Engler et al v. Harris Corporation et al
Filing
30
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 8/28/2012. (aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SUSAN ENGLER, et al.,
:
Plaintiffs,
:
v.
:
HARRIS CORP., et al.,
:
Defendants.
Civil Action No. GLR-11-3597
:
MEMORANDUM OPINION
THIS
MATTER
is
before
the
Court
on
Defendants
Harris
Corporation (“Harris”) and Harris RF Communications Division’s
(“Harris
Dismiss
RFCD”)
(collectively
Plaintiffs
Susan
the
Engler,
“Defendants”)
Jacqueline
Motion
Hamrick,
to
and
Antoanna Romaniuk’s (collectively the “Plaintiffs”) Complaint.
(ECF No. 11).
This is a Title VII employment discrimination
case in which the Plaintiffs allege they were terminated or
forced to resign or retire as a result of Harris’ failure to end
discriminating,
harassing,
and
retaliatory
behavior
by
male
employees in its Columbia, Maryland, office.
The issues before the Court are (1) whether Plaintiffs’
sexual harassment based on hostile environment claims include
sufficiently pled facts showing that Harris’ conduct was either
(a) sex-based, or (b) severe or pervasive;1 (2) whether Mss.
Hamrick’s and Romaniuk’s Title VII gender and national origin
discrimination claims include sufficiently pled facts showing
that either suffered adverse employment action; and (3) whether
Mss.
Hamrick’s
include
and
Romaniuk’s
sufficiently
materially
adverse
pled
Title
facts
employment
VII
showing
action.
fully briefed and no hearing is necessary.
(D.Md. 2011).
retaliation
that
The
either
issues
claims
suffered
have
been
See Local Rule 105.6
For the reasons that follow, Defendants’ Motion
is granted in part and denied in part.
1
Plaintiffs’ Amended Complaint does not use the term
“hostile environment” under the “Causes of Action” section (as
it did in the original pleading), and instead appears to
substitute this with allegations concerning a “pattern and/or
practice of discrimination.”
Given Plaintiffs’ numerous
references in the Amended Complaint to a “hostile” work
environment and “hostile” working conditions, however, it is
unclear whether Plaintiffs intend to proceed with the hostile
work environment claims.
(See Am. Compl. ¶¶ 28, 46, 49, 54,
130, 132, 159, 171).
Accordingly, Defendants, out of an
abundance of caution, retained the “hostile environment” count
in their Motion to Dismiss, and the Court will, likewise,
address Plaintiffs’ hostile environment claims.
Secondly, to
the extent that Plaintiffs are attempting to assert a “pattern
or practice” theory of discrimination, the Court summarily
dismisses this claim because it is well established that “a nonclass complaint of discrimination may not rely on an alleged
‘pattern and practice’ claim.”
Pueschel v. Veneman, 185
F.Supp.2d 566, 574 (D.Md. 2002) (citing Settle v. Balt. Cnty.,
34 F.Supp.2d 969, 986 (D.Md. 1999), aff’d, 203 F.3d 822 (4th
Cir. 2000)).
2
BACKGROUND2
I.
A.
Ms. Engler
In September of 2006, Harris RFCD hired Ms. Engler as a
Contract Manager in its Columbia, Maryland, office.
Ms. Engler
complains that throughout her time at Harris, male employees
were
“hostile,
alleges
rude,
instances
meetings,
and
such
having
demeaning.”
as
Ms.
information
The
Engler
withheld
Amended
being
from
Complaint
excluded
her,
and
from
being
“chastised” and treated with “disrespect and contempt.”
Engler
also
contends
administrative
managers.”
that
assistance
she
as
“did
other
not
receive
Ms.
same
situated
similarly
the
male
Ms. Engler further asserts that male employees often
questioned her knowledge of contracts.
Additionally, Ms. Engler
maintains that Senior Programs Manager, Mark Cates, repeatedly
and unnecessarily monitored the “comings and goings” of her and
other female employees.
In August of 2008, Ms. Engler spoke with her boss, Paul
Wilson, Contracts Director-1, regarding her concerns about the
conduct
of
male
Wilson
spoke
employees
with
Dana
in
Harris’
Mehnet,
Columbia
President
of
office.
Harris
Rochester, New York, regarding Ms. Engler’s concerns.
of
2009,
Harris
launched
an
investigation
2
into
Mr.
RFCD
in
In April
the
gender
Unless otherwise noted, the following facts are taken from
the Amended Complaint and are viewed in the light most favorable
to Plaintiffs.
