MANN V. WINSTON-SALEM STATE UNIVERSITY ET AL
Filing
126
MEMORANDUM OPINION AND ORDER. Signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR. on 7/21/2017, that Winston-Salem State University's Motion and Substitute Motion for Summary Judgment (Docs. 59 , 91 ) are GRANTED and this case is DISMISSED. A judgment in accordance with this Memorandum Opinion and Order will be entered contemporaneously herewith.(Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MELISSA J. MANN,
)
)
Plaintiff,
)
)
v.
)
)
WINSTON-SALEM STATE UNIVERSITY, )
an Agent of the State of
)
North Carolina, and JANICE
)
SMITH, individually,
)
)
Defendants.
)
1:14CV1054
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before this court is a Motion for Summary
Judgment and a Substitute Motion for Summary Judgment filed by
Defendant Winston-Salem State University (“WSSU” or the
“University”) (Docs. 59, 91). Plaintiff Melissa J. Mann (“Mann”)
has responded, (Docs. 75, 97), and Defendant WSSU has replied,
(Docs. 87, 100). Although Defendant Janice Smith (“Smith”) filed
a motion for summary judgment, (Doc. 57), following a settlement
conference on March 24, 2017,1 Plaintiff dismissed her claims
against Smith, (Doc. 120), leaving only her claim against WSSU,
(Doc. 35). That claim alleges Retaliation under Title VII. (Id.)
Although the claims against Dr. Smith have been dismissed,
analysis of the facts requires a description of those facts
relating to Dr. Smith.
1
As such, WSSU’s motion is ripe for the court’s consideration.
For the reasons herein, WSSU’s motion will be granted.
I.
BACKGROUND
WSSU hired Plaintiff, a Caucasian female, on August 16,
2010, as an “instructor” of Management within the Department of
Management and Marketing. (Pl.’s Resp. to Def. Smith’s Mot. for
Summ. J., Ex. 1, Deposition of Melissa J. Mann (“Mann Dep.”)
(Doc. 75-1) at 60-61); Pl.’s Resp. to Def. WSSU’s Mot. for Summ.
J., Ex. 22, Affidavit of Melissa Mann (“Pl.’s Aff.”) (Doc. 73-9)
¶¶ 3, 4.) Plaintiff became an “assistant professor” when the
University was able to confirm the completion of her doctorate
degree. (See Pl.’s Aff. (Doc. 73-9) ¶ 3.) Plaintiff alleges that
“[i]mmediately upon being hired [she] began to suffer a pattern
of discriminatory actions by Janice Smith.” (Id. ¶ 5.) On May 5,
2015, Plaintiff resigned her position by letter to Dr. Moula
Cherikh, who served as department chair at the time. (Doc.
94-17.)
Defendant Smith is African American and is a “tenured full
professor [as well as] a member of the Reappointment and Tenure
Committees for the Department of Management and Marketing” with
the University. (Def. Smith’s Answer (Doc. 39) ¶ 20.)
Plaintiff generally alleges that “[u]pon starting [her]
employment at WSSU, it became immediately apparent to [her] that
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[she] was not welcome as a professor in the [d]epartment due to
the fact that [she] was white and not African-American.” (Pl.’s
Aff. (Doc. 73-9) ¶ 7.) Between 2010 and 2014, Plaintiff alleges
a number of instances of Smith’s purportedly race-fueled
bullying and harassment including verbal confrontations, abusive
emails to Plaintiff, gossip concerning Plaintiff spread to other
WSSU employees and general attempts by Smith to hinder
Plaintiff’s career success at WSSU. (Id. ¶¶ 11-20, 24-51.)
Plaintiff alleges that “nothing was done to discipline Dr. Smith
or prevent her from continuing to harass me.” (Id. ¶ 28.)
It is not disputed that hostilities existed between
Dr. Smith and Plaintiff, although there is some dispute as to
the degree to which these hostilities from Dr. Smith were based
on race. The employees of WSSU contend that any hostility
Plaintiff experienced was the result of “long-standing tensions
and conflicts within the Department regarding the leadership of
the Department, hiring practices, the curriculum, and the amount
of autonomy afforded junior faculty members.” (Def. WSSU’s
Substitute Mem. of Law in Supp. of Mot. for Summ. J. (“WSSU’s
Sub. Mem.”) (Doc. 98) at 4-52 (citing Docs. 92-5 — 92-13;
All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
2
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Affidavit of Brenda Allen (“Allen Aff.”) (Doc. 95-8) ¶¶ 8-9);
Affidavit of Moula Cherikh (“Cherikh Aff.”) (Doc. 95-9) ¶ 11).)
For purposes of Defendant’s motion for summary judgment, it
appears to this court, based upon evidence presented by
Plaintiff, that there is an issue of fact as to whether
Dr. Smith’s actions toward Plaintiff were improperly motivated
by race. However, the claim against WSSU is one of retaliation,
and the relevance of this factual issue will be addressed
further in this opinion where necessary.
It also appears generally undisputed that during much of
Plaintiff’s employment at WSSU, administration within the
Department of Management and Marketing (“the Department”) had a
number of difficulties in terms of processes and procedures.
For example, Defendant acknowledges that review of Plaintiff for
promotion and tenure “was not in accordance with University
policy and resulted from confusion within the Department
regarding the University’s tenure and promotion policies.”
(WSSU’s Sub. Mem. (Doc. 98) at 6 n.1 (citing Doc. 92-4; Allen
Aff. (Doc. 95-8) ¶ 16).) Defendant WSSU further acknowledges
that “[t]here was fundamental disagreement within the Department
regarding the strategic direction of the HR program and its
curriculum.” (Id. at 5.) These administrative issues make it
difficult to determine who made various decisions about
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Plaintiff’s employment, including: what actions may be
attributed to WSSU and what actions were the result of an
individual conflict between two employees. While Plaintiff bears
the burden of proving retaliation by Defendant, this court is
required to resolve any material factual disputes in the light
most favorable to Plaintiff.
Plaintiff alleges she was retaliated against by Defendant
for filing two charges of racial discrimination. The first
charge was filed with the University on August 27, 2013, when
Plaintiff “submitted a formal complaint to [WSSU’s Equal
Employment Opportunity office] against Drs. Smith and [Mak]
Khojasteh, alleging harassment, discrimination, and retaliation
on the basis of race and color.” (Affidavit of Silvia Ramos
(“Ramos Aff.”) (Doc. 95-4) ¶ 13 (citation omitted).) “After
reviewing [all of] the materials and documents brought by Dr.
Mann and interviewing the parties involved, [Silvia Ramos,
WSSU’s Chief Diversity Officer, Title IX Coordinator, and Equal
Employment Opportunity and Affirmative Action Officer] was
unable to determine whether the evidence supported Dr. Mann’s
allegations of harassment, retaliation, and racial
discrimination.” (Id. ¶ 18 (citations omitted).) Dr. Allen
advised Plaintiff of these findings by letter dated November 1,
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2013. (Doc. 93-17.) Dr. Suresh Gopalan, Dr. Moula Cherikh, and
Ms. Ramos were copied on that letter. (Id.)
The second charge of discrimination was filed on May 15,
2014, when Plaintiff filed a “Notice of Charge of
Discrimination” with the Equal Employment Opportunity Commission
[“EEOC”] alleging “[she] was subjected to a racially hostile
work environment and disparate treatment in regard to the terms
and conditions of [her] employment as compared to other
similarly situated employees not of [her] same race, which led
[her] to file a complaint regarding the treatment with [her]
employer.” (Notice of Charge of Discrimination (“EEOC Charge”)
(Doc. 12-1) at 3.)
During the time period beginning August 27, 2013, the date
of the filing of the charge with WSSU, administration at WSSU
and in the Department specifically consisted of the following
individuals. Dr. Brenda Allen was Provost and Vice Chancellor
for Academic Affairs and had been since December 15, 2008.
(Allen Aff. (Doc. 95-8) ¶ 2.) Dr. Moula Cherikh was Chair of the
Department and had been since August 2013. (Cherikh Aff. (Doc.
95-9) ¶ 5.) Silvia Ramos was the “Chief Diversity Officer, Title
IX Coordinator, and Equal Employment Opportunity and Affirmative
Action Officer” at WSSU. (Ramos Aff. (Doc. 95-4) ¶ 2.) Dr.
Derick Virgil was “Associate Dean over Academic Services and
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Assessment” at WSSU. (Affidavit of Derick Virgil (“Virgil Aff.”)
(Doc. 95-10) ¶ 3.)
Plaintiff contends that four specific actions by WSSU
constitute retaliation in violation of Title VII. Those
retaliatory actions include Defendant Smith forcing “unfavorable
class assignments on Plaintiff in the fall of 2014”; having “the
Human Resources concentration cancelled in the summer of 2014”;
being denied a pay raise; and having her students “punished by
being denied access to school writing lab resources.” (Pl.’s
Substitute Br. in Resp. to WSSU’s Mot. for Summ. J. (“Pl.’s Sub.
Resp.”) (Doc. 97) at 7-8.)
Additional relevant facts will be addressed in the analysis
as necessary.
Plaintiff’s sole claim as to WSSU is a Title VII
“retaliation” claim brought against WSSU under 42 U.S.C.
§ 2000e-3(a). (Amended Complaint (“Am. Compl.”) (Doc. 35) ¶¶ 8292.) Plaintiff alleges that, “[b]y reason of the conduct of
Defendant WSSU, Plaintiff has suffered emotional damage and
injury and tremendous mental anguish and humiliation, and has
lost the pay and benefits associated with the status of a
tenured faculty member at WSSU.” (Id. ¶ 88.) Plaintiff requests
compensatory damages, punitive damages, reasonable attorney’s
fees and costs. (Id. ¶¶ 90-92.)
