Taylor v. Republic Services, Inc. et al
Filing
213
MEMORANDUM OPINION and ORDER re 120 MOTION for Summary Judgment. See Order for Details. Signed by District Judge Gerald Bruce Lee on 2/6/2013. (rban, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
JENNIFER TAYLOR,
Plaintiff,
Case No. 12-cv-00523-GBL-IDD
v.
REPUBLIC SERVICES, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants Republic Services, Inc. and Republic
Services of Virginia, LLC's ("Defendants") Motion for Summary Judgment on Count I and
Partial Summary Judgment on Count II of the Amended Complaint (Doc. 120).
This is an employment discrimination action where Plaintiff Jennifer Taylor ("Plaintiff)
has asserted claims against her former employer and co-workers for wrongful termination;
tortious interference with business expectancy; gender discrimination; sexual harassment; hostile
work environment; retaliation; and retaliatory discharge pursuant to Title VII of the Civil Rights
Act of 1964.
Plaintiff claims that one of her former supervisors made unwelcome sexual
advances toward her, used his position to color her supervisors' evaluations of her work, and
orchestrated her separation of employment. Defendants move for summary judgment on Count I
of the Amended Complaint seeking damages for gender discrimination and partial summary
judgment on Count II with respect to Plaintiffs claims for retaliation, other than retaliatory
discharge. The issues before the Court are whether genuine issues of material fact exist as to
Plaintiffs claims for gender discrimination and retaliation.
The Court holds that Defendants are entitled to summary judgment because Plaintiff fails
to establish a prima facie claim for gender discrimination, and she has not set forth direct or
circumstantial evidence that raises a genuine issue of material fact as to whether gender was a
motivating factor affecting her separation of employment. Additionally, no genuine issue of
material fact exists as to Plaintiffs retaliation claims based on the following issues: (1) denial of
a synergy bonus; (2) Keith Cordesman's alleged comment; (3) Chistopher Rains's August 15,
2011 email; (4) Daniel Jameson's August 3, 2011 email; and (5) associational retaliation.
BACKGROUND
Plaintiff contends that she was subject to systematic gender discrimination and
unwelcome sexual harassment by her former employer and co-workers for four years, which
ultimately led to her separation of employment on September 23, 2011 (Doc. 1-4). For the
purpose of clarity, the Court will focus only on those allegations, which Plaintiff alleges are
encompassed within her claims for gender discrimination (Count I) and retaliation (Count II) in
the Amended Complaint.
Plaintiff began her employment with Republic Waste Services, Inc. ("Republic
Services"), as the Director of Infrastructure Development for Allied Waste Industries, Inc.
("Allied") in June 2007 (Doc. 1-4, ffi[ 47, 65, 80).
Plaintiff alleges that Jason Callaway
("Callaway"), then Vice-President of Human Resources at Allied, harassed her and made
unwelcome sexual advances toward her on two occasions. The first instance occurred following
a work related dinner in May 2008. Callaway showed up at Plaintiffs home unannounced in the
middle of the night (Doc. 121-2, pp. 205-06, 216-17, 220-21, 224-25, 227-30, 233-36, 238-39,
242-43). Earlier in the evening, Plaintiff and Callaway had spoken about the renovations she had
recently made to her home. Id. at pp. 192-195. Callaway expressed an interest in seeing the
renovations, and Plaintiff invited him to "come by anytime." Id. at pp. 194-195. Plaintiff was
taken aback when Callaway showed up atherhomeat 11:30 p.m. that evening, asking for a brief
tour of her home. Id. at pp. 220-221. She invited Calloway inter her home. Id. The two
exchanged small talk, and she poured him a drink. Id. at 228-29. At Callaway's suggestion,
Plaintiff poured herselfa drink. Id. at 230. Later, Callaway asked to seethe upstairs level of her
home.
Id. at pp. 227-38.
Plaintiff interpreted Callaway's request to "go upstairs" as a
solicitation for sex. Id. at pp. 242-43. She said"no" and asked Callaway to leave. Id. at p. 243.