3
concerns
at
the
Columbia
office.
As
a
result,
Cortland
Davidson, the local Humans Relations representative, accused Ms.
Engler of “instigating charges of harassment and discrimination”
through
a
“Women
in
Business”
group
that
Ms.
Engler
had
organized in Columbia.
After being told by Mr. Wilson that “things are not going
to improve [in the Columbia office],” Ms. Engler received word
that Harris was laying off employees.
On June 25, 2009, the day
after a debriefing about the results from the investigation into
the gender concerns at the Columbia office, Ms. Engler was laid
off.3
On July 6, 2009, John White, a male Harris compliance
officer, replaced Ms. Engler.
B.
Ms. Hamrick
In January of 2007, Ms. Hamrick transferred from a Harris
office
in
Annapolis
Columbia, Maryland.
during
her
tenure
Junction,
Maryland,
to
Harris
RFCD
in
Ms. Hamrick worked as a Program Manager
at
Harris’
Columbia
office.
She
first
reported to Mr. Cates, until Mr. Cates was laid off in 2009;
then she reported to Dick Rzepkowski.
“sex
discrimination
and
harassment
Ms. Hamrick alleges that
from
her
male
colleagues”
resulted in “undesirable assignments” that were less important
than those given to male colleagues.
3
She also argues that less
Harris also laid off Mr. Cates and Bruce Florack, a Level
3 Program Manager, in June 2009.
4
qualified
male
Program
complicated projects.”
Managers
received
the
“lucrative
and
Ms. Hamrick asserts that Mr. Rzepkowski
“made it clear . . . that he would continue to assign her
insignificant programs while she worked in his group.”
Additionally,
Ms.
Hamrick
maintains
that
two
men
from
Harris’ Rochester, New York, office “subjected [her] to verbal
harassment and hostility.”
Ms. Hamrick alleges, for instance,
that Mr. Rzepkowski made comments that Hillary Clinton and a
female manager at the National Security Agency (“NSA”) got their
positions because of their husbands’ influence.
Ms. Hamrick
further asserts that “no one ever informed her of [a] rumor”
alleging that she was having an affair with Mr. Cates.
Ms.
Hamrick also contends that male managers at Harris “repeatedly
accused
female
employees
of
‘not
working
their
hours,’”
and
that, prior to his termination, Mr. Cates accused Ms. Hamrick of
not working her hours.
Ms. Hamrick claims that Mr. Cates raised
his voice and interrupted her when she tried to address comments
about her performance, but that Mr. Cates did not act this way
with male employees.
Finally, Ms. Hamrick maintains that she
complained to Harris human resources, but they “did not take any
action.”
Subsequently,
on
December
21,
2009,
Ms.
Hamrick
resigned due to “continued sex-based discrimination and [the]
hostile work environment.”
5
C.
Ms. Romaniuk
In November of 2008, Harris RFCD hired Ms. Romaniuk as an
Engineering Manager in the Columbia, Maryland, office.
Several
months after she was hired, Ms. Romaniuk was assigned as an
Engineering Manager for the “JTT” program.
that
she
hardware
did
not
problems
receive
she
the
support
found
with
Ms. Romaniuk alleges
she
the
needed
program
to
correct
and
that
“[m]anagement shifted the blame over the project from the male
employees to [her] and placed her on a Position Performance
[sic] Plan (“PIP”).”
Ms. Romaniuk also argues that “[a]s a
result of male hostility and harassment,” she was excluded from
meetings and “assigned projects already assigned to others which
were behind schedule and cost.”
Further,
Ms.
Romaniuk
contends
that
while
all
male
engineering managers were directed to report to Mark Turner,
Director
of
“forced
[by
Engineering
the
CSP
Software
management]
Manager,”
to
despite
Department,
remain
under
Ms.
Romaniuk
Ms.
Len
Romaniuk
was
Lally,
Senior
repeatedly
asking
management to transfer her from Mr. Lally’s supervision.
Ms.
Romaniuk asserts that “[d]espite [her] repeated objections, Mr.
Lally entered [her] office every day after hours (6:00 PM) and
closed the door so they could have a ‘private’ conversation.”
Ms. Romaniuk maintains that having the door closed made her feel
“extremely uncomfortable and threatened.”
6
Additionally,
“condescending”
Ms.
and
Romaniuk
repeatedly
accent was a problem.
alleges
commented
that
Mr.
that
Lally
her
was
Bulgarian
Ms. Romaniuk argues, for example, that
Mr. Lally told her he “could not understand her” and that “she
was the worst person with a foreign accent that he ever had to
deal with.”
