HOUSTON v. PERKINS, et al

Filing 42

RECOMMENDED RULING - MAGISTRATE JUDGE re 33 Amended MOTION for Summary Judgment filed by PFIZER, INC., DANYALE PERKINS be granted in full, and that this action be dismissed with prejudice signed by MAG/JUDGE P. TREVOR SHARP on 2/25/10. (Wilson, JoAnne)

I N THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF NORTH CAROLINA

K E IS H A TAMARA HOUSTON, P l a i n t i f f, v. D A N Y A L E PERKINS and P F I Z E R , INC., D e f e n d a n t s.

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R E C O M M E N D A T I O N OF UNITED STATES MAGISTRATE JUDGE T h i s matter comes before the Court on the Motion for Summary Judgment of D e f e n d a n ts Danyale Perkins and Pfizer, Inc. (Docket No. 33.) Plaintiff has responded in o p p o s itio n to this motion, and Defendants filed a reply brief. (Docket Nos. 35, 39.) For the re a so n s stated herein, this Court recommends that Defendants' motion for summary judgment b e granted and that this action be dismissed. F A C T U A L AND PROCEDURAL BACKGROUND 1 P lain tiff Keisha Tamara Houston, an African-American female, worked in p h a rm a c eu tic a l sales for approximately seven years before accepting employment from D e f e n d a n t Pfizer as a sales representative in March 2006. (Docket No. 35, Pl.'s Mem. in

Where facts are disputed, the facts are viewed in the light most favorable to Plaintiff, the party responding to Defendants' summary judgment motion.

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O p p 'n to Defs.' Mot. for Summ. J., Ex. A, Affidavit of Keisha Houston ("Houston Aff."), a t 1.) She worked in the Animal Health Division of Pfizer from that time until she was laid o f f due to a corporate restructuring in January 2009. (Id. at 1, 6.) Plaintiff worked under the s u p e rv is io n of Defendant Perkins, an African-American female. (Id. at 1.) Plaintiff states th a t Defendant Perkins treated her differently than Plaintiff's white counterparts because P la in tif f is black. (Id. at 2.) In July 2006 shortly after Plaintiff was hired, she, Defendant Perkins, and Tiffany M c G e e (an African-American female employee of Pfizer), had a conversation about D e f e n d a n t Perkins' expectations for new employees. (Id.) Defendant Perkins told them that s h e expected more from Plaintiff and Ms. McGee because they were black. (Id.) Defendant P e r k in s said that she expected Plaintiff and Ms. McGee to dress in professional business a ttir e for sales meetings even though "they" will dress casually. (Id.) With regard to weekly s a le s reports, Defendant Perkins noted that their white counterparts may write one and twolin ed sentences, but she expected Plaintiff and Ms. McGee to fully expound on every th o u g h t. (Id.) Defendant Perkins said that her expectations would always be higher for P la in tif f and Ms. McGee. (Id.) When Plaintiff wrote her first weekly sales report and e m a ile d it to Defendant Perkins for approval, Defendant Perkins responded that blacks n e e d e d to go the extra mile and not take short cuts. (Id.)

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In August 2007, Plaintiff was calling on veterinary customers, and Defendant Perkins w a s riding along with her. (Id.) When the veterinarian left the office where the three were m e e tin g , Defendant Perkins told Plaintiff that she had mispronounced the word "ask," and to ld Plaintiff that she needed to learn how to speak. (Id.; Docket No. 34, Defs.' Mem. in S u p p . of Mot. for Summ. J., Ex. A, Deposition of Keisha Tamara Houston ("Houston Dep."), a t 109.) Defendant Perkins said that people would not tell Plaintiff how stupid she sounded b e c au s e they think all black people talk that way. (Houston Aff. at 3.) Defendant Perkins to ld Plaintiff that she was sending her to speaker training in Pennsylvania and that Plaintiff w a s an embarrassment to her. (Id.) A lso in August 2007, at the end of the day described above, Defendant Perkins told P la in tif f that Plaintiff was embarrassing her because Plaintiff's sales numbers were not up to par with her white counterparts for the new product, Cerenia. (Id.) Defendant Perkins told P la in tif f , "How do you think I feel when I look at your numbers and my only black employee is last?" (Id.) Perkins told Plaintiff that it was her responsibility to change the perception o f her white counterparts about black people, and she could not do that from the bottom. ( I d .) In August 2006 in Nashville, Tennessee, Defendant Perkins called Plaintiff while P la in tif f was traveling to a district sales meeting to ask if Plaintiff could arrive 15 minutes

