KIM v. DONAHOE
Filing
16
MEMORANDUM OPINION AND ORDER signed by JUDGE LORETTA C. BIGGS on 5/8/2015. ORDERED that Defendant USPS's Motion for Summary Judgment (ECF No. 11 ), is GRANTED and that this action shall be dismissed with prejudice. A Judgment granting USPSs Motion and dismissing this action will be entered contemporaneously with this Order. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
KAREN M. KIM,
Plaintiff,
v.
PATRICK R. DONAHOE, 1
Postmaster General,
United States Postal Service,
Defendant.
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1:13-cv-838
MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, District Judge.
Plaintiff Karen M. Kim (“Ms. Kim”) brings this action against her employer, the
United States Postal Service (“USPS”), alleging hostile work environment and retaliation in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(a) (2012). 2
Before the Court is USPS’s Motion for Summary Judgment. (ECF No. 11.) The Court
heard oral argument on April 30, 2015. For the reasons below, the Court will grant
summary judgment for USPS on both claims.
Megan J. Brennan replaced Patrick R. Donahoe as Postmaster General of the United States
Postal Service. Under Rule 25(d) of the Federal Rules of Civil Procedure, Ms. Brennan is
automatically substituted as the defendant in this action. “[A]ny misnomer not affecting the
parties’ substantial rights must be disregarded.” Fed. R. Civ. P. 25(d).
1
Title VII prohibits discrimination against federal employees as well as private employees.
See 42 U.S.C. § 2000e-16(a) (federal employees); § 2000e-2(a) (private employees). Although
these provisions appear in separate sections, the same standards apply. See Baqir v. Principi,
434 F.3d 733, 742 (4th Cir. 2006). The provision governing federal employees also
“‘incorporate[s] the protections against retaliation’ afforded to private employees.” See
Bonds v. Leavitt, 629 F.3d 369, 384 (4th Cir. 2011); § 2000e-3(a) (anti-retaliation provision).
2
I.
BACKGROUND
Ms. Kim has worked for USPS for nearly forty years, beginning in 1975. From 2004
to 2010, she worked as a Purchasing and Supply Management Specialist under the
supervision of Team Leader Peter Nieradka (“Mr. Nieradka”) in the Greenboro office. The
Greensboro office is a Headquarters-related field unit 3 with a small staff. Starting in 2007, a
series of incidents occurred that caused Ms. Kim to feel harassed, bullied, and singled out by
her Team Leader, Mr. Nieradka, and at times by a coworker on her team, Pamela
Scharffbillig (“Ms. Scharffbillig”). 4 According to Ms. Kim, these incidents created a hostile
work environment based on sex. Ms. Kim first complained about her alleged harassment to
Mr. Nieradka’s supervisor, Ann Mueller (“Ms. Mueller”), in June 2010. Additional
conversations between Ms. Kim and Ms. Mueller followed in the next several months. In
these meetings, Ms. Kim informed Ms. Mueller that she did not wish to be separated from
Mr. Nieradka but rather requested that Ms. Mueller separate Mr. Nieradka and Ms.
Scharffbillig, who shared an office at the time. Ms. Mueller denied this request.
Between 2010 and 2013, Ms. Kim filed three formal complaints with the Equal
Employment Opportunity (“EEO”) branch of USPS. Her first formal complaint, filed in
USPS defines a “Headquarters-related field unit” as “an organizational entity that performs
a major function or group of minor functions, reports directly to a Headquarters manager,
and resides outside the Headquarters building.” USPS, Employee and Labor Relations
Manual § 113.3(d) (2014), available at https://about.usps.com/manuals/elm/elmc1.pdf.
3
Ms. Kim’s Amended Complaint alleges harassment only by Mr. Nieradka. However, the
evidence supporting her hostile work environment claim describes many incidents involving
Ms. Scharffbillig. The Court does not consider Ms. Scharffbillig’s conduct in evaluating Ms.
Kim’s claim but mentions her only for context.
4
2
November 2010, alleged sex discrimination, sexual harassment, hostile work environment,
and retaliation for complaining to Ms. Mueller. (ECF No. 12-6.) This complaint resulted in
the Equal Employment Opportunity Commission’s (“EEOC”) grant of summary judgment
for USPS in September 2013. (ECF No. 12-12.) The second formal complaint, filed in May
2012, alleged retaliation for Ms. Kim’s first formal complaint. (ECF No. 12-15.) USPS
found no discrimination (ECF No. 12-16), which the EEOC affirmed in June 2013 (ECF
No. 12-17.) Ms. Kim filed her final formal complaint in April 2013, alleging further
retaliation for her previous EEO complaints. (ECF No. 12-19.) USPS issued a final
decision in October 2013, again finding no discrimination. (ECF No. 12-20.) Ms. Kim has
exhausted her administrative remedies and timely appeals the decisions of each formal
complaint to this Court. USPS moves for summary judgment.