Ms. Romaniuk contends that Mr. Lally viewed her
accent as the reason for her “poor communication skills.”
Ms.
Romaniuk
representative
complained
about
“Mr.
to
a
Lally’s
company
hostile
human
relations
treatment
of
her.”
After six months of complaining to human resources, Ms. Romaniuk
was allowed to attend the meetings from which she had previously
been excluded.
to
male
colleagues,
on
her
Ms. Romaniuk was placed on a PIP in March 2009.
reports.
Romaniuk
Additionally, Ms. Romaniuk argues that, compared
Ms.
contends,
she
received
however,
that
harsher
her
criticism
performance
was
“equal
and/or superior to similarly situated male colleagues.”
After
Harris conducted its investigation into gender issues at the
Columbia
office,
Harris
management
“removed
the
PIP
and
all
other adverse reports in Ms. Romaniuk’s file” and placed Ms.
Romaniuk
under
the
supervision
of
Dan
Pierce,
Director
of
Engineering.
By November 2009, Ms. Romaniuk was placed back on a PIP,
which contained the same performance allegations as the March
2009
PIP.
Ms.
Romaniuk
alleges,
7
however,
that
Mr.
Pierce
“dredged up” the adverse reports which had been removed after
the investigation.
November
2009
superior
to
Ms. Romaniuk claims that at the time of the
PIP,
her
her
performance
similarly
situated
was
again
male
.
.
“equal
.
and/or
colleagues.”
Subsequently, on December 14, 2009, Ms. Romaniuk resigned due to
her
inability
to
tolerate
the
alleged
discrimination
and
harassment.
II.
A.
DISCUSSION
Standard of Review
A Federal Rule of Civil Procedure 12(b)(6) motion should be
granted
unless
an
adequately
stated
claim
is
“supported
by
showing any set of facts consistent with the allegations in the
complaint.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561
(2007) (internal citations omitted); see Fed.R.Civ.P. 12(b)(6).
“A pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Twombly, 550 U.S.
at 555.
“naked
A complaint is also insufficient if it relies upon
assertions
devoid
of
further
factual
enhancement.”
Iqbal, 556 U.S. at 678 (internal citations omitted).
In order to survive a Rule 12(b)(6) motion to dismiss, a
complaint must set forth “a claim for relief that is plausible
on
its
face.”
Id.;
Twombly,
550
U.S.
at
570.
A
claim
is
facially plausible “when the plaintiff pleads factual content
8
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556
U.S. at 678; Twombly, 555 U.S. at 556.
In
considering
construe
the
a
Rule
complaint
12(b)(6)
in
the
light
motion,
most
the
Court
favorable
must
to
the
plaintiff, read the complaint as a whole, and take the facts
asserted therein as true.
Mylan Labs., Inc. v. Matkari, 7 F.3d
1130, 1134 (4th Cir. 1993).
court
may
also
examine
In addition to the complaint, the
“documents
incorporated
into
the
complaint by reference, and matters of which a court may take
judicial notice.”
Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007).
“Conclusory allegations regarding the
legal effect of the facts alleged” need not be accepted.
v. Havel, 43 F.3d 918, 921 (4th Cir. 1995).
purpose
of
the
complaint
is
to
provide
Labram
Because the central
the
defendant
“fair
notice of what the plaintiff’s claim is and the grounds upon
which
it
supported
rests,”
by
some
the
plaintiff’s
factual
legal
basis
allegations
sufficient
defendant to prepare a fair response.
to
must
allow
be
the
Twombly, 550 U.S. at 556
n.3.
While a plaintiff asserting a discrimination claim is not
required
to
plead
a
heightened
level
of
factual
support,
“[f]actual allegations must be enough to raise a right to relief
above the speculative level” in order to survive a motion to
9
dismiss.
Id.
at
alleged
facts,
555.
Dismissal
taken
discrimination claim.
as
is
true,
appropriate
cannot
where
the
substantiate
a
Myers v. Md. Auto. Ins. Fund, No. CCB-09-
3391, 2010 WL 3120070, at *3 (D.Md. Aug. 9, 2010).
B.
Analysis4
1.
Mss. Engler’s, Hamrick’s, and Romaniuk’s SexualHarassment Based on a Hostile Environment Claims
The
Court
Plaintiffs’
grants
sexual
Harris’
harassment
Motion
based
to
on
Dismiss
all
hostile
three
environment
claims because Plaintiffs fail to allege that (1) the harassment
was
based
on
their
gender,
and
(2)
the
harassment
was
sufficiently severe or pervasive so as to alter the conditions
of their employment and create an abusive work environment.