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e a rly for the meeting and stay after everyone left. (Id.) Defendant Perkins said that blacks h a v e a tendency to be late, and she wanted Plaintiff to get off to a great start. (Id.) D u rin g the time Plaintiff worked under Defendant Perkins, Pfizer implemented a p ro g ra m which provided coupons to veterinarians and animal hospital employees when they s o ld the Pfizer heartworm product "Revolution." (Id.) The veterinary employees would mail in these coupons and receive a check from Pfizer based on the amount of product sold. (D o c k e t No. 35, Ex. F, Deposition of Daniel Scott Kramer, at 15-20.) Pfizer placed the name o f the sales representative on the check in order to generate good will. (Id. at 48.) When this p ro g ra m was ending, there was confusion which resulted in checks deposited over a threed a y period being rejected by Pfizer's bank for insufficient funds. (Docket No. 34, Ex. P, L e tter of Dan Kramer to Revolution Team, attached to Plaintiff's Deposition (Ex. A).) This re s u l t e d in the veterinary customer incurring bank penalties in addition to their checks not b e in g honored. (Id.) Pfizer implemented a plan to issue replacement checks to the affected c u s to m e rs with an added $30 to cover any bank penalties. (Id.) The plan also included P f iz e r sending the customer a separate note of apology along with a complimentary CD p la ye r. (Id.) T h e bank rejected the check of Beth Shelton, a client of Plaintiff, for insufficient f u n d s under this program, and Ms. Shelton incurred a bank penalty charge. (Docket No. 35, E x . A, Houston's Aff. at 4.) Ms. Shelton contacted Plaintiff, and Plaintiff provided her with

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a $15 "food voucher" for a meal at a local restaurant. (Id.) Defendant Perkins became aware th a t Plaintiff provided Ms. Shelton with this voucher during a ride-along on December 4-5, 2 0 0 7 . (Docket No. 34, Ex. Q, Field Trip Coaching Guide, attached to Plaintiff's Deposition (E x . A).) Defendant Perkins advised Plaintiff that it was a violation of company policy to p r o v i d e customers with gift cards or cash equivalents.2 (Id.) P la in tif f came to believe that the Revolution program constituted an ethical violation. (D o c k e t No. 35, Ex. A, Houston's Aff. at 4.) She contacted Pfizer's anonymous hotline and in q u ire d about what she believed to be a company violation associated with the Revolution p ro g ra m . (Id.) She also complained about the bounced checks. (Id.) About two days after P la in tif f complained "anonymously," Defendant Perkins "admonished" Plaintiff for violating c o m p a n y policy for providing Beth Shelton with the food voucher. (Id.) O n December 15, 2007 during a Christmas dinner, Defendant Perkins was reflecting o n her sales team's 2007 performance when she said that Stephen Adamson, a white c o u n te rp a rt of Plaintiff, had been thrown out of a veterinary hospital for misbehaving. (Id. a t 5.) Mr. Adamson then "blurted out" in front of the team, "Damn right! I cursed that m o th e r fucker out! I paid that bastard over $14,000 to prescribe my shit and he switched to

Pfizer policy prohibited Plaintiff from purchasing "gift certificates, gift cards or v o u c h e rs " and giving them to animal healthcare providers or other customers. (Docket No. 3 4 , Ex. O, attached to Plaintiff's Deposition (Ex. A).) The policy also provided that any p ro g ra m making use of gift certificates, gift cards or vouchers must be approved and m a n a g ed by "NYHQ." (Id.) -5-

