Clark v. Western Tidewater Regional Jail

Filing 41

OPINION AND ORDER that WTRJA's motion for summary judgment is GRANTED with respect to Clark's discriminatory discharge claims under Title VII and the ADA; the motion is DENIED with respect to Clark's Title VII hostile work environment and race-based disparate treatment claim. Signed by Magistrate Judge F. Bradford Stillman on 1/26/2012. Copy mailed to pro se plaintiff as directed.(rsim)

UNITED

STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division
PAMELA

S.

JAN

2 6 2012

CLARK,

Plaintiff,

v>

'

WESTERN

Case No.: 2:llcv228

TIDEWATER

REGIONAL

JAIL AUTHORITY,

Defendant.

OPINION AND

This

matter

comes

Tidewater

Regional

Judgment,

which

Clark

Response

on

September 7,
issued.
2011

August

and

a

is
3,

Response

2011.

June

("WTRJA")

28,

proceeding
2011

and

2011.
pro

Defendant

Motion

se,

filed

supplemental

Western

for

Plaintiff

Summary

Pamela
her

IN

Clark

is

PART

a

terminated

action

Clark alleges

to

Clark's

and

DENIED

FACTUAL AND

white

her

against
that

IN

on

Order that this Court

supplemental

submissions

who

employment

WTRJA

on

4,
on

WTRJA's motion

PART.

PROCEDURAL

female,

S.

timely

submissions

For the reasons set forth below,

I.

this

on

on

WTRJA filed its Rebuttal to Clark's Response on August

GRANTED

WTRJA

Court

Authority's

filed

who

the

2011 pursuant to a Rule 56(e)(l)

September 9,
is

Jail

it

("Clark"),

before

ORDER

in

April

was

BACKGROUND

fifty-two

November,

21,

2011.

2009.

In

years

She

her

old

when

commenced

complaint,

she was the victim of repeated harassment at her

1

place of employment,
and

that

she

Western Tidewater Regional Jail

received

injuries

during

("the Jail"),

job-related

training

for

which she was subsequently terminated. R.1 9.
On

August

motion.

S.

25,

2011,

Lawrence
se.

the

Dumville,

Heidi

Court
Esq.,

appeared

pro

Jeffreys

hearing,

Clark proffered documents

held

declaration

Court

identifying

subsequently

the

entered

was

the

court

on

WTRJA's

and Clark
At

the

in support of her position.

She

Rule

reporter.

together with an affidavit

documents,

a

hearing

represented WTRJA,

was ordered to file them with the Court,
or

a

within

56(e)(l)

ten

Order

days.

The

reiterating

Clark's obligation to file documentation in support of her response

to

WTRJA's

motion.

documentation

Clark

accompanied

timely

by

a

October

26,

2011.

supplemental

declaration

WTRJA responded on September 9,
on

filed

2011.

Accordingly,

on

supporting

September

7,

2011.

Discovery in this case closed

WTRJA's

motion

is

now

ripe

for

presents

the

Clark,

the

Justice,

747

decision.

Having

following

reviewed

facts

non-moving party.
F.3d

134,

Burlington

1

"R."

in

135

n.l

Indus.,

See

entire

the

in

light

record,

most

Gilliam v.

(4th Cir.
Inc.,

refers to the

this

the

S.C.

2007);

763

F.2d

the

favorable
Pep't

Terry's
604,

610

record of the parties'

case.

-

2

-

Court

to

Juvenile

Floor

Fashions,

(4th Cir.

Inc.

v.

1985).

filings with the Court

A. Clark7 s Conditional Offer of Employment and Termination

Clark accepted a Conditional Offer of Employment as an officer

with the Jail on October 6,

on

successful

completion

of

state-mandated training.
Virginia

law

"at

R.

a

R.

39.

Her offer was conditioned

six month probationary period and

38.

requires

complete training,

School"),

2008.

all

probationary

jail

officers

also known as Entry Level Jailor School

an

approved

criminal

justice

training

("Jailor

academy

order to remain eligible for appointment or employment." Va.
§ 15.2-1706(A).
months

of

the

extension.

Virginia

6

§

date
Va.

law,

established

Code.

Jailor
of

School
hire

Admin.

the

Code

training

9.1-102(9);

6

Va.

of

completed
employee

Criminal

standards

for

§§

Jailor School
It

first

Academy,

2 The

Clark

during

enrolled

protective

gear

the

Clark

commencing

scenarios

three

the
5,

to

course

granted

an

Pursuant

to

Services

has
Va.

the

("DT")

At

portion of

R.

instructors

—

3

—

54-56.

attend

Portsmouth

2009.

R.

employment

41.

apparently derive their name
that

twelve

fight-simulation exercises commonly

course of her

January

Code

-110.

20-50-20,

opportunities

in

in

officers.

jail

referred to as "Redman scenarios."2 See, e.g.,
WTRJA gave

is

Justice

the Defensive Tactics

included several

within

20-50-40(A)-(B).

Admin Code

time of Clark's employment,
Jailor School

§

be
the

unless

Department

minimum

must

to

and

with

Sheriff's
Clark

the

Jail.

Training

failed

from the

wear.

complete

the

DT

color of the

portion of the course.
in

April,

2009

Chesapeake
commencing

and

scheduled

Sheriff's
June

5,

WTRJA provided Clark remedial DT training
her

Training

2009.

to

attend

Academy

She did not

training

("Chesapeake

attend the

at

the

Academy"),

training because

she tore her right ACL during a non-work-related activity.

WTRJA

extended Clark's six month probationary period and enrolled her in

the DT portion of Jailor School,

the Chesapeake Academy.
wrote

a

note

commencing September 25,

On September 21,

indicating

that

she

2009,

could

excessive exercise due to ACL surgery."3
the note to her supervising sergeant,

2009 at

Clark's physician

"not

R.

participate

142.