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II.
LEGAL STANDARD
Summary judgment is appropriate where an examination of the
pleadings, affidavits, and other proper discovery materials
before the court demonstrates that no genuine issue of material
facts exists, thus entitling the moving party to judgment as a
matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986). The moving party bears the burden
of initially demonstrating the absence of a genuine issue of
material fact. Celotex, 477 U.S. at 323.
If the moving party has met that burden, then the nonmoving
party must persuade the court that a genuine issue remains for
trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 585-86 (1986). However, this requires “more than
simply show[ing] that there is some metaphysical doubt as to the
material facts”; the “nonmoving party must come forward with
‘specific facts showing that there is a genuine issue for
trial.’” Id. at 586-87 (citations and footnote omitted) (quoting
Fed. R. Civ. P. 56)(e)). In considering a motion for summary
judgment, the court is not to weigh the evidence, but rather
must determine whether there is a genuine dispute as to a
material issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986).
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Nonetheless, the court must ensure that the facts it
considers can be “presented in a form that would be admissible
in evidence” and that any affidavits or evidence used to support
or oppose a motion are “made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters
stated.” See Fed. R. Civ. P. 56(c)(2), (4).
The court must view the facts in the light most favorable
to the nonmoving party, drawing inferences favorable to that
party if such inferences are reasonable. Anderson, 477 U.S. at
255. However, there must be more than a factual dispute, the
fact in question must be material, and the dispute must be
genuine. Id. at 248; Fed. R. Civ. P. 56(c). A dispute is only
“genuine” if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at
248.
III. DISCUSSION – WSSU’S MOTION FOR SUMMARY JUDGMENT
“To establish a prima facie case of retaliation in
contravention of Title VII, a plaintiff must prove (1) that she
engaged in a protected activity, as well as (2) that her
employer took an adverse employment action against her, and (3)
that there was a causal link between the two events.” BoyerLiberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir.
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2015) (quoting E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d 397,
405-06 (4th Cir. 2005) (internal quotation marks omitted).
“Title VII retaliation claims require proof that the
desire to retaliate was the but-for cause of the
challenged employment action.” University of Tx. Sw.
Med. Ctr. v. Nassar, ____ U.S. ____, 133 S. Ct. 2517,
2528 (2013) (emphasis added); see Foster v. University
of Maryland-Eastern Shore, 787 F.3d 243, 246, 252 (4th
Cir. 2015) (“Nassar . . . held that a successful
retaliation plaintiff must prove that retaliatory
animus was a but-for cause of the challenged adverse
employment action.”). Because Title VII prohibits
discrimination only when it results from particular,
enumerated motivations, “when an employer articulates
a reason for discharging the plaintiff” that the
statute does not proscribe, “it is not our province to
decide whether the reason was wise, fair, or even
correct, ultimately, so long as it truly was the
reason for the plaintiff’s termination.” DeJarnette v.
Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998)
(internal quotation marks omitted); see also id.
(explaining that it is not our role to sit “as a kind
of super-personnel department weighing the prudence of
employment decisions”) (internal quotation marks
omitted).
Villa v. Cavamezze Grill, LLC, 858 F.3d 896, 900-01 (4th Cir.
2017).
The parties do not dispute whether Plaintiff engaged in
protected activity. The protected activity was Plaintiff
submitting a formal complaint to WSSU’s EEO office on August 27,
2013, as well as filing an actual charge with the EEOC on
May 15, 2014. (Ramos Aff. (Doc. 95-4) ¶¶ 13, 22); (EEOC Charge
(Doc. 12-1) at 3.)
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WSSU argues summary judgment should be granted because “(1)
Plaintiff failed to exhaust her administrative remedies
regarding [the retaliation] claim; (2) she failed to establish a
prima facie case of retaliation; and (3) the University had
legitimate, non-retaliatory reasons for its actions.” (WSSU’s
Sub. Mem. (Doc. 98) at 15.)
Plaintiff responds that “all of the four complained of
retaliatory acts by Defendant WSSU against Plaintiff are
reasonably related to the original complaint and/or were
developed by the reasonable investigation of the claim itself,”
which would not require Plaintiff “to file a separate charge of
retaliation after the first for fear of further retaliation.”
(Pl.’s Sub. Resp. (Doc. 97) at 9 (citing Jones v. Calvert Group,
Ltd., 551 F.3d 297, 302 (4th Cir. 2009)). Plaintiff also argues
that “she has met her burden of showing direct evidence of
retaliatory animus through the prolonged and systematic actions
of Dr. Smith, which she complained about to Defendant WSSU and
the EEOC, and for which she was retaliated against by Defendant
WSSU through meaningful negative employment consequences.” (Id.
at 12.) Plaintiff argues that “[i]n the alternative, Plaintiff
is still able to meet the McDonnell Douglas shifting burden
standard, specifically, there are legitimate issues of fact that
need to be determined by a jury as to whether Defendant WSSU’s
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actions were for a legitimate business purpose or pretextual.”
(Id.) Finally, Plaintiff argues that “[t]he University’s
asserted non-retaliatory reasons for its actions are mere
pretext for discrimination.” (Id. at 22.)
In its reply, in addition to disputing the above arguments,
WSSU highlights that “[i]n her Response, Plaintiff, for the very
first time, adds a fourth distinct act: ‘that WSSU removed her
as head of the human resources concentration and . . . allowed
Dr. Smith to set an unfavorable schedule for her in the fall of
2014.’” (Def. WSSU’s Substitute Reply in Supp. of Mot. for Summ.
J. (“WSSU’s Sub. Reply”) (Doc. 100) at 3.) WSSU also argues that
“WSSU cannot be held liable for any alleged retaliatory acts
committed by Smith” because “Plaintiff has failed to demonstrate
a basis for attributing Smith’s alleged misconduct to WSSU.”
(Id. at 3-4.)
A.
Failure to Exhaust Administrative Remedies
Defendant initially argues that Plaintiff failed to exhaust
administrative remedies with the EEOC as to the retaliation in
response to filing an EEOC complaint. (WSSU’s Sub. Mem. (Doc.
98) at 15-17.) The parties’ dispute is directed only to the
question of whether the alleged retaliation should have been
submitted to the EEOC in a separate complaint. (See id. at
16-17.)
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“[A] failure by the plaintiff to exhaust administrative
remedies concerning a Title VII claim deprives the federal
courts of subject matter jurisdiction over the claim.” Jones v.
Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009). However,
a plaintiff alleging a claim for retaliation does not have to
provide a separate right-to-sue letter. See id. at 301-02
(holding that plaintiffs are allowed to raise retaliation claims
for the first time in federal court, without previously
exhausting administrative remedies). Nevertheless, a plaintiff’s
complaint must still contain sufficient allegations to state a
claim for retaliation. See Davis v. N.C. Dep’t of Corr., 48 F.3d
134, 140 (4th Cir. 1995) (holding “that receipt of, or at least
entitlement to, a right-to-sue letter [from the EEOC] is a
jurisdictional prerequisite that must be alleged in a
plaintiff’s complaint”).
The EEOC complaint has been filed with this court. (EEOC
Charge (Doc. 12-1).) The Amended Complaint sets forth a
retaliation claim in violation of 42 U.S.C. § 2000e-3(a) as to
those actions occurring after the filing of the May 2014 EEOC
complaint. (Am. Compl. (Doc. 35) ¶¶ 82-92.) The EEOC complaint
alleges discrimination and retaliation by WSSU in response to
reporting and opposing discrimination, (see EEOC Charge (Doc.
12-1) at 3), but does not include a description of any alleged
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retaliation following the EEOC complaint. This court finds the
alleged retaliation in response to an EEOC complaint as set
forth in the Amended Complaint does not require another EEOC
filing. See Calvert, 551 F.3d at 301-02. In light of the record
presented to this court, Defendant’s motion for summary judgment
for failing to exhaust administrative remedies will be denied.
B.
Direct Evidence of Retaliatory Animus
“A plaintiff may prove discrimination under Title VII, 42
U.S.C. § 1981, or the ADEA either through direct and indirect
evidence of [discriminatory] animus, or through the burdenshifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792 [93 S. Ct. 1817, 36 L.Ed.2d 668] (1973).” Jones v.
Constellation Energy Projects & Servs. Grp., Inc., 629 F. App’x
466, 468 (4th Cir. 2015) (quoting Foster, 787 F.3d at 249)
(internal quotation marks omitted); Castonguay v. Long Term Care
Mgmt. Servs., LLC, No. 1:11CV682, 2014 WL 1757308, at *5
(M.D.N.C. Apr. 30, 2014).
Plaintiff argues that “she has met her burden of showing
direct evidence of retaliatory animus.” (Pl.’s Sub. Resp. (Doc.
97) at 12.) First, Plaintiff argues that “[t]he evidence, viewed
in a light most favorable to Plaintiff, reveals that Dr. Smith,
from nearly Plaintiff’s first day of work, intended to cause
great and permanent harm to Plaintiff’s vocational status at
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WSSU because of Plaintiff’s race.” (Id. at 13.) Plaintiff
alleges that, after Smith found out about Plaintiff’s internal
EEOC complaint, and
[o]nce Dr. Smith had [control over Plaintiff’s class
schedule in the Spring and Fall of 2014], she reset
Plaintiff’s teaching schedule, refusing to honor
Plaintiff’s requested dates for classes, adding
additional new “preps” for new classes, and increasing
Plaintiff’s teaching load despite knowing that this
was the year before Plaintiff came up for tenure and
Plaintiff needed to research and “publish or perish.”
