LONG v. FORSYTH COUNTY DEPARTMENT OF SOCIAL SERVICES et al
Filing
35
MEMORANDUM OPINION AND ORDER. Signed by JUDGE THOMAS D. SCHROEDER on 12/30/2016, that the Defendants' motion for summary judgment (Doc. 21 ) is GRANTED as to Long's ADEA claims, which are DISMISSED WITH PREJUDICE, and DENIED WITH OUT PREJUDICE as to the remaining State law claims. Having dismissed all claims over which it has original jurisdiction, the court declines to exercise supplemental jurisdiction over Long's State law claims pursuant to 28 U.S.C. § 1367(c)(3), and they are REMANDED to the General Court of Justice, Superior Court Division, Forsyth County, North Carolina, for further consideration.(Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DELORES LONG,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
FORSYTH COUNTY DEPARTMENT OF
SOCIAL SERVICES; DEBRA
DONAHUE,
Defendants.
1:15CV683
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Plaintiff
employment
Delores
under
the
Long
Age
alleges
age
Discrimination
discrimination
in
Employment
in
Act
(“ADEA”), 29 U.S.C. § 621 et seq., as well as related State law
claims
against
her
former
employer,
Defendant
Department of Social Security (“DSS”).
Forsyth
County
Before the court
is
Defendants’ motion for summary judgment (Doc. 21), which has been
fully briefed and is ready for decision.
For the reasons set forth
below, the motion will be granted as to Long’s federal claims,
which will be dismissed, and the action will be remanded to State
court for resolution of the remaining State law claims.
I.
BACKGROUND
Viewed in the light most favorable to Long, the operative
facts are as follows:
In 2011, 41-year-old Long was engaged as a part-time employee
of Vanguard, Inc., a private social-services company, when she
applied for employment as a full-time social worker with DSS, for
whom she indirectly worked as a Vanguard employee.
At Vanguard,
Long was being paid $25 per hour, her hours fluctuated from four
to twenty per week, and she received no benefits.
35-36.)1
(Doc. 22-1 at
Long supplemented her income with unemployment benefits.
(Id.)
While Long’s application with DSS was pending, a supervisory
social
worker
position
became
encouragement, Long applied for it.
available
and,
at
DSS’s
(Doc. 22-1 at 3-4.)
Among
those with whom Long interviewed were Tanya McDougal, director of
the
Child
Protective
Services
Division,
and
Linda
Alexander,
Program Manager and supervisor of the position to be filled.
McDougal was over 40, and Alexander was over 50.
(Id. at 89-90.)
On September 5, 2011, Jaime Joyner, Forsyth County’s Senior
Human Resources Consultant, telephoned Long and offered her the
position of Senior Social Worker Supervisor at a rate of $22.15
per hour, or $46,072 per year.
(Doc. 22-1 at 105.)
The “hiring
range” for the position was $46,072 to $54,724, and DSS’s “market
reference point” (which new hires rarely received (Doc. 22-4 at 2,
¶ 3)) for the position was $57,602.
1
(Id. at 10.)
All citations are to the docket page, irrespective of the pagination
of the underlying document.
2
Long expressed dissatisfaction with the starting salary and
said she would decline the position because of it.
Joyner told
her that she could not reject the offer until she received DSS’s
formal written offer letter, so Long agreed to wait for the letter.
In the meantime, Long drafted a letter to advocate for a higher
starting salary, but she held onto the letter for almost three
weeks before sending it.
(Doc. 22-1 at 10-14.)
In the meantime, on September 16, 2011, McDougal telephoned
Long to express her pleasure that Long would be joining DSS, but
Long responded that she was unhappy with the starting salary.
McDougal allegedly responded that DSS had a practice of “lowballing” starting salaries and told Long, “Oh, girl, don’t worry
about it.
We’ll take care of that on Monday when you show up.”
(Id. at 15-17.)
The next day, September 17, Long received her offer letter
with the $22.15-an-hour starting salary and nevertheless reported
for work on September 19 because, Long claims, McDougal had said
the salary issue would be “taken care of.”
