HENLEY v. NOVANT HEALTH, INC., et al

Filing 34

MEMORANDUM OPINION AND ORDER signed by JUDGE CATHERINE C. EAGLES on 2/4/2013, that Novant's Motion for Summary Judgment, (Doc. 25 ), is GRANTED. (Lloyd, Donna)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

LOLITA JOHNSON HENLEY,
Plaintiff,
v.
NOVANT HEALTH, INC.,
Defendant.

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1:12-CV-62

MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
This matter is before the Court on a motion for summary judgment by defendant Novant
Health, Inc. (“Novant”). (Doc. 25.) The plaintiff, Lolita Henley, contends that Novant violated
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”),
and 42 U.S.C. § 1981 by discriminating against her because of her race, and she alleges disparate
treatment, a racially hostile work environment, and retaliation.
FACTS
In addition to the depositions and other evidentiary matters proffered by the parties, the
Court has considered the original verified complaint as evidence to the extent the allegations
therein are based on personal knowledge and otherwise admissible. See Williams v. Griffin, 952
F.2d 820, 823 (4th Cir. 1991) (“[A] verified complaint is the equivalent of an opposing affidavit
for summary judgment purposes, when the allegations contained therein are based on personal
knowledge.”). The Court has not so considered the unverified amended complaint. The facts as
stated are based on a view of the evidence in the light most favorable to the plaintiff.

Ms. Henley is a registered nurse who began working at Forsyth Memorial Hospital in
2003. In November 2007, Novant hired her to work on its Amalga Project Clinical Improvement
Team at Forsyth Memorial Hospital. In February 2008 and again in July 2008, a co-worker
made remarks that Ms. Henley, an African-American, considered offensive. Ms. Henley
reported the remarks to her supervisor in July, and her supervisor immediately met with the coworker. When the co-worker made another comment in October 2008 that Ms. Henley found
offensive, Ms. Henley immediately reported it and her supervisor immediately had a coaching
session with the co-worker. The co-worker also made disparaging racial comments about
Mexican, Asian, and Jewish people, though Ms. Henley did not report these to a supervisor.1
Ms. Henley does not remember the co-worker making any race-related comments between
October 2008 and February 2010, (Doc. 25-1 at 29), and indeed at some point, Ms. Henley
asked her supervisor to “remove the write up” from her co-worker’s file. (Doc. 25-2 at 2.)
In January and early February 2010, Ms. Henley was counseled regarding some
performance issues and received a written “coaching and counseling” (“C&C”) report. Around
this time, a co-worker told Ms. Henley that one of their team members was going to be
“blackballed.” Shortly thereafter, Ms. Henley overheard several co-workers, including the coworker who had made the earlier offensive comments in 2008, discussing the side effects of a
drug the co-worker had taken during a procedure; during the conversation, the co-worker said the
drug could make people “say anything,” including cursing or saying racist things. The co-

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Ms. Henley alleged in her verified complaint that the co-worker also made a disparaging
racial statement about President Obama, but Ms. Henley later admitted that she had no personal
knowledge of such a statement. (Doc. 32-1 at 4.) The Court will therefore not consider the
allegation for purposes of this motion. See Williams, 952 F.2d at 823; Md. Highways
Contractors Ass’n, Inc. v. Maryland, 933 F.2d 1246, 1251 (4th Cir. 1991) (“[H]earsay evidence .
. . cannot be considered on a motion for summary judgment.”).
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worker expressed concern that she might have said something racist while under the influence of
the medicine, and referenced her supervisor’s previous instructions not to talk about race. Ms.
Henley, who was not a participant in the conversation but overheard part of it from her nearby
cubicle, reported the comment, and her supervisor immediately investigated. Around this time,
she also experienced excessive criticism from and difficulty in getting along with her coworkers, and she felt that she was being set up to be terminated.
Ms. Henley appealed the C&C report, and it was later withdrawn. Ms. Henley applied
for a position in a different Novant department, and she was hired for that position with a pay
raise in 2011. (Doc. 25-1 at 51-52.)
ANALYSIS
1. DISPARATE TREATMENT
To make out a prima facie disparate treatment claim in the employment setting, a plaintiff
must establish that (1) she is a member of a protected class, (2) she suffered an adverse
employment action, (3) she was performing in a manner that satisfied her employer’s legitimate
job expectations, and (4) the adverse employment action occurred “‘under circumstances which
give rise to an inference of unlawful discrimination.’” Jenkins v. Trs. of Sandhills Cmty. Coll.,
259 F. Supp. 2d 432, 443 (M.D.N.C.) (quoting EEOC v. Sears Roebuck & Co., 243 F.3d 846,
851 n.2 (4th Cir. 2001)), aff’d by 80 F. App’x 819 (4th Cir. 2003).
An “adverse employment action” is “a discriminatory act that adversely affects the terms,
conditions, or benefits of the plaintiff’s employment.” Holland v. Washington Homes, Inc., 487
F.3d 208, 219 (4th Cir. 2007) (internal quotation marks and alterations omitted). Ms. Henley’s
C&C session was not an adverse employment action. Novant policy expressly dictates, and Ms.
Henley understood, that a C&C “is not a step in the progressive discipline process.” (Doc. 25-2