Callaway left without incident. Id. at p. 239. Plaintiff acknowledges that Callaway did nottouch
her or make any comments she found to be inappropriate, aside from asking to see the upstairs
level of her home. Id. at pp. 242-43.
The second incident occurred on August 14,2009. Plaintiff alleges that Callaway entered
her office and suggested that they "step down the hall to have sex in an empty office (Doc. 1-4,\
11). Plaintiff rebuffed Callaway's advance. Id. at fl 111-112.
Following a merger between Allied and Republic Services of Virginia ("Republic") in
December 2008, Plaintiff assumed the position of Region Director of Municipal Services (Doc.
1-4,K77). At Republic, Plaintiff reported to a new management team - one with a very different
management style than what she had been used to at Allied (Doc. 121-2, pp. 325-326).
Plaintiffs new immediate supervisor was East Region Vice President of Sales, Douglas Murphy
("Murphy"), who reported to East Region Senior Vice President, Ronald Krall ("Krall") (Docs.
1-4, K 80; 121-5, pp. 107-08, 110). Before the merger, both Murphy and Krall had been
executives at Republic, not Allied, and, according to accounts from both male and female
employees, were "micromanagers" who preferred legacy Republic over legacy Allied employees
(Docs. 1-4, f 86; 121-2, pp. 325-326).
According to Plaintiff, Murphy immediately began subjecting her to unwarranted
scrutiny that other male directors were not subjected to regarding time, attendance and business
travel (Doc. 1-4, K82). Murphy tracked Plaintiffs time in the office to the minute; provided no
guidance on work-related projects; told Plaintiff that "nobody cared what she thought" whenever
she offered an opinion or suggestion; and treated Plaintiff like an entry-level employee. Id. at1fl|
83, 86, 89. On April 28 2009, Plaintiff reported Murphy's hostile behavior to Callaway, in his
capacity as Regional Vice President of Human Resources. Id. at fl 90-91.
Plaintiff contends that Krall, the East Region Senior Vice President, began harassing her
in an attempt to undermine her authority and fabricate performance issues (Doc. 1-4, fl 92-95).
Krall questioned the value of Plaintiffs presence at every out-of-town meeting she attended, as
well as meetings she had with her regional counterparts and dotted-line supervisors. Id. Plaintiff
also claims that Krall made condescending remarks about her on nearly every bid review call.
Matt 99.
In June 2009, Murphy prepared a Performance Improvement Plan ("PIP") for Plaintiff
because he was concerned about her timeliness, accuracy and communications regarding her
whereabouts (Doc. 132-11). After speaking with Plaintiff and Calloway, Murphy changed his
mind about placing Plaintiff on a PIP, concluding that the real issue was communication, which
he attributed to the different corporate cultures merging together (Doc. 121-11, p. 149). Murphy
provided the assessment for Plaintiffs 2009 performance evaluation (Doc. 118-30). He noted
Plaintiffs overall rating as "meeting expectations," commenting that she exceeded expectations
in some areas and needed improvement in other areas. Id.
In June 2010, Christopher Rains ("Rains") became the Vice President of Sales for the
East Region and Plaintiffs immediate supervisor (Doc. 121-6, p. 80).
Plaintiff and Rains
worked closely together on the municipal bid review process. Id. at p. 113. Rains found that
Plaintiffs strengths lied in her strong knowledge of government affairs and the ability to make
group presentations. Id. at p. 140. Rains, however, noted that Plaintiff demonstrated weaknesses
in the following areas: she failed to meet deadlines; she struggled with keeping her priorities
straight; she had poor organizational skills; she failed to regularly follow up; she had difficulty
applying the training she received; and she grappled with getting the organization to "buy in" to
their customer relationship management tool. Id. at pp. 98-99, 101, 120, 168-69, 191, 198, 205-
06; 118-7. Rains documented these concerns on Plaintiffs 2010 performance evaluation, and
gave her an overall rating of"needs improvement" (Doc. 121-32).