(Id. at 18-19, 21-22.)
Long signed paperwork associated with her employment acknowledging
her starting salary but had several discussions with various DSS
personnel to lobby for an increase in pay.
While Long received
pay increases during her time at DSS, they were all based on the
rate at which she was hired.
(Id. at 52-53.)
In October of 2012, while Long worked for DSS, she filed a
3
formal grievance (Doc. 22-3 at 5-10) regarding her salary and
various
other
issues
of
“disparate
treatment
and
age
discrimination within her work unit” (Doc. 4 at 3, ¶ 14), including
complaints about her scheduling and the lack of control she was
given over her subordinates (Doc. 22-1 at 128-32).
In January of
2013, DSS Director Joe Raymond responded to Long’s grievance,
denying her relief.
(Id.)
In the summer of 2013, Long’s lawyer wrote to Raymond,
demanding a salary increase.
(Doc. 22-3 at 36-37.)
responded that DSS would not adjust her salary.
Raymond
(Id. at 39.)
On
November 10, 2013, Long filed a complaint with the U.S. Equal
Employment Opportunity Commission (“EEOC”).
(Id. at 40-42).
The EEOC issued a right-to-sue letter on March 31, 2015. (Id.
at 43.)
2015.
Long voluntarily resigned from her position in June of
(Id. at 3, ¶ 8.)
on July 21, 2015.
She commenced this action in State court
(Doc. 4.)
Long alleges that DSS discriminated against her by “lowballing” her starting salary on the basis of age and because she
was underemployed at Vanguard.
(Doc. 22-1 at 91.)
She also
alleges that DSS subjected her to “numerous adverse employment
actions
(including,
disadvantageous
shifts
without
limitation,
and
removal
responsibility),” based on age.
assignment
from
of
supervisory
(Doc. 4 at 2, ¶ 21.)
The
complaint purports to incorporate the conduct she set forth in her
4
formal grievance and EEOC charge.
(Id. at 4, ¶¶ 21(a), (b).)2
She further alleges State law claims of breach of contract,
2
In her formal grievance, Long alleged twenty illustrative incidents
she said contributed to a hostile work environment. They include charges
such as “being hired under false pretenses” because the work did not
match the job description; failure of an adequate transition; too many
staff to supervise; objections as to an office policy requiring her to
submit paperwork when she was late; “having to justify” her job when she
expressed she was “‘lost’ with respect to internal processes”; being
reminded of her probationary status; being supervised by another
supervisor when her supervisor was on vacation; being required to
personally train her staff; failure of adequate training as to internal
policies; and being switched to the day unit “in a manner that created
hostility between [her] and the current AHU [After Hours Unit]
supervisor.” (Doc. 22-3 at 6-7.)
Long’s grievance also itemizes instances of alleged age discrimination
that she argues can be construed to constitute adverse employment
actions. She expounded on these in her deposition. The principal ones
are as follows:
Long cites an October 11, 2012 DSS announcement for a “new AHU Social
Worker position” that she contends is comparable to her position
(although it is a different position) but had lesser expectations. (Id.
at 8.) In the same paragraph, Long variously complains about her salary,
her schedule, and the “manner in which [she was] hired.” (Id.)
Long complains at length about her work schedule while she supervised
the AHU. (Doc. 22-1 at 53-54.) In this position, Long had to work a
nighttime shift and occasionally be available for meetings and court
appearances during the day. (Doc. 22-2 at 2-12.) She claims that the
current AHU supervisor is treated better than she was because, among
other things, the new supervisor does not have to work late hours
“because she has small children,” has received a more favorable work
schedule, and “is given authority to enforce policy and procedure; make
her own rules; and come and go as she pleases.” (Doc. 22-3 at 8.)
Long claims she was told she could take on more responsibility than
her younger coworkers “because of [her] maturity and experience.” (Id.
at 8.)
Long claims that two newly hired supervisors, Melissa Bell and Teressa
Brown, were allowed to build their own teams “slowly,” whereas Long
“walked into a team” that was already assembled. (Doc. 22-1 at 69.)