II.
STANDARD OF REVIEW
Summary judgment is appropriate when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A fact is “material” if it might affect the outcome of the litigation, and a dispute is
“genuine” if the evidence would permit a reasonable jury to find for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When the nonmoving party
bears the burden of proof on an issue, the moving party is entitled to judgment as a matter
of law if the nonmoving party “fail[s] to make a sufficient showing on an essential element
of her case.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (noting that a “complete
failure of proof” on an essential element of the case renders all other facts immaterial).
3
The party seeking summary judgment bears the initial burden of “pointing out to the
district court . . . that there is an absence of evidence to support the nonmoving party’s
case.” Id. at 325. To defeat summary judgment, the nonmoving party must designate
“specific facts showing that there is a genuine issue for trial.” Id. at 324. The nonmoving
party must support its assertions by citing to particular parts of the record, such as affidavits,
depositions, answers to interrogatories, and admissions on file. Fed. R. Civ. P. 56(c)(1);
Celotex Corp., 477 U.S. at 324.
The role of the court is not “to weigh the evidence and determine the truth of the
matter” but rather “to determine whether there is a genuine issue for trial.” Liberty Lobby,
477 U.S. at 249. A genuine issue for trial exists only when “there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that party.” Id. “If the
evidence is merely colorable or is not significantly probative, summary judgment may be
granted.” Id. at 249–50 (citations omitted). When reviewing a motion for summary
judgment, the court must “‘resolve all factual disputes and competing, rational inferences in
the light most favorable’” to the nonmoving party. Rossignol v. Voorhaar, 316 F.3d 516,
523 (4th Cir. 2003) (quoting Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230
(1st Cir. 1996)).
III.
DISCUSSION
A. Hostile Work Environment Claim
To defeat summary judgment on a hostile work environment claim, a plaintiff must
establish a prima facie case by demonstrating that the harassing conduct was (1) unwelcome,
(2) because of her sex, (3) “sufficiently severe or pervasive to alter the conditions of her
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employment and create an abusive atmosphere,” and (4) imputable to her employer. Walker
v. Mod-U-Kraf Homes, LLC, 775 F.3d 202, 207–08 (4th Cir. 2014). USPS does not dispute
that the harassment Ms. Kim experienced was unwelcome. Thus, the first element of the
prima facie case is not at issue. 5 Rather, USPS argues that the Court should grant summary
judgment on Ms. Kim’s hostile work environment claim because she cannot establish that
(1) the conduct she complains of is based on sex, (2) such conduct is sufficiently severe or
pervasive, or (3) any discriminatory conduct would be imputable to USPS.
Ms. Kim describes several incidents of harassment that occurred between 2007 and
2010, while she was working under the supervision of Mr. Nieradka. The first incident
occurred one evening in March 2007, when Mr. Nieradka yelled and swore at Ms. Kim over
the phone for supposedly informing another employee that Mr. Nieradka would not attend a
business trip. (Kim Dep. 30:23–31:1, ECF No. 13-1; First Investigative Aff. 21, ECF No.
13-2.) Ms. Kim next cites three incidents in 2008. First, in January, Mr. Nieradka sent her
an email expressing his disappointment that she had not informed him of information
related to a supplier. (First Investigative Aff. 40, ECF No. 13-2.) Second, later in the spring
of 2008, Mr. Nieradka gave Ms. Kim permission to skip a teleconference but then
reprimanded her and a male employee when they did not attend. (Id. at 23.) Third, in May
2008, Ms. Kim objected to some negative comments on her mid-year performance
Irrespective of the fact that USPS does not challenge this element, Ms. Kim has met her
burden of establishing the first element of the prima facie case. She has presented evidence
that she repeatedly confronted Mr. Nieradka about his behavior and brought her complaints
to Ms. Mueller. See EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 314 (4th Cir. 2008)
(finding sufficient allegation of unwelcome conduct where employee complained to
supervisors and coworkers).
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evaluation. (Id. at 24.) Mr. Nieradka became angry and told Ms. Kim she had “no idea what
he could do to [her] if he wanted to.” (Id.) When Ms. Kim asked what he meant, he said
she did not want to find out. (Id.) More than one year later, in August 2009, Mr. Nieradka
emailed Ms. Kim after a teleconference, directing her to copy him on all of her emails. (Id.
at 49.) He had become embarrassed during the teleconference when he did not have
sufficient knowledge about a particular project, and he felt that Ms. Kim should have kept
him informed. (Id.)