(Id. at 15-16 (citing Mann Dep. (Doc. 75-1) at 266-69).)
Plaintiff’s other “direct evidence” is the timing of WSSU’s
cancellation of the Human Resources concentration and the
fact that various staff members of WSSU attributed the
cancellation, at least in part, to Plaintiff’s inability to
get along with Smith. (See id.) WSSU replies that “Smith
did not have control over Plaintiff’s class schedule.”
(WSSU’s Sub. Reply (Doc. 100) at 6.)
“Direct evidence encompasses ‘conduct or statements’
that both (1) ‘reflect directly the alleged discriminatory
attitude,’ and (2) ‘bear directly on the contested employment
decision.’” Laing v. Fed. Exp. Corp., 703 F.3d 713, 717 (4th
Cir. 2013) (quoting Warch v. Ohio Cas. Ins. Co., 435 F.3d 510,
520 (4th Cir. 2006)). “Evidence is too speculative if the
factfinder cannot rationally choose between mere ‘possibilities’
of meanings.” Johnson v. Toys “R” US-Delaware, Inc., 95 F. App’x
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1, 7 (4th Cir. 2004) (citing DeJarnette, 133 F.3d at 298; Abady
v. Hanover Fire Ins. Co., 266 F.2d 362, 364 (4th Cir. 1959)).
“Direct evidence is evidence from which no inference is
required, such as a decisionmaker’s statement that
she retaliated because of the plaintiff’s gender.” Castonguay,
2014 WL 1757308, at *5 (citing Holley v. N.C. Dep’t of Admin.,
846 F. Supp. 2d 416, 427 (E.D.N.C. 2012)).
This court disagrees with Plaintiff and finds that
Plaintiff has not presented direct evidence of retaliation by
WSSU. While Plaintiff’s evidence as to Dr. Smith’s
discriminatory comments and actions may be sufficient to create
a material issue of fact as to Dr. Smith’s improper racial
animus, there is no direct evidence that the decisionmakers of
Plaintiff’s schedule were motivated by a retaliatory animus. In
terms of cancellation of the Human Resources concentration,
Plaintiff’s direct evidence is insufficient to establish a
but-for causal connection as required by Nassar, 133 S. Ct. at
2528.
While Dr. Smith may have played a role in Plaintiff’s
employment circumstances, Plaintiff has not presented evidence
sufficient to establish that Smith was the decisionmaker with
respect to the modification of Plaintiff’s curriculum and
schedule. The Fourth Circuit has held that “the person allegedly
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acting pursuant to discriminatory animus need not be the ‘formal
decisionmaker’ to impose liability upon an employer for an
adverse employment action, so long as the plaintiff presents
sufficient evidence to establish that the subordinate was the
one ‘principally responsible’ for, or the ‘actual decisionmaker’
behind, the action.” Hill v. Lockheed Martin Logistics Mgmt.,
Inc., 354 F.3d 277, 288-289 (4th Cir. 2004) (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151-52, 120 S.
Ct. 2097, 2111 (2000)).
The Fourth Circuit further explained the agency issue as it
relates to retaliation in Balas v. Huntington Ingalls
Industries, Inc.:
Title VII does not “limit the discrimination inquiry
to the actions or statements of formal decisionmakers
for the employer.” Hill v. Lockheed Martin Logistics
Mgmt., Inc., 354 F.3d 277, 290 (4th Cir. 2004).
However, [the Fourth Circuit has] refused to endorse a
construction of Title VII that would treat a
“subordinate who has no supervisory or disciplinary
authority and who does not make the final or formal
employment decision [as] a decisionmaker simply
because he had a substantial influence on the ultimate
decision or because he has played a role, even a
significant one, in the adverse employment decision.”
Id. at 291. For Balas’s retaliatory termination claim
to succeed, she must demonstrate that Price “possessed
such authority as to be viewed as the one principally
responsible for the decision.” Id. It is fatal to her
claim that she presents no evidence to that effect.
711 F.3d 401, 410-11 (4th Cir. 2013). Similarly, here, Plaintiff
has failed to present evidence that Smith was sufficiently
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responsible for Plaintiff’s circumstances evidencing retaliation
such that Smith’s animus constitutes direct evidence of
retaliation by WSSU. With respect to the schedule change, it is
at most speculative that Smith had final authority over
Plaintiff’s schedule and curriculum. While Plaintiff testified
that Smith controlled schedules for the fall of 2014, (Pl.’s
Sub. Resp. (Doc. 97) at 4 (citing Mann Dep. (Doc. 75-1) at
266-69)), Plaintiff offers no specific support for that
position. This court finds Plaintiff’s general allegation is
insufficient to create a material issue of fact that Smith had
sufficient control over Plaintiff’s schedule such that any
change that might have occurred may be attributed to retaliatory
animus by Smith in light of the undisputed evidence.
The evidence in this case appears undisputed that on
August 19, 2013, Dr. Cherikh, as Chair of the Department, sent
an email naming area coordinators for 2013-2014. (Doc. 77 at
29.) Dr. Cherikh made Smith the Human Resources (“HR”)
Management Coordinator. (Id.) The email stated that the
“coordinators will work with the chair and their
colleagues . . . . Their duties will consist of program
coordination and management (i.e., course offerings . . .
scheduling, outcome assessments, etc.) and curriculum
development. Any curriculum development will have to be
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evaluated by the whole department and will follow the University
established process.” (Id.) This email confirms Plaintiff’s
testimony that Smith acquired control over Plaintiff’s schedule
to some degree.
On August 27, 2013, Plaintiff filed her EEO complaint with
Ramos. (Pl.’s Sub. Resp. (Doc. 97) at 3.) From August 20, 2013
through September, 2013, there is evidence of Dr. Smith taking
steps to control the HR curriculum and scheduling as the HR
coordinator. (See (Doc. 77) at 29-32.) Also during September,
Ramos advised Smith of Plaintiff’s complaint, (Doc. 93-9), and
sought responses to the allegations. (Doc. 80 at 26-30.)
However, by the end of September, Smith’s control over
Plaintiff’s schedule diminished to the point Smith was unable to
take any action on Plaintiff’s schedule for Spring 2014. On
September 26, 2013, Dr. Allen, for a second time, directed Smith
to recuse from any deliberations about Plaintiff’s employment.
(Doc. 93-13 at 1.) On October 4, 2013, Smith emailed Dr. Cherikh
to advise of, and apparently modify, the Spring 2014 schedule.
(Doc. 94-3.) The record contains an email from Cherikh dated
October 4 explicitly responding to Smith that “[t]he timing and
meeting days for Dr. Mann’s HR classes for spring 2014 cannot be
changed at this point. The schedule stands as it is.” (Id. at
1.) In the Spring of 2014, Dr. Cherikh discontinued the role of
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area coordinators because “nothing positive was reached . . .
but only complaints and counter complaints between Dr. Smith and
Dr. Mann.” (Cherikh Aff. (Doc. 95-9) ¶ 13 (citations omitted).)
Plaintiff has presented no evidence as to any schedule
preparation for the Fall of 2014, the parties responsible for
the creation of that schedule, or any difficulties created by
that schedule. In light of the fact Dr. Cherikh discontinued
Smith’s role of area coordinator, there is no evidence Smith
controlled Plaintiff’s schedule for the Fall 2014.
Due to Dr. Cherikh’s rejection of Smith’s requested
schedule for the Spring 2014 semester and the discontinuance of
Smith as HR Coordinator, Plaintiff’s testimony is not sufficient
to create a material issue of fact as to Smith’s actual control
of Plaintiff’s schedule. To the contrary, while Smith and
Plaintiff may have believed that as area coordinator, Smith had
some control of scheduling, the record contains no evidence that
any changes suggested by Smith were allowed by Defendant;
instead, the only specific evidence of Smith’s effort to make
schedule changes requires a finding that Smith’s proposal was
rejected by Cherikh and Defendant. (Doc. 93-13; Doc. 94-3.)
Plaintiff also argues “direct evidence” of WSSU’s
retaliation in that “[d]efendant WSSU engaged in conduct and
statements that clearly reflected the retaliatory motive in
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cancelling Plaintiff’s Human Resources concentration.” (Pl.’s
Sub. Resp. (Doc. 97) at 16.) Like the claim with respect to
class scheduling, there is no evidence that Dr. Smith had
sufficient control over the decision such that her
discriminatory animus might be deemed direct evidence of WSSU’s
retaliation. To the contrary, the decision appears to have been
made by others and to have affected both Plaintiff and Smith.
(E.g., Cherikh Aff. (Doc. 95-9) ¶ 20.) Although the evidence
permits a finding that Allen and Gopalan considered, among other
factors, that Smith and Plaintiff could not get along, (Doc. 78
at 504), the evidence does not rise to the level of direct
evidence of retaliatory animus sufficient to establish a “butfor” causal relationship.
Nevertheless, Plaintiff contends that, even if the direct
evidence fails to establish a genuine issue of fact, she has
presented sufficient evidence to proceed “through the burdenshifting framework of McDonnell Douglas.” Constellation Energy
Projects, 629 F. App’x at 468.
C.
Prima Facie Case of Retaliation
1.
Summary of Relevant Law
“To state a prima facie case of retaliation, [Plaintiff]
must show (1) that [s]he engaged in a protected activity; (2)
[WSSU] acted adversely against [her]; and (3) the protected
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activity was causally connected to the adverse action.” Holland
v. Wash. Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007) (citing
Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir. 1997)).
