Conyers v. Virginia Housing Development Authority et al
Filing
41
MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 2/26/2013. Copies to Plaintiff, who appears pro se, and to counsel. (cmcc, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
NICOLLE CONYERS,
Plaintiff,
v.
VIRGINIA HOUSING DEVELOPMENT
AUTHORITY,
Defendant.
Civil Action No. 3:12–CV–458
MEMORANDUM OPINION
THIS MATTER is before the Court on a Motion for Summary Judgment filed by
Defendant Virginia Housing Development Authority (“VHDA”)(ECF No. 35). Pro se Plaintiff
Nicolle Conyers (“Plaintiff”) alleges that VHDA unlawfully discriminated and retaliated
against her based on her race and/or sex in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”) during her employment with VHDA. Plaintiff has also filed a Motion for
Sanctions for Spoliation of Evidence against VHDA for allegedly destroying relevant
evidence (ECF No. 29). On February 22, 2013, the Court heard oral argument on the Motion
for Summary Judgment. For the reasons stated below, the Court GRANTS VHDA’s Motion
for Summary Judgment and DENIES AS MOOT Plaintiff’s Motion for Sanctions.
I.
PROCEDURAL HISTORY
Plaintiff filed suit in this matter on June 22, 2012 after receiving a right‐to‐sue letter
from the U.S. Equal Employment Opportunity Commission (“EEOC”) on or about April 1,
2012. (Am. Compl. ¶ 33.) Plaintiff’s Complaint initially named three VHDA employees as
individual defendants: Susan Dewey, Christine Cavanaugh, and Mark McBride. Plaintiff
amended her Complaint and dismissed the action against Susan Dewey on July 17, 2012.
Plaintiff’s Amended Complaint alleges employment discrimination in violation of Title VII
of the Civil Rights Act of 1964. Specifically, Count I alleges employment discrimination on
the basis of race and/or sex, and Count II alleges that Plaintiff was retaliated against for
making complaints regarding employment discrimination to her employer.
On August 8, 2012, VHDA filed a Motion to Dismiss the Amended Complaint in its
entirety and Christine Cavanaugh (“Cavanaugh”) and Mark McBride (“McBride”) filed a
separate Motion to Dismiss the Amended Complaint as to them. On September 20, 2012,
the Court granted the Motion filed by Cavanaugh and McBride, and dismissed Plaintiff’s
claims against these individual defendants. The Court denied VHDA’s Motion to Dismiss,
but to the extent that Plaintiff also sought to present claims for hostile work environment
and civil conspiracy, the Court held that Plaintiff had not sufficiently stated a claim for
which relief can be granted for either hostile work environment or civil conspiracy.
On September 19, 2012, Plaintiff filed a Motion for Sanctions for Spoliation of
Evidence, but withdrew the motion on September 25, 2012 in an effort by the parties to
resolve the issue on their own. On December 13, 2012, Plaintiff filed the instant Motion for
Sanctions with regards to the same evidence as her prior motion. On January 23, 2013,
VHDA filed its Motion for Summary Judgment. Both matters have been fully briefed, and the
Court heard oral argument on February 22, 2013.
II.
FACTUAL BACKGROUND
The following facts are not in dispute. Plaintiff, an African‐American female, was
formerly employed in the Information Technology Services (“ITS”) department at VHDA, a
not‐for‐profit organization that helps Virginia residents obtain affordable housing. Plaintiff
2
began working full‐time at VHDA in 2003 (Pl. Dep. 32‐33), and in April 2007, she became a
Senior Desktop Support Analyst (Pl. Dep. 44.) Plaintiff was to report to the HelpDesk
Manager, who reported to the Assistant Director of Technology Management, who, in turn,
reported to the ITS Director. From the summer of 2005 until the end of Plaintiff’s
employment with VHDA, Janet Wiglesworth was the ITS Director. (Id. at 51.)
On March 6, 2008, Plaintiff was placed on probation until August 31, 2008 for
accessing and reading an email containing personal information between another VHDA
employee and Wiglesworth without Wiglesworth’s permission. (See Pl. Dep. 61‐64; id. Ex.