Plaintiff contends that Callaway, Murphy, and Krall severely damaged her reputation
within Republic. As further evidence of discrimination, Plaintiff proclaims that she: (1) was
denied a synergy bonus in 2010, even though similarly-situated male directors in other regions
received bonuses; (2) received a false performance evaluation in 2011; (3) was subject to taunts
from her supervisor and colleagues; and (4) was subjected to continuous monitoring by an
executive assistant on Krall's orders (Doc. 1-4, ffl 125-126, 128, 131-132, 134-139). Plaintiff
maintains that she complained to several members of Republic's management team regarding her
treatment, which resulted in her being targeted for further discrimination (Doc. 131, p. 5). The
facts surrounding Plaintiffs ultimate separation of employment are in dispute. Nevertheless,
Plaintiff maintains that following her separation, Republic further retaliated against her by
canceling contracts with Plaintiffs husband's employer, who was a vendor for Republic (Doc. 14,H190).
Defendants move for summary judgment on Plaintiffs discrimination claims alleged in
Count I (Gender Discrimination, Sexual Harassment and Hostile Work Environment in Violation
of Title VII) and partial summary judgment as to any claims of retaliation, other than retaliatory
discharge, alleged in Count II (Retaliation, Retaliatory Discharge and Hostile Work Environment
in violation of Title VII) of the Amended Complaint.
Defendants have summarized Plaintiffs retaliation claims as follows: (1) she did not get
a "synergy" bonus because she did not "succumb" to Callaway's alleged advances in May 2008
and June/July 2009; (2) she was called a "fucking bitch" in February 2011 by Keith Cordesman;
(3) Christopher Rains sent Plaintiffa "harsh" email "blastpng] her" for a conversation she had
with another manager about reporting structures; (4) Daniel Jameson sent her a harsh email about
a recycling program, which she described as "not showing professionalism" or "leadership"; and
(5) associational retaliation by Republic against the company that her husband worked for (Doc.
121,p. 20). Defendants contend that each of these claims fail (Doc. 121, p. 20-24).
Defendants further argue that Plaintiffs sexual discrimination claim fails as a matter of
law because (1) there is no evidence that Plaintiff was adequately performing her job when she
was given less than stellar performance ratings six months before her employment ended, (2)
Plaintiff has failed to identify a similarly situated comparator, and (3) there is no evidence that
she suffered an adverse employment action (Doc. 121, p. 26-29).
STANDARD OF REVIEW
Under Rule 56(c) of the Federal Rules of Civil Procedure, the Court must grant summary
judgment if the moving party demonstrates that there is no genuine issue as to any material fact,
and that the moving party is entitled to judgment as a matter of law. In reviewing a motion for
summary judgment, the Court views the facts in a light most favorable to the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once a motion for summary
judgment is properly made and supported, the opposing party has the burden of showing that a
genuine dispute of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87 (1986). "[T]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there beno genuine issue ofmaterial fact." Anderson, All U.S. at 247-48.
A "material fact" is a fact that might affect the outcome of a party's case. Id. at 248; see
also JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
Whether a fact is considered to be "material" is determined by the substantive law, and "[o]nly
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment."Anderson, All U.S. at 248; seealso HoovenLewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001).
A "genuine" issue concerning a "material" fact arises when the evidence is sufficient to
allow a reasonable jury to return a verdict in the non-moving party's favor. Anderson, All U.S.
at 248. Rule 56(e) requires the non-moving party to go beyond the pleadings and by her own
affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, All U.S.
317,324(1986).
ANALYSIS
I.
Count I - Gender Discrimination
Defendants are entitled to summary judgment on Plaintiffs claim for gender
discrimination because Plaintiff fails to establish a. prima facie claim for gender discrimination,
and she has not set forth direct or circumstantial evidence that raises a genuine issue of material
fact as to whether gender was a motivating factor affecting her separation of employment.
Title VII makes it unlawful for an employer to discriminate against an employee on the
basis of gender. See 42 U.S.C. § 2000e-2(a)(l). To establish &prima facie case for gender
discrimination under Title VII, a plaintiff must show that (1) she is a membership of a protected
class; (2) her job performance was satisfactory; (3) she was subjected to an adverse employment
action; and (4) similarly-situated employees outside of her class received more favorable
treatment. Holland v. Washington Homes, Inc., 487 F.3d 208,214 (4th Cir. 2007).