Long claims that she was made to complete another supervisor’s work.
(Id. at 54-55.)
5
fraudulent misrepresentation, and negligent misrepresentation in
connection with her starting salary.
Nowhere does Long claim that
McDougal or anyone else directly expressed age-based animus toward
her, except to allege that DSS expected more from her due to her
“maturity” and “experience.”
(Doc. 22-1 at 89.)3
DSS timely removed the action (Doc. 1) and now moves for
summary judgment on all of Long’s claims (Doc. 21).
The motions
are fully briefed and ready for resolution.
II.
ANALYSIS
A.
Standard of Review
Summary judgment will be granted 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 dispute
is genuine if a reasonable jury could return a verdict for the
Long claims that Theresa Boucher, a DSS employee, yelled at her and
cursed at her in the course of handling a case of potential child abuse.
Long further claims that Boucher complained to DSS’s director about the
incident. (Id. at 57-64.)
Long complains at great length about her direct supervisor, Linda
Alexander. Among other things, Long claims Alexander gossiped about her
and exerted more direct control over Long than she thought necessary.
(See generally id. at 55-88.)
It is unnecessary to decide which, if any, of these occasions
constitutes an adverse employment action because, as addressed infra,
all are time-barred for having taken place outside the 180-day period
before Long filed her charge with the EEOC.
3
Long cites 42 U.S.C. § 1981 in her complaint (Doc. 4 at 4, ¶ 24), which
protects against race-based discrimination in contracts. See generally
CBOCS W., Inc. v. Humphries, 553 U.S. 442, 450-51 (2008). Nowhere does
Long claim she was discriminated against on the basis of race.
6
nonmoving party.”
Libertarian Party of Va. v. Judd, 718 F.3d 308,
313 (4th Cir. 2013) (internal quotation marks omitted).
“A fact
is material if it ‘might affect the outcome of the suit under the
governing law.’”
Id. (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)).
justifiable
inferences
The court views “the facts and all
arising
therefrom
favorable to the nonmoving party.”
in
Id. at 312.
the
light
most
The court cannot
weigh evidence or determine credibility at this stage.
Foster v.
Univ. of Md. - E. Shore, 787 F.3d 243, 248 (4th Cir. 2015) (citing
Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir.
2007)).
“[C]ourts may not resolve genuine disputes of fact in
favor of the party seeking summary judgment.”
Id. (citing Tolan
v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam)) (alteration
in original).
B.
ADEA Claims
Long alleges various claims of disparate treatment on the
basis of age in violation of the ADEA.
Defendants contend that
all but two of her claims are barred by the ADEA’s statute of
limitations
and
that
her
only
timely
claims
–
for
pay
discrimination and constructive discharge – present no genuine
dispute of material fact and are insufficient as a matter of law.
Long contends that her claims are timely and that issues of fact
preclude summary judgment.
The ADEA authorizes recovery under theories of disparate
7
treatment, see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 135 (2000), and adverse impact, see Smith v. City of Jackson,
544 U.S. 228, 241 (2005).
the former.4
It appears that Long intends to assert
Within the disparate treatment framework, however,
Long fails to advance a coherent, organized basis for relief.
In
fact, her arguments are largely devoted to the State law causes of
action she has alleged.
In the absence of direct evidence of age discrimination,5 a
4
The only mentions of either term come in Long’s brief in opposition to
summary judgment, in which she cursorily claims that she suffered
“disparate treatment” (Doc. 23 at 6), and in her complaint, in which she
claims that she “raised issues of disparate treatment and age
discrimination” in a grievance letter (Doc. 4 at 3, ¶ 14).
5
In defending her State age discrimination claim, Long claims that she
was told that due to her “maturity” and “experience,” her supervisors
“expected that [she] could do more than the others.” (Doc. 22-1 at 89;
see also id. at 112 (claiming she was told that “because of my maturity
and experience I could take on more responsibility in comparison to the
other CPS Supervisors (both under age 40) hired around the same time as
my employment”).)