“In retaliation cases, a plaintiff must show that a
reasonable employee would have found the challenged action
materially adverse, which in this context means it well might
have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Jensen-Graf v. Chesapeake Employers’
Ins. Co., 616 F. App’x 596, 598 (4th Cir. 2015) (quoting
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006) (internal quotation marks omitted)). Further, “[s]uch
actions need not affect the terms and conditions of employment.”
Id. However, “[a]n employee’s decision to report discriminatory
behavior cannot immunize that employee from those petty slights
or minor annoyances that often take place at work and that all
employees experience.” Burlington N., 548 U.S. at 68. “Although
the fact that an employee continues to be undeterred in his or
her pursuit of a remedy may shed light as to whether the actions
are sufficiently material and adverse to be actionable, the
court ultimately must apply an objective standard.” Wells v.
Gates, 336 F. App’x 378, 384 (4th Cir. 2009) (quoting Somoza v.
Univ. of Denver, 513 F.3d 1206, 1214 (10th Cir. 2008) (internal
quotation marks omitted)).
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Finally, “in determining whether conduct amounts to an
adverse employment action, the alleged acts of retaliation need
to be considered both separately and in the aggregate, as even
minor acts of retaliation can be sufficiently ‘substantial in
gross’ as to be actionable.” Hicks v. Baines, 593 F.3d 159, 165
(2d Cir. 2010) (internal citations omitted); see also McNeill v.
Bd. of Governors of the Univ. of N.C., 837 F. Supp. 2d 540, 547
(M.D.N.C. 2011). “However, this does not mean that all the
actions alleged to be retaliatory must necessarily be considered
together, but if context suggests that the actions are related,
they may be considered together.” Buckner v. Lew, No. 5:13-CV199-FL, 2015 WL 5725760, at *10 (E.D.N.C. Sept. 30, 2015),
reconsideration denied, No. 5:13-CV-199-FL, 2015 WL 6692234
(E.D.N.C. Nov. 2, 2015), and aff’d, 668 F. App’x 487 (4th Cir.
2016).
Assuming arguendo that Plaintiff “has established a prima
facie case of retaliation, [then] the burden shifts to the
defendant to articulate a legitimate, non-retaliatory reason for
the adverse employment action.” Navy Fed. Credit Union, 424 F.3d
at 407 (citing Reeves, 530 U.S. at 143; Laughlin v. Metro. Wash.
Airports Auth., 149 F.3d 253, 258 (4th Cir. 1998)). “Assuming
the employer meets this burden of production, . . . the burden
shifts back to the plaintiff to prove by a preponderance of the
- 23 -
evidence that the employer’s stated reasons for taking the
employment action were not its true reasons, but rather pretext
for unlawful discrimination.” Moore v. Mukasey, 305 F. App’x
111, 114–15 (4th Cir. 2008) (quoting Hill, 354 F.3d at 285
(internal quotation marks omitted)).
“A plaintiff may satisfy
this burden by showing either that the employer’s explanation is
not credible, or that the employer’s decision was more likely
the result of retaliation.” Sharif v. United Airlines, Inc., 841
F.3d 199, 203 (4th Cir. 2016) (citing Reeves, 530 U.S. at 143;
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981)).
“Title VII retaliation claims must be proved according to
traditional principles of but-for causation, which requires
proof that the unlawful retaliation would not have occurred in
the absence of the alleged wrongful action or actions of the
employer.” Everhart v. Bd. of Educ. of Prince George’s Cty., 660
F. App’x 228, 230 (4th Cir. 2016) (quoting Nassar, 133 S. Ct. at
2533) (internal quotation marks omitted); Castonguay, 2014 WL
1757308, at *7. In addition, “[a] plaintiff cannot prove
causation, the third element of the prima facie case, without
showing that the employer actually had knowledge of the
protected activity.” Pittman v. Hunt Const. Grp., 564 F. Supp.
2d 531, 535 (E.D.N.C. 2008), aff’d, 308 F. App’x 672 (4th Cir.
- 24 -
2009) (citing Gibson v. Old Town Trolley Tours of Wash., D.C.
Inc., 160 F.3d 177, 181-82 (4th Cir. 1998); Dowe v. Total Action
Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir.
1998)); Adefila v. Select Specialty Hosp., 28 F. Supp. 3d 517,
524 (M.D.N.C. 2014) (citing Hooven–Lewis v. Caldera, 249 F.3d
259, 278 (4th Cir. 2001)). “To establish a causal link between
the alleged animus and the adverse employment action, a
plaintiff must demonstrate that the individuals who expressed
animus played a role in the adverse employment action.”
Constellation Energy Projects, 629 F. App’x at 470 (citing
Crockett v. Mission Hosp., Inc., 717 F.3d 348, 356 (4th Cir.
2013)).
With regards to two of the alleged adverse employment
actions, Plaintiff argues that temporal proximity between her
protected action and the alleged retaliation is probative.
(Pl.’s Sub. Resp. (Doc. 97) at 19-20.)
The Fourth Circuit has held that certain periods of time
between the protected activity and the allegedly retaliatory
“adverse employment action” can have an impact on causation.
See Foster, 787 F.3d at 253 (one-month period is “sufficient to
create a jury question regarding the causation prong of the
prima facie case”); Pascual v. Lowe’s Home Ctrs., Inc., 193
F. App’x 229, 233 (4th Cir. 2006) (A three- to four-month period
- 25 -
“is too long to establish a causal connection by temporal
proximity alone.”); King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th
Cir. 2003) (A two- and a half-month period “between Carlson’s
notice of the complaint and the adverse employment action is
sufficiently long so as to weaken significantly the inference of
causation between the two events.”). “[G]enerally speaking,
however, the passage of time alone cannot provide proof of
causation unless the temporal proximity between an employer’s
knowledge of protected activity and an adverse employment action
was very close.” Pascual, 193 F. App’x at 233 (quoting Clark
Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per
curium) (internal quotation marks omitted)).
Here, the parties do not dispute whether Plaintiff engaged
in protected activity. The parties do dispute whether Plaintiff
has presented evidence of adverse employment action and whether
there is a causal connection between the protected activity and
any adverse employment action. (WSSU’s Sub. Mem. (Doc. 98);
Pl.’s Sub. Resp. (Doc. 97).)
Plaintiff alleges four adverse employment actions: “(1) the
resetting of [her] teaching load by Smith; (2) the denial of
merit bonus; (3) the placement of the HR program on hold; and
(4) the denial of her class access to the writing lab on
November 13, 2014.” (WSSU’s Sub. Reply (Doc. 100) at 8; Pl.’s
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Sub. Resp. (Doc. 97) at 7-8.) As to the second adverse
employment action, the parties agree that Plaintiff being
“passed over” for the merit raise constitutes an adverse
employment action.
2.
Writing Lab Incident
This court finds that Plaintiff’s class being turned away
from the Writing Lab on November 13, 2014, does not rise to the
level of an “adverse employment action” sufficient to support a
retaliation claim. This court also finds that Defendants showed
a “legitimate, non-retaliatory reason” for sending Plaintiff’s
class away that day.
(a)
Facts
The Writing Center incident occurred when several of
Plaintiff’s students sought assistance with an assignment at the
Writing Center. All of the students were turned away on that
day, including at least one or two students who had made an
appointment. Plaintiff states that she was
retaliated against again on November 13, 2014 when I
received emails from several of my students that
informed me that they were denied access to the
writing lab because I was being “punished” for not
making an appointment[] (though many of them did.)
(Pl.’s Aff. (Doc. 73-9) ¶ 56.) Plaintiff further describes in
her deposition her awareness of the emails sent by the Writing
Center to her students saying the Writing Center was not “going
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to see any of Dr. Mann’s students.” (Mann Dep. (Doc. 75-1) at
227-28.)
The record contains three different student emails
detailing the exchange at the Writing Center. (Doc. 80-3 at 5,
7, 11.) The first email provides that the Writing Center
“informed [the student] that this is a punishment because they
were not made aware that Dr Mann’s [sic] students would be
coming.” (Id. at 5.) The second email provides that “[w]hen [the
student] went to check in at the front desk, the two women told
[her that she] was not allowed to be seen today because [she]
was in [Plaintiff’s] class, and they did not know [Plaintiff’s]
students were coming.” (Id. at 7.) The third email provides that
“[the student’s] appointments were cancelled and they are saying
it’s due to [Plaintiff] not telling them that [the students]
were coming.” (Id. at 11.)
Plaintiff sent an email to Dr. Notis Pagiavlas and Dr.
Cherikh complaining of the incident, alleging that her students
were “discriminated against” by the actions of Dr. Pamela
Simmons. (Doc. 80-3 at 3.) The email also references one of the
issues Dr. Simmons raised (“[e]ven if Dr. Simmons was shortstaffed”). (See id.) In the email, Plaintiff describes her
apparent resolution of the issue with Dr. Virgil’s support.
(Id.) Plaintiff sent an email to her students advising them of
- 28 -
the problem’s resolution and the record contains no evidence of
further issues between Plaintiff and the Writing Center. (See
id. at 1-2.)
Dr. Simmons’ affidavit, while consistent with Plaintiff’s
allegations in many respects, states that twenty-five or more of
Plaintiff’s students arrived at the Writing Center seeking
assistance on the day in question. (Affidavit of Pamela Simmons
(“Simmons Aff.”) (Doc. 95-5) ¶ 5.) According to Dr. Simmons,
Plaintiff directed the students to visit the Writing Center
during their regularly scheduled class time and the Writing
Center did not service Plaintiff’s students due to limited
space, limited seats, and limited faculty. (Id. ¶¶ 5, 9.)