13.) In connection with this probation, Plaintiff was given a Performance Correction
Counseling form which provided that Plaintiff was to “use the proper chain of command,”
and “bring any issues to her Manager (David Kohan) or Assistant Director of her
department . . . ” (Pl. Dep. Ex. 13.) The form also directed that Plaintiff “is not to go directly
to Director of ITS (Janet Butler)1 without prior knowledge from either David Kohan or [the
Assistant Director of Plaintiff’s department.]” Id. Further, Plaintiff was advised that she
would be terminated if she violated any VHDA policies while on probation, and that after
the probation concluded, the “Desktop Services Manager and Managing Director of Human
Resources will review [Plaintiff’s] progress and performance after the period has passed to
determine if [Plaintiff] should come off probation, remain on, or should be terminated.” Id.
In March 2010, Plaintiff was assigned a work order requiring her to conduct a “root
cause analysis,” wherein she was to analyze a problem affecting Blackberry users within
VHDA management, including Wiglesworth. (Pl. Dep. 106, 109‐10.) On March 17, 2010,
Plaintiff and Wiglesworth discussed their personal friendship in Wiglesworth’s office, and
1 At the relevant time, Janet Wiglesworth’s last name was Butler. (Pl. Dep. 66.) For the
purposes of this Memorandum Opinion, the name Janet Wiglesworth will be used.
3
after Plaintiff questioned the status of the friendship, Wiglesworth advised Plaintiff that
Wiglesworth would have to involve Human Resources. (Id. at 98‐100.) On April 1, 2010,
Plaintiff met with Wiglesworth and Christine Cavanaugh, a Human Resources generalist at
VHDA, and Wiglesworth informed Plaintiff that Plaintiff was being placed on probation for
thirty days. (Id. at 85‐86.) At this meeting, Wiglesworth told Plaintiff that Plaintiff had
breached her trust and that she would no longer tolerate Plaintiff intruding upon her
personal life. (Id. at 89.) Wiglesworth instructed Plaintiff to follow the chain of command
and to refrain from loitering outside of Wiglesworth’s office. (Id. at 92‐93.) Lastly,
Wiglesworth advised Plaintiff that if she acted inappropriately or violated the terms of her
probation, she would face an extension of probation, would be referred to the Employee
Assistance Program (“EAP”), and could be terminated. (Id. at 94‐95.) After Wiglesworth left
the meeting, Cavanaugh told Plaintiff not to have any contact with Wiglesworth
whatsoever. (Id. at 121.)
Following the April 1, 2010 meeting, Plaintiff continued to work on the root cause
analysis that she had previously been assigned, and in doing so, communicated with
Wiglesworth directly regarding problems that Wiglesworth had experienced related to her
Blackberry. (See id. at 105.) In mid‐April 2010, Cavanaugh informed Plaintiff that she was
suspended for three days for violating the terms of her probation by communicating
directly with Wiglesworth about the root cause analysis. (Id. at 103‐04.) Plaintiff was also
referred to a mandatory session with an EAP counselor. (Id. at 131‐32.) Subsequently, and
without communicating with Wiglesworth beforehand, Plaintiff paid for stew that
Wiglesworth had ordered to benefit another co‐worker’s fundraiser. (Id. at 142.)
In May 2010, Wiglesworth and Cavanaugh met with Plaintiff to inform her that the
4
probation had been extended because Plaintiff had violated the terms of her probation by
communicating with Wiglesworth about the root cause analysis and by loitering outside of
Wiglesworth’s office. (Id. at 103, 116, 148, 154.) At this meeting, Wiglesworth warned
Plaintiff that any future violations of her probation would result in termination, and that
Plaintiff was not to contact Wiglesworth directly ever in the course of their working
relationship (id. at 116‐17.) On May 6, 2010, Plaintiff wrote Cavanaugh complaining that
the personnel rules were being arbitrarily enforced in violation of her civil rights and
challenging the grounds given for extending her probation. (Pl.’s Resp. Mot. Summ. J. Ex. L.)
In July 2010, Plaintiff requested to participate in a professional developmental
opportunity wherein one HelpDesk employee would be chosen to monitor and report on
the HelpDesk’s daily operations. On July 8, 2010, Cavanaugh informed Plaintiff that Plaintiff
was not eligible to participate due to her recent probation and Code of Conduct violations,
as the opportunity was reserved for employees in good standing. (Pl.’s Dep. Ex. 29.) Two
white male employees were allowed to participate in the opportunity.