Clark presented

who warned her that she would

lose her job if she did not complete the training.

R.

85,

121.

Clark began her third attempt at DT training as scheduled,

again failed to
2011,

she

successfully complete it.

injured

her

left

knee

in

during

R.

42.

training.

but

On October 2,
R.

41.

She

was

seen by a doctor that day and cleared to return to training without
restrictions.

Id.

On October 6,

to the head during a Redman

after

three attempts.

Clark

attempted

R.

and

54.

Thereafter,

from the

remainder

of

due

scenario,

56,

failed
a

3 Clark explained at
restriction was

R.

2009,

189.

the

which

Between

another

Chesapeake

Clark received numerous hits

Redman

Academy

training

she ultimately failed

October

scenario

official

course.

7

R.

35,

and

8,

three

dismissed

2009,
times.
Clark

42.

her hearing that this note misstated that
to ACL

surgery when

injury.

-

4

-

it

was

in

fact

due

the

to ACL

On

October

sustained

on

14,

2009,

October

6,

Clark

2009

complained

to

her

of

head

she

R.

physician.

injuries

The

194.

physician placed Clark on light duty status. R. 161, 169.4
around

the

evening

of

November

3,

2009,

the

Jail's

On or

Director

of

Administration and Security pulled Clark from her shift and began

questioning her about her restricted duty status and the handicap
decal displayed on her car.

husband was

disabled,

the

R.

86.

After Clark explained that her

Director

told her

that

if

she

return to full duty status the next day she would be
Clark's
November

On

physician
4,

2009.

cleared
R.

November

her

to

return

the

Jail's

to

full

did not

fired.

duty

Id.

beginning

166-67.

5,

2009,

Director

of

Training

recommended that the Jail terminate Clark's employment due to her
inability to successfully complete DT training.

R.

10,

Clark

2009,

the

termination.

R.

Jail's

issued

On November
a

letter

of

43.

B. Clark's

Clark's

Superintendent

42.

Harassment and Disparate Treatment

complaint

states

that

advances of one of her superiors,

after

she

refused

Lieutenant Michael

began tormenting and humiliating her on a daily basis.

the

sexual

Phillips,
R.

9.

he
She

claims that Lieutenant Phillips called her stupid on a daily basis

4 On November 23, 2009, a different physician diagnosed Clark with
post-concussion syndrome and ordered a CT scan, which came back
normal.

R.

144-145,

150-151.

-

5

-

and assigned her to duties
denied her
"clear

certain

bag

regular

privileges

approval,"

breaks.

harassment of

for which she was not trained,
afforded to

computer

R.

249.

access,

Clark

other

and

female officers by superiors,

officers

the

further

that he

ability

alleges

such
to

that

sexual

of a black male officer exposing himself to white

officers,

was

In

support

declaration
Clark.

R.

of

of

her

Officer

197-98.

Lieutenant

at

the

R.

allegations,

Tiffany

Officer

Phillips

Jail.

Finn,

Finn

verbally

9,

states

abused

R.

198.

Officer

Finn

breaks with

the

not

computer

given

officers

a

same

attests

frequency as

jail]
she

of being a white

is

90%

alleges

(APPROX.)
that

and

the
was

the

Jail

with

aware

that

that

she

also

first year as an officer.

Clark was

not

other officers

allowed
and that

to

take

she was

even though other

forced to

note

stating

that

As

black."

evidence

she

of

enter

Id.

she received unfavorable treatment on

female because the

different

she was

9.

she

provided

received their log-ins within a month of being hired.

that

R.

that

at

log-in during her employment

Clark also suggests that
account

that

has

worked

Clark

experienced negative treatment during her

female

85.

Clark

who

take

including at least two

incidents

"the norm"

as

R.

rules
DT

"racial make up

9-10,

196,

applied

to

training when

could not

participate

discrimination,

-

6

-

199.

In

different

[of the

this

vein,

people

and

she had a physician's

in

Clark has

excessive

exercise.

provided a

list

of

instances

in which

she was

officers at the Jail.5
WTRJA

denies

allegations,

R.

treated differently than black

199.

Clark's

and

claims

female

sexual

that

harassment

Clark

never

and

filed

discrimination

a

complaint

of

harassment or other objectionable conduct against another employee.
R.

31,

60,

70.

Policy

and

stating

WTRJA has submitted an excerpt from its Personnel

Procedure

that:

Employees

handbook

who

defining

experience

sexual

sexual

harassment

harassment

encouraged to make it clear to the offender,

appropriate

R.

46.

positions

behavior.

R.

112.

two

officials

about

Phillips's

supervision,

the night
she

was

she

also

the
employee
should
supervisor
or
other

Clark claims that she notified no less than five Jail
in

Lieutenant

If the
if the

officials.

employees

Jail

are

at the time

of occurrence, that such behavior is offensive.
situation cannot be resolved by the employee or
offensive
action
is
repeated,
immediately
notify
his
or
her

and

shift.

of

command

about

Lieutenant

In March or April of 2009,

R.

happy with

the

85-86.
her

complained

and the

Clark complained to

she

Jail

and with

Lieutenant

her

new

suffered

under

transferred her to

After the transfer,

work

about

harassment

Phillips's

Clark states

supervisor,

Phillips's

actions.

to

R.

that
whom

86,

112.

5 She alleges that there were six instances, but only two of her
descriptions actually reference the race of the other officers.

-

7

-

C.

Clark
Employment

Exhaustion

filed

a

of Administrative Remedies

charge

Opportunity

of

discrimination

Commission

("EEOC")

with

on

alleging discrimination on the basis of race,
R.