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M u lti? Damn right!" (Id.) Defendant Perkins "abruptly tried to quiet [Mr. Adamson] and s a id , "`Stephen, you're not supposed to talk about that!'" (Id.) P la in tif f understood this exchange to show that Defendant Perkins had a different sta n d a rd for her as a black person as opposed to the standard for Mr. Adamson, a white p e rs o n . (Id.) Plaintiff made an anonymous complaint about the discriminatory treatment of D e f e n d a n t Perkins toward black employees on the hotline. (Id.) In February 2008, Plaintiff wrote an email to Janice Beauchamp to inform her of this d if f e re n t treatment by Defendant Perkins. Ms. Beauchamp, an African-American female, w as a Pfizer vice-president of human resources. (Id.) "Almost immediately thereafter," P la in tif f received a written warning from Defendant Perkins for giving Beth Shelton the $15 f o o d voucher. (Id.) M s . Beauchamp met with Plaintiff during the week of February 25, 2008 in San D ie g o , California, to discuss Plaintiff's complaints. (Id.) Plaintiff told her that she thought it was unfair for her to receive a written warning for providing the voucher when Mr. A d a m s o n "blatantly admitted wrong doing in paying a veterinarian over $14K to prescribe R e v o lu tio n and Perkins covered for him." (Id.) Ms. Beauchamp advised Plaintiff that she w o u ld investigate the matter but to be patient because Defendant Perkins was on medical le a v e . (Id. at 6.)

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P la in tif f states that she suffered severe emotional distress as a result of Defendant P e rk in s ' discriminatory treatment. She sought treatment in March 2008 through the Pfizer E m p lo ye e Assistance Program with Dr. Agatha Nody. (Id.) She was granted medical leave a n d sought treatment from Dr. Pamela Hartsfield. (Id.) Pfizer later demanded that Plaintiff p a y back "thousands of dollars in benefits" when it denied Plaintiff additional medical leave. (Id .) Dr. Hartsfield diagnosed Plaintiff with work related anxiety and depression. (Id.) P la in tif f also had an independent medical examination by Dr. Roger Moore who diagnosed h e r with work related anxiety and stress. (Id.) In January 2009, Plaintiff was advised that she was being laid off due to a corporate re stru c tu rin g .3 (Id.) This restructuring resulted in thirty-eight Pfizer animal health sales r e p re s e n ta tiv e positions being eliminated. (Docket No. 39, Ex. G at 2.) Six of these p o s itio n s were held by African American sales representatives and thirty-two were held by re p re s e n ta tiv e s of other races. (Id.) O n October 31, 2008, Plaintiff filed her charge of discrimination with the EEOC. (D o c k e t No. 34, Ex. S to Plaintiff's deposition (Ex. A).) She complained of race

d is c rim in a tio n and retaliation occurring through October 31, 2008. (Id.)

In her Amended Complaint, Plaintiff does not allege that her termination was discriminatory or retaliatory. -7-

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P lain tiff filed her Amended Complaint in this action on May 7, 2009 raising six c la im s . (Docket No. 19.) Count 1, directed against both Defendants, is for negligent in f lic tio n of emotional distress. Count 2 against Pfizer asserts employment fraud based on th e misrepresentations of Defendant Perkins. In Count 3, against both Defendants, Plaintiff ra is e s a claim of intentional infliction of emotional distress. Count 4 is against Defendant P f iz e r for negligent supervision and retention of Defendant Perkins and other employees who e n g a g ed in harassing and otherwise inappropriate workplace conduct. In Count 5, directed a g a in st Defendant Pfizer, Plaintiff raises claims of racial discrimination and harassment in v io la tio n of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. Finally, Count 6 , against Pfizer, is for retaliation under section 1981 and Title VII. (Id.) D ef en d an ts argue that all counts should be dismissed. (Docket No. 34.) DISCUSSION A. S u m m a r y Judgment Standard S u m m a r y judgment is appropriate only when no genuine issue of material fact exists. S h e a ly v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). A genuine issue of fact exists if the e v id e n c e presented could lead a reasonable fact-finder to return a verdict in favor of the nonm o v in g party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A court c o n s id e r in g a motion for summary judgment must view all facts and draw all reasonable in f e re n c e s from the evidence before it in a light most favorable to the non-moving party. (Id.