In late September 2010, Mark McBride became Plaintiff’s supervisor, and McBride
met with Plaintiff in October to discuss Plaintiff’s objectives for the following year. (Pl.’s
Dep. 206.) In this meeting, McBride described Plaintiff as a “bully” and claimed that Plaintiff
had disrupted a prior meeting with several company managers by standing up, banging on
the table, and yelling angrily at a manager. (Id. at 206‐07.) On November 23, 2010, Plaintiff
and McBride were discussing a printer request submitted by another employee, when the
conversation eventually became a heated argument in which each person raised their
voice. (Id. at 224, 284.) During the argument, Plaintiff brought up the prior meeting in
which McBride had called Plaintiff a bully and described her as angry, and Plaintiff stated
5
that she was tired of being falsely accused, harassed, and criticized. (See id. at 224, 245‐48.)
Eventually, Plaintiff returned to her desk to pack up her belongings and check her
emails before leaving for home. (Id. at 215.) After Plaintiff sat down, McBride approached
her desk from behind and asked her a series of questions about why she had chosen not to
continue the argument and was instead being silent at her desk. (See id. at 219.) When
Plaintiff attempted to push her chair back from her desk, McBride used his leg to block the
chair from moving, preventing Plaintiff from being able to rise from her desk. (Id. at 215‐
21.) After Plaintiff left for the day on November 23, 2010, McBride reported the incident to
Cavanaugh, who in turn, discussed the incident with her supervisor, Barbara Blankenship.
Blankenship discussed the incident with Wiglesworth and Susan Dewey, VHDA’s Executive
Director, and the three managers decided to terminate Plaintiff. On December 9, 2010,
Plaintiff was informed that she was discharged. An African‐American man ultimately took
over Plaintiff’s job title and a White woman took over Plaintiff’s job duties. (Id. at 233‐34.)
On or about March 9, 2011, Plaintiff filed a written complaint with the EEOC and received a
right‐to‐sue letter on or about April 1, 2012. Plaintiff filed in this Court on June 22, 2012.
III.
STANDARD OF REVIEW
A motion for summary judgment should be granted where “the movant shows that
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); see Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). If there is no genuine dispute as to any material fact, it is the “affirmative obligation
of the trial judge to prevent factually unsupported claims and defenses from proceeding to
trial.” Drewitt v. Pratt, 999 F.2d 774, 778‐79 (4th Cir. 1993)(internal quotation marks
omitted). However, if the court finds that there is a genuine issue of material fact, the
6
motion must be denied. 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2720 (3d ed. 2011).
A court must look to the specific facts pled to determine whether a triable issue
exists. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247‐49 (1996). Notably, a court
must typically construe a pro se plaintiff’s pleadings liberally, see Erickson v. Pardus, 551
U.S. 89, 94 (2007), especially in a civil rights case. See Brown v. N.C. Dep’t of Corrections, 612
F.3d 720, 722 (4th Cir. 2010)(“‘[l]iberal construction of the pleading is particularly
appropriate’ because it ‘is a pro se complaint raising civil rights issues’”)(internal citations
omitted); see also Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The moving party
bears the burden of establishing the nonexistence of a triable issue of fact by Ashowing—
that is, pointing out to the district court—that there is an absence of evidence to support
the nonmoving party=s case.@ Celotex, 477 U.S. at 325 (internal quotations omitted). “The
judge’s inquiry, therefore, unavoidably asks whether reasonable jurors could find by a
preponderance of the evidence that the [nonmoving party] is entitled to a verdict.”
Anderson, 477 U.S. at 252.
All “factual disputes and any competing, rational inferences [are resolved] in the
light most favorable to the party opposing that motion.” Rossignol v. Voorhaar, 316 F.3d
516, 523 (4th Cir. 2003)(internal quotation marks and citations omitted). AOnly disputes
over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.@ Anderson, 477 U.S. at 248. “Mere unsupported
speculation is not sufficient to defeat a summary judgment motion if the undisputed
evidence indicates the other party should win as a matter of law.” Francis v. Booz, Allen &
Hamilton, Inc., 452 F.3d 299, 308 (4th Cir. 2006). Thus, if the nonmoving party’s evidence is
7
only colorable or is not significantly probative, summary judgment may be granted.
