitimate interest in learning its employees’ plans for the
future, and it would be absurd to deter such inquiries by treating them as evidence of unlawful
conduct.” Colosi v. Electri-Flex Co., 965 F.2d 500, 502 (7th Cir. 1992). Moreover, Kearns does
not allege that Press used any derogatory language regarding Kearns’s age or made any uncouth
comments about Kearns’s age.
In essence, all Kearns has done is assert that he is over 40 years old and that his
workplace was unpleasant, but he has done nothing to show that one matter is connected to the
other. Thus, even if Kearns’s work environment were “hostile,” any hostility cannot, on this
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record, be attributed to age-based animus.9 Accordingly, I will grant summary judgment to
defendant with regard to Kearns’s ADEA claim.
For the foregoing reasons, I will grant summary judgment to defendant. A separate Order
follows, consistent with this Memorandum.
Date: May 23, 2014
Ellen Lipton Hollander
United States District Judge
As with plaintiff’s Title VII hostile work environment claim, defendant also argues that
the alleged harassment was not sufficiently severe or pervasive to constitute a hostile work
environment. Because I rule that no reasonable jury could conclude that Kearns’s work
environment was made hostile because of age-based animus, I need not address this argument.
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