247-50.

On September 13,

2010,

the

U.S.

November

sex,

Equal

20,

2009,

and disability.

Clark filed an Amended Charge of

Discrimination with the EEOC alleging discrimination based on race,

sex,

disability,

age,

and retaliation.6

R.

notice of the initial charge on December 1,

charge
EEOC
R.

on

September

sent

Clark

2010.

notice

a

20,

R.

of

244.

WTRJA received

2009 and of the amended

On

dismissal

35.

February

and

of

her

3,

2011,

right

SUMMARY

JUDGMENT

STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure,
judgment

should be granted only if "there

any material

fact

matter of law."

Fed.

if

sue.

38.
II.

to

to

the

it

might

Lobby,

477

"genuine"

affect

U.S.
only

R.

the

242,
if

and

could return a verdict

The

party

Civ.

P.

outcome

248

the

the movant

for the

seeking

56(a).
of

the

(1986).

evidence

is

A
"is

is no genuine dispute as

entitled

to

judgment

as

a

A fact is "material" only
case.

dispute
such

Anderson

of

that

judgment

v.

material
a

Liberty

fact

reasonable

non-moving party."

summary

summary

is

jury

Id.

"bears

the

initial

responsibility of informing the district court of the basis

for its

6

age

Clark's

complaint

makes

no

allegations

retaliation.

-

8

-

related

to

or

motion,"

and

demonstrating

material fact.

the

absence

of

v.

Catrett,

477 U.S.

Celotex Corp.

This burden "may be discharged by
to

the

district

support

the

court—that

nonmoving

genuine

is

an

case."

Id.

absence
at

dispute

317,

'showing'—that is,

there

party's

a

323

(1986).

pointing out

of

325.

of

evidence

If

the

to

movant

makes such a showing,

the nonmoving party is required "to go beyond

the

her

pleadings

answers

to

specific

Id.

and by

own

interrogatories,

facts

at 324

showing

that

affidavits,

there

(quotations omitted).

by

admissions

and

or

on

is

a

genuine

the

depositions,

file,

issue

designate

for

trial."

Although the Court must view the

record as a whole and in the light most

favorable to the nonmovant,

see

F.2d

Terry's

"cannot

Floor

defeat

evidence," Am.
2009).
must

Fashions,

summary

Arms

Moreover,

prevail

as

a

O'Connor v.

(4th Cir.

1995)

pleadings

7

the

part

pro

se

Clark

in the
of

the

litigants

because of

Herbert,

law,"

is

at

610,

merely

563

a

nonmovant

scintilla

of

82

(4th Cir.
one party

the

F.3d 78,

the

so one-sided that

is

Court

must

Coin Caterers Corp.,

(quoting Anderson,

liberally.7

Implicit

of

Consol.

III.

Because

v.

with

"the evidence

matter

judgment.

763

judgment

Int'l.

if

Inc.,

477

U.S.

at

grant

summary

56 F.3d 542,

545

251-52).

DISCUSSION AND ANALYSIS

proceeding

pro

See Gordon v.

se,

the

Leeke,

Court

574

construes

F.2d

1147,

her

1151

right to self-representation is an obligation on
court

from

to

make

reasonable

inadvertent

their lack of legal training.

-

9

allowances

forfeiture

-

of

to

important

While the right

protect

rights

"does not

(4th Cir.
1994).
to

1978);

Jacobi

Moreover,

liberally

v.

Blocker,

153

F.R.D.

84,

86

(E.D.

Va.

the Court notes that "trial courts are encouraged

treat

procedural

errors

made

by

p_ro

se

litigants,

especially when a technical or arcane procedural rule is involved."
Bauer

v.

Comm'r,

precepts in mind,
claims for sex,

97

F.3d

45,

with

and

race,

disparate

the

(4th

Cir.

1996).

With

these

the Court construes Clark's complaint as alleging
and disability discrimination with respect to

her termination and claims
sex

49

for hostile work environment based on

treatment

based

on

race

during

her

employment

Jail.
A. Discriminatory Discharge Claims
1. Race and Sex Discrimination

Title VII of the Civil Rights Act of 1964 makes it unlawful to
terminate

an

employee

§ 2000e-2(a) (1);
(4th Cir.

Jones v.

2009).

discriminatory

because

of

her

Calvert Grp.,

sex

or

Ltd.,

race.

551

42

U.S.C.

F.3d 297,

300

When the employee presents no direct evidence of
animus

on

the

basis

of

a

protected

trait,

the

employee can rely on circumstantial evidence to raise the inference

of

discrimination

framework.
(1973);

under

McDonnell

Miles v.

Dell,

the

Douglas
Inc.,

McDonnell
Corp.

v.

Douglas
Green,

429 F.3d 480,

485

burden

411

U.S.

(4th Cir.

shifting
792,

802

2005).

exempt a party from compliance with relevant rules of procedural
and
substantive
law,"
it
should
not
be
impaired
by
harsh
application of technical rules.
Traguth v. Zuck, 710 F.2d 90, 95
(2d Cir.

1983)

(citation

omitted).

-

10

-

Under
burden

Meritt
Cir.

the

of

McDonnell

establishing

v.

Old Dominion

2010).

legitimate

If

Id.

If

prohibited

involving

was

a

carries

Prods.,
the

of
of

530

she

was

the

(2)

Hill

v.

action;

(4th

Cir.

the

U.S.

and

adverse

back

to

the

and that

treatment.

the

plaintiff

Reeves v.