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a t 255.) The proponent of summary judgment "bears the initial burden of pointing to the a b se n c e of a genuine issue of material fact." Temkin v. Frederick County Comm'rs, 945 F.2d 7 1 6 , 718 (4th Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). If the m o v an t carries this burden, then the burden "shifts to the non-moving party to come forward w ith facts sufficient to create a triable issue of fact." (Id. at 718-19 (citing Anderson, 477 U .S . at 247-48).) A mere scintilla of evidence supporting the non-moving party's case is in s u f f ic ie n t to defeat a motion for summary judgment. See, e.g., Shaw v. Stroud, 13 F.3d 7 9 1 , 798 (4th Cir. 1994); see also Anderson, 477 U.S. at 248 (non-moving party may not rest u p o n mere allegations or denials.) B. N eg lig en t infliction of emotional distress ­ Count 1 D e f e n d a n ts Pfizer and Perkins argue that Plaintiff's claim of negligent infliction of e m o tio n a l distress must be dismissed because she has not shown any "negligent" acts that c o u ld form the basis for liability. (Docket No. 34 at 10-11.) To succeed on this claim, P lain tiff must show something other than discriminatory conduct because such conduct is in h e re n tly intentional. Thomas v. Northern Telecom, Inc., 157 F. Supp. 2d 627, 637 (M .D .N .C . 2000). Plaintiff argues in briefing that a jury could determine that Defendant P e rk in s "engaged in the racial conduct but not with the intention of causing emotional d istress." (Docket No. 35 at 19.) This argument misses the mark, however, as the standard is whether Defendant Perkins acted negligently and the resultant harm to Plaintiff was

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f o re s e e a b le , not whether Defendant intended the harm. Johnson v. Ruark Obstetrics and G y n e c o lo g y Assocs., P.A., 327 N.C. 283, 395 S.E.2d 85, 97 (1990). Plaintiff has not p re s e n te d evidence that Defendants Pfizer or Perkins negligently, as opposed to intentionally, e n g a g ed in the conduct outlined in the Amended Complaint. Therefore, this claim, directed a t both Defendants, should be dismissed. C. In te n tio n a l infliction of emotional distress ­ Count 3 U n d e r North Carolina law, a plaintiff alleging intentional infliction of emotional d is tre ss must prove: (1) extreme and outrageous conduct; (2) which is intended to cause and d o e s cause; (3) severe emotional distress. Hogan v. Forsyth Country Club Co., 79 N.C. App. 4 8 3 , 340 S.E.2d 116, 119 (1986). Such extreme and outrageous conduct must go "beyond a ll possible bounds of decency, and . . . be regarded as atrocious, and utterly intolerable in a civilized community." Guthrie v. Conroy, 152 N.C. App. 15, 567 S.E.2d 403, 408-09 (2 0 0 2 ). The alleged conduct of Defendant Perkins and other employees of Defendant Pfizer s im p ly does not rise to this extreme level as a matter of law. See id. at 409-10. This claim a g a in s t Defendants Pfizer and Perkins should also be dismissed. D. E m p lo y m en t fraud ­ Count 2 In order to show employment fraud, Plaintiff must establish: (1) a false representation o r concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party. Terry

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v . Terry, 302 N.C. 77, 273 S.E.2d 674, 677 (1981). Plaintiff charges that Defendant Pfizer's to p executives responsible for the implementation of the Revolution program, including Dan K ra m e r, trained her to provide monetary compensation to customers for using Pfizer products a n d then disciplined Plaintiff by written warning when she questioned the ethics of the p ro g ra m . (Docket No. 35 at 20.) Plaintiff's allegations do not match the elements of fraud. P la in tif f has not shown evidence of any false representation or concealment of a material fact b y Pfizer. There is also no evidence of an intent to deceive. Plaintiff has not presented any e v id e n c e that Pfizer falsely represented that Plaintiff's personal decision to provide a food v o u ch er to Beth Shelton was an acceptable substitute for or augmentation of the company's p la n to resolve the bounced check situations. Therefore, Plaintiff cannot complain that Pfizer a c ted "fraudulently" when it disciplined her for her unauthorized action. This claim should b e dismissed. E. N eg lig en t supervision and retention ­ Count 4 N o rth Carolina recognizes a cause of action against an employer for negligence in e m p lo yin g or retaining an employee whose wrongful conduct injures another. Hogan, 340 S .E . 2d at 123. However, before an employer can be held liable, the plaintiff must prove that th e incompetent employee "committed a tortious act resulting in injury to plaintiff" and that p rio r to the act the employer knew of the employee's incompetence. Id. at 124. Because all o f the tort claims raised by Plaintiff should be dismissed, Plaintiff has failed to show that