A plaintiff may defeat a motion for summary judgment and establish a successful Title
VII claim through two alternative methods of proof. A plaintiff may allege a claim of gender
discrimination under either the "burden-shifting" scheme set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 807, (1973) or the "mixed-motive" framework. Hill v. Lockheed Martin
Logistics Mgmt., 354 F.3d 277, 284-85 (4th Cir.2004).
Under the McDonnell Douglas scheme, a plaintiff first bears the burden of proving a
prima facie case of discrimination by a preponderance of the evidence. Texas Dep't ofCmty.
Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). If a plaintiff successfully presents a prima
facie case, the burden shifts to the employer to provide a legitimate, nondiscriminatory
justification for its action. Id. If the employer carries its burden, the plaintiff must show that the
employer's legitimate, nondiscriminatory reason is merely a pretext for discrimination. Id.
Under the mixed-motive approach, plaintiff must sufficiently plead, through direct or
circumstantial evidence, that her gender "was a motivating factor" in his employer's decision to
terminate him. Hill, 354 F.3d at 284-86. Direct evidence is defined as "evidence of conduct or
statements that both reflect directly the alleged discriminatory attitude and that bear directly on
the contested employment decision." Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th
Cir.2006) (internal quotations omitted). "To demonstrate such an intent to discriminate on the
part of the employer, an individual alleging disparate treatment based upon a protected trait must
produce sufficient evidence upon which one could find that the protected trait . . . actually
motivated the employers' decision." Hill, 354 F.3d at 286. "Although intermediate evidentiary
burdens shift back and forth under this framework, '[t]he ultimate burden of persuading the trier
of fact that the defendant intentionally discriminated against the plaintiff remains at all times
with the plaintiff.'" Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 144 (2000).
Once the employer produces sufficient evidence to support a nondiscriminatory explanation for
its decision, a plaintiffmust then be afforded the "opportunity to prove by a preponderance of the
evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a
pretext for discrimination." Id. (quoting Burdine, 450 U.S. at 253).
Regardless of the type of evidence offered by a plaintiff as support for her discrimination
claim, or whether she proceeds under a mixed-motive or single-motive theory, "[t]he ultimate
question in every employment discrimination case involving a claim of disparate treatment is
whether the plaintiff was the victim of intentional discrimination." Hill, 354 F.3d at 286 (quoting
Reeves, 530 U.S. at 141).
In this case, Plaintiff claims that Republic discriminated against her in a number of ways:
she was subjected to undue scrutiny, treated in a condescending manner, subjected to fabricated
criticisms of her work, given unfavorable evaluations and placed upon restricted travel (Doc. 1-4,
1196-7). While Plaintiff has sufficiently established that she is in a member of a protected class,
she has failed satisfy the second, third and fourth requirements.
First, Plaintiff is unable to dispute the evidence that she received a "needs improvement"
rating on her 2010 performance evaluation six months prior to her separation of employment
(Doc. 118-32). See Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir. 2000) (plaintiff could
not make a prima facie showing where performance evaluation stated he was "below target").
Plaintiffs self-serving evaluation of her performance "cannot create a genuine issue of material
fact." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). It is Republic's perception of
Plaintiffs performance that matter, not Plaintiffs. See Kings v. Rumsfeld, 328 F.3d 145, 149
(4th Cir. 2003) (holding that the plaintiffs self-assessment is irrelevant); Hawkins, 203 F.3d at
277 (same).
Second, Plaintiff has not demonstrated that she suffered an adverse employment action
because of her gender. "An adverse employment action is a discriminatory act which 'adversely
affects the terms, conditions, or benefits of the plaintiffs employment.'" James v. Booz-Allen &
Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004) (quoting Von Gunten v. Maryland, 243 F.3d
858, 865 (4th Cir. 2001).
employment action.