Title VII states that “[i]t shall be an unlawful employment
practice
for
individual
an
employer
with
.
respect
.
.
to
to
discriminate
[her]
against
compensation,
any
terms,
conditions, or privileges of employment, because of . . . sex.”
42
U.S.C.A.
harassment
§
2000e-2
claim
based
(West
on
2012).
a
4
To
hostile
establish
work
a
sexual
environment,
a
Plaintiffs’ Complaint appears to assert thirteen causes of
action. Harris moved to dismiss eleven of the thirteen causes of
action. Plaintiffs subsequently withdrew their three age
discrimination claims, leaving the following eight causes of
action for the court to consider on this Motion to Dismiss: (1)
three claims for hostile environment sexual harassment under
Title VII of the Civil Rights Act; (2) one claim for national
origin discrimination under Title VII; (3) two claims for
sex/gender discrimination under Title VII; and (4) two claims
for unlawful retaliation under Title VII.
10
plaintiff
must
show
that
(1)
she
experienced
unwelcome
harassment; (2) the harassment was based on her sex; (3) the
harassment was sufficiently severe or pervasive to alter the
conditions of employment and create an abusive work environment;
and
(4)
there
employer.
is
some
basis
for
imputing
liability
to
the
Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761,
765 (4th Cir. 2003), cert. denied, 540 U.S. 940 (2003); Riley v.
Buckner, 1 F.App’x 130, 134 (4th Cir. 2001) (citing Spicer v.
Commonwealth of Va. Dep't of Corrections, 66 F.3d 705, 709-10
(4th Cir. 1995) (en banc).
Harris’ Motion to Dismiss challenges only the second and
third elements of Plaintiffs’ prima facie case: that the conduct
complained
of
pervasive.
(Def.’s Mot. to Dismiss at 5-7, 10-12, 16-17).
To
was
establish
not
the
sex-based
second
and
element
was
of
a
not
severe
sex-based
or
hostile
environment claim, a plaintiff must show that “but for” her
gender
she
“would
discrimination.”
not
have
been
victim
of
the
alleged
Gilliam v. S.C. Dep’t of Juvenile Justice, 474
F.3d 134, 142 (4th Cir. 2007) (internal citation omitted).
In
other words, a plaintiff needs to show that they were a target
of the conduct because of their gender.
Smith v. First Union
Nat’l Bank, 202 F.3d 234, 242-43 (4th Cir. 2000).
need
not
show
that
“sexual
advances
11
or
A plaintiff
propositions”
were
involved.
Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331
(4th Cir. 2003) (internal citation omitted).
To
establish
environment
environment
the
claim,
was
third
a
element
plaintiff
“permeated
with
of
sex-based
show
must
a
that
‘discriminatory
hostile
the
work
intimidation,
ridicule, and insult’ that is ‘sufficiently severe or pervasive
to alter the conditions of [their] employment and create an
abusive working environment.’”
510
U.S.
17,
21
(1993)
Harris v. Forklift Sys., Inc.,
(internal
citation
omitted).
The
plaintiff must show that she subjectively felt that the work
environment was hostile or abusive and that the work environment
was
objectively
hostile
Harris, 510 U.S. at 22.
work
environment,
circumstances,
or
to
a
reasonable
person.
To determine the severity of a hostile
courts
which
abusive
look
include:
at
(1)
the
totality
the
“frequency
the
of
of
the
discriminatory conduct”; (2) “its severity”; (3) “whether it is
physically
threatening
or
humiliating,
or
a
mere
offensive
utterance”; and (4) “whether it unreasonably interferes with an
employee's work performance.”
Harris, 510 U.S. at 23.
The United States Court of Appeals for the Fourth Circuit
sets a “high bar” that must be cleared in order to establish the
severe
and
pervasive
element.
E.E.O.C.
Inc., 521 F.3d 306, 315 (4th Cir. 2008).
v.
Sunbelt
Rentals,
Intermittent acts of
harassment are insufficient to establish that a hostile work
12
environment is severe or pervasive.
Greene v. A. Duie Pyle,
Inc., 371 F.Supp.2d 759, 762-63 (D.Md. 2005) (citing Faragher v.
City of Boca Raton, 524 U.S. 775 (1998)).
does
not
mandate
civility
in
the
Indeed, Title VII
workplace.