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at 7.) Even if the C&C were a disciplinary action, disciplinary write-ups or poor performance
reviews alone do not rise to the level of an adverse employment action. See, e.g., James v. BoozAllen & Hamilton, Inc., 368 F.3d 371, 377-78 (4th Cir. 2004) (finding a poor performance
evaluation actionable only where the employer later uses the evaluation as a basis to
detrimentally alter the terms or conditions of employment). Moreover, the C&C was ultimately
withdrawn.
Because Ms. Henley has not suffered an adverse employment action, Novant is entitled to
summary judgment on this claim.
2. HOSTILE WORK ENVIRONMENT
“Since an employee’s work environment is a term or condition of employment, Title VII
creates a hostile working environment cause of action.” EEOC v. R&R Ventures, 244 F.3d 334,
338 (4th Cir. 2001) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 73 (1986)). To be
actionable, the harassing conduct has to be “sufficiently severe or pervasive to alter the
conditions of [the plaintiff’s] employment and create an abusive work environment.” Bonds v.
Leavitt, 629 F.3d 369, 385 (4th Cir.), cert. denied, 132 S. Ct. 398 (2011). In deciding whether
conduct is severe or pervasive, “all the circumstances” are relevant, “includ[ing] the frequency of
the [harassing] conduct; its severity; whether it is physically threatening or humiliating . . . ; and
whether it unreasonably interferes with an employee’s work performance.” Harris v. Forklift
Sys., Inc., 510 U.S. 17, 23 (1993). The evidence must show a “‘workplace permeated with
discriminatory [e.g., race-based] 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.’” Jordan v. Alt. Res. Corp., 458 F.3d 332, 339 (4th Cir. 2006) (alteration omitted)
(quoting Harris, 510 U.S. at 21). “‘[S]imple teasing, off-hand comments, and isolated incidents

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(unless extremely serious) will not amount to discriminatory changes in the terms and conditions
of employment.’” Jordan, 458 F.3d at 339 (quoting Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998)). In order to prevail at trial, the plaintiff must show that she subjectively
perceived her environment to be abusive and that a reasonable person in her position would have
found the work environment objectively hostile. EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306,
315 (4th Cir. 2008).
In this case, there were three comments in 2008 by one co-worker which mentioned race
in passing; none of the comments were directly insulting to Ms. Henley and none were
physically threatening. There were occasional other comments by that co-worker disparaging
racial and ethnic groups to which the plaintiff does not belong. Over a year passed with no
remarks or conduct Ms. Henley found objectionable. The 2010 comment was another statement
made in passing, and it was not made in Ms. Henley’s presence. Even taken together, this is not
sufficient to constitute a work environment “permeated with discriminatory intimidation,
ridicule, and insult.” See Jordan, 458 F.3d at 342 (holding that “there is a difference between an
isolated racial slur, which is always and everywhere inappropriate, and the sort of severe or
pervasive conduct that creates a hostile work environment”). In the absence of evidence of a
hostile environment, Novant is entitled to summary judgment on this claim.
3. RETALIATION
In the absence of direct evidence of retaliation, an employee can establish a prima facie
case of retaliation by demonstrating that she engaged in a protected activity, her employer took
an adverse action against her, and the protected conduct was causally connected to the adverse
action. Okoli v. City of Baltimore, 648 F.3d 216, 223 (4th Cir. 2011). The phrase “adverse
employment action” in the retaliation context has a broader meaning than in the disparate

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treatment context. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 61-67 (2006). The
Supreme Court has held that in a retaliation case “a plaintiff must show that a reasonable
employee would have found the challenged action materially adverse.” Id. at 68. Thus, any
conduct which might dissuade a reasonable worker from making or supporting a charge of
discrimination can constitute retaliation. Id. Trivial harms, such as lack of civility, petty slights,
or minor annoyances, do not constitute retaliation, even under this relaxed standard. Id.
The only actions of record which could possibly constitute retaliation are the coaching
and counseling Ms. Henley began receiving in January 2010 for performance issues and a related
comment by a co-worker in early February 2010 that one of the team members was going to be
“blackballed”; Ms. Henley took this as a warning that she might be fired. (Doc. 29-2 at 4.)
Assuming without deciding that this conduct could be retaliatory, Ms. Henley has not shown a
causal connection to her complaints about a hostile environment. These events came well over a
year after her 2008 complaints concerning a co-worker’s comments about race, and before the
co-worker’s 2010 comment and Ms. Henley’s subsequent complaint. Ms. Henley has offered no
evidence of any other retaliatory conduct or actions by her co-workers or her supervisors. There
is nothing directly or indirectly linking her 2010 job-related problems to her 2008 complaints.
See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 274 (2001) (noting in gender discrimination
retaliation claim that “[a]ction taken (as here) 20 months later suggests, by itself, no causality at
all” and that retaliatory conduct must be “very close” in time to the employer learning of the
protected activity for temporal proximity to serve as sufficient evidence of causality). Indeed,
the circumstantial evidence is to the contrary: Ms. Henley’s C&C was ultimately dismissed and
she was hired by Novant for a new job with higher pay.

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Because Ms. Henley has not offered any evidence of a causal connection between the
allegedly retaliatory conduct and her protected activity, her retaliation claim should be dismissed.
CONCLUSION
The defendant is entitled to summary judgment on all three aspects of Ms. Henley’s
discrimination claims, for the reasons stated herein.
It is ORDERED that Novant’s Motion for Summary Judgment, (Doc. 25), is
GRANTED.
This the 4th day of February, 2013.

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UNITED STATES DISTRICT JUDGE

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