None of the alleged incidents rises to the level of an adverse
Plaintiffs assertions that Murphy and Krall subjected her to "undue
scrutiny," fabricated performance criticisms, provided false negative evaluations, undermined
her authority and restricted her travel do not constitute adverse employment actions.
See
Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 651 (4th Cir. 2002) (holding that
disciplinary discussions that did not result in lost pay or position failed to state a prima facie
claim of discrimination, even if different than other employees); Smith v. Sec'y of Army, No.
I:llcv724, 2012 WL 3866487, *2 (E.D.Va. Sep. 5, 2012) (alleged disrespectful conduct not an
adverse employment action); Dawson v. Rumsfeld, No. I:05cvl270, 2006 WL 325867, *6
(E.D.Va. Feb. 8, 2006) ("Increased scrutiny of an employee under the general policies and
disciplinary procedures governing her employment is therefore not an adverse employment
action."). Plaintiff did not suffer any loss of pay, benefits, or other tangible detriment as a result
of Republic's actions.
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Furthermore, Plaintiff testified that she consistently did a good job, met her employer's
expectations, and did not have job performance issues (Doc. 118-2, pp. 634, 638, 649-50, 570-
73). Therefore, she cannot show that she experienced any conduct that had a "material effect on
the terms, conditions, or privileges of her employment." Stephens v. Gutierrez, Case No. 1:08cv-870, 2010 WL 1005189, *8 (E.D.Va. March 15,2010).
Third, Plaintiff has not identified a similarly situated employee outside her class that was
treated more favorably. For fax prima facie showing, Plaintiff must identify a similarly situated
comparator, which means, a male employee who is similar in all "relevant respects." Haywood
v. Locke, 387 Fed. App'x 355, 2010 WL 271129, at *3 (4th Cir. 2010) (internal citations
omitted). An employee is similar in all "relevant respects" if he "dealt with the same supervisor,
was subject to the same standards and . . . engaged in the same conduct without such
differentiating or mitigating circumstances that would distinguish their conduct or the
employer's treatment of them for it." Id. Plaintiff, however, has not identified any male
employee who meets this standard set by the Fourth Circuit. Rather, Plaintiff alludes to "all of
her identified colleagues and co-workers under Mr. Krall's supervision were males." (Doc. 131).
These "identified colleagues" that Plaintiff references are other Regional Municipal Marketing
Directors, all of whom worked in different Regions, for different supervisors, and under different
standards.
Forrest v. Transit Mgmnt. of Charlotte, Inc., 245 Fed. App'x 255, 257 (4th Cir.
2007) (if different decision-makers are involved, employees are generally not similarly situated).
Even if Plaintiff could establish a prima facie case for gender discrimination, she has
presented no circumstantial evidence that gender was a motivating factor for her separation of
employment. The undisputed facts demonstrate that shortly after joining Republic, Plaintiff
clashed with Murphy and Krall over many things, including the way they "micromanaged"
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directors in the East Region, her job performance, and Murphy's expectation that she spend more
time in the office than on the road (Docs. 121-2, pp. 160-63, 467; 121-4, p. 15). When Rains
began supervising Plaintiff in February 2011, he also noticed issues with her performance which
led a "needs improvement" rating on her 2010 performance evaluation six months prior to her
separation from Republic (Doc. 121-32).
Based upon the following, it is quite clear that
Republic was dissatisfied with Plaintiffs work performance. Plaintiff has pointed to no evidence
that she was subjected to undue scrutiny, treated in a condescending manner, subjected to
fabricated criticisms of her work, given unfavorable evaluations and placed upon restricted travel
because of her gender. See Holland, 487 F.3d at 217 (plaintiffs Title VII claim failed where
employee could not establish pretext on the part of the decision maker). The Fourth Circuit has
stated, "when an employer gives a legitimate, non-discriminatory reason for discharging the
plaintiff, '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 plaintiffs termination.'" Hawkins, 203 F.3d
at 278 (4th Cir. 2000) (quoting DeJarnette v. Cornin Inc., 133 F.3d g 293,299 (4th Cir.1998)). A
Court should not second-guess an employer's appraisal. Id. at 280. Rather, the Court's sole
concern should be "whether the reason for which the defendant discharged the plaintiff was
discriminatory." Id. (quoting DeJarnette, 133 F.3d at 299). Plaintiff has not set forth any
evidence demonstrating genuine issues of material fact as to whether she was subjected to
intentional discrimination based on her gender or that her negative performance evaluation was
pretext for gender discrimination. Accordingly, the Court GRANTS Defendants' Motion for
Summary Judgment on Plaintiffs claim for gender discrimination in Count I.