Id. Further,
a
supervisor’s strict management style or degree of supervision is
not evidence of actionable harassment.
Thorn v. Sebelius, 766
F.Supp.2d 585, 601 (D.Md. 2011) aff'd, 465 F.App'x 274 (4th Cir.
2012) (citing Webster v. Johnson, 126 F.App’x 583, 588 (4th Cir.
2005)
(noting
actionable
that
stern
harassment)).
considered
hostile
intimidate,
ridicule,
women.”
supervision
However,
if
it
and
is
a
does
work
evidence
environment
“consumed
maliciously
not
by
demean
can
remarks
the
be
that
status
of
First Union Nat’l Bank, 202 F.3d at 242.
Here, the Court finds that Plaintiffs’ sexual harassment
based
on
hostile
work
environment
claims
fail
to
meet
the
pleading requirements for the second and third elements of the
prima
facie
conclusory
test.
First,
recitations
of
all
general
three
Plaintiffs
statements
rely
regarding
on
the
nature of the environment, but fail to point to any specific
factual allegations that the harassment was based on their sex.
The Amended Complaint provides no factual allegations that lead
to a reasonable inference that any conduct occurred because of
sex.
To
conclusory
be
sure,
the
allegations
Amended
that
male
13
Complaint
employees
is
at
replete
with
Harris
were
hostile,
rude,
demeaning,
disrespectful, given
more
important
projects on which to work, and treated preferentially.
The
Amended Complaint does not, however, provide specific instances
of
harassment
that
lead
to
a
reasonable
inference
that
the
conduct of male supervisors and employees was based on sex.
Showing that a work environment is unfriendly is simply not
enough
to
state
a
claim.
Under
the
pleading
standard
established in Iqbal and Twombly, the pleadings, on their face,
must be plausible, not merely possible.
was
sex-motivated
is
unclear.
The
Here, that the conduct
Court
also
finds
the
allegations implausible because they do not logically exclude
other non-sex related reasons for the allegations.
the
different
treatment
of
the
three
Plaintiffs
occurred because of personality differences.
are
no
concrete
stating
that
facts
the
on
the
alleged
face
of
harassment
For example,
the
could
have
Moreover, there
Amended
occurred
Complaint
because
the
Plaintiffs were women.
None
of
the
Plaintiffs
have
pled
one
example
of
male
supervisors or employees stating a specific remark to them that
is demeaning to women.
Similarly, none of the Plaintiffs have
pled one example of the male supervisors or employees being
overheard making demeaning remarks about women.5
5
the
Simply stating
The allegations in Plaintiffs’ Amended Complaint regarding
lack of a breast feeding room and Mr. Pierce’s alleged
14
that demeaning remarks were made, without identifying what the
remarks were, is not enough to allow this Court to infer that
the
remarks,
and
thus
Plaintiffs are females.
the
harassment,
occurred
because
the
Treating fellow employees rudely and
without respect, chastising fellow employees, challenging the
work
of
fellow
demonstrate
an
employees,
unhappy
work
and
being
environment.
condescending
Indeed,
have alleged working conditions that are unfair.
all
Plaintiffs
Nevertheless,
the fact that all three Plaintiffs are women and were treated
differently, and arguably unfairly, from male colleagues is an
insufficient basis to reasonably infer that the alleged conduct
occurred
because
of
gender.
Accordingly,
reading
all
allegations the light most favorable to the non-moving party,
Plaintiffs
fail
to
satisfy
the
pleading
requirement
for
the
second element of a gender-based hostile work environment claim.
Second, assuming, arguendo, that Plaintiffs’ hostile work
environment claims survived the second element of a prima facie
case, the claims nonetheless fail on the third element because
comments that he was not the “engineering manager of the
lactating facility” do not support Plaintiffs’ claim because the
statements did not target, nor were they specific to, the
Plaintiffs since none of the Plaintiffs pled that they had any
need to use a breast feeding room. Likewise, the allegations in
Plaintiffs’ Amended Complaint asserting that Mr. Rzepkowski
commented that Hillary Clinton and a female Project Manager at
the NSA got ahead because of their husbands does not support
Plaintiffs’ claims because the comments were not targeting or
specific to the Plaintiffs, nor does the Amended Complaint
allege that these comments were spoken to the Plaintiffs.
15
Harris’ conduct is not sufficiently severe and pervasive.