In addition to the five incidents outlined above, which spanned from 2007 to 2009,
Ms. Kim cites several incidents in 2010. In January, Mr. Nieradka and Ms. Scharffbillig
made a weather-related joke during a teleconference that Ms. Kim felt was “obviously
directed” at her. (Id. at 52.) In May, Ms. Kim requested to take leave the day before her
telecommute day, but Mr. Nieradka denied her request. (See id. at 85.) Instead, he asked her
to either work on the day she requested off or come into the office on the day she typically
telecommuted. (See id.) In June, Mr. Nieradka told Ms. Kim not to send text messages on
her phone before the start of a meeting. (Id. at 28.) Voices were raised, and Ms. Kim
became so upset that she left the meeting and left work early. (Id. at 29.) Later in June, Ms.
Kim waited for Mr. Nieradka to return from vacation before updating him about a
conversation. (Id.) Mr. Nieradka “came unglued and started ranting and raving,” upset she
did not inform him sooner. (Id.) In July, on the day of an important audit, Mr. Nieradka
required all employees to come to the office but did not come to the office himself. (Id. at
30.) Ms. Kim, who had come to the office on her telecommute day, was upset Mr. Nieradka
had taken leave and also postponed a project deadline without informing her. (Id.) A few
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days later, Mr. Nieradka had an “outburst” loud enough for other employees in the office to
hear. (Id. at 30–31.) A coworker’s mother had passed away, and Mr. Nieradka was upset
that Ms. Kim waited until the morning of the funeral to inform other employees, even
though Ms. Kim had learned of the funeral the day before. (Id.)
Additional incidents of alleged harassment include when Mr. Nieradka “ridiculed,
demean[ed] . . . , [and] badgered” Ms. Kim and another female employee for arriving five or
ten minutes late to work. (Kim Dep. 25:15–17, ECF No. 13-1.) He also told Ms. Kim “in a
negative manner” that she reminded him of his wife, Loraine. (First Investigative Aff. 4.)
Once when she approached his desk to speak with him, he cut her off and said, “ok Loraine
just speak.” (Id.) In the mornings, Mr. Nieradka and Ms. Scharffbillig sometimes made
comments about Ms. Kim’s hair and clothing as she walked by their office. (Kim Dep.
27:18–22, ECF No. 13-1.) They would ask, “Don’t you even bother to comb your hair
before you come into work?” (Id.) Finally, when Ms. Kim asked Mr. Nieradka why he
harassed her, he responded, “[W]ell now that Wanda’s gone you should have known you’d
be next,” referring to another female employee whom he allegedly harassed. (First
Investigative Aff. 4, ECF No. 13-2.)
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1. Conduct “Because of Sex”
USPS asserts Ms. Kim has not provided evidence demonstrating that the harassment
was because of sex. 6 A plaintiff is subject to discrimination because of sex if “but for” her
sex, “she would not have been the victim of the discrimination.” Smith v. First Union Nat’l
Bank, 202 F.3d 234, 242 (4th Cir. 2000). To establish sex-based harassment, a plaintiff need
not show she was subjected to sexual advances or propositions. Id.; see Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Rather, the critical question is
“whether members of one sex are exposed to disadvantageous terms or conditions of
employment to which members of the other sex are not exposed.” Oncale, 523 U.S. at 80
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring)).
Ms. Kim asserts that “[t]he conduct towards Plaintiff was directed towards her
because of her gender.” (Pl.’s Opp’n 9, ECF No. 13.) As support for this assertion, she lists
four allegedly discriminatory acts—unaccompanied by arguments, explanations, or case
citations demonstrating how these acts were based on sex. (See id. at 9–10.) Specifically,
Ms. Kim recites Mr. Nieradka calling her by his wife’s name, commenting on her clothing,
saying she “should have known [she]’d be next,” and keeping an eye on when she arrived to
work. (Id.) It is unclear how these acts are based on sex. Perhaps a reasonable jury could
Although the terms “sex” and “gender” have different meanings, courts have used them
interchangeably. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), superseded by
statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1075, as recognized in
Burrage v. United States, 134 S. Ct. 881 (2014); e.g., Ziskie v. Mineta, 547 F.3d 220 (4th Cir.
2008); Hartsell v. Duplex Prods., Inc., 123 F.3d 766 (4th Cir. 1997). In this opinion, the
Court will follow the terminology of Title VII and use the term “sex” when discussing
harassment because of sex. Harassment because of sex should not be misconstrued as
sexual harassment, which is not an issue in this case.