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II.
Count II - Retaliation
Defendants are entitled to partial summary judgment on Plaintiffs claims for retaliation
within Count II of the Amended Complaint because Plaintiff cannot establish a. primafacie case
for retaliation based on the following issues:
(1) denial of a synergy bonus; (2) Keith
Cordesman's alleged comment; (3) Christopher Rains's August 15, 2011 email; (4) Daniel
Jameson's August 3, 2011 email; and (5) associational retaliation.
To establish a primafacie case for retaliation, the plaintiff must prove three separate
elements: (1) that he engaged in a protected activity; (2) that his employer took an adverse
employment action against him; and (3) that there was a causal link between the two events.
Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008). Like a discrimination claim, if the plaintiff
is able to make out aprimafacie claim, the burden shifts to the defendant to provide a legitimate,
nondiscriminatory reason for the adverse employment action. Hawkins, 203 F.3d at 278. If the
defendant satisfies its burden of production, the burden shifts back to the plaintiff to demonstrate
a genuine issue of material fact that the employer's reason is a pretext for retaliation. Id.
A.
Synergy Bonus
Plaintiff claims that she did not receive a synergy bonus in 2010 because she did not
"succumb" to Callaway's alleged advance at her home in May 2008 (Doc. 121-2, p. 31).
Discrimination claims under Title VII must be filed with the EEOC within 300 days after the
alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e)(1). Here, Plaintiff filed
her EEOC charge on September 9, 2011 (Doc. 133-20). Thus, Plaintiffs claims based upon
alleged discriminatory acts occurring prior to November 13, 2010 are time-barred and not
properly before this Court. See, e.g., Beall v. Abbott Labs., 130 F.3d 614, 620 (4th Cir.1997)
("[incidents outside the statutory window are time-barred"). Contrary to Plaintiffs contention
13
that her claim is timely because the synergy bonuses were not paid out until 2012, Plaintiff
testified that she knew in April 2010 that she would not be receiving a synergy bonus (Doc. 121-
2, p. 24). See Dogaleva v. Virginia Beach Cty Pub. Sck, 364 Fed. Appx. 820, 824 (4th Cir.
2010) (Title VII claim accrues when the plaintiff is informed of the alleged adverse action);
Williams v. Giant Food, Inc., 370 F.3d 423, 428-29 (4th Cir. 2004) (failure to promote claim
accrues when employer made decision).
Even if Plaintiff s claim was not time-barred, she has alleged no facts that would support
a causal connection between Callaway's visit and Republic's decision not to include her position
as one that was eligible to receive a synergy bonus.
The record demonstrates that neither
Callaway nor Krall had any role in determining whether Plaintiff would be eligible to receive a
synergy bonus, rather, that decision was made by Republic's corporate office (Docs. 121-5, p.
63; 121-10, pp. 32-33, 57-58, 61-62, 250-51; 121-11, pp. 242, 246-47).
In fact, Plaintiff
acknowledged that the sole basis for this claim is her belief that Callaway had some role in
making that decision because some unidentified employees who received synergy bonuses said
that they received a letter from human resources (Doc. 121-2, pp. 31, 33, 37). She then admitted
that she had no facts demonstrating that Callaway was involved in any way regarding the
synergy bonus. Id. at p. 37. Plaintiffs mere speculation and assumptions cannot create a
genuine issue of material fact sufficient to survive summary judgment. See Cottom v. Town of
Seven Devils, 30 Fed. Appx. 230, 234 (4th Cir. 2002) (statements based solely on information
and belief do not satisfy the requirements of Rule 56). Accordingly, Plaintiffs retaliation claim
based on the denial of a synergy bonus fails.