Amended
Complaint
subjectively
all
three
the
work
environment
facts
must
also
demonstrate,
The
would
severe
Amended
that
viewed
abusive.
be
demonstrates
and
Complaint
pervasive
vaguely
from
states
an
that
as
Plaintiffs
hostile
however,
objective
the
The
that
view.
conduct
and
it
The
repeatedly
occurred throughout the Plaintiffs’ time at Harris and fails to
provide dates, the number of instances, or why the instances
would be viewed as severe and pervasive from an objective point
of view.
These
bare
insufficient
pleading
and
pleading
leads
only
conclusory
that
to
assertions
the
the
court
conclusion
are
cannot
that
a
prototypical
accept.
The
a
and
severe
pervasive hostile work environment is possible, not plausible.
Even so, Harris’ conduct, while unwelcome and perhaps unfair,
fails to rise to the level recognized as a hostile and abusive
work environment within the meaning of the law.
This Court’s
review of cases that considered a hostile work environment claim
in both the motion to dismiss and summary judgment contexts,
confirms that Plaintiffs allegations do not present facts that
would satisfy a prima facie case.6
6
Thus, the Court finds that
See Myers v. Md Auto. Ins. Fund, No. CCB-09-3391, 2010 WL
3120070, at *6 (D.Md. Aug. 9, 2010) (finding that allegations of
employer micro-managing, harassing, and belittling employee was
unwelcome but not severe and pervasive); Cole v. Hillside Family
16
all three Plaintiffs failed to sufficiently allege severe and
pervasive
conduct,
and
therefore,
grants
Harris’
Motion
to
Dismiss all three Plaintiffs’ sexual harassment based on hostile
environment claims.
2.
Mss. Hamrick’s and Romaniuk’s Discrimination Claims on
the basis of Gender and National Origin
The Court denies Harris’ Motion to Dismiss Ms. Hamrick’s
gender discrimination claim because Ms. Hamrick’s allegations
sufficiently demonstrate that she suffered adverse employment
action.
Conversely, the Court grants Harris’ Motion to Dismiss
Ms. Romaniuk’s gender and national origin discrimination claims
because
Ms.
Romaniuk’s
allegations
do
not
sufficiently
demonstrate that she suffered an adverse employment action.
Title VII forbids an employer to “fail or refuse to hire or
to
discharge
any
individual,
or
otherwise
to
discriminate
against any individual with respect to his compensation, terms,
conditions,
or
privileges
of
employment,
because
of
such
of Agencies, Inc., No. PJM-10-3326, 2011 WL 2413928, at *7
(D.Md. June 9, 2011) (finding that being forced to work without
pay, being forced to redo assignments, being denied professional
development opportunities, unjustifiably removing job duties,
and isolating from co-workers is not sufficiently severe and
pervasive for a hostile work environment claim); Fleming v.
MaxMara USA, Inc., 371 F.App’x 115, 119 (2d Cir. 2010)(finding
that excluding employee from meetings and criticizing employee’s
work did not support hostile work environment claim); Patton v.
Indianapolis Pub. Sch. Bd., 276 F.3d 334, 339 (7th Cir. 2002)
(finding that supervisor’s “rude, abrupt, and arrogant” behavior
and “stern and severe criticism” did not support employee’s
hostile work environment claim).
17
individual's race, color, religion, sex, or national origin.”
42
U.S.C.A.
evidence
§
of
discrimination
2000e-2
(a)(1)
(West
discrimination,
claim
must
a
2012).
Absent
plaintiff’s
establish
a
prima
direct
Title
facie
case
VII
by
showing “(1) membership in a protected class; (2) satisfactory
job
performance;
(3)
adverse
employment
action;
and
(4)
different treatment from similarly situated employees outside
the protected class.”
Coleman v. Md. C.A., 626 F.3d 187, 190
(4th Cir. 2010), cert. granted, 131 S.Ct. 3059 (2011), and aff'd
sub nom. Coleman v. C.A. of Md., 132 S.Ct. 1327 (2012) (Supreme
Court
only
addressed
Eleventh
Amendment
sovereign
immunity
issue) (internal citation omitted).
Harris’ Motion to Dismiss challenges only the third element
of
Plaintiffs’
prima
facie
case,
namely
suffered no adverse employment action.
that
the
Plaintiffs
(Def.’s Mot. to Dismiss
at 12-13, 17-18).
“An adverse employment action is a discriminatory act that
‘adversely affect[s] the terms, conditions, or benefits of the
plaintiff's employment.’”
F.3d
208,
219
(4th
Cir.
Holland v. Wash. Homes, Inc., 487
2007).