Sanderson

intentional

that

"(1)

she

adverse

duties

expectations

Martin

a

discrimination case

whether

601

(4th

and the

plaintiff

discrimination
F.3d

at

by

294.

facie case of discrimination under Title

job

(4)

294

pretextual

(2000),

Meritt,

the

provide

plaintiff's

is

153

must

shifts

employment

133,

289,

plaintiff's

is

of

has

discrimination.

F.3d

burden

treatment

suffered

her

qualified

Lockheed

every

evidence,

she

legitimate

similarly

in

demonstrate

performing

employment

by

must

class;

employer's

for

cause

demonstrating

To establish a prima

protected

the

disparate

Inc.,

burden

Clark

601

defendant

the

is

plaintiff

of

intentional discrimination,"

the preponderance

VII,

case

the proffered reason

question

claim of

the

so,

the

Inc.,

reason

does

discrimination

the victim of

Plumbing

it

facie

Line,

succeeds,

that

ultimate

framework,

prima

Freight

she

plaintiff to prove

"The

a

non-discriminatory

treatment.

Id.

Douglas

a

member

employment

at
at

is

a

the

level
time

action;

that
of

the

met

Logistics

outside
Mgmt.,

2004) .

-

11

-

the

Inc.,

protected
354

F.3d

a
(3)

her

adverse

the position remained open or was

applicants

of

filled

class."
277,

285

WTRJA concedes

a

Caucasian

that

and

female

Clark is

that

a member of a

she

suffered

action when she was discharged.
she

cannot

prohibited
that

she

establish

element

discrimination
was

performing

Court

her

job

the time

law

within

requires

twelve

months

of

employment.

It

for

Jailor

to

that

that

case

for

demonstrate
met

WTRJA's

terminated her employment.

Code

§

School

officers
in

20-50-40(A)-(B).
opportunities

within

the

to

Jailor

maintain

The

record

to complete

first

she

repeatedly failed her evaluations,

[sic]

complete

order

third

skills nor

year

the

of

her

opportunity.

to

When

conclude that

Clark did participate

in

to
DT

leading the Jail's

Clark does

not

"possess

the

mindset to successfully complete this training."

WTRJA's evidence discloses that after a year of employment,

Clark had not
The
meeting

however,

extended her probationary period by three months

Director of Training

42.

it

employment

facie

failed

the

training,

R.

prima

manner

hire

WTRJA gave Clark three

portion

Admin.

of

reveals

allow

a

jail

6

that

Va.

that

employment.

DT

a

has

in

adverse

It argues,

of

she

an

as

agrees.

Virginia
School

29.

three

because

legitimate expectations at
The

R.

protected class

completed the

only
her

Personnel

evidence

employer's

state-mandated training.

Clark

8,

submitted

legitimate

Evaluation Reports.

the period of October

has

2008

R.

126-29.

12

show

expectations

-

6,

that

consists

The first,

through April

-

to

2009,

she

was

of

two

which covered
notes various

performance

deficiencies

and

be

until

able

extended

The
5,

second,

DT

clearly
that
R.

performance

portion

complete

she

is

to

that

complete

her

a

of

the

improvements,

last

subsequent

DT

school

but

and

training.

probation

Jailor

which covered the period of April

2009 notes

the

she

recommends

6,

2009

states

that

R.

School.

she

128.

R.

128.

through July

that

was

period

she missed

scheduled

Both

to

evaluations

state the expectation that Clark complete Jailor School and
had not

yet

completed

it

at

the

time

of the

evaluations.

126-29.

Because

WTRJA's
she

Clark

employment

failed

state

discrimination.

See

to

termination was

Warch

v.

Ohio

Cas.

summary

genuine

of

issue

performance,

and,

demonstrate

expectations

a

Accordingly,

2006)(affirming

that

failed to

legitimate

has

Clark's

has

prima
a

she

was

meeting

it terminated her,

case

for

employment

jury could not

find that

the product of intentional discrimination.
Ins.

Co.,

435

judgment where

material

fact

accordingly,

a

he was meeting his

when

facie

reasonable

that

F.3d

employee

concerning

reasonable

employer's

510,

(4th

failed to
his

jury

legitimate

518

Cir.

raise

a

substandard

could

not

find

expectations).

2 . Disability Discrimination

The Americans with Disabilities Act

("ADA")

makes

it unlawful

for employers

to discriminate against employees with disabilities

and

an

imposes

affirmative

duty

on

accommodate employees with disabilities

-

13

-

employers
who are

to

reasonably

otherwise qualified

for
v.

perform their positions.
Hose,

50

F.3d 278,

violated the ADA by
so

that

she

282

(1)

The

Court

U.S.C.

1995).

time

to

disabled

within

light duty status

these

prohibited
F.D.I.C.,
she

257

carry

the

individual
physical

See
373,

this

a

of

42

387

(4th

Myers

that WTRJA

of

that

32,

Clark's

as

she sustained during DT

as

failure

claims under the ADA.

to
To

to prove

that

she was

at

time

of

the

12112(a),

2001).

(b) ;

WTRJA

the

Rhoads

contends

v.

that

93.

claims,

someone

substantially

42 U.S.C. § 12102(1).

(2)

ADA

§

Cir.

September 2009 and

able

the

R.

disability

impairment

<b);

training after her

allegations

be

U.S.C.

burden.

purposes

with

activity.8
has

F.3d

Clark must

meaning

conduct.

cannot

For

claim,

DT

in

of impairments

interprets

the

12112(a),

Clark claims

complete

accommodate and discriminatory discharge
succeed in either

§

failing to extend her probationary period

terminating her on the basis

training.