Long argues that “maturity” and “experience” are
“trigger words” meant to hide age-based animus. (Doc. 23 at 6.) She
cites Hodgson v. Approved Pers. Serv., Inc., 529 F.2d 760, 765 (4th Cir.
1975), for the proposition that the effect of trigger words depends on
the context in which they are used and further argues that context here
is a question of fact for the jury.
However, even assuming without
deciding that such terms constitute “trigger words,” nowhere does Long
offer any context for them to suggest that their use intimates age
discrimination. In fact, the only context she implies – DSS’s suggestion
that she could do more than others because of her maturity and experience
- suggests a non-discriminatory use.
See, e.g., Stinson v. Burns &
McDonnell Eng’g Co., Inc., No. 85-1419-CV-W-5-AF, 1988 WL 53375, at *2
n.2 (W.D. Mo. Mar. 23, 1988) (granting summary judgment on ADEA claim
and finding the statement in plaintiff’s termination that his “maturity
and experience would be missed” used in a complimentary fashion offered
“no support” for plaintiff); Arroyo-Audifred v. Verizon Wireless, Inc.,
527 F.3d 215, 220 (1st Cir. 2008) (affirming summary judgment for
employer where its explanation was that plaintiff “lacked professional
maturity” and finding that reason to be non-discriminatory under the
ADEA for denial of promotion).
8
plaintiff
must
proceed
under
burden-shifting framework.
the
familiar
McDonnell
Douglas
See Jacobs v. N.C. Admin. Office of
the Courts, 780 F.3d 562, 572 (4th Cir. 2015) (citing inter alia
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
“[T]he prima facie test remains flexible and must be tailored to
fit the specific context in which it is applied,” see Sarullo v.
U.S. Postal Serv., 352 F.3d 789, 797–98 (3d Cir. 2003) (citing
Geraci v. Moody–Tottrup, Int'l, Inc., 82 F.3d 578, 581 (3d Cir.
1996))), but a plaintiff must be able to point to an adverse
employment action of some type.
1.
Statute of Limitations
Before reaching the merits of any ADEA claim, Defendants argue
that, even assuming Long has alleged cognizable adverse employment
actions, her claims are nevertheless time-barred.
Long does not
respond to the argument insofar as it relates to her federal
claims.6
(Doc. 23 at 9.)
In most cases, ADEA claimants must file a charge with the
EEOC
“within
180
days
after
the
6
alleged
unlawful
practice
In asserting that her State age discrimination claims are not timebarred, Long argues that she filed the action within three years of the
date of DSS’s “proposed ‘Problem Resolution’” and was nevertheless
constructively discharged. (Doc. 23 at 4-5.) As to her State breach
of contract claim, Long responds only that any statute of limitations
should be equitably tolled under the doctrine of a continuing wrong.
(Id. at 9.) As to all claims, apart from the laundry list of illustrative
grievances Long seeks to incorporate into her complaint by reference,
she fails to identify any as an alleged adverse employment action in her
briefing.
9
occurred.”
29 U.S.C. § 626(d)(1)(A).
That period is extended to
300 days if the State in which the allegedly unlawful practice
took place is a “deferral State,” that is, if the State has an
anti-age discrimination law and authorizes a State authority to
pursue age discrimination claims.
§ 626(d)(1)(B).
Id. § 633(b); see also id.
Here, the alleged misconduct took place in North
Carolina, which is a non-deferral State “in the overwhelming number
of cases.”
Bratcher v. Pharm. Prod. Dev., Inc., 545 F. Supp. 2d
533, 543 (E.D.N.C. 2008).
which applies here.
There are two exceptions,7 neither of
Furthermore, Long has made no allegation that
North Carolina is a deferral State for her purposes.
As such, the
180-day period applies to her claims.
Cf. Huggins v. N.C. Dep't
of
WL
Admin.,
No.
5:10-CV-414-FL,
2013
5201033,
at
*18
n.5
(E.D.N.C. Sept. 13, 2013) (“[W]here Plaintiff has not raised the
issue, the 180–day statutory period will be utilized for purposes
of determining whether Plaintiff's claim is time-barred.”), aff’d
sub nom. Huggins v. NC Dep't of Admin., 554 F. App'x 219 (4th Cir.