Examples
of
typical
adverse
employment actions are “discharge, demotion, decrease in pay or
benefits, loss of job title or supervisory responsibility, or
reduced opportunities for promotion.”
253, 255 (4th Cir. 1999).
18
Boone v. Goldin, 178 F.3d
While
ultimate
action,
conduct
that
employment
a
must
not
rise
to
the
level
action
can
constitute
adverse
effect
tangible
employment
does
on
the
and
still
be
terms
shown.
Thorn
of
employment
conditions
v.
an
Sebelius,
of
766
F.Supp.2d 585, 598 (D.Md. 2011), aff'd, 465 F.App'x 274 (4th
Cir.
2012)
review
or
(internal
reprimand
citation
is
employment action.
if
generally
Id.
work
duties,
even
omitted).
not
A
poor
considered
performance
an
adverse
Likewise, changes in assignments or
unappealing
to
an
employee,
do
not
constitute an adverse employment action unless the change is
accompanied by a decrease in salary or work hours, or a similar
significant detrimental effect.
Thorn, 766 F.Supp.2d at 599;
Holland, 487 F.3d at 219.
Here,
Ms.
discrimination
Hamrick’s
claim
employment action.
“undesirable
show
allegations
that
she
in
her
suffered
gender
an
adverse
Ms. Hamrick’s allegation that she received
assignments
of
lower
value,
importance
and
visibility” (Am. Compl. ¶¶ 94-95, 126) does not qualify as an
adverse
employment
action
effect under the law.
that
has
a
significant
detrimental
Similarly, Ms. Hamrick’s allegation that
her male supervisor told her that he would continue to assign
her insignificant programs does not entitle her to relief.
Ms.
Hamrick’s allegation that she was “removed from the important
position of VACM P[rogram] M[anager]”, however (Am. Compl. ¶
19
125), constitutes a demotion or loss of job title.
Accordingly,
taking this allegation as true and construing it in the light
most
favorable
to
Ms.
Hamrick,
her
allegation
sufficiently
demonstrates that she suffered an adverse employment action.
As
to
Ms.
Romaniuk’s
allegations,
both
her
gender
and
national origin discrimination claims fail to sufficiently show
that she suffered adverse employment action.
Ms. Romaniuk does
not allege that she suffered a demotion or loss of job title.
Instead, Ms. Romaniuk alleges that she received unappealing work
assignments, was required to work with a certain supervisor, was
criticized for her work, and was placed on a PIP.
None of these
allegations constitute adverse employment action.
Ms. Romaniuk also alleges that she was excluded from weekly
meetings for approximately six months.
Exclusion from meetings
does not, by itself, constitute an adverse employment action, as
the issue in a discrimination claim is whether the exclusion had
a significant detrimental effect.
Aside from alleging that Ms.
Romaniuk was harassed “for not completing assignments from these
meetings”
allege
(Am.
any
Compl.
adverse
¶169),
action
the
or
Amended
significant
Complaint
does
detrimental
not
effect
resulting from Ms. Romaniuk’s inability to attend the weekly
meetings.
demonstrate
Thus, Ms. Romaniuk’s allegations fail to sufficiently
that
she
suffered
an
20
adverse
employment
action.
Accordingly,
the
Court
grants
Harris’
Motion
to
Dismiss
Ms.
Romaniuk’s gender and national origin discrimination claims.
3.
Mss. Hamrick’s and Romaniuk’s Retaliation Claims
The
Court
denies
Harris’
Motion
to
Dismiss
both
Mss.
Hamrick’s and Romaniuk’s retaliation claims because both claims
sufficiently
demonstrate
that
Mss.
Hamrick
and
Romaniuk
each
suffered a “materially adverse” employment action.
A plaintiff’s prima facie retaliation claim must show “(1)
engagement
in
a
protected
activity;
(2)
adverse
employment
action; and (3) a causal link between the protected activity and
the
employment
important
action
to
note
for
qualifies
claim.
action.”
a
as
that
Coleman,
what
retaliation
adverse
626
qualifies
claim
employment
is
F.3d
at
190.
It
is
as
adverse
employment
less
onerous
than
action
for
a
what
discrimination
See Burlington N. and Santa Fe Ry. Co. v. White, 548
U.S. 53, 67 (2006) (concluding that Title VII’s anti-retaliation
provision
is
not
coterminous
discrimination provision).
with
Title
VII’s
substantive
Protected activities include showing
opposition, or complaining, to an employer about discriminatory
practices, or participating in an employer’s informal grievance
procedure
or
in
a
Title
VII
hearing.