Anderson, 477 at 249–50.
IV.
DISCUSSION
A. Count One: Unlawful Discrimination
Title VII makes it unlawful for an employer “to discharge any individual, or
otherwise to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race . . . [or] sex.” 42
U.S.C. § 2000e‐2(a)(1). Title VII further prohibits an employer from “limit[ing] . . . his
employees . . . in any way which would . . . adversely affect his status as an employee,
because of such individual’s race . . . [or] sex.” § 2000e‐2(a)(2). A plaintiff may establish a
Title VII discrimination claim and avoid summary judgment either by (1): “demonstrating
through direct or circumstantial evidence that sex or [race] discrimination motivated the
employer’s adverse employment decision,” or (2) by establishing a prima facie case of
discrimination and demonstrating “that the employer’s proffered permissible reason for
taking an adverse employment action is actually a pretext for discrimination.” Hill v.
Lockheed Martin Logistics Mgmt., 354 F.3d 277, 284‐85 (4th Cir. 2004).
The parties’ briefs and oral arguments have focused Plaintiff’s discrimination claim
on the latter means of establishing a Title VII cause of action, namely, the McDonnell
Douglas burden‐shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792,
807 (1973). Under this framework, the plaintiff must first establish a prima facie
discrimination claim by showing by a preponderance of the evidence that: (1) she is a
member of a protected class; (2) she suffered an adverse employment action; (3) her job
performance met her employer's legitimate expectations at the time of the adverse action;
8
and (4) the position remained open or was filled by similarly qualified applicants outside
the protected class. Hill, 354 F.3d at 285; see Tx. Dep’t of Comm. Affairs v. Burdine, 450 U.S.
248, 252‐53 (1981); McDonnell, 411 U.S. at 802. Once the plaintiff has established a prima
facie case, the burden shifts to the employer to articulate a legitimate, non‐discriminatory
reason for the adverse action. Hill, 354 F.3d at 285. “This burden is one of production, not
persuasion.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). If the
employer meets this burden, the burden returns to the plaintiff to prove by a
preponderance of the evidence that the employer’s proffered reasons were not the
employer’s true reasons, but rather were a pretext for discrimination. Id. at 143; Hill, 354
F.3d at 285. At this stage, the plaintiff’s burden to prove pretext “merges with the ultimate
burden of persuading the court that [the plaintiff] has been the victim of intentional
discrimination.” Burdine, 450 U.S. at 256.
Plaintiff asserts that VHDA discriminated against her in violation of Title VII by
placing her on probation, suspending her, extending the probation, and by terminating her.
The parties do not dispute that, as an African‐American woman, Plaintiff is a member of a
protected class, and VHDA agrees that Plaintiff suffered from adverse employment action
with respect to her probation and its extension, suspension, and termination. However,
VHDA maintains that Plaintiff cannot establish the third prima facie element, specifically
that she was performing consistent with VHDA’s legitimate expectations at the time.
Further, VHDA asserts that Plaintiff has not satisfied the fourth prima facie element
because she has not established that the position was filled by similarly‐situated persons
outside of her protected class, since she was replaced by a Black man and a White woman.
However, the Court need not address the fourth prima facie element nor the
9
remaining prongs of the McDonnell Douglas framework since, even viewing the evidence in
the light most favorable to Plaintiff, Plaintiff cannot satisfy the third element of a prima
facie Title VII discrimination claim. In determining whether an employee was performing
her duties satisfactorily at the time of the adverse action, “[i]t is the perception of the
decision maker which is relevant,” Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980), and
the employee’s own perception of her performance is irrelevant, King v. Rumsfeld, 328 F.3d
145, 149 (4th Cir. 2003). See Jones v. Calvert Group, Ltd., DKC 06‐2892, 2010 U.S. Dist. LEXIS
127715, at *17‐18 (D.Md. Dec. 3, 2010). The plaintiff may establish that she was meeting
her employer’s expectations by providing: (1) her employer’s concessions that she was
performing satisfactorily at the time of the adverse action; (2) evidence of prior positive
performance reviews from the employer; or (3) qualified expert opinion testimony as to
the employer’s legitimate performance expectations and an analysis and evaluation of the
plaintiff’s performance in light of those expectations. See King, 328 F.3d at 149‐50; Calvert
Group, Ltd., 2010 U.S. Dist. LEXIS 127715, at *17‐18. But see Luther v. Gutierrez, 618
F.Supp.2d 483, 492 (E.D. Va. 2009) (holding that prior positive performance evaluations
are not dispositive as to whether the employer was satisfied with the employee’s
performance by the time of the termination).