2014).8
7
One exception is where the North Carolina State Office of Administrative
Hearings has subject matter jurisdiction over a charge filed by an
employee of the State. The other applies to disputes in New Hanover
County where the county Human Relations Commission has subject matter
jurisdiction. Id.
8
Long’s claims may also be barred by 29 U.S.C. § 626(e), which requires
a claimant to bring a civil action within 90 days after the date on
which she receives notice of the EEOC’s decision. With leave of court,
Long filed her complaint on July 21, 2015, 112 days after the EEOC issued
10
The Fourth Circuit has rejected the “discovery” rule and held
instead that the ADEA’s statute of limitations accrues when the
allegedly unlawful act occurred.
F.2d 86, 88–89 (4th Cir. 1990).
Hamilton v. 1st Source Bank, 928
“To the extent that notice enters
the analysis, it is notice of the employer's actions, not the
notice of a discriminatory effect or motivation, that establishes
the commencement of the pertinent filing period.”
Id.
Here, Long filed her charge with the EEOC on November 20,
2013 (Doc. 22-3 at 40),9 so she cannot challenge any allegedly
unlawful acts that occurred before May 14, 2013 - 180 days before
her charge.
This bars all of Long’s claims in her grievance of
October 11, 2012.10
DSS answered the grievance on January 9, 2013,
its right-to-sue letter. (Doc. 4 at 1, 8; Doc. 22-3 at 43.) Neither
party has raised this issue, however, so it will not be addressed. See
Shelton v. Atl. Bingo Supply Co., No. DKC 11-0952, 2011 WL 4985277, at
*1 (D. Md. Oct. 17, 2011) (“The ninety-day period is not
jurisdictional . . . .” (citing Zipes v. Trans World Airlines, Inc., 455
U.S. 385, 398 (1982); Fisher v. Md. Dep't of Hous. & Cmty. Dev., 32 F.
Supp. 2d 257, 264 (D. Md. 1998), aff’d, 166 F.3d 1208 (4th Cir. 1998))).
9
The charge was perfected on December 16, 2013.
10
(Id. at 42.)
This also disposes of any grievances that may mirror a hostile work
environment or retaliation claim, though no such claims were expressly
asserted and would nevertheless fail on the merits. (See Doc. 22-3 at
6-7, 42.) See Burns v. AAF-McQuay, Inc., 166 F.3d 292, 294 (4th Cir.
1999) (stating that hostile work environment claim requires proof that
(1) one is at least 40 years old, (2) was harassed because of her age,
(3) the harassment had the effect of unreasonably interfering with her
work, creating an environment that was both objectively and subjectively
hostile or offensive, and (4) some basis for imputing liability to the
employer); Laber v. Harvey, 438 F.3d 404, 432 (4th Cir. 2006) (stating
that to establish a prima facie case of retaliation, one must demonstrate
that (1) she engaged in protected activity; (2) an adverse employment
action was taken against her; and (3) there was a causal link between
11
giving Long notice that it would not grant her the relief she
requested.
As such, any disparate treatment claim based on an
activity of which Long complained in this grievance is necessarily
time-barred, both as a matter of law and because she waived any
argument as to it.
Excepted from this exclusion, however, is her claim that DSS
diminished her pay as a result of her age.
(See Doc. 4 at 2-5.)
As DSS admits (Doc. 22 at 11, n.10), the Lilly Ledbetter Fair Pay
Act of 2009 provides that an unlawful practice with respect to
discriminatory compensation occurs “each time wages, benefits, or
other compensation is paid” resulting from an unlawful practice or
decision.
29 U.S.C. § 626(d)(3).
2.
Pay Discrimination
Defendants argue that Long fails to demonstrate a genuine
dispute of material fact whether DSS diminished her pay on the
basis of her age.