42

(4th Cir.

would have more

physician placed her on

See

the

who

ADA

has

limits

defines

an

mental

or

a
a

major

life

In support of her claims, Clark

submitted medical records obtained during and subsequent to her

8 Major life activities include,

"caring for oneself,

performing

manual tasks, seeing, hearing, eating, sleeping, walking,
lifting,
bending,
speaking,
breathing,
learning,
concentrating,

thinking,

communicating,

and

working"

as

standing,
reading,
well

as

major bodily functions such as "functions of the immune system,
normal cell growth, digestive, bowel, bladder, neurological, brain,
respiratory, circulatory, endocrine, and reproductive functions."
42

U.S.C.

§

12102 (2) .

-

14

-

employment

with

the

Captain Maskelony,

Jail

the

as

well

Jail's

as

a

letter

Director of

that

she

gave

beginning

Captain
during
was

note

training

DT

in

Maskelony
Redman

hit

in

documentation
duty

status

engage

in

Clark's

on

that

prolonged

10,

Clark's

14,

2009,

a

lumbar strain.

to engage in
every

this

hour."

fax.

R.

R.

form

"normal
Id.

169.

and

Clark's

indicates

termination,

October

impairments

the
that

she

on

light

could
15,

not

2009,

provider

possible concussion,

form states that Clark was able

contends

that
was

on

that

November

diagnosed

however her CT scan was normal.

Although

to

medical

insurance

WTRJA

received

Upon examination on November 3,

Clark

that

her

Clark

physician cleared her to return to full duty status.
record

sent

to

performance

relevant

that

knee sprain,

The

her

placed

On

she

explains

Other

163.

to

letter

prior

activities" with an "opportunity to rest/sit
Clark

191.

2009

physician

R.

to

She claims

sergeant

The

indicating

standing.

faxed

6,

122.

describes

times.

indicating that Clark had a left
and a

2009.

2009

sent

restricts Clark to
R.

supervising

September

several

October

physician

her

on October

head

reveals

on

to

October

scenarios
the

2009

involve excessive exercise.

this

she

Security.

A physician's note dated September 21,
work that does not

that

evidence
limited

23,

with

R.

2009,

indicates
her

-

ability

15

-

2009,
R.

143,

that
to

of

Clark's

167.

subsequent

post-concussion

144,

notice

to

The
her

syndrome;

150.

Clark
engage

had
in

physical
certain

activities,
disabled

"[m]erely

for

purposes

demonstrate that
activity."
184,
is

195

the

Toyota

(2002)

mindful

of

Pt.

of

Motor

the

1630,

impairments

activities.

See Heiko v.

Bateman

(E.D.
Court

Va.

DKC

v.

fact

with

make

also

v.

Am.

the

2008

v.

Savs.

courts

United
WL

Airlines,

Bank,

665321,

in

Inc.,

614

*18

With
not

respect

shown

that

requiring

standing,

lifting,

there

no

is

limited

in

her

to

her

activity

whether

failed
she

to

was

create

29

Circuit

major
434

a

Civil

Feb

14,

660,

670

standards,

the

Supp.

Md.

life

F.3d 249,

Inc.,

(D.

of the evidence and these

has

See

of

generally do not

Serv.,

F.

U.S.

The Court

this

F.S.B.,

at

to

definition

limit

Parcel

534

("ADAA").

substantially

Colombo

2011

Clark
to

of

need

Williams,

liberalize

Act

one

2d.

genuine

issue

of

Jail.

the

as

to

that

In light

that

material

Inc.,

not

limits a major life

temporary impairments

Young

08-2586,

2009).

finds

that

2006);

2011) ;

Claimants

Nevertheless,

as

No.

Ky.,

desire

App.

qualify

Action

does

[substantially]

ADA Amendments

recognize

Cir.

impairment
ADA.

Mfg.,

Congress's

to

(4th

the

impairment

continue

257

an

(superseded by statute on other grounds).

disability with
C.F.R.

having

disabled during her employment

her reasonable

ACL
the

injury
Jail

substantially

to

accommodate

and bending are

indication
ability

accommodation

that

to perform any of

16

limited

her.

-

ACL

life

injury

these

a

Clark has
major

life

Although walking,

statutory major

Clark's

-

claim,

activities,

substantially

functions.

Rather,

Clark's

physician

stated

"excessive exercise."
conclude

that

based on

excessive

12102(2);

29

that

she was

2009.

The

the

is

§

ADA

to

would

not

failure

who

prevented

injuries

her

allowed to

from

sit

or

life

and

participate
the

activity.

a

reasonably

have

Court

DT

to

is

cannot

U.S.C.

has

jury to

in

provide

non-disabling

WTRJA

42

Clark

training

in

regulations,

See

Accordingly,

to accommodate

§

not

conclude

September
reasonable

impairments.

entitled

to

summary

claim.

to Clark's

prolonged

discriminatory discharge

sustained

Clark

rest

not

implementing

employers

the

reasoning applies

The

and

to beginning

employees

on Clark's

claim.

text

allow

reasons,

Similar

argued,

require

foregoing

judgment

not

1630.2 (j).9

that

does

should

a major

disabled prior

accommodations

For

statutory

exercise

submitted evidence

she

Clark has

the

C.F.R.

that

during

standing

every hour.

and

There

is

Redman

required

no

training

that

she

evidence that

be

her

concussion affected her ability to perform any major life activity.
In her letter to Captain Maskelony,
the

limiting

enough to

effects

return

to

The fact that

of

full

her

injuries.

duty

Clark was

Clark makes

status

She

no statements

was

on November

apparently
3,

§

12102(2) (A).

well

2011.

limited in the major life activity of

standing does not automatically mean that she was disabled.
U.S.C.

about

There must be evidence allowing a

See 42

reasonable

9 The Court notes that Clark's physician did not prohibit her from
engaging

in

any

form of

exercise.

-

17

-

jury

to

conclude

that

Toyota Motor Mfg.,
implanting

not

activity,

impairments
EEOC

v.