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find that if Ms. Kim were male, Mr. Nieradka would not have called her by his wife’s name
or said she reminded him of his wife. The remaining incidents that Ms. Kim complains of
appear gender neutral, however, and Ms. Kim offers no evidence suggesting otherwise.
The record makes clear that Ms. Kim believes Mr. Nieradka treated male employees
more favorably than female employees. (See First Investigative Aff. 4–5, 8, 11–12, ECF No.
13-2; Kim Dep. 25:10–24, 26:22–27:5, ECF No. 13-1.) While she is entitled to prove sexbased harassment by proving similarly situated male employees and female employees were
treated differently, see Gilliam v. S.C. Dep’t of Juvenile Justice, 474 F.3d 134, 142 (4th Cir.
2007), Ms. Kim’s evidence is insufficient to create a genuine dispute on this issue. To
establish differential treatment, Ms. Kim alleges that one male employee was “late all the
time” but never reprimanded and that another male employee was allowed to take leave
before a telecommute day. 7 (See Pl.’s Opp’n 10, ECF No. 13; Kim Dep. 27:3–5, 29:11–13,
ECF No. 13-1.) These allegations are grossly lacking in specificity, and Ms. Kim’s
“conclusory statements, without specific evidentiary support, cannot support an actionable
claim for harassment.” See Causey v. Balog, 162 F.3d 795, 802 (4th Cir. 1998); accord
Gilliam, 474 F.3d at 142 (finding the plaintiff’s “general statements of dissimilar treatment”
insufficient when the statements contained “very few specifics” or specifics that were
unsupported by evidence); Carter v. Ball, 33 F.3d 450, 461–62 (4th Cir. 1994) (declining to
Although Ms. Kim names a specific male employee that she “think[s]” was allowed to take
leave before a telecommute day, she acknowledges he was the only male in the office who
telecommuted and he did not report to Mr. Nieradka. (Kim Dep. 27:1–5, 75:5–76:7, ECF
No. 13-1.)
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find racial harassment based on “general allegations” that a supervisor reprimanded the
African-American plaintiff in public but spoke with white employees in private).
Ms. Kim has not presented sufficient evidence to demonstrate that any of Mr.
Nieradka’s allegedly harassing conduct was because of sex—except, perhaps, for his
comment referencing his wife.
2. “Severe or Pervasive” Conduct
USPS also asserts Ms. Kim failed to offer evidence that the alleged harassment was
severe or pervasive. The “severe or pervasive” element involves both subjective and
objective components: not only must the plaintiff herself perceive the environment to be
hostile or abusive, but that perception must also be reasonable. See EEOC v. Sunbelt
Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008). To determine objective reasonableness, the
court must consider “all the circumstances,” such as (1) how frequently the discriminatory
conduct occurred; (2) how severe the conduct was; (3) whether the conduct was physically
threatening or humiliating, or “a mere offensive utterance;” and (4) whether the conduct
unreasonably interfered with the plaintiff’s work performance. Harris, 510 U.S. at 22–23.
No single factor is dispositive. Sunbelt Rentals, 521 F.3d at 315. When satisfying the severe
or pervasive test, “plaintiffs must clear a high bar.” Id. “This standard is designed to ‘filter
out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use
of abusive language, gender-related jokes, and occasional teasing.’” Ocheltree v. Scollon
Prods., Inc., 335 F.3d 325, 333 (4th Cir. 2003) (quoting Faragher v. City of Boca Raton, 524
U.S. 775, 788 (1998)) (internal quotation marks omitted).
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USPS does not dispute Ms. Kim’s subjective perception that her work environment
was hostile and abusive. 8 Rather, USPS argues that Ms. Kim’s allegations of harassment do
not rise to the level of objectively severe or pervasive. As stated above, Ms. Kim cites only
one incident that arguably occurred because of her sex: Mr. Nieradka addressing her by his
wife’s name. 9 This single incident does not clear the “high bar” of severe or pervasive
conduct, as Ms. Kim has not shown that it was frequent, severe, physically threatening or
humiliating, or an unreasonable interference with her work performance. While an isolated
incident can violate Title VII, it must be “extremely serious,” see Faragher, 524 U.S. at 788,
which is not the case here. At best, Mr. Nieradka’s comment represents the type of rude
treatment, callous behavior, and occasional teasing that is excluded from Title VII’s
protection. See Sunbelt Rentals, 521 F.3d at 315–16 (“[C]omplaints premised on nothing
more than rude treatment by [coworkers], callous behavior by [one’s] superiors, or a routine
difference of opinion and personality conflict with [one’s] supervisor are not actionable
under Title VII.” (alterations in original) (citations omitted) (internal quotation marks
omitted)); Ocheltree, 335 F.3d at 333.