To succeed on her claim of pay discrimination, Long “must
the protected activity and the adverse action). Long makes no allegation
regarding the causal link between the protected activity and the alleged
adverse action, except that her supervisors treated her differently from
other people in her position and that she holds a subjective belief that
she was being retaliated against. (Doc. 22-3 at 41-42.) As to hostile
work environment, Long fails to produce or forecast any evidence that
would satisfy the elements - most notably the third element - for such
a claim to survive summary judgment. As to any retaliation claim that
could be argued to be contained within the grievances, as in other
contexts, Long’s subjective beliefs are not enough to create a genuine
dispute of fact. See Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 134–
35 (4th Cir. 2002).
12
prove that discrimination was ‘the but-for cause’ of the adverse
employment action.”
Gentry v. E. W. Partners Club Mgmt. Co. Inc.,
816 F.3d 228, 234 (4th Cir. 2016) (quoting Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167, 177 (2009)).
She “must demonstrate
that the employer engaged in disparate treatment ‘because of’ [her]
age and, accordingly, age must be the ‘but-for’ cause of such
treatment.”
E.E.O.C. v. Baltimore Cty., 747 F.3d 267, 273 (4th
Cir.); see also E.E.O.C. v. Washington Suburban Sanitary Comm'n,
631 F.3d 174, 182 (4th Cir. 2011) (“Age discrimination plaintiffs
must prove that ‘age was the “but-for” cause of the employer's
adverse action.’” (quoting Gross, 557 U.S. at 177)).
This does
not mean that the discrimination must be the sole cause of the
adverse action.
See Leal v. McHugh, 731 F.3d 405, 415 (5th Cir.
2013); see also Arthur v. Pet Dairy, 593 F. App'x 211, 220 (4th
Cir. 2015)11 (“[A]ccording to Gross, to prevail on summary judgment
the employee must only demonstrate, age-related considerations
aside, that under the circumstances these other nondisciminatory
grounds did not animate the employer to take the adverse employment
action.”).
Here, Long offers no direct evidence that she was paid less
11
Unpublished opinions of the Fourth Circuit are not precedential. See
Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006)
(recognizing that “we ordinarily do not accord precedential value to our
unpublished decisions” and that such decisions “are entitled only to the
weight they generate by the persuasiveness of their reasoning” (citation
omitted)).
13
because of her age, and she fails to refute ample evidence on the
record that her underemployment at Vanguard, coupled with her other
experience and education, animated DSS’s decision to pay her less.
Long herself implied in a deposition that DSS paid her less because
she was underemployed.
(See, e.g., Doc. 22-1 at 269-70 (“Q: So it
was just because you were over 40 and you felt they had not treated
you fairly because of your unemployment situation or your parttime employment? A: And then two other professionals said that
that was very typical.”); Doc. 23-1 at 31 (“Q: Okay.
But was that
the gist of it, that were [sic] unemployed or underemployed, and
so you should be grateful for whatever you were going to get.
Yes, that’s what she said.”).)
A:
DSS also presents undisputed
evidence that Long’s rate of pay was within its normal range (see,
e.g., Doc. 22-4 at 10) and that it was DSS’s practice to pay
similar rates to similarly qualified candidates (id. at 4-5, ¶¶ 910).
Long also does not attempt to refute DSS’s evidence of
comparators’ salaries.
(Id. at 7-8, ¶ 15.)
The record contains
undisputed evidence that other, similarly situated employees at
DSS were treated consistently with the policies DSS claims account
for
Long’s
salary.
Forsyth
County
Senior
Human
Resources
Consultant Joyner provided a declaration containing information on
four comparators to Long.
younger than Long.
The first comparator is eight years
She assumed the same position Long occupied
14
roughly one month before Long did and was paid the same rate that
Long was paid.
The second is older than Long, held two degrees in
social work, and had four years’ experience as a senior social
worker.
She was hired at a rate of $48,089.60 per year, roughly
4.4% more than Long.
The third comparator is three years older
than Long, held a master’s degree in social work, and worked as a
social work for ten years before joining DSS.
$53,019.20 when he was hired in 2012.
He was paid
The final comparator is
seven years younger than Long, and when she was promoted to Long’s
position in 2009 after completing five years of experience with
DSS, her salary was $49,462.40.
(Id. at 7-8, ¶ 15.)