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B.
Keith Cordesman's Alleged Comment
Plaintiffcontends that Republic Manager, Keith Cordesman, called her a "fucking bitch"
in February 2011 during a bean-bag toss game at General Managers' conference in Phoenix,
Arizona (Docs. 1-4, fl 145-47; 121-2, pp. 589-90). She claims that she overheard the comment
when Cordesman was talking with a group of people not involved in the game approximately 20-
25 feet away from her across the field.
Id.
In her Opposition, Plaintiff concedes that
Cordesman's comment does not support an independent claim for retaliation (Doc. 131, p. 26).
Rather, the alleged comment relates to her retaliatory discharge and hostile work environment
claims. Id. Thus, Plaintiff has presented no evidence to defeat Republic's motion for summary
judgment on this claim.
C.
Christopher Rains's August 15,2011 Email
Plaintiffs claims that Rains retaliated against her by sending her an email that criticized
her for making comments to other managers about his plan to change reporting structures for
certain employees (Doc. 121-27).
She alleges that this email constitutes retaliation or "Mr.
Rains' animus toward her" because Rains "was aware there was an issue between Jason
Callaway and [Plaintiff]" (Doc. 131, p. 23).
Incohate "animus," however, especially when
expressed in one hardly critical email is insufficient to support a claim for retaliation. Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (an act of retaliation must be "materially
adverse" to be actionable, which means that it must have been sufficiently severe to dissuade an
objectively reasonable worker from making or supporting a charge of discrimination).
Even if Rains's email constituted an adverse employment action, Plaintiff has cited no
evidence that Rains knew that Plaintiff had engaged in protected activity with respect to her
interactions with Callaway. "To satisfy the third element, the employer must have taken the
15
adverse employment action because the plaintiff engaged in a protected activity." Dowe v. Total
Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998). Here, it is
undisputed that Rains was unaware of any protected activity (Doc. 121 at pp. 18-19). Further,
Plaintiff testified that she does not know whether Rains was a "willing participant" or
"knowingly" engaged in any alleged retaliation (Doc. 121-2, pp. 430-31). Thus, Plaintiffcannot
establish that Rain's 2011 email constitutes an act of retaliation.
D.
Daniel Jameson's August 3,2011 Email
Plaintiff claims that a work-related email from Daniel Jameson, her functional supervisor,
challenging her to take ownership of a company program was retaliatory in nature (Doc. 121-2,
pp. 164-165, 186). However, in her Opposition to Republic's motion, Plaintiff explains that
Jameson's email supports her claim for hostile work environment (Doc. 131, pp. 23-24).
Therefore, Plaintiff has failed to present any evidence to defeat Republic's Motion for Summary
Judgment on this claim.
E.
Associational Retaliation Claim
Plaintiff has asserted an associational retaliation claim against Republic for "canceling
business deals with her husband's company and, ultimately, driving him out of the company"
(Doc. 1-4, p. 11). In October 2011, Plaintiff married Steven Stradtman who was, at the time, the
CEO and President of Otto (Doc. 121-26 at 1 46).
Vendors" for carts and recycle bins.
Otto was one of Republic's "Preferred
Id. at fl 24-25, 62. Plaintiff proclaims that she has
exhausted her administrative remedies, as it "reasonably inferred from the pleadings that the
covered conduct in the E.E.O.C. Charge is the same illegal behaviors giving rise to Ms. Taylor's
Title VII claims" (Doc. 131, p. 25). Plaintiff also maintains that, at the hearing on Defendants'
16
Motion to Dismiss on August 17, 2012, this Court held that she has exhausted her administrative
remedies as to her associational retaliation claim. The Court disagrees.
First, the issue of whether Plaintiff exhausted her administrative remedies regarding her
associational retaliation claim was not before the Court at the August 17, 2012 hearing on
Defendants' Motion to Dismiss. In their Motion to Dismiss, Defendants argued that Plaintiffs
Amended Complaint did not specifically identify the claims alleged in her Charge, and therefore,
she had not exhausted her administrative remedies (Doc. 3). Defendants did not argue that the
associational retaliation claim, in particular, was barred by Plaintiffs failure to exhaust. Id.