Ms. Kim describes feeling humiliated, frustrated, stressed, and angry when Mr. Nieradka
and Ms. Scharffbillig “screamed . . . and lashed out” at her. (First Investigative Aff. 13, ECF
No. 13-2); see Harris, 510 U.S. at 23 (recognizing “[t]he effect on the employee’s
psychological well-being is . . . relevant to determining whether the plaintiff actually found
the environment abusive”). Further, Ms. Kim sometimes felt physically sick at the thought
of interacting with Mr. Nieradka and Ms. Scharffbillig, prompting her to call in sick or leave
work early to avoid them. (First Investigative Aff. 13, 25, ECF No. 13-2.)
8
At oral argument, Ms. Kim’s attorney stated that Mr. Nieradka made this comment only
once.
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Even if the remaining conduct that Ms. Kim complains of was directed toward her
because of her sex, Ms. Kim would still fail the severe or pervasive element of the prima
facie case. When a supervisor asks an employee to keep him informed of her work, denies
her request to text during a meeting, reprimands her for arriving late to work, and requires
her to come to the office on her usual telecommute day, a reasonable jury could not find this
routine supervisory behavior to be hostile or abusive. See Wiggins v. DaVita Tidewater,
LLC, 451 F. Supp. 2d 789, 801 (E.D. Va. 2006) (concluding that no reasonable person could
characterize disciplinary warnings for being late to work as harassment). When he permits
an employee to skip a teleconference but later reprimands her for skipping, when he requires
all employees to work from the office but takes leave himself, and when he neglects to
inform an employee of a postponed deadline, a reasonable jury could find his behavior
inconsiderate but not hostile or abusive. See Patton v. Indianapolis Pub. Sch. Bd., 276 F.3d
334, 339 (7th Cir. 2002) (holding that a supervisor’s failure to keep the plaintiff informed
about changes at work, among other things, fell “far short of creating an actionable hostile
work environment”). Similarly, when he tells a joke that may or may not relate to an
employee, comments on an employee’s appearance in a nonsexual manner, or yells and
swears when he is angry, his behavior may be callous and rude, but callous and rude
behavior does not give rise to a Title VII claim. See Sunbelt Rentals, 521 F.3d at 315–16;
Holleman v. Colonial Heights Sch. Bd., 854 F. Supp. 2d 344, 353 (E.D. Va. 2012) (finding
general complaints about a school principal’s “cursing, yelling, and reprimanding” not
sufficiently severe or pervasive). Ms. Kim has not demonstrated that these acts of alleged
harassment were severe, physically threatening or humiliating, or an unreasonable
12
interference with her work performance. She has also not demonstrated that the alleged
harassment—consisting of a dozen incidents spanning three and a half years, with as much
as a year between incidents—occurred frequently. 10 See Hopkins v. Balt. Gas & Elec. Co.,
77 F.3d 745, 753 (4th Cir. 1996) (finding intermittent incidents over a seven-year period,
with gaps as a great as a year, to “suggest[] the absence of a condition sufficiently pervasive
to establish Title VII liability”). As the Fourth Circuit has recognized, “[E]ven incidents that
would objectively give rise to bruised or wounded feelings will not on that account satisfy
the severe or pervasive standard. Some rolling with the punches is a fact of workplace life.”
Sunbelt Rentals, 521 F.3d at 315. While a reasonable jury could conclude that Mr. Nieradka
behaved in a hostile and abusive manner when he told Ms. Kim she had “no idea what he
could do to [her] if he wanted to” and she “should have known [she]’d be next,” these
isolated incidents are insufficient to create a hostile work environment. See Faragher, 524
U.S. at 788 (explaining that “isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the ‘terms and conditions of employment’”).
Ms. Kim’s evidence of alleged harassment is insufficient for a reasonable jury to find
that the conduct was objectively severe or pervasive. Although Ms. Kim correctly asserts
that the question of whether harassment is sufficiently severe or pervasive is
“‘quintessentially a question of fact’ for the jury” (Pl.’s Opp’n 10–11, ECF No. 13 (quoting
Ms. Kim also complains that Mr. Nieradka reprimanded her for arriving late to work and
commented on her appearance, but she does not specify when or how often this occurred.
This evidence does not suggest frequent conduct. See EEOC v. Xerxes Corp., 639 F.3d
658, 677 (4th Cir. 2011) (finding general statements that a coworker made racial slurs “a
bunch of different times” and “[n]ot one occasion” insufficient to sustain a claim of hostile
work environment (alteration in original)).