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D ef en d an t Perkins committed a tortious act that injured Plaintiff. Accordingly, Plaintiff's c la im of negligent supervision and retention by Pfizer should be dismissed.4 F. R eta lia tio n ­ Count 6 P la in t if f claims that "after [she] complain[ed] to Beauchamp about Perkins' d is c rim in a to ry behavior, Perkins issued the plaintiff a written warning associated with a p re v io u s verbal admonishment related to the plaintiff providing Shelton with a food v o u c h e r." (Docket No. 35 at 21.) This argument encompasses the full extent of the retaliatio n claim set out in the Amended Complaint. See Docket No. 19, ¶ VI, Count Six. In order to establish a prima facie case of retaliation by Pfizer under both section 1981 and T itle VII, Plaintiff must show that: (1) she engaged in protected EEO activity; (2) an adverse e m p lo ym e n t action was taken against her; and (3) there was a causal connection between the p ro te c te d activity and the challenged retaliatory act. Dowe v. Total Action Against Poverty, 1 4 5 F.3d 653, 656 (4th Cir. 1998); see Takele v. Mayo Clinic, 576 F.3d 834, 839 (8th Cir. 2 0 0 9 ) (same standards for section 1981 and Title VII). The issuance of a written warning h a s been found to be a sufficiently adverse employment action. See Snow v. Khazeni, No. 1 :0 8 C V 0 0 7 0 , 2009 WL 1751582, slip op. at *5 (M.D.N.C. June 19, 2009). Defendant Pfizer d o e s not dispute that Plaintiff's complaint of discrimination to the company vice president o f human resources, Janice Beauchamp, constitutes protected activity.

Plaintiff presents argument concerning a claim of negligent hiring. (Docket No. 35 at 19.) However, Plaintiff did not plead such a claim and, as noted above, Plaintiff has shown no tortious act by an employee of Pfizer. -12-

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N o n e th e le ss , Pfizer contends that Plaintiff cannot establish a prima facie case of re ta lia tio n . (Docket No. 34 at 14.) The question reduces to whether Plaintiff has presented s u f f i c ie n t evidence of a causal connection between her complaint of discrimination to Ms. B ea u ch am p and the written warning issued to Plaintiff by Defendant Perkins.5 Plaintiff's w ritte n warning is dated January 2, 2008. (Docket No. 39, Ex. D.) Plaintiff acknowledged th e warning on January 7, 2008. (Id.) The record is unclear as to the exact dates that P lain tiff called the Pfizer hotline to complain about discrimination. According to Plaintiff's a f f i d av it, she first called the hotline anonymously and complained about the Revolution p ro g ra m and bounced checks. (Docket No. 35, Ex. A at 4.) Plaintiff states that

a p p ro x im a te ly two days after "complaining anonymously" she was admonished 6 by D e f e n d a n t Perkins for providing the food voucher to Beth Shelton. (Id.) This first call to th e hotline could not be a causative factor under a claim of retaliation, however, because P l a in t if f does not say that she complained about any discriminatory acts by Defendant

There is no evidence that Ms. Beauchamp played any part in the issuance of the w ritte n warning. The evidence shows that Defendant Perkins issued the warning and that p e rh a p s her superior, regional manager Odis Pirtle, was aware of it because he attended the C h a rlo tte meeting with Plaintiff and Defendant Perkins to discuss the food voucher incident. (D o c k e t No. 34, Ex. A at 247.) Following that meeting Plaintiff contacted Mario Antonelli, P f iz e r director of human resources, to determine what the outcome of the meeting would be, b u t he apparently never got back in contact with Plaintiff. (Id. at 247-48.) This apparently refers to the oral admonishment which preceded the written w a rn in g . This oral admonishment occurred on or about December 5, 2007. (Docket No. 34, E x . A at 227-28, 232-33.) -136

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P e rk in s at that time. Further, any complaint made to the hotline was anonymous.7 There is n o evidence that Defendant Perkins became aware of this call before issuing the written w a rn in g . P la in tif f next contacted the hotline sometime after the December 15, 2007 Christmas d in n e r during which Stephen Adamson made his outburst. (Docket No. 35, Ex. A at 5.) P la in tif f then "made an anonymous complaint about the discriminatory treatment of Perkins to w a rd black employees through the hotline." (Id.) Once again, there is absolutely no e v id e n c e that Defendant Perkins became aware of this anonymous complaint before issuing th e written warning.8 P lain tiff states that she sent an email to Janice Beauchamp in February 2008 to c o m p la in about treatment by Defendant Perkins. (Id.) Ms. Beauchamp met with Plaintiff to discuss her complaints in San Diego, California, during the week of February 25, 2008 and a t another time in Greensboro, North Carolina. (Id.; Docket No. 34, Ex. A at 253; Docket