By contrast,
Long had worked as a social worker for Guilford County Department
of Social Services for 4 years and as a part-time social worker
for Vanguard for approximately 1.5 years (id. at 13-15), and she
had obtained a Masters in Public Administration (id. at 2, ¶ 3;
id. at 12).
She had no formal education in social work.
(Id. at
12.)
Long acknowledged in her September 2011 letter requesting
“reconsideration of a higher salary” that the job posting specified
that those without a graduate degree in social work (but with a
college degree) should have a minimum of “five years of experience
in rehabilitation counseling, pastoral counseling, group work, or
15
community organization.”
(Doc. 22-1 at 105.)12
Long argued that
her social worker experience and her other prior work qualified
her for a higher salary.
(Id.)
Given DSS’s comparators’ salaries
and Long’s social work experience, that DSS valued Long’s other
work experience differently than she did is not evidence that she
was discriminated against as to her salary based on age.
Courts
should be careful not to engage in a reweighing of an employer’s
legitimate employment considerations.
See Causey v. Balog, 162
F.3d 795, 801 (4th Cir. 1998) (“[T]his Court is not in a position
to second guess . . . decisions that are based on legitimate, nondiscriminatory rationales . . . .” (citing Holmes v. Bevilacqua,
794 F.2d 142, 146–47 (4th Cir. 1986) (en banc))); Henson v. Liggett
Grp., Inc., 61 F.3d 270, 277 (4th Cir. 1995) (“We have recognized
the importance of giving an employer the latitude and autonomy to
make business decisions . . . as long as the employer does not
violate the ADEA.” (citing E.E.O.C. v. Clay Printing Co., 955 F.2d
936, 946 (4th Cir. 1992); Birkbeck v. Marvel Lighting Corp., 30
F.3d 507, 513 (4th Cir. 1994))).
Based on this record, no reasonable juror could conclude that
age was the but-for cause of Long’s allegedly diminished pay.
12
These were minimum expectations for the job and were listed secondary
to the expectation that one have either a master’s or bachelor’s degree
from an accredited school of social work, or at least 15 semester hours
in courses related to social work. (Doc. 22-4 at 10.) Long has not
indicated that she had any of these qualifications.
16
3.
In
Constructive Discharge
connection
with
her
discussion
of
her
State
age
discrimination claims in her response to DSS’s motion for summary
judgment,
Long
discharged.
argues
cursorily
(Doc. 23 at 3-4.)
any federal claim.
that
she
was
constructively
Long does not tie the argument to
No constructive discharge claim is alleged in
the complaint, nor has Long moved to amend the pleading.
It is
well-established that a party may not use a brief in support of or
in opposition to summary judgment to amend a complaint.
Hexion
Specialty Chems., Inc. v. Oak-Bark Corp., No. 7:09-CV-105-D, 2011
WL 4527382, at *7 (E.D.N.C. Sept. 28, 2011) (citing Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 617 (4th Cir.
2009)).
Even if the court were to recognize the claim at this stage,
however, it would fail on the merits.
In the absence of direct
evidence
must
of
age
discrimination,
McDonnell Douglas framework.
Long
proceed
under
the
To state a prima facie case for
constructive discharge based on age, Long must demonstrate that
(1) she was constructively discharged; (2) she was at least 40
years old at that time; (3) she was performing her duties at a
level that met DSS’s legitimate expectations at the time of her
constructive discharge; and (4) she was treated more harshly than
similarly situated, younger employees.
Belcher v. W.C. English
Inc., 125 F. Supp. 3d 544, 551 (M.D.N.C. 2015) (citing Alba v.
17
Merrill Lynch & Co., 198 F. App’x 288, 294 (4th Cir. 2006)).
“Constructive discharge
occurs when ‘an employer
deliberately
makes an employee’s working conditions intolerable and thereby
forces him to quit his job.’”
Id. at 552 (quoting Bristow v. Daily
Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)).
deliberateness,
a
plaintiff
must
demonstrate
To prove
that
DSS
“specifically intended its actions ‘as an effort to force the
employee to quit.’”