Dr. Simmons describes Writing Center policy as follows:
The Writing Center policy offers guidelines for
faculty and students. The policy provides that faculty
are expected to assist the Writing Center in assisting
students by meeting with the Writing Center staff
first before sending large groups of students to the
Center. Faculty are also expected to provide the
Writing Center staff with prior knowledge of writing
assignments so that the tutoring staff can best help
students sent over by faculty.
Pursuant to the Writing Center’s policy, before asking
students to visit the Center, faculty are to meet with
one of the Writing Centers’ staff to explain the
assignment and discuss the desired interventions they
would like the staff to provide. Faculty are also
expected to meet with the Writing Center staff after
the assignment has been completed so that the staff
can determine whether the intervention was effective.
- 29 -
(Id. ¶¶ 11-12.) Dr. Simmons concludes that “Dr. Mann did not
follow the Writing Center’s guidelines.” (Id. ¶ 13.)
Dr. Virgil describes the November 2014 Writing Center
incident consistently with Dr. Simmons, including the policies
described by Dr. Simmons and the problems that arose from an
entire class arriving at the same time without prior notice to
the Writing Center. (Virgil Aff. (Doc. 95-10) at 2-3.)
Plaintiff only disputes the facts described by Dr. Simmons
and Dr. Virgil in a general, conclusory fashion. Plaintiff
alleges that she was told she “had to follow certain protocols
that were not put in place for everyone else. . . . They weren’t
actual protocols. They were never communicated to me . . .
That’s not what any of the other, you know, faculty do.” (Mann
Dep. (Doc. 75-1) at 230-31.) While there may be some dispute as
to the actual rules of the Writing Center, Plaintiff’s testimony
does not contradict the following operative facts as described
by Dr. Simmons and Dr. Virgil: (1) a large number of students
showed up unexpectedly to the Writing Center on November 13,
2014; (2) the Writing Center did not have the teachers or
facilities to accommodate the group of students at that time;
and (3) whether Plaintiff was aware of it or not, both Dr.
Virgil and Dr. Simmons had some expectation that teachers would
- 30 -
notify the Writing Center when students would be seeking
assistance on a particular project.
(b)
Adverse Employment Action
Plaintiff alleges that the Writing Center incident “caused
[her] to risk losing the respect of her students and increased
the likelihood that Plaintiff would have negative reviews from
students.” (Pl.’s Sub. Resp. (Doc. 97) at 18-19.) However,
“[c]ourts within the Fourth Circuit have generally found that
actions which essentially amount to criticism of an employee
such as negative performance evaluations, reprimands or
warnings, and counseling are alone insufficient to constitute
materially adverse employment actions under the Burlington
standard.” Phillips v. City of Concord, No. 1:10CV947, 2013 WL
1934869, at *9 (M.D.N.C. May 9, 2013), report and recommendation
adopted, No. 1:10CV947, 2013 WL 2403469 (M.D.N.C. May 31, 2013)
(citing Christy v. City of Myrtle Beach, No. 4:09–cv–1428–JMC–
TER, 2011 WL 4808193, at *21 (D.S.C. July 27, 2011)). Further,
Plaintiff has not cited, nor has this court found, any case law
holding that this type of action constitutes an “adverse
employment action” as necessary to establish adverse employment
action in support of a Title VII Retaliation claim. It appears a
third party, the students, were those most affected by this
action and any adverse effect on Plaintiff was collateral and
- 31 -
tenuous at most. Plaintiff has not presented evidence of any
adverse consequences to Plaintiff from the Writing Center
incident other than her concern over her reputation with her
students.
Any prospective negative impact of this incident, to the
extent it exists, is further limited by the fact that “[o]nce
the issues were resolved, Dr. Mann invited [Simmons] to
facilitate a session on best practices in writing in two of her
classes” and Simmons “invited Dr. Mann’s students to visit the
Writing Center.” (Simmons Aff. (Doc. 95-5) ¶ 15.) Plaintiff’s
email to her students, indicating “[t]he writing center will now
be making appointments to see you and will provide you the
highest level of service possible . . . . Everyone is taking
this situation seriously and we can assure you that you will not
have this issue going forward” further suggest the negative
impact of the incident was limited and corrected. (Doc. 80-3 at
1-2.)
The Writing Center incident occurred almost six months
after Plaintiff filed the EEOC complaint and did not prevent
Plaintiff from further interacting positively and
collaboratively with the staff of the Writing Center. This
incident does not appear sufficiently adverse to “have dissuaded
[Plaintiff] from making or supporting a charge of
- 32 -
discrimination.” Jensen-Graf, 616 F. App’x at 598 (quoting
Burlington N., 548 U.S. at 68).
For these reasons, this court finds that Plaintiff’s
students, being “turned away” from the Writing Center on
November 13, 2014, does not constitute an adverse employment
action sufficient to support a retaliation claim.
(c)
Legitimate, Non-Retaliatory Reasons
The record indicates that on November 13, 2014, Plaintiff’s
students were turned away from the Writing Center because Dr.
Mann did not make an appointment. (See Simmons Aff. (Doc. 95-5)
¶¶ 5-8; Virgil Aff. (Doc. 95-10) ¶ 7.) The record also indicates
that neither Writing Center employee was aware of Plaintiff’s
protected activity. (Id. ¶ 17.)
WSSU argues “Plaintiff’s class was denied access to the
writing center because Plaintiff did not follow the writing
center’s guidelines and let the center know ahead of time that
her entire class would be coming.” (WSSU’s Sub. Mem. (Doc. 98)
at 27.) Plaintiff argues that “writing lab students who were
turned away had appointments and were specifically told that
- 33 -
being turned away was ‘a punishment’3 for the Plaintiff despite
having prior appointments.” (Pl.’s Sub. Resp. (Doc. 97) at 24.)
As highlighted above, however, Smith and Virgil both claim, with
no knowledge of Plaintiff’s protected activity, that Plaintiff’s
students were turned away because Plaintiff did not make an
appointment to send her entire class at one time. (See Simmons
Aff. ¶¶ 5-8; Virgil Aff. (Doc. 95-10) ¶ 7.)
This court finds that WSSU has “articulate[d] a legitimate,
non-retaliatory reason for the adverse employment action.” Navy
Fed. Credit Union, 424 F.3d at 407 (citing Reeves, 530 U.S. at
143; Laughlin, 149 F.3d at 258). The Writing Center was unable
to accommodate Plaintiff’s entire class without notice, (see
Simmons Aff. (Doc. 95-5); Virgil Aff. (Doc. 95-10), and
Plaintiff has not produced evidence sufficient to show
otherwise.
Plaintiff argues that “[p]retext can also be shown where
two similarly situated employees engage in substantially similar
conduct, yet are disciplined differently. . . . The fact that
Plaintiff’s students alone were subject to additional
Although one email does refer to a “punishment,” because
Drs. Simmons and Virgil were not aware of Plaintiff’s protected
activity, the only reasonable inference of a “punishment” is to
the failure to provide advance notice of the attendance of an
entire class at the Writing Center as stated in the email,
consistent with the email reference to the failure to give
notice. (See Doc. 80-3 at 5.)
- 34 3
rules . . . is sufficient evidence . . . that the Defendant’s
stated reasons were mere pretext for discrimination.” (Pl.’s
Sub. Resp. (Doc. 97) at 24-25 (internal citations omitted).)
However, Plaintiff identifies only one comparator, Dr. Monica
(Dee) Guillory, another junior faculty member. (See Mann Dep.
(Doc. 75-1) at 231.) Dr. Guillory’s experiences with the Writing
Center, as described by Plaintiff, are too vague to permit a
comparison sufficient to create a material issue of fact. It is
not clear how many students Dr. Guillory may have sent to the
Writing Center at any particular time or what Dr. Guillory may
have done in relation to the Writing Center protocols. (See id.
at 231-32.) Therefore, it is speculative as to whether Dr.
Guillory is a comparator that would be sufficiently similar to
create an inference of discrimination or retaliation.
As further evidence of pretext, Plaintiff cites a portion
of her own deposition where she claims the Writing Center’s
policy or protocol that professors make a reservation before
sending their entire class was “made up” and “were not put in
place for everyone else.” (Id. at 230.) The record otherwise
offers no corroboration for this claim in the face of Simmons
and Virgil’s contrary testimony. Even if Plaintiff’s claims are
true, Simmons and Virgil both stated that, at the time of their
allegedly retaliatory interaction with Plaintiff, they “had no
- 35 -
knowledge that Plaintiff had filed complaints against Dr. Janice
Smith and Dr. Mak Khojasteh with the University’s EEO Officer
and a civil rights complaint against the University.” (Simmons
Aff. (Doc. 95-5) ¶ 17; Virgil Aff. (Doc. 95-10) ¶ 17.)
Plaintiff has not presented evidence from which a jury could
find that Simmons or Virgil did know of the complaints. As such,
this court finds that Plaintiff did not “establish that [Simmons
and Virgil] had knowledge of the protected activity in order for
[their] subsequent adverse employment actions to be
retaliatory.” Shields v. Fed. Exp. Corp., 120 F. App’x 956, 962
(4th Cir. 2005) (citing Luckie v. Ameritech Corp., 389 F.3d 708,
715 (7th Cir. 2004)).
This court finds that Plaintiff has not shown that the
writing lab incident constitutes a retaliatory act. The incident
was not materially adverse, the decisionmakers were not aware of
the discrimination complaint, and Plaintiff has not presented
material evidence from which a jury could find that WSSU’s
“stated reasons for taking the employment action were not its
true reasons, but rather ‘pretext’ for unlawful discrimination.”
Moore, 305 F. App’x at 114–15 (citing Hill, 354 F.3d at 285).