In her deposition, Janice Beauchamp stated that calls to the hotline were received b y a compliance representative who forwarded the complaint to Beauchamp by email. (D o c k e t No. 35, Ex. G at 13-14.) There is no evidence that the complaint was sent to D e f e n d a n t Perkins. In her deposition, Janice Beauchamp testified that based on an email she "knew rig h t away that the complaint was made by" Plaintiff. (Docket No. 35, Ex. G at 15.) It is not c lea r whether this was one of the emails from a compliance representative or an email d irec tly from Plaintiff. However, even if Plaintiff's "anonymous" hotline complaints were n o t in fact anonymous, there is still no evidence that Defendant Perkins became aware of the c o m p la in ts prior to issuing the written warning. -148

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N o . 35, Ex. G.) It was not until after Ms. Beauchamp had met with Plaintiff, and Plaintiff c o m p lain e d about the written warning, that Ms. Beauchamp traveled to Charlotte, North C a r o lin a , to meet with Defendant Perkins and advise her about Plaintiff's complaints. (D o c k e t No. 35, Ex. G at 18-20, 23-25.) Therefore, the evidence tends to show that D e f en d a n t Perkins first became aware of Plaintiff's complaints to the Pfizer hotline or d ire c tly to Ms. Beauchamp only after Defendant Perkins had issued the written warning. T h e re is no evidence in the summary judgment record to raise an inference that Defendant P e rk in s knew of Plaintiff's protected activities before she issued the written warning. B e c au s e Plaintiff has failed to present evidence showing a causal connection between h e r complaints about discriminatory treatment and the written warning she thereafter re c e iv e d , this claim should be dismissed. See Brower v. Runyon, 178 F.3d 1002, 1006-07 (8 th Cir. 1999) (no causal link shown where plaintiff failed to show that those responsible fo r termination knew about plaintiff's conversation with EEO officer). G. D iscrim in a tio n ­ Count 5 In Count 5 of her Amended Complaint, Plaintiff complains of "discrimination and h a ra s s m e n t" due to her race under Title VII and 42 U.S.C. § 1981. (Docket No. 19 at 9.) T h e standards under Title VII and section 1981 are the same. Gairola v. Com. of Va. Dep't o f Gen. Servs., 753 F.2d 1281, 1285-86 (4th Cir. 1985). In her memorandum opposing su m m ary judgment, Plaintiff discusses only disparate treatment and a hostile work

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e n v iro n m e n t. (Docket No. 35 at 13-16.) Therefore, this Court will examine these two types o f claims.9 1. D is p a r a te treatment

A prima facie case of disparate treatment in discipline is shown by Plaintiff presenting e v id e n c e that: (1) she was a member of a protected class; (2) the prohibited conduct of e m p lo ye e s outside the protected class was as serious as the misconduct engaged in by P la in tif f ; and (3) the employer imposed harsher disciplinary measures against her than a g a in s t employees outside the protected class. Brown v. Stafford County Pub. Schs., No. 971 5 5 2 , 1998 WL 382731, slip op. at *1 (4th Cir. June 10, 1998). The only cognizable d is c ip lin a ry measure against Plaintiff in this action is the written warning she received. She d id not allege in her Amended Complaint or in her EEOC charge of discrimination that her lay-o f f due to corporate restructuring was an example of disparate treatment. P la in tif f complains that she was given a written reprimand "for participating in the s a m e activity her white counterparts participated in." (Docket No. 35 at 15.) Nonetheless, P la in tif f has presented no evidence on whether disciplinary action was or was not taken a g a in s t Stephen Adamson for what Plaintiff perceives to be conduct comparable to her

Plaintiff also "contends that Perkins has a history, and pattern and practice of, d is c rim in a tin g against black employees who worked under her supervision." (Docket No. 3 5 at 14.) However, "pattern or practice claims can be asserted only in class actions." W illia m s v. Henderson, 129 Fed. App'x 806, 813 n.2 (4th Cir. 2005). Such evidence may b e relevant to Plaintiff's other claims of discrimination, however. -16-

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p ro v id in g Beth Shelton with a food voucher. In addition, there is no evidence showing that M r. Adamson's "payment" of $14,000 to Dr. Shuport was outside company policy or was in a n y meaningful way comparable to Plaintiff's action in providing a food voucher to Beth S h e lto n . The only evidence presented of Mr. Adamson's alleged misconduct is what he b lurted out during the Christmas dinner and Defendant Perkins' reaction at that time. In s h o rt, there is no evidence of either comparable misconduct by Mr. Adamson or more lenient d isc ip lin e to him. On this record, there is not sufficient evidence upon which a jury could f in d disparate treatment. 2. H o stile work environment