In this case, while Plaintiff was technically proficient, the record evidence
demonstrates that she did not meet VHDA’s legitimate expectations regarding
professionalism at the times that she was placed on probation, suspended, placed on
extended probation, and terminated. Plaintiff acknowledges that after she read
Wiglesworth’s email without permission, she was placed on probation for this conduct for
legitimate, non‐discriminatory reasons. (Pl. Dep. 97.) Plaintiff’s friendship with
10
Wiglesworth subsequently became volatile (see Pl. Dep. 201), and she gave Wiglesworth
personal letters about their friendship while in the workplace. (Pl. Dep. 204.) When
Plaintiff was placed on probation a second time on April 1, 2010, she was advised that she
had inappropriately intruded into Wiglesworth’s personal life and that Wiglesworth was
concerned about her understanding of appropriate work relationships. (Pl. Dep. 89, 96‐97.)
By example, Plaintiff sent Wiglesworth greeting cards and gifts, and Wiglesworth asserted
that Plaintiff inappropriately attended events for Wiglesworth’s children.
When Plaintiff was suspended just a few weeks later, she was warned again that she
had inappropriately communicated with Wiglesworth, and by May 2010, her probation was
extended due to the earlier communication with Wiglesworth, the fact that Plaintiff bought
stew for Wiglesworth, and because VHDA concluded that Plaintiff was loitering around
Wiglesworth’s office. (See Pl. Dep. Ex. 24.) Further, despite McBride’s role in the argument
with Plaintiff and his own conduct in physically preventing Plaintiff from rising from her
desk, VHDA’s Code of Conduct expressly prohibits fighting and other disorderly and
disruptive conduct. (Pl. Dep. Ex. 7.) Plaintiff admits that she raised her voice and engaged in
this heated argument with her superior. Although Plaintiff disagrees with VHDA’s
characterizations of her conduct,2 it is apparent that VHDA found her interactions with
management to be inappropriate at the time of the adverse actions, and “[i]t is the
perception of the decision maker which is relevant,” Smith, 618 F.2d at 1067.
Lastly, VHDA management had long expressed concern about Plaintiff’s level of
professionalism, as her performance reviews dating back to the 2006‐2007 evaluation
Plaintiff understood the direction that she was to follow the chain of command to mean
that she was to communicate with Wiglesworth when needed, as Wiglesworth was a part of
her chain of command. (Pl. Dep. 119.) Further, Plaintiff claims that her project manager
instructed her to give information for a project directly to Wiglesworth. (Pl. Dep. 241‐42.)
2
11
describe her as tending to become overly personal with colleagues or emotional when
managing difficult situations or resolving conflicts.3 Notably, Plaintiff’s 2007‐2008
evaluation describes her conduct in reading Wiglesworth’s email as “very detrimental to
[Plaintiff’s] job.” (Pl. Dep. Ex. 12 at VHDA002049.) Despite being found to meet VHDA’s
overall expectations in her performance evaluations, these evaluations demonstrate that
VHDA repeatedly warned Plaintiff that she needed to improve her behavior. Plaintiff has
not provided any concessions by VHDA that she was performing satisfactorily in regards to
her professional conduct at the relevant times or any qualified expert opinion evidence,
and her prior evaluations show that VHDA had long taken issue with her behavior. Plaintiff
has thus not shown by a preponderance of the evidence that she was performing to VHDA’s
satisfaction at the relevant times. For these reasons, Plaintiff has not established the third
prima facie element with respect to her probation, suspension, extended probation, or
termination, and the Court need not proceed further under McDonnell Douglas.