The Writing Center incident constitutes an unfortunate episode
for Plaintiff and for her students, but the evidence is
- 36 -
insufficient to establish it as an adverse employment action for
purposes of a retaliation claim.
3.
Schedule Change
This court finds that the record does not support
Plaintiff’s allegations regarding Smith’s tampering with her
teaching schedule. See supra Section III.B. This court also
finds that, even if the aforementioned tampering did occur, it
did not rise to the level of an “adverse employment action”
sufficient to support a retaliation claim. Finally, this court
finds that Plaintiff’s arguments as to temporal proximity are
not sufficiently persuasive, on their own, to survive the
present motion.
(a)
Facts
Plaintiff did have concerns, and perhaps valid concerns,
about the actions Smith might have undertaken as HR Management
Coordinator. Plaintiff testified in her deposition that, in that
capacity, Smith “would be organizing schedules, assigning
classes, you know, handing out duties as it relates to, you
know, curriculum, etc.” (Mann Dep. (Doc. 75-1) at 157.)
Plaintiff testified that Smith did “assign . . . classes . . .
to [Plaintiff] during her time as HR coordinator.” (Id.)
Plaintiff testified that she had “objections to the classes that
Dr. Smith assigned to [her]” (id. 157-58) and that she brought
- 37 -
those concerns to “Moula Cherikh and Suresh Gopalan.” (Id. at
158.)
However, beyond the fact that Plaintiff had objections to
the classes she was assigned, Plaintiff offers no further detail
as to what those objections might have been or why she objected
to the class schedule for the Spring and Fall 2014 semesters.
The only evidence in the record to support Plaintiff’s
assertion that Smith abused control over Plaintiff’s class
schedule is found in Plaintiff’s deposition when she alleges
that Smith had “control over certain classes that [Plaintiff
was] teaching and days that [Plaintiff was] teaching.” (Mann
Dep. (Doc. 75-1) at 267.) Plaintiff’s conclusory assertion that
Smith controlled the schedule is belied by the factual record.
As noted earlier in this Memorandum Opinion, see supra Section
III.B., Smith did not have any actual control over Plaintiff’s
schedule for the Spring 2014 semester, as her requested changes
were rejected. (See Doc. 94-3.) Neither party has presented
clear evidence as to who controlled the schedule for Fall 2014.
Notwithstanding Plaintiff’s own testimony, this court finds that
the evidence in the record does not support a finding that
Dr. Smith personally maintained agency over Plaintiff’s course
scheduling, through which Dr. Smith would be able to freely
manipulate course scheduling in retaliation for Plaintiff’s
- 38 -
protected activity. This court also finds that Plaintiff has
presented no evidence of any change (or any negative effect as
the result of a change) in Plaintiff’s schedule for Fall 2014.
(b)
Adverse Employment Action
Even assuming Smith had some agency over Plaintiff’s class
schedule and that Plaintiff found the schedule objectionable,
this court finds that Plaintiff’s Spring 2014 and Fall 2014
class schedules do not constitute “adverse employment action.”
A change in schedule or alteration of a schedule may
constitute adverse employment action even if it does not affect
salaries or duties. See, e.g., Washington v. Ill. Dep’t of
Revenue, 420 F.3d 658, 662 (7th Cir. 2005) (altering plaintiff’s
schedule exploited a vulnerability of the plaintiff, as flextime schedule allowed her to care for her son). As the Second
Circuit persuasively described in finding that a schedule change
was a punitive adverse employment action, “‘an act that would be
immaterial in some situations is material in others. For
example, ‘[a] schedule change in an employee’s work schedule may
make little difference to many workers, but may matter
enormously to a young mother with school-age children.’ And of
course context can diminish as well as enlarge material effect.”
Hicks, 593 F.3d at 165 (quoting Burlington N., 548 U.S. at 69).
- 39 -
A plaintiff “must allege more than a dislike for her new
assignments or a preference for her old ones” in order for a
court to find a retaliatory injury. Vance v. Ball State Univ.,
646 F.3d 461, 474 (7th Cir. 2011). An assertion that a shift
change or schedule change is undesirable or inconvenient “does
not rise to the level of harm sufficiently serious to dissuade a
reasonable worker from making or supporting a charge of
discrimination.” Thomas v. Potter, 202 F. App’x 118, 119 (7th
Cir. 2006) (quoting Burlington N., 548 U.S. at 57 (internal
quotation marks omitted)).
Plaintiff never alleges, in any detail, the actual changes
to her schedule nor does she allege any specific hardship.
Plaintiff testified that she “was not given the days that I had
wanted to be given” and also had “an additional new prep that I
had never done before that was, you know, a year before I’m
coming up for tenure and should be doing research. . . . [I]t’s
almost like, you know, again, I’m being put in a really adverse
position where I can’t do what I need. It’s publish or p[e]rish
. . . “ (Mann Dep. (Doc. 75-1) at 267-68.) Plaintiff provided
this testimony in 2016, and beyond her stated apprehension about
the schedule generally, Plaintiff otherwise describes no
specific difficulties with the schedule as altered, whatever
that change may have been. Notably, “[o]n August 18, 2014, [Dr.
- 40 -
Allen] notified [Plaintiff] by letter that [Plaintiff] would be
reappointed to a three-year fixed term appointment as Assistant
Professor of Management and Marketing beginning August 2014 and
ending May 2017.” (Allen Aff. (Doc. 95-8) ¶ 37.) The appointment
suggests Plaintiff’s concerns over the affect her schedule
change would have on her ability to obtain re-appointment were
unfounded. This court finds that Plaintiff has not presented
evidence of a significant adverse effect of the schedule change
beyond her initial apprehension.
Plaintiff’s apprehension about her changed schedule
constitutes the “minor annoyances that often take place at work
and that all employees experience.” Burlington N., 548 U.S. at
68; see Walker v. Glaxosmithkline (GSK), Case No. RWT 15-cv2036, 2016 WL 4265341, at *5 (D. Md. Aug. 12, 2016); Johnson v.
United Parcel Serv., Inc., Civil Action No. RDB-14-4003, 2016 WL
4240072, at *5 (D. Md. Aug. 11, 2016), aff’d, No. 16-2045, 2017
WL 715834 (4th Cir. Feb. 23, 2017); Cherry v. Elizabeth City
State Univ., 147 F. Supp. 3d 414, 426 (E.D.N.C. 2015) (citing
Holland, 487 F.3d at 219 (“The mere fact that a new job
assignment is less appealing to the employee . . . does not
constitute adverse employment action.”)); see also Martin v.
Merck & Co., 446 F. Supp. 2d 615, 637 (W.D. Va. 2006). As such,
- 41 -
this court finds that any altering of Plaintiff’s schedule does
not constitute “adverse employment action.”
(c)
Causation - Temporal Proximity
Plaintiff cites an August 20, 2013 email for the
proposition that “Dr. Smith’s decision to change Plaintiff’s
teaching schedule came in the spring of 2014, after Dr. Smith
learned of the completion of the November 2013 . . .
investigation.” (Pl.’s Sub. Resp. (Doc. 97) at 20 (citing Doc.
77 at 30-31; Doc. 78 at 490-94, 498-99).) Plaintiff also cites
November 2013 correspondence between Mann, Smith and Allen
summarizing the results of the investigation. (Id. (citing (Doc.
78) at 490-94, 498-99).)
While these letters do show that Smith became aware of the
results of the internal investigation during November 2013, they
do not provide any evidence of “Smith’s decision to change
Plaintiff’s teaching schedule.” (Pl.’s Sub. Resp. (Doc. 97) at
20.) This court finds that the time period of November, 2013, to
sometime in the spring of 2014 (the date of a schedule change
for Fall 2014 according to Plaintiff) “is too long to establish
a causal connection by temporal proximity alone.” Pascual, 193
F. App’x at 233 (finding three to four months separating the
protected activity and firing was too long for temporal
proximity). And although Plaintiff testified that the fall 2014
- 42 -
schedule was created in the spring of 2014, (Mann Dep. (Doc.
75-1) at 267-69), there is no evidence as to what that change
was or of any hardship created. By the spring of 2014, Dr.
Cherikh discontinued the role of area coordinators, thereby
removing Smith from any control of Plaintiff’s schedule.
(Cherikh Aff. (Doc. 95-9) ¶ 13.) Plaintiff has not presented any
evidence of a material, adverse effect of her Fall 2014
schedule.
Although Plaintiff may have genuinely had significant
concern over the possibilities if Smith controlled her schedule,
the evidence is insufficient to demonstrate a material adverse
employment action sufficient to support a claim of retaliation
by WSSU.
4.
Cancellation4 of the Human Resources Program
This court finds that WSSU putting the Human Resources
major “on hold” did not constitute “adverse employment action”
given the surrounding circumstances. This court finds that
Plaintiff’s arguments as to temporal proximity are not
The record seems clear that the HR concentration was put
on some type of suspension of indefinite duration. Plaintiff
uses the term “cancelled” and Defendant uses the term “on hold.”
Nevertheless, in this opinion, this court uses the terms “placed
on hold” and “cancellation” interchangeably, both to refer to a
suspension of indefinite duration.
4
- 43 -
sufficiently persuasive, on their own, to survive the present
motion.
(a)
Facts
Plaintiff states that in June 2014, she “learned that [her]
HR Concentration and Department was cancelled for the Fall and
presumably the future. . . . [Plaintiff] made it clear that
[Plaintiff] was unhappy that [her] program was being eliminated
through no fault of [her] own and due to disagreements with Dr.