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Conner v. Schrader-Bridgeport Int’l Inc., 227 F.3d 179, 199–200 (4th Cir. 2000))), she must
first produce sufficient evidence to create a question for the jury. See Liberty Lobby, 477
U.S. at 249 (stating that a genuine issue for trial exists only when there is “sufficient evidence
favoring the nonmoving party” so that a jury could return a verdict for that party). Ms.
Kim’s evidence does not clear this hurdle.
3. Employer Liability
USPS next asserts that there is no basis for imputing liability to USPS. To impute
liability for a hostile work environment to an employer, some basis for liability must exist.
Spriggs v. Diamond Auto Glass, 242 F.3d 179, 186 (4th Cir. 2001). Because Ms. Kim has
failed to establish the second and third elements of her prima facie case, there is no hostile
work environment for which USPS would be liable.
B. Retaliation Claim
To defeat summary judgment on a retaliation claim, a plaintiff must first establish a
prima facie case by demonstrating that (1) she engaged in a protected activity, (2) her
employer took a materially adverse action against her, and (3) the protected activity was a
but-for cause of the materially adverse action rather than simply a motivating factor. See
Walker, 775 F.3d at 210. USPS does not dispute that Ms. Kim engaged in a protected
activity under Title VII’s anti-retaliation provision when she made complaints to Ms. Mueller
14
and the EEO branch of USPS. 11 Rather, it challenges the sufficiency of Ms. Kim’s evidence
on the remaining two elements.
Once the plaintiff establishes a prima facie case of retaliation, the burden shifts to her
employer to articulate a legitimate, nondiscriminatory reason for its actions. Smith, 202 F.3d
at 248 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). The plaintiff
then has an opportunity to “demonstrate that the employer’s reason was mere pretext for
retaliation by showing ‘both that the reason was false and that discrimination was the real
reason for the challenged conduct.’” Id. (quoting Jiminez v. Mary Wash. Coll., 57 F.3d 369,
377–78 (4th Cir. 1995)). Only by demonstrating pretext can the plaintiff defeat summary
judgment. See King v. Rumsfeld, 328 F.3d 145, 154 (4th Cir. 2003) (affirming the district
court’s grant of summary judgment because the plaintiff failed to establish that his
employer’s legitimate, nondiscriminatory motive was pretext). At all times, the plaintiff bears
the ultimate burden of persuading the court that the defendant intentionally discriminated
against her. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Ms. Kim asserts six acts of retaliation, which she alleges to be materially adverse
actions. In August 2010, after Ms. Kim complained to Ms. Mueller, Ms. Mueller offered Ms.
Kim a detail assignment that would temporarily remove her from Mr. Nieradka’s
supervision. (First Investigative Aff. 9, ECF No. 13-2.) The assignment did not involve
An employee engages in protected activity when she opposes any employment practice
prohibited by Title VII or when she pursues or assists in a Title VII investigation,
proceeding, or hearing. 42 U.S.C. § 2000e-3(a). Opposing prohibited conduct includes
complaining to superiors about suspected Title VII violations, Bryant v. Aiken Reg’l Med.
Ctrs. Inc., 333 F.3d 536, 543–44 (4th Cir. 2003), as Ms. Kim has done through her
complaints to Ms. Mueller.
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relocation or a salary change, but instead of reporting to Mr. Nieradka, Ms. Kim reported to
a supervisor in Washington, DC. (Id. at 9, 32–33; Mueller Decl. ¶ 19, ECF No. 12-21.) Ms.
Kim initially viewed the assignment as punishment for complaining, but she appears to have
accepted the assignment when Ms. Mueller presented it as an opportunity to acquire new
skills and advance her career. (First Investigative Aff. 10, ECF No. 13-2.) Two days before
the detail assignment was set to start, Ms. Kim learned the assignment would involve tasks
that she believed were beneath her skill level and requested to be removed from the
assignment. (Id. at 9, 33.) Ms. Mueller told her she “had no choice” but to take the
assignment. (Id.) Ms. Kim views this detail assignment as “involuntary” and cites it as
USPS’s first act of retaliation. (Am. Compl. ¶ 110, ECF No. 2.)
Despite the lower-level work, Ms. Kim was still willing to accept the detail
assignment if she could have two additional telecommute days. (First Investigative Aff. 33,
ECF No. 13-2.) Her new supervisor denied this request, and her detail assignment began
the following day. (Id.) She claims the denial of additional telecommute days was USPS’s
second act of retaliation. (Am. Compl. ¶ 112, ECF No. 2.)
In November 2011, Ms. Kim received a rating of 4 on her 2011 performance
evaluation. (ECF No. 12-42, at 5.) At this time, she had completed her detail assignment
and was under the supervision of Eric Beck, who rated her performance for 2011. 12 Ms.