Kubico v. Ogden Logistics Servs., 181 F.3d 544, 551
(4th Cir. 1999).
21
investigation,
proceeding,
or
Harris’
Motion
to
Dismiss
challenges
only
the
second
element of Mss. Hamrick’s and Romaniuk’s prima facie retaliation
case, namely that the Plaintiffs suffered no adverse employment
action.
(Def.’s Mot. to Dismiss at 13-14, 17-18).
To show adverse employment action in a retaliation claim, a
plaintiff only needs to show that the action was materially
adverse,
meaning
reasonable
that
worker
discrimination.”
that
from
making
“might
or
have
supporting
dissuaded
a
charge
of
a
Burlington, 548 U.S. at 68 (internal quotation
marks and citation omitted).
specific.
action
This objective standard is context
Id. at 69; Smith v. Vilsack, 832 F.Supp.2d 573, 585
(D.Md. 2011).
“Excluding an employee from a weekly [meeting]
that contributes significantly to the employee’s professional
advancement
might
well
deter
a
complaining about discrimination.”
(internal citation omitted).
effect
of
reasonable
alleged
person
reasonable
employee
from
Burlington, 548 U.S. at 69
Courts may consider the “combined
events”
when
standard.
employing
Vilsack,
832
the
objective
F.Supp.2d
at
585
(internal citations omitted).
Here, the Court finds that, as to Plaintiffs’ retaliation
claims,
both
sufficiently
Mss.
Hamrick’s
demonstrate
that
and
each
Romaniuk’s
of
them
allegations
suffered
adverse
employment action.
First, Ms. Hamrick easily satisfies the less
onerous
standard
objective
required
22
to
demonstrate
adverse
employment action in her retaliation claim.
Hamrick
alleged
that
she
was
“removed
Specifically, Ms.
from
the
important
position of VACM P[rogram] M[anager].”
(Am. Compl. ¶ 125).
This
removal
adverse”
could
have
demonstrates
discouraged
discrimination.
a
“materially
Ms.
the
Thus,
Hamrick
Court
from
finds
action
claiming
that
Ms.
that
workplace
Hamrick’s
retaliation claim sufficiently demonstrates adverse employment
action.
Second, Ms. Romaniuk’s allegations in her retaliation claim
also
sufficiently
show
action.
An
following
combination
subjected,
that
objectively
as
of
materially
she
suffered
reasonable
events,
person
to
adverse:
adverse
which
(1)
employment
could
being
the
Romaniuk
Ms.
view
was
restricted
from
attending weekly meetings where she received assignments; (2)
having
two
former
transferred
after
male
supervisors,
completion
of
from
an
whom
she
internal
had
been
investigation
concerning gender issues, inform her new male supervisor that
she was a “troublemaker”; and (3) having old, adverse, reports
that
were
previously
removed
after
an
internal
investigation
“dredged up” again by her new supervisor.
In
sum
Ms.
Romaniuk
has
alleged
actions
that,
when
considered cumulatively, constitute material adversity under the
objective standard.
Thus, under the less onerous objective
standard employed in retaliation claims, the Court finds that
23
Ms.
Romaniuk’s
retaliation
claim
sufficiently
demonstrated
adverse employment action.
Accordingly,
the
Court
denies
Harris’
Motion
to
Dismiss
Mss. Hamrick’s and Romaniuk’s retaliation claims.
IV. CONCLUSION
For
the
foregoing
reasons,
it
is
hereby
ORDERED
that
Defendants’ Motion to Dismiss (ECF No. 11) is GRANTED IN PART
and DENIED IN PART as set forth below:
First,
hostile
Harris’
environment
Motion
and
to
Dismiss
sexual
all
harassment
three
Plaintiffs’
claims
is
GRANTED.
Secondly, Harris’ Motion to Dismiss Ms. Romaniuk’s gender and
national
origin
discrimination
claims
is
GRANTED.
Thirdly,
Harris’ Motion to Dismiss Ms. Hamrick’s gender discrimination
claim
is
Hamrick’s
DENIED.
and
Accordingly,
gender
the
Lastly,
Romaniuk’s
only
discrimination
Harris’
Motion
retaliation
surviving
claim,
claims
and
to
claims
include
all
three
Dismiss
is
Ms.
DENIED.
Hamrick’s
Plaintiffs’
retaliation claims.
Entered this 28th day of August, 2012
/s/
_____________________________
George L. Russell, III
United States District Judge
24
Mss.
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