Smith arising out of [Smith’s] discriminatory actions toward
[Plaintiff].” (Pl.’s Aff. (Doc. 73-9 ¶ 52.) Plaintiff contends
this cancellation of the HR concentration constitutes
retaliation for her filing of discrimination complaints.
According to WSSU, “the University decided to place the HR
program on hold because of low enrollment, a change in the
University’s strategic decision that placed a greater emphasis
on liberal arts education, and the need to optimize faculty
resources.” (WSSU’s Sub. Mem. (Doc. 98) at 27 (citations
omitted).) In addition to a perceived “lack of collegiality”
between Plaintiff and Smith, Gopalan said that the HR courses
suffered from “single digit[]” enrollment and that the
University wanted to focus more on “liberal art education.”
(Affidavit of Suresh Gopalan (“Gopalan Aff.”) (Doc. 95-7)
¶¶ 11-12.) Cherikh also said that “the Human Resources
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concentration within the Management major was being put on hold
due to low enrollment . . . [and] very poor collaboration and
collegiality between the main two faculty members in that field
(Drs. Smith and Mann).” (Cherikh Aff. (Doc. 95-9) ¶ 20 (internal
citations omitted).) Allen said that “[e]nrollment in HR courses
had plummeted and the Department needed to find a way to better
optimize and utilize existing resources.” (Allen Aff. (Doc.
95-8) ¶ 34 (internal citations omitted).) Allen also said that
“the decision . . . was not made lightly . . . [and] was not
made as a retaliatory measure against Dr. Mann.” (Id. ¶ 35.)
(b)
Adverse Employment Action
Even assuming there are issues of fact as to the reasons
for cancellation of the HR program, the cancellation does not
constitute an adverse employment action. Plaintiff alleges that,
as a result of the cancellation, “she would now have to read and
research in an all new area.” (Pl.’s Sub. (Doc. 97) at 18
(quoting Mann Dep. (Doc. 75-1) at 226-27) (internal quotation
marks omitted).)
As a preliminary matter, given Plaintiff’s position as a
“management professor,” even one with a concentration and
preference in HR, this court is not able to find from the
evidence that Plaintiff had any reasonable expectation that she
would teach only HR courses as opposed to other general
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management courses such that placing the HR program on hold was
adverse to Plaintiff. Plaintiff argues that she “was now forced
to prepare an all new curriculum, do curriculum research on a
different topic area with little time to complete the research
necessary to achieve tenure status.” (Id.) However, while this
may be a disputed issue of fact as to the burden imposed by the
reassignment, the record as a whole does not support a finding
that this constitutes a significant detrimental effect nor even
an unreasonable employment action as to Plaintiff.
The record indicates, and it appears undisputed, that
Plaintiff “was capable and qualified to teach other
topics . . . . Dr. Mann was hired as an Assistant Professor of
Management, not as an Assistant Professor of Human Resources.
Her graduate training was in Management and Organizational
Behavior.” (Cherikh Aff. (Doc. 95-9) ¶ 21.) Further, “[a]s a
management professor, Dr. Mann was eligible and qualified to
teach several other management courses including the basic HR
courses that were not being taken off the table (including the
graduate MBA HR course).” (Gopalan Aff. (Doc. 95-7) ¶ 14.)
Cherikh said that Mann “would have been a valuable and an
effective instructor for the majority of courses comprising the
general Management major.” (Cherikh Aff. (Doc. 95-9) ¶ 21.)
Gopalan “did not see this as a negative for [Mann’s] career in
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WSSU.” (Gopalan Aff. (Doc. 95-7) ¶ 14.) Plaintiff does not
dispute this evidence.
A district court within the Fourth Circuit has persuasively
held that a teaching assistant who was “assigned janitorial
duties; and . . .
could not attend assemblies due to her
workload” had not sufficiently shown an “adverse employment
action.” Thomas v. Cumberland Cty. Bd. of Educ., No. 5:10-CV552-FL, 2013 WL 5348439, at *5 (E.D.N.C. Sept. 23, 2013), aff’d,
558 F. App’x 311 (4th Cir. 2014). Another district court within
the Fourth Circuit, in holding that a teacher whose school
system transferred her to a different school had not satisfied
the appropriate standard, observed that “overwhelming authority
continues to hold that transfers like the one at issue are not
adverse action. Under Burlington Northern’s objective inquiry,
district courts in this circuit have held again and again that
involuntary transfers have not constituted adverse action under
the retaliation provision.” Holleman v. Colonial Heights Sch.
Bd., 854 F. Supp. 2d 344, 355 (E.D. Va. 2012) (citing Sturdivant
v. Geren, Civil Action No. 1:09-cv-586, 2009 WL 4030738, at *7
(E.D. Va. Nov. 19, 2009)).
In August of 2014, Plaintiff was reappointed “to a threeyear fixed term appointment as Assistant Professor of Management
and Marketing beginning August 2014 and ending May 2017, (Allen
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Aff. (Doc. 95-8) ¶ 37), suggesting any additional work caused by
the HR cancellation was not sufficient to interfere with her
continued employment by Defendant. This court finds that the
change in assignment, while perhaps creating some short-term
difficulty and trepidation, was not so burdensome to rise to the
level of a retaliatory act. Plaintiff has presented no evidence
that cancellation of the HR concentration caused Plaintiff any
decrease in job title, level of responsibility or opportunity
for promotion, nor does it appear to create an injury or harm
sufficient to dissuade a worker from making or supporting a
claim of discrimination. See Burlington N., 548 U.S. at 68; Rigg
v. Urana, 113 F. Supp. 3d 825, 829 (M.D.N.C. 2015). The record
shows that, while Plaintiff might have preferred to teach HR
classes, the HR program being put “on hold” constitutes a “minor
annoyance[] that often take place[s] at work and that all
employees experience,” Burlington N., 548 U.S. at 68. Plaintiff
was qualified to teach other classes, albeit potentially
requiring added time to prepare. Plaintiff’s subjective
preference for participating in a curriculum that included an HR
concentration does not make cancellation of the HR concentration
a materially adverse action. Burlington Northern requires review
under an objective standard; material adversity “depends upon
the circumstances of the particular case,” id. at 71, and
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Plaintiff has only presented evidence of her subjective dislike
of the cancellation. As such, it does not constitute “adverse
employment action.”
(c)
But-For Test and Cancellation of HR
Even assuming Allen, Gopalan, and WSSU were aware of the
May 2014 EEOC complaint and cancellation of HR could constitute
adverse employment action as to Plaintiff, the record is clear
that the HR concentration cancellation was under consideration
for a lengthy period of time, both before, (Doc. 78 at 504), and
after, (Doc 92-17 at 1), Plaintiff filed the EEOC complaint.
The challenged action affected both Smith and Plaintiff
similarly. Plaintiff does not dispute the stated reasons for
placing the HR concentration on hold, including low enrollment
and a focus on liberal arts. (See Gopalan Aff. (Doc. 95-7)
¶¶ 11-12; Cherikh Aff. (Doc. 95-9) ¶ 20 (internal citations
omitted); Allen Aff. (Doc. 95-8) ¶ 34 (internal citations
omitted).)
This court finds that WSSU has “articulate[d] a legitimate,
non-retaliatory reason for the adverse employment action.” Navy
Fed. Credit Union, 424 F.3d at 407 (citing Reeves, 530 U.S. at
143; Laughlin, 149 F.3d at 258). The legitimate, non-retaliatory
reason for the adverse employment action, specifically, low
enrollment, demonstrates that Plaintiff’s evidence fails to
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establish that any unlawful retaliation from placing the HR
concentration on hold “would not have occurred in the absence of
the alleged wrongful action or actions of the employer.”
Everhart, 660 F. App’x at 230. The Supreme Court rejected a
“motivating factor” test for retaliation in University of Texas
Southwestern Medical Center v. Nassar, ____ U.S. ____, 133 S.
Ct. 2517 (2013), and held that proof of retaliation requires
proof of but-for causation. In light of that standard,
Plaintiff’s evidence fails to demonstrate that the HR
concentration action constitutes retaliation.
5.
Denial of Pay Raise
This court finds that Dean Corey Walker, the individual
responsible for recommending candidates for the pay raise in
question, did not have knowledge of Plaintiff’s protected
activity. Further, this court finds that WSSU has provided a
legitimate, non-retaliatory reason that Plaintiff did not
receive the pay raise.
(a)
Facts
Plaintiff states that in October 2014 she learned that a
salary adjustment was available, and she sent in a document to
Dr. Cherikh describing her qualifications for the pay raise.
(Pl.’s Aff. (Doc. 73-9) ¶¶ 53-54.) Plaintiff believed she was
well-qualified for the pay raise. (Id. ¶ 54.) Dr. Cherikh agreed
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with Plaintiff’s assessment and recommended her for the pay
raise. (Id.) However, Plaintiff did not receive the recommended
pay raise, (id. ¶ 55), and contends the failure to award the pay
raise was in retaliation for her complaints.
Plaintiff’s testimony as to the pay raise decision
conflicts in certain material respects. Plaintiff states in her
affidavit dated December 5, 2016, that the raises “were
initially approved by Dr. Cory [sic] Walker and that final
signatory authority for the raises resided with Brenda Allen as
she told me and all of my colleagues this [] in a meeting when
she announced the raises.” (Id. ¶ 55.) However, Plaintiff
testified during her deposition in August, 2016, that she had
not talked to Dean Walker about her raise, and she could not
recall speaking to Dr. Allen about her raise. (Mann. Dep. (Doc.
75-1) at 181.) Plaintiff acknowledged that she did not have any
knowledge of what Dean Walker sent to Dr. Allen in regard to the
pay raises. (Id. at 183-84.)