Kim objected to this rating, claiming that coworkers received higher ratings for performing
Annual USPS performance evaluations separate employees into four categories: a rating
of 1 to 3 means an employee is a “Non-contributor,” 4 to 9 means “Contributor,” 10 to 12
means “High Contributor,” and 13 to 15 means “Exceptional Contributor.” (See ECF No.
12-42, at 5.) A rating of 4 placed Ms. Kim on the low end of the “Contributor” category.
12
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the same amount of work or less work. (Second Investigative Aff. 3, ECF No. 13-3.) As
her attorney explained at oral argument, Ms. Kim felt her work was not being recognized by
her supervisor. She cites this rating as USPS’s third act of retaliation. (Am. Compl. ¶ 120,
ECF No. 2.)
In April 2012, Ms. Mueller issued Ms. Kim a Letter of Warning (ECF No. 12-30) for
saying to her then-supervisor, Mr. Beck, “I think you bully me and have a Hitler like
management style.” (Second Investigative Aff. 10, ECF No. 13-3.) After Ms. Kim appealed
the letter, the USPS Vice President of Labor Relations removed the letter from her file. 13
(ECF No. 12-50.) Ms. Kim claims the letter was USPS’s fourth act of retaliation. (Am.
Compl. ¶ 121, ECF No. 2.)
In November 2012, Ms. Kim received a rating of 5 on her 2012 performance
evaluation from Mr. Beck (ECF No. 12-43, at 7), though she felt she deserved a higher
rating (Third Investigative Aff. 7, ECF No. 13-4). Ms. Kim also takes issue with Mr. Beck’s
written statements that she had “communicated on more than one occasion information she
knew was not correct” and that he “would like to see her able to take on more complex
projects without assistance.” (Third Investigative Aff. 5–6, ECF No. 13-4.) Ms. Kim claims
these statements are “derogatory and false” (id. at 5) and points to her performance rating
and Mr. Beck’s comments as USPS’s fifth act of retaliation (Am. Compl. ¶ 127, ECF No. 2).
The Letter of Warning stated Ms. Kim had caused a work disruption and distraction when
she called Mr. Beck a “bullying Hitler.” (ECF No. 12-30.) On appeal, the Vice President of
Labor Relations found the record did not support these assertions, as the meeting took place
in a private office and Ms. Kim’s remark was in response to a question. (ECF No. 12-50.)
13
17
In late 2012 and early 2013, Ms. Kim applied for a higher-level position but was not
selected. (Third Investigative Aff. 10, 12, ECF No. 13-4.) On the USPS pay scale, the
higher-level position was at Level 23, while Ms. Kim was working in a Level 21 position at
the time. For the Level 23 position, Ms. Mueller selected an individual who had a college
degree, unlike Ms. Kim. (Mueller Decl. ¶¶ 49, 51, ECF No. 12-21.) Ms. Kim asserts she was
better qualified than the selected individual. (Third Investigative Aff. 14, ECF No. 13-4.)
She claims that not selecting her for the Level 23 position was USPS’s sixth act of retaliation.
(Am. Compl. ¶ 128, ECF No. 2.)
1. Materially Adverse Actions
USPS argues that Ms. Kim cannot show she suffered a materially adverse action,
except for when she was not selected for a Level 23 position. An employee suffers a
materially adverse action when her employer takes some action that is “harmful to the point
that [it] could well dissuade a reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). The
action must produce an injury or harm; “petty slights” and “minor annoyances” are
insufficient. See id. at 67–68.
USPS concedes—and Ms. Kim has provided sufficient evidence for a reasonable jury
to conclude—that her unsuccessful application for the Level 23 position constituted a
materially adverse action. Ms. Kim’s evidence is insufficient, however, to establish that the
remaining acts of alleged retaliation are materially adverse actions. While courts have
acknowledged that negative performance evaluations and letters of reprimand can be
materially adverse, see Westmoreland v. Prince George’s Cty., Md., No. 09-CV-2435 AW,
18
2013 WL 6629054, at *5 (D. Md. Dec. 17, 2013); Bittle v. Elec. Ry. Improvement Co., 576 F.
Supp. 2d 744, 754 (M.D.N.C. 2008), Ms. Kim has failed to demonstrate material adversity in
this case. 14 She has not shown how the performance evaluations and Letter of Warning
produced an injury or harm—particularly where her performance ratings were no worse and
no better than the ratings she received before she engaged in protected activity 15 and where
USPS ultimately removed the Letter of Warning from her file. Ms. Kim has also not shown
injury or harm resulting from the denial of additional telecommute days. 16 Finally, while Ms.