Furthermore, at oral argument, Plaintiffs counsel did not address and was not asked about
cancellationof contracts with Otto or exhaustion of an associational retaliation claim. Therefore,
this Court's August 17, 2012 ruling did not resolve the issue of whether Plaintiff had exhausted
her associational retaliation claim.
While Plaintiffs claim for associational retaliation may, arguably, be reasonably related
to the conduct described in her EEOC charge, see Jones v. Calvert Group, Ltd., 551 F.3d 297,
303-04 (4th Cir. 2009) (allegations of post-charge retaliation (continued harassment and
discharge) in complaint were related to charge because the charge alleged "continuing"
retaliation in connection with the terms and conditions of plaintiffs employment), her claim
nonetheless fails. Plaintiff cannot assert a retaliation claim based on Republic's alleged business
dealings with her husband's employer. See Thompson v. North American Stainless, 131 S.Ct.
863 (2011). In Thompson, the Supreme Court held that an employee was entitled to bring a Title
VII retaliation claim based upon retaliation suffered in response to the "protected activity" of a
co-worker, who was the plaintiffs fiance. Id. at 867-68. The Supreme Court held that the
plaintiff was a"person aggrieved" within the meaning of Title VII because he was employed by
17
the same employer as the original EEOC claimant and injuring him was the employer's intended
means of harming the claimant. Id. In the Court's phrase, plaintiff was within the "zone of
interests" sought to be protected by Title VII. Id.
Under the "zone of interest" test articulated in Thompson, neither Plaintiffs husband's
nor his employer's interests are not those interests "sought to be protected by the statutory
provision" as Otto is not a "person aggrieved" within the meaning of the statute. Id. at 869-70.
Title VII provides:
It shall be an unlawful employment practice for an employer—
(2) to limit, segregate, or classify his employees or applicants for employment in
any way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because of
such individual's race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a)(2). The statute further provides:
It shall be an unlawful employment practice for an employer to discriminate
against any of his employees or applicants for employment, for an employment
agency, or joint labor-management committee controlling apprenticeship or other
training or retraining, including on-the-job training programs, to discriminate
against any individual, or for a labor organization to discriminate against any
member thereof or applicant for membership, because he has opposed any
practice, made an unlawful employment practice by this subchapter, or because he
has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e-3(a). Although Plaintiffs husband was the CEO of a company that served as
a preferred vendor to Republic, neither he nor Otto was not an employee of Republic, and
therefore, do not fall within the zone of interests sought to be protected by Title VII.
Accordingly, Plaintiffs assertion of a claim for associational retaliation falls beyond the outer
limits recognized by the by the Supreme Court in Thompson.
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CONCLUSION
The Court GRANTS Defendants' Motion for Summary Judgment as to Count I of the
Amended Complaint seeking damages for gender discrimination and partial summary judgment
on Count II with respect to Plaintiffs claims for retaliation, other than retaliatory discharge
(Doc. 120). Plaintiff has failed to establish a primafacie case for gender discrimination, and has
not set forth any direct or circumstantial evidence creating a genuine issue of material fact as to
whether gender was a motivating factor affecting her separation of employment. Therefore,
Defendants are granted judgment as a matter of law on Plaintiffs claim for gender
discrimination in Count I of the Amended Complaint.
Additionally, Plaintiff has failed to demonstrate establish a primafacie case of retaliation
based on the following claims: (1) denial of a synergy bonus; (2) Keith Cordesman's alleged
comment; (3) Christopher Rains's August 15, 2011 email; (4) Daniel Jameson's August 3, 2011
email; and (5) associational retaliation. Consequently, no genuine issue of material fact exists as
to these claims.
Accordingly, Defendants are granted judgment as a matter of law on the
aforementioned claims of retaliation in Count II of the Amended Complaint.
IT IS SO ORDERED.
ENTERED this 6th day ofFebruary 2013.
Alexandria, Virginia
2/6/2013
/s/
Gerald Bruce Lee
United States District Judge
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