Id. (citing Bristow, 770 F.2d at 1255).
Deliberateness can be demonstrated by presenting direct evidence
of
an
intent
circumstantial
“to
drive
evidence,
[a
plaintiff]
“including
a
from
series
the
of
single out a plaintiff for differential treatment.”
job”
actions
or
that
Id. at 552
(quoting Johnson v. Shalala, 991 F.2d 126, 131 (4th Cir. 1993)).
With regard to
intolerability, a plaintiff
must
show that a
reasonable person in her position “‘would have felt compelled to
resign,’ meaning ‘[s]he would have had no choice but to resign.’”
Id. (quoting Bristow, 770 F.2d at 1255; Blistein v. St. John’s
Coll., 74 F.3d 1459, 1468 (4th Cir. 1996)).
“It is insufficient
to show ‘merely that a reasonable person, confronted with the same
choices as the employee, would have viewed resignation as the
wisest or best decision, or even that the employee subjectively
felt compelled to resign.’”
Id. (quoting Blistein, 74 F.3d at
1468) (emphasis added).
Here, Long fails to provide evidence of deliberateness or
18
intolerability.
She offers no evidence of the intent of any of
DSS’s actions and fails even to allege or argue that DSS wanted
her
to
leave
her
job.
Her
only
contention
regarding
the
intolerability of her circumstances was that she “sought other
employment” “in frustration” after DSS did not respond favorably
to her grievances.
(Doc. 23 at 4-5 (citing Doc. 23-1 at 46).)
Moreover, the grievances (see supra note 2) fall far short of
conduct that a jury could conclude would reasonably compel an
employee to resign as the only choice available.
As such, no reasonable juror could find that Long satisfies
either part of the first element of a constructive discharge claim,
if it could be construed under the complaint.
C.
State Law Claims
Having found that the only claim over which this court has
original jurisdiction will be dismissed, the court declines to
exercise supplemental jurisdiction over Long’s State law claims.
See 28 U.S.C. § 1367(c) (“The district court[] may decline to
exercise supplemental jurisdiction over a claim . . . if . . . (3)
[it]
has
dismissed
all
jurisdiction . . . .”).
claims
over
which
it
has
original
The Fourth Circuit has noted in a similar
circumstance that “[w]ith all its federal questions gone, there
may be the authority to keep [the case] in federal court[,] . . .
but there is no good reason to do so.”
Waybright v. Frederick
Cty., Md., 528 F.3d 199, 209 (4th Cir. 2008); see also Hinson v.
19
Norwest
Fin.
S.C.,
Inc.,
239
F.3d
611,
617
(4th
Cir.
2001)
(recognizing that “the remand power [is] inherent in the statutory
authorization
§ 1367(c)”).
to
decline
supplemental
jurisdiction
under
The court finds that judicial economy, convenience,
fairness, and comity weigh in favor of remanding the remaining
claims – all founded solely on State law grounds - to State court
for further consideration.
See In re Conklin, 946 F.2d 306, 324
(4th Cir. 1991).
III. CONCLUSION
For the reasons stated, the court finds that Long’s pay
discrimination claim and putative constructive discharge claim do
not present a genuine dispute of material fact and fail as a matter
of law.
The court finds further that Long’s other ADEA claims are
barred by the ADEA’s statute of limitations, 29 U.S.C. § 626(d)(1).
IT IS THEREFORE ORDERED that the Defendants’ motion for
summary judgment (Doc. 21) is GRANTED as to Long’s ADEA claims,
which are DISMISSED WITH PREJUDICE, and DENIED WITHOUT PREJUDICE
as to the remaining State law claims.
Having
dismissed
jurisdiction,
the
all
court
claims
over
declines
to
which
it
exercise
has
original
supplemental
jurisdiction over Long’s State law claims pursuant to 28 U.S.C.
§ 1367(c)(3), and they are
REMANDED to the General Court of
Justice, Superior Court Division, Forsyth County, North Carolina,
for further consideration.
20
/s/
Thomas D. Schroeder
United States District Judge
December 30, 2016
21
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