Kim viewed her detail assignment as a form of punishment, a reasonable jury could not find
Ms. Mueller’s refusal to let her back out of the assignment on two days’ notice to be so
harmful as to dissuade a reasonable employee from complaining of discrimination.
Ms. Kim’s opposition brief includes a single conclusory statement regarding her
performance evaluations and Letter of Warning: “Plaintiff suffered an additional adverse
employment action following her initial EEO filings when she received lower rating [sic] on
her performance evaluation, [and] received a letter of warning . . . .” (Pl.’s Opp’n 16, ECF
No. 13.)
14
Ms. Kim complains of her ratings of 4 and 5 in 2011 and 2012, respectively, but she
received poor performance ratings even before she made any complaints of discrimination.
In 2008, she received a rating of 4, and in 2009, she received a rating of 3. (First
Investigative Aff. 67, 73, ECF No. 13-2.) Although she received a rating of 7 in 2010, this
was one point below the average rating of 8 in 2010, just as her ratings in 2011 and 2012
were each less than one point below the average ratings in those years. (See Mueller Decl.
¶¶ 27, 40, 42, ECF No. 12-21.)
15
Ms. Kim does not mention the denial of additional telecommute days in the discussion of
materially adverse actions in either her opposition brief or her oral argument. Moreover, Ms.
Kim was granted the same number of telecommute days on her detail assignment as the rest
of the staff working under her supervisor. (See ECF No. 12-22, at 10.)
16
19
2. Causation
USPS next argues that Ms. Kim has not presented sufficient evidence to establish a
causal link between her protected activity and her unsuccessful application for the Level 23
position, the only materially adverse action in this case. “Title VII retaliation claims require
proof that the desire to retaliate was the but-for cause of the challenged employment
action.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013). To establish
but-for causation, a plaintiff must prove that “the unlawful retaliation would not have
occurred in the absence of the alleged wrongful action or actions of the employer.” Id. at
2533.
Ms. Kim’s evidence is insufficient for a reasonable jury to conclude that if she had
not complained of a hostile work environment, then USPS would have selected her for the
Level 23 position. To the contrary, the evidence indicates that USPS declined to hire Ms.
Kim for Level 23 positions long before she made any complaints of discrimination. By the
summer of 2007—three years before her first complaint—Ms. Kim already felt “totally
frustrated” that she had not secured a Level 23 position, particularly because she felt more
qualified than the candidates who were selected instead. 17 (See First Investigative Aff. 39,
ECF No. 13-2.) She was also discontent with management’s “usual reason” for not selecting
her: that she did not have a college degree. (See id.) Over the next six years, however, Ms.
Ms. Kim’s frustration prompted her to visit USPS headquarters in Washington, DC, “to
discuss the hiring, promotion and selection practices” within her department. (First
Investigative Aff. 38, ECF No. 13-2.) In a follow-up email, Ms. Kim explained, “I feel
strongly that . . . I should have been able to acquire one of the promotions from within this
office. . . . [M]y patience is running thin when time and time again I see individuals with less
qualifications getting the positions in this office.” (Id. at 39.)
17
20
Kim continued to apply for Level 23 positions, including in May 2008, June 2011, July 2011,
and November 2012. (See ECF No. 12-11, at 1; First Investigative Aff. 24, ECF No. 13-2;
Third Investigative Aff. 10, ECF No. 13-4.) USPS continued to cite Ms. Kim’s lack of
degree as a reason for not selecting her. (See Mueller Decl. ¶¶ 48–49, ECF No. 12-21.) In
total, Ms. Kim estimates she has applied unsuccessfully for at least five Level 23 positions
(Kim Dep. 113:15–21, ECF No. 13-1), starting years before her first complaints of
discrimination. Given this evidence, a reasonable jury could not conclude that Ms. Kim’s
protected activity was the but-for cause of USPS selecting a different candidate for the Level
23 position at issue in this case. Ms. Kim has therefore failed to state a prima facie case of
retaliation, and the Court need not consider the burden-shifting analysis set forth in
McDonnell Douglas, 411 U.S. at 802.
IV.
CONCLUSION
Ms. Kim has failed to raise a genuine dispute of material fact as to any issue in this case.
USPS has demonstrated that it is entitled to judgment as a matter of law on both claims in that
Ms. Kim has failed to provide evidence to establish essential elements of her claims.
ORDER
IT IS ORDERED that Defendant USPS’s Motion for Summary Judgment (ECF No.
11), is GRANTED and that this action shall be dismissed with prejudice.
A Judgment granting USPS’s Motion and dismissing this action will be entered
contemporaneously with this Order.
This, the 8th day of May, 2015.
/s/ Loretta C. Biggs
United States District Judge
21
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