Court

is

Clark's

Lee

Cobey

v.

summary

Guilford

(M.D.N.C.
of

law,

Tech.

2010).

Clark

Accordingly,

no

not

ability

," Heiko,
349,

that

the

to

434

352-53

a

App'x

week

209,

for

movant

were

Coll.,

733

at

dispute

where

F.

of

Supp.

time

material

terminated on the basis

(quoting
The

restriction
time

of

(4th

on

constitutes

standing.

Cir.

2011)

medical

records
standing

Blackburn v.

concludes

the

minor

including

temporary);

therefore

disabled

212

phrase

2001)).

activity

limitations,

only

257

need

major

excludes

(4th Cir.

of

a

"the

F.3d at

three

life

physical

Court

perform

that

major

Fed.

Comty.

genuine

whether Clark was

on

424

time,

The

was

.

id. ;

limitation

threshold

F.3d

judgment

of

substantial

a

.

See

Although the ADAA's

for prolonged periods

claimant's

long periods

a

195.

1630.2 (j) (1) (ii),

conclude

Green,

at

substantial.

§

.

237

stand

U.S.

that

sets

limitation

indicated that

of

to

ability to

(granting

for

Corp.,

unable

substantial

See

C.F.R.

limits'

was

individual's

from coverage

Sara

534

indicate

an

29

limitation

Inc.,

restrict

'substantially

a

Ky.,

regulations

severely

life

the

of

2d

659,

that,
her

fact

as

Trs.

663

n.3

a matter

termination.

exists

of disability,

as

to

and WTRJA

is entitled to summary judgment on Clark's discriminatory discharge
claim

under

the

ADA.

-

18

-

B. Hostile Work Environment Claim

Clark's
victim

complaint

of

constant

harassment

started

Lieutenant

Phillips.

and

EEOC

charges

harassment.

after

she

Her

allege

complaint

refused

The Court

the

interprets

hostile work environment
See Ocheltree v.

Productions,

Cir.

2003)

is

"term,

a

{explaining

basis

condition,

work

of

a

(finding

hostile

the

that

the

advances

allegations

of
as

a

claim under Title VII.

Inc.,

335

F.3d 325,

or privilege of employment,"

violation by

protected

environment");

sexual

was

338

(4th

that because an employee's work environment

establish a Title VII
the

she

states

these

sexual harassment

Scollon

that

trait

Reinhold

work

showing that

has

"created

v.

a

where

employee may

discrimination on
hostile

Virginia,

environment

an

151

or

F.3d

supervisor

abusive

172,

175

threatened

claimant with extra work and denied her professional opportunities,
among

other

WTRJA
Clark's

things,

argues

sexual

when

that

with

VII.

Title

VII

within

which

an

EEOC.

See

42

U.S.C.

§

F.3d

435,

439

after

the

180

155

days

charge,

but

it

harassment

charge

Bank,

she

the

that

EEOC

refused his

is

the

establishes
aggrieved

entitled

claim

within

time

two

alleged unlawful
extended

-

19

Clark

potential

employee

must

-

advances).

summary

period

a

charge

First

Generally,

Title

periods
with

an employee

for

a

the

Union Nat'l

practice

days

on

file

by

limitations

file

300

to

prescribed

employment
to

judgment

failed

Tinsley v.

(4th Cir.1998).

is

to

because

2000e-5(e)(1);

period

sexual

to

has

file

employees

a
in

"deferral states."10
F.3d at
at

439.

405

days

&

Tinsley,

from the
300

last
F.3d

155

her

lieutenant
EEOC

at

within

the

Circuit
work

Dep't

of

BFI

this

Clark

10 A

25,

"a

LLC,

period

can

that

"deferral

the
period
F.3d

acts

state"

is

375

occurring

one

in

as

at

which

hostile
v.

S.C.

2004).

work

well."

state

for

Fourth

2007);

occurred

the

the

falls

(4th Cir.

293).

during

conduct

Cir.

environment

hostile

White,

(4th

filed

2009

Gillium

292

that

limitations

(quoting

show

See

from a

She
any

20,

See

140-41

work

acts

that

doctrine

F.3d 288,

[if]

the

134,

hostile

2009.

Moreover,

claims.

375

to

140

Clark had 300

her charge.

November

violation

F.3d

...

within

and

harassment

474

meaning

period.

continuing

Servs.,

doctrine,

2009,

2009

extend

continued

file

through April

20,

limitations

relevant

at

the

Justice,

Waste

2008

limitations

sexual

Juvenile

appropriately

F.3d

January

300-day

environment

Accordingly,

300 F.3d

states that she suffered harassment

November

recognizes

White v.
Under

on

between

440.

155

405.

from October

charge

occurring

F.3d at

date of discrimination to

Clark's EEOC charge
male

§ 2000e-5(e)(1); Tinsley,

Virginia is a "deferral state." See Edelman,

n.3;

Edelman,

See 42 U.S.C.

claim

before

the

environment
Gillium,

Accordingly,
limitations

law

Amay

474
if

period

prohibits

the

alleged unlawful employment practice and a state or local agency is

authorized

to "to grant or seek relief from such practice or to
institute criminal proceedings with respect thereto upon receiving
notice thereof .
.
.
." See 42 U.S.C. § 2000e-5(c); Edelman v.
Lynchburg Coll.,

300

F.3d

400,

405

-

20

&

-

n.3

(4th

Cir.