This court, after review of the record, can find no
evidence to support a finding that Dean Walker approved
Plaintiff’s pay raise as Plaintiff’s affidavit might be read to
suggest. An affidavit is required to contain facts “made on
personal knowledge” that are “admissible in evidence.” Fed. R.
Civ. P. 56(c)(4). To the extent Plaintiff’s affidavit may be
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read to suggest Dean Walker approved a pay raise for her
specifically, Plaintiff offers no basis for that assertion. To
the contrary, the record appears undisputed that Dean Walker did
not recommend Plaintiff for a pay raise.
Dean Walker’s affidavit states that Dr. Cherikh recommended
Plaintiff for a merit adjustment. (Affidavit of Corey Walker
(“Walker Aff.”) (Doc. 95-6) ¶ 15.) Dean Walker believed
Plaintiff did not meet the criteria for an adjustment because
Dr. Cherikh’s recommendation of Plaintiff “did not demonstrate
significant contributions to our strategic priorities . . . .”
(Id. ¶ 21 (internal quotation marks omitted).) This court finds
Plaintiff’s unsupported allegation that Dean Walker “approved
the pay raises” is not supported by a competent foundation, as
Plaintiff never spoke with Dean Walker or Dr. Allen about the
pay raise, nor has Plaintiff presented any evidence to
contradict Dean Walker’s affidavit. This court finds that Dr.
Cherikh recommended Plaintiff for a pay raise, but Dean Walker
did not recommend Plaintiff to Dr. Allen for a raise. Because
Dean Walker states unequivocally that Dr. Cherikh’s
recommendation was not binding, (see id.), and Allen appears to
have only passed on a raise for those individuals recommended by
Dean Walker. (Allen Aff. (Doc. 95-8) ¶ 41 (“I then further
prioritized the list based upon recommendations received across
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academic units and submitted the recommendations to the
Chancellor.”).) This court finds Dean Walker was the relevant
decisionmaker for purposes of Plaintiff’s requested pay
increase.
(b)
Causation – Actual Knowledge
The record indicates that Walker made the decision not to
give Plaintiff a merit adjustment and then recommended that to
Allen. (Walker Aff. (Doc. 95-6) ¶ 21; Allen Aff. (Doc. 95-8)
¶¶ 40-42.) Walker stated that “[a]t the time [he] was reviewing
the submissions and recommendations . . . , [he] had no
knowledge that Plaintiff had filed complaints against Drs. Smith
and Khojasteh with the University’s EEO Officer and a civil
rights complaint against the University.” (Walker Aff. (Doc.
95-6) ¶ 18.)
In her supplemental briefing, Plaintiff disputes this fact
and contends that she has “proffered specific facts indicating
that Dean Walker knew about [Plaintiff’s] claim of retaliation
at the time he denied her raise.” (Doc. 123 at 2.) However,
Plaintiff’s citation for that proposition, Document No. 75-1 at
288 (see id.), does not support this argument. The citation is
to Plaintiff’s deposition testimony; that testimony at page 288
does not relate to the merit pay raise, but instead relates to
cancellation of the HR program. (See id.) Plaintiff does discuss
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the pay raise and relevant actors in her deposition, (see id. at
177-87), but this court’s review of the record fails to reveal
any evidence to contradict Dean Walker’s affidavit that he was
not aware of Plaintiff’s complaints. As a result, contrary to
Plaintiff’s argument, this court finds Dean Walker was not aware
of Plaintiff’s complaints.
Allen stated that “Dr. Mann did not appear on the list of
recommendations I received from Dean Walker and therefore I did
not consider her as part of my deliberations.[.] At the time I
forwarded the recommendations to the Chancellor, I was unaware
that Dr. Cherikh had recommended Dr. Mann for a merit increase.”
(Allen Aff. (Doc. 95-8) ¶ 42.) This court finds that Walker was
responsible for the decision not to give Plaintiff a merit raise
and that Defendant has established that Walker did not “ha[ve]
knowledge of the protected activity in order for its subsequent
adverse employment actions to be retaliatory.” Shields, 120 F.
App’x at 962. “[T]he employer’s knowledge that the plaintiff
engaged in a protected activity is absolutely necessary to
establish the third element of the prima facie case.” Dowe v.
Total Action Against Poverty, 145 F.3d 653, 657 (4th Cir. 1998).
Plaintiff has not presented evidence from which a jury could
conclude the failure to award a pay raise was retaliatory.
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(c)
Legitimate, Non-Retaliatory Reasons
Plaintiff argues that “a jury could find the pay raise
denial was not because Plaintiff failed to meet some subjective
nebulous standard, but was instead because she had filed an EEOC
complaint.” (Pl.’s Sub. Resp. (Doc. 97) at 24.) WSSU argues
“Plaintiff was not awarded a merit pay increase in 2014 because
she did not meet the necessary criteria.” (WSSU’s Sub. Mem.
(Doc. 98) at 28.) The record shows that, while Cherikh
recommended Plaintiff for a pay raise, Walker believed Plaintiff
lacked “significant contributions in . . . innovations in
teaching designed to enhance student success, course redesign
efforts consistent with institutional aims and goal, curricular
reform efforts, or interdisciplinary teaching efforts.
Similarly, she had not made significant contributions in the
area of Undergraduate Research or University Service.” (Walker
Aff. (Doc. 95-6) ¶ 21.) Further, the record shows that “only
about 44 of over 300 faculty members received raises due to
limited resources.” (Id. ¶ 20; Allen Aff. (Doc. 95-8) ¶ 41.)
This court finds that WSSU has “articulate[d] a legitimate,
non-retaliatory reason for the adverse employment action” —
Plaintiff did not meet the criteria required for the raise and
very few members of the faculty received raises. Navy Fed.
Credit Union, 424 F.3d at 407. This court also finds that
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Plaintiff has not shown that WSSU’s “stated reasons for taking
the employment action were not its true reasons, but rather
‘pretext’ for unlawful discrimination.” Moore, 305 F. App’x at
114–15 (citing Hill, 354 F.3d at 285). Therefore, this court
will find that the denial of a pay raise to Plaintiff was not
alone a retaliatory action.
6.
Aggregate Consideration
The Writing Center incident is not contextually related to
the other two alleged adverse employment actions for purposes of
Plaintiff’s retaliation claim as the relevant actors were
removed from the departmental affairs generally. It is not
disputed that the Writing Center resources were insufficient to
accommodate all the students at one time, and the matter was
resolved favorably with no lingering issues. (See, e.g., Simmons
Aff. (Doc. 95-5) ¶ 15.) As to both the Writing Center incident
and the pay raise issue, there is no causal connection between
the complaints of discrimination and the employment action as
the relevant actors and decisionmakers acted without knowledge
of Plaintiff’s protected activity. See Dowe, 145 F.3d at 657
(“[T]he employer’s knowledge that the plaintiff engaged in a
protected activity is absolutely necessary . . . . Here, it is
undisputed that . . . the relevant decisionmaker [] was unaware
Dowe had ever filed a complaint with the EEOC.”) Nevertheless,
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this court has considered the constellation of actions - the
alleged scheduling change and cancellation of the Human
Resources concentration – and whether collectively they
constitute a “significant detrimental effect on [Plaintiff’s]
employment” posed by their aggregation. Lewis v. City of Va.
Beach, Action No. 2:15cv321, 2016 WL 4766515, at *8 (E.D. Va.
Sept. 12, 2016); Westmoreland v. Prince George’s Cty., Md., 876
F. Supp. 2d 594, 605 (D. Md. 2012). Even considering the two
actions collectively, this court is unable to find these actions
were materially adverse employment actions for purposes of
retaliation. Other than subjective disagreement or dislike,
Plaintiff has not presented evidence of objective material
adversity, at least based on the evidence presented. “The
antiretaliation provision protects an individual not from all
retaliation, but from retaliation that produces an injury or
harm . . . . [A] plaintiff must show that a reasonable employee
would have found the challenged action materially adverse
. . . .”
Burlington N., 548 U.S. at 67. The Supreme Court
speaks “of material adversity because [the Court] believe[s] it
is important to separate significant from trivial harms. Title
VII . . . does not set forth ‘a general civility code for the
American workplace.’” Id. at 68 (quoting Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). While
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Defendant’s changes to Plaintiff’s schedule and curriculum may
have generated subjective dislike from Plaintiff, those actions
did not impose any objective adversity, such as a demotion, a
pay cut, removal of responsibilities, or unfair embarrassment,
harassment or ridicule.
Defendant’s management of the Department during Plaintiff’s
tenure certainly appears to have been problematic. Issues
arising from Dr. Smith’s alleged conduct and Defendant’s
apparent inability to fully address that conduct formed a basis
upon which Plaintiff might reasonably perceive employment
decisions as inappropriate, even if those decisions were
reasonable departmental decisions. However, even if Plaintiff’s
perceptions were reasonable, Plaintiff’s complaints do not
insulate Plaintiff from less-than-perfect working conditions.
This court is unable to find that Defendant’s actions constitute
retaliation under Title VII. For the reasons discussed above in
each of the relevant sections this court finds that, even
considered in the aggregate, the employment actions complained
of by Plaintiff do not rise to the level of an adverse
employment action.
IV.
CONCLUSION
For the reasons discussed above, IT IS HEREBY ORDERED that
Winston-Salem State University’s Motion and Substitute Motion
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for Summary Judgment (Docs. 59, 91) are GRANTED and that this
case is DISMISSED.
A judgment in accordance with this Memorandum Opinion and
Order will be entered contemporaneously herewith.
This the 21st day of July, 2017.
_______________________________________
United States District Judge
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