T o demonstrate a racially-hostile work environment, Plaintiff must show that she was th e subject of conduct that was: (1) unwelcome; (2) based on race; (3) sufficiently severe or p e rv a siv e to alter the conditions of employment and create an abusive atmosphere; and that (4 ) there is some basis for imposing liability on the employer. Spriggs v. Diamond Auto G la s s , 242 F.3d 179, 183-84 (4th Cir. 2001). D e f e n d a n t Pfizer argues that Plaintiff has failed to show that she was subjected to c o n d u c t that was sufficiently severe or pervasive to alter the conditions of her employment. (D o c k e t No. 34 at 19-20.) During discovery, Defendant asked Plaintiff to list the racially h a ra s s in g statements made to Plaintiff during her employment. (Docket No. 34, Ex. K a ttac h e d to Plaintiff's Deposition (Ex. A).) Plaintiff listed the two August 2007 incidents

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re co u n ted above (the "ask" incident and Perkins' statement that Plaintiff's sales numbers w e re not on par with her white counterparts), the December 15, 2007 Stephen Adamson C h ris tm a s dinner incident, and the July 2006 incident discussed above when Defendant P e rk in s explained her higher standards for Plaintiff and Tiffany McGee. (Id.) Plaintiff relies u p o n these same incidents in her memorandum. (Docket No. 35 at 14-15.) In determining whether a work environment is hostile to the point that it alters the c o n d itio n s of employment, courts look to the frequency of the discriminatory conduct, its se v e rity, whether it is physically threatening or humiliating, and whether it unreasonably in te rf e re s with an employee's work performance. Harris v. Forklift Sys., Inc., 510 U.S. 17, 2 3 (1993). T h e frequency of the harassing conduct that Plaintiff Houston complains of is, the C o u rt finds, sporadic rather than concentrated or incessant or pervasive. The July 2006 in c id e n t and the August 2007 incident are separated by over a year. The sporadic nature of th e se incidents may be due in part to the fact that as a sales representative Plaintiff was in the f ield calling on her clients the majority of her working hours rather than in an office in c o n sta n t contact with Defendant Perkins. However, that physical separation is a valid c o n sid e ra tio n when determining whether her working environment was hostile. T h e harassing conduct of which Plaintiff complains is not sufficiently severe. P la in tif f has shown only one incident when Defendant Perkins used what could be seen as

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a racial slur against her. That was when Defendant Perkins, herself an African-American, c o n g ra tu la te d Plaintiff on her sales numbers by stating, "[W]ay to go, Negro." (Docket No. 3 4 , Ex. A at 77.) A review of the conduct Plaintiff complains about reveals that Defendant P erk ins' remarks, even if belittling and offensive, were often intended to raise Plaintiff's le v e l of performance rather than to present obstacles to her better performance. Examples o f this are Defendant Perkins' suggestions for Plaintiff to arrive early and stay late for m e e tin g s , to dress professionally, and to fully expound on her thoughts when writing reports. T h e record does not show any physically threatening conduct. Although Plaintiff may w e ll have been embarrassed by some of Defendant Perkins' comments, the evidence fails to sh o w public humiliation because the comments were generally made to Plaintiff in private (su c h as when the veterinarian left the office during the "ask" incident), or made by private c o m m u n ic a tio n s (email or phone call), or made when Plaintiff was with only one colleague ( T i ff a n y McGee) and the comments were directed to both subordinates. The evidence of D e f e n d a n t Perkins' treatment of Plaintiff's black colleagues does not change this analysis. (S e e Docket No. 35, Ex. B, Affidavit of Ashley Miller, and Ex. C, Affidavit of Derek H o lla n d .) B a s e d on the entirety of the circumstances surrounding Plaintiff's work conditions, th e Court determines as a matter of law, taking her averments as true, that Plaintiff Houston w a s not subjected to a racially hostile work environment.

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C o n c lu s io n F o r the foregoing reasons, IT IS RECOMMENDED that Defendants' amended m o tio n for summary judgment (Docket No. 33) be granted in full, and that this action be d is m is s e d with prejudice.

/s/ P. Trevor Sharp United States Magistrate Judge D a te : February 25, 2010

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