2002).

were

part

of

limitations

discriminatory

period,

her

activity

claim

occurred prior to January 25,

that

would

2009.

began

include

IcL.

prior

to

harassment

that

Viewing the facts in the

light most favorable to Clark,

the Court cannot conclude that,

matter

harassment

of

law,

Accordingly,

her

sexual

the

claim

is

as a

time-barred.

the Court must determine whether WTRJA is entitled to

judgment as a matter of law based on the merits of Clark's claim.
To succeed in a hostile work environment claim,

must show:
that

the

"(1)

that she was harassed

harassment

sufficiently
environment;

was

severe
and

unwelcome;

or

(4)

pervasive

(4th

Cir.

motivated

rather
would

by

2008) .
sexual

it must be
not

Smith v.

have

Sheahan,

desire

the

or

that

victim

to the Court that

if Lieutenant

adverse

because

harassment
Hathaway v.

was

because

Runyon,

WTRJA does

not

that

create

an

(2)

harassment

the

'sex';

was

abusive

First Union Nat'l Bank,

189 F.3d 529,

treatment

to

Harassment

evident

been

(3)

her

working

that some basis exists for imputing liability

to the employer." Smith v.
242

'because of

the plaintiff

132

of

"because

of

sexually

be

explicit

"but

for"

the

of

harassing

533

(7th Cir.

Phillips was

she

refused

sex.

See

F.3d 1214,

attack

202 F.3d 234,

1999).

21

-

be

content,

sex she
See

id. ;

It is clear

advances,

151

F.3d

at

her
175;

1997).

establish

one through three of a hostile work environment claim,

-

not

subjecting Clark to

sexual

to

in

conduct.

(8th Cir.

ability

need

employee's

Reinhold,

1222

Clark's

his

sex"

elements

rather it

argues that Clark's claim fails because WTRJA had no notice that
she

was

the

victim

of

harassment.

R.

27,

209.

This

argument

pertains to the fourth element of a hostile work environment claim-whether a basis exists for imputing liability for unlawful conduct
to the employer.
Cir.

2010).

its

human

See Whitten v.

Fred's Inc.,

243

(4th

WTRJA supports this contention with the affidavits of
resources

director,

Betty

Speight,

superintendent during Clark's employment,
state

601 F.3d 231,

that

Clark

did

not

file

a

and

the

Jail's

David Simmons, which both

complaint

related

harassment or discrimination during her employment.

to

R.

60,

sexual
70.

Depending on the relationship of the alleged harasser to the

victim,

different standards determine whether the alleged unlawful

conduct may be imputed to the employer.
243

(4th Cir.

2010).

it.'"

the harassment

Howard v.

F.3d at 334).
supervisor,

to

behavior,
to

take

is

601 F.3d at
a coworker,

Aif it knew or should have known

and failed to take effective action to stop

Winter,

However,

446 F.3d 559,

565

(quoting Ocheltree,

335

where the alleged harasser is the victim's

the employer is subject to vicarious liability unless

the employer can show " (a)

care

Whitten,

Where the alleged harasser

"the employer may be liable only
about

See

prevent
and

(b)

advantage

and

that the employer exercised reasonable

correct

promptly

any

sexually

harassing

that the plaintiff employee unreasonably failed
of

any

preventive

or

corrective

opportunities

provided by the employer or to avoid harm otherwise."

-

22

-

Burlington

Indus,

v.

Ellerth,

Boca Raton,
The

524 U.S.

524 U.S. 775,

employer

must

742,

807

765

(1998);

Faraqher v.

(1998); see Whitten,

prove

both

elements

601 F.3d at 243.

of

the

so-called

Ellerth/Faragher defense in order to escape liability.

v. Applied Radiant Energy Corp.,
WTRJA's

Phillips

"lack

was

of

Clark's

notice"

failing

actions

to

rather

an

supervisor

on

demoting,

the

relation

that

that

her

Lieutenant

supervisor.

See

is

the

was

victim

such

as

pay,

hiring,

or

firing,

substantially

is sufficient to confer the status

individual,

determinant

to

than

docking

condition of supervisory status.
Rather,

(4th Cir. 2001).

presumes

employee,

altering the employee's duties,
of

265

See Barrett

An individual's ability to take tangible

against

promote,

argument

coworker

Howard 446 F.3d at 565.
employment

240 F.3d 262,

City of

but

it

Whitten,

whether

such

the

as

to

is

not

a

necessary

601 F.3d at 244,

individual's

constitute

247.

"employment

a

continuing

threat to her employment conditions that made her vulnerable to and

defenseless against the particular conduct in ways that comparable
conduct by a mere co-worker would not." IcL_ at 244
183

F.3d at

WTRJA

Phillips's
Clark's

to

333) .

has

not

presented

position

at

the

any

Jail

evidence

vis-a-vis

evidence reveals that Lieutenant

"write-up"

Personnel

(quoting Mikels,

Clark

Evaluation

for

performance

Report

23

-

Clark.

Lieutenant

Conversely,

Phillips had the ability

deficiencies.

completed

-

concerning

by

R.

Lieutenant

199.

A

Phillips

assesses Clark's performance after

six months of employment

and

indicates that Lieutenant Phillips held the title of "Supervisor"
with respect to Clark.
Officer Tiffany Finn,

that

Lieutenant

A-Team.

R.

R.

Furthermore,

was

This

their

immediate

evidence

raises

Lieutenant Philips was Clark's supervisor.
24 6.

Accordingly,

the declaration from

one of Clark's coworkers at the Jail,

Phillips

197.

128.

supervisor

the

states

on

inference

See Whitten,

the
that

601 F.3d

for the Court to conclude that WTRJA is entitled

to judgment as a matter of law,

WTRJA must establish both elements

of the Ellerth/Faragher defense by a preponderance of the evidence.
See

id.

at

247.

WTRJA cannot succeed in this burden because a genuine dispute

of

material

fact

Ellerth/Faragher

support
conduct.

the

exists

defense.11

contention

R.

31,

concerning

60,

Affidavits

that

69.

the

second

that

Clark never

prong

WTRJA has

of

the

submitted

complained of harassing

Yet Clark's declaration states that she

reported Lieutenant Phillips's behavior to "no less than 5 people
in

positions

supervisor,

of

the

command."

Jail's

Notably,

policy

other

does

not

than

an

employee's

identify

specific

"appropriate officials" to whom an employee should complain in the
11 The Court notes that WTRJA has provided the Court with the Jail's
sexual
harassment
personnel policy.
R.
44-46.
Although the
existence of such a policy is not conclusive evidence that the

employer has

defense—that

satisfied the
the

employer

first element of the Ellerth/Faragher
exercised

reasonable

care

to

sexual harassment—it "militates strongly in favor of
conclusion." See Brown v. Perry, 184 F.3d 388, 396 (4th Cir.
-

24

-

prevent

[that]
1999).

event

of

harassment.

Phillips

found
to

out

were

going

Her

declaration

Phillips's

was

R.

112.

the

Clark

up,

also

you

from

Phillips's

hold

shields

as

WTRJA

unlawful
WTRJA's

of

motion

for

March

opportunities

R.

of

law

For the
summary

that
for

she
the

to

was

night

that

she

Lieutenant

126-28.

In light

or

Accordingly,

correct

the Court

Ellerth/Faragher defense
Phillips's

foregoing reasons,
on

to

prevent

Lieutenant

judgment

112.

reasonably conclude that
to

the

you

Lieutenant

confirm

A-Team

2009.

R.

2009,

supervision

jury might

liability

conduct.12

in

alleged harassment.

a matter
from

a

heard

happens."

evaluations

6,

"I

reporting

Philips's

around April

advantage

after

employment

when Lieutenant

stated,

what

officials

Lieutenant

that

he

see

Phillips's

conflicting evidence,

Lieutenant

just
that

Jail

Lieutenant

attests

complaints

claims

two

C-Team on or

took

cannot

me

Clark

her

Clark's

transferred

Carter's
of

write

from

46.

about

conduct

transferred
shift.

R.

Clark's

alleged

the Court
sexual

DENIES

harassment

claim.13
C. Racial

Clark

at

the

insinuates

Jail

that

because

Discrimination

she

she

was

was

Claim

subject

white

in

to

a

different

standards

predominantly

black

12 The Court notes that even if Lieutenant Phillips was not Clark's
supervisor,
WTRJA had

13

The

motion

the

notice

Court
for

evidence

evidence
of

notes

the

raises

that

WTRJA

summary

judgment

concerning

the

environment

a

genuine

dispute

over

to

a

whether

harassment.

remains

addressing

remaining

claim.

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25

-

free
the

file

subsequent

sufficiency of

elements

of

a

Clark's

hostile

work

workplace.

Her complaint specifically references the fact that she

was forced to attend DT training after presenting her sergeant with
a physician's note.

which

She has also submitted a list of occasions on

she was treated less

including two

instances

favorably than black female officers,

in which

she was

"written-up"

but black

female officers were not.14
As stated above,

animus,

in the absence of direct evidence of racial

a plaintiff may use the McDonnell Douglas burden-shifting

framework

to

prove

framework

Clark must

discrimination

discrimination.
make

before

out

the

a

Under

prima

burden

the

facie

shifts

to

McDonnell
case

of

WTRJA

the prima facie case,
she

action;
class
295.

and

(4)

Although

motion

only

was

favorable
Court

based

on

challenges
on

contentions

of

alleges

descriptions

the

(2)

victim

a

To establish
(1)

her job performance was

of

an

adverse

employment

similarly-situated employees outside the protected

the

elements

terminated

She

she

received more

these

14

(3)

present

Clark must present evidence showing that

is a member of a protected class;

satisfactory;

race-based

to

legitimate reason for her alleged adverse treatment.

Douglas

the

basis

disparate

that

treatment.

questions
the

Clark's

evidence

Clark's
of

It

treatment

six

she

ability

race.

there were

See White,

while

ability

has
to
does

375
to

not

that

but

WTRJA's
she

was

challenge

her

employed with

instances,

establish

submitted,
show

F.3d at

the

Jail.

only two of her

actually reference the race of the other officers.

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26

-

Because

WTRJA

has

not

met

its

initial

burden

of

identifying

deficiencies in Clark's race-based disparate treatment claim,

the

Court is constrained to find that the claim survives WTRJA's motion
for

summary

judgment.
IV.

The

Court

has

an

CONCLUSION

obligation

pleadings of a pro se plaintiff.

to

appears

to

allege

that

construe

the

Clark apparently alleges that she

was terminated on the basis of her sex,
also

liberally

she

was

race,

and disability.

subject

to

a

hostile

She
work

environment on the basis of sex and to disparate treatment on the
basis

of

carried

race

its

while

burden

employed

in

with

the

demonstrating

Jail.

that

Although

no

dispute

WTRJA

of material

fact exists concerning Clark's discriminatory discharge claims,
has

failed

work

the

to

make

environment

foregoing

GRANTED

with

this

and

race-based

reasons,
respect

under Title VII

showing

to

with

disparate

WTRJA's

motion

Clark's

and the ADA;

respect

to

for

summary

discriminatory

the motion is

Clark's

treatment

has

hostile

claims.

judgment

discharge

it

For

is

claims

DENIED with respect

to

Clark's Title VII hostile work environment and race-based disparate
treatment claim.
Order

The Clerk shall mail

to the plaintiff.

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27

-

a copy of this Opinion and

IT

IS

SO

ORDERED,

united statesMagistrate judge
Norfolk,

Virginia

January Uo , 2012

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28

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