Plaintiff also alleges discriminatory conduct by John Demott, her supervisor from
See Pl. Dep. Ex. 11 at VHDA002060‐61 (In Plaintiff’s 2006‐2007 evaluation, finding that
“[w]hen conflicts arise, [Plaintiff] sometimes loses her objectivity. She has a tendency to
express her emotions in ways that are counterproductive”); Pl. Dep. Ex. 12 at VHDA002047
(In Plaintiff’s 2007‐2008 evaluation, remarking that “[w]hile [Plaintiff] has done a good job
this year from the technical part she needs to work [on] her judgment and use of her
position. [Plaintiff] has also been talked to a few times for socializing with friends at
VHDA”); Pl. Dep. Ex. 15 at VHDA002042 (In Plaintiff’s 2008‐2009 evaluation, finding that
“[Plaintiff] maintains control of her emotions . . . [h]owever, when conflicts arise, she
sometimes loses her objectivity.”); Pl. Dep. Ex. 26 at VHDA002023 (In Plaintiff’s 2009‐2010
evaluation, noting that “there have been times that [Plaintiff] oversteps her bounds when
interacting with management”); id. at VHDA002027‐28 (“[Plaintiff] has had some
roadblocks this year in her core duties‐there have been some significant breaches in trust
regarding her judgment therefore any manager must spend more time overseeing her in her
role then should be expected of a Senior Level Analyst . . . [Plaintiff] needs to focus on
maintaining her professionalism and not allowing her emotions to color her attitude . . .
[Plaintiff] had high‐points and low‐points throughout the year. Where she excels, she does
very well. But where she has challenges, they are significant . . . ”)(emphasis added).
3
12
May to August 2010, who she claims: (1) questioned in front of management whether
Plaintiff would attempt to sabotage the network (Pl. Dep. 166‐69), (2) failed to give Plaintiff
requested budget information while responding to budget requests from other employees
(Id. at 260‐61), and (3) denied Plaintiff’s request for leave until a White male co‐worker
asked on her behalf. (Id. at 262‐63.) In order to establish that she suffered an adverse
employment action in a discrimination claim, a plaintiff must prove that her employer’s
conduct resulted in an ultimate employment decision, such as “hiring, granting leave,
discharging, promoting, and compensating.” Page v. Bolger, 645 F.2d 227, 233 (4th Cir.
1981); see also Brockman v. Snow, 217 Fed. Appx. 201, 205 (4th Cir. 2007). However, both
in the written briefs and in the hearing on VHDA’s Motion, Plaintiff admits that she was
ultimately granted leave, and she has otherwise failed to identify any negative
consequences to her employment following these alleged actions. Accordingly, the alleged
acts of discrimination by John Demott do not constitute adverse employment actions and
Plaintiff has not satisfied the second prima facie element of a discrimination claim with
respect to this alleged conduct. For these reasons, each of Plaintiff’s discrimination claims
fails and the Court GRANTS the Motion for Summary Judgment with respect to Count One.
B. Count Two: Unlawful Retaliation
Title VII also prohibits retaliation against an employee who opposes any
employment practice that is unlawful under Title VII (“opposition clause”) or participates
in a related proceeding (“participation clause”), see § 2000e‐3(a); Anderson v. G.D.C., Inc.,
281 F.3d 452, 457‐58 (4th Cir. 2002), and the familiar McDonnell Douglas framework
applies. In order to state a prima facie retaliation claim, a plaintiff must show that (1) she
engaged in protected activity, (2) her employer took an adverse employment action against
13
her, and (3) a causal connection existed between the protected activity and the adverse
action. Anderson, 281 F.3d at 458; Tinsley v. First Union Nat’l Bank, 155 F.3d 435, 443 (4th
Cir. 1998). Once the plaintiff states a prima facie case, the burden shifts to the defendant to
provide a legitimate, non‐retaliatory reason for the adverse action, and if the defendant
meets this burden, the burden returns to the plaintiff to establish pretext by a
preponderance of the evidence. Anderson, 281 F.3d at 458; see Reeves, 530 U.S. at 143.
Opposition activity is protected under Title VII when the employee “complains to his or her
employer or participates in an employer's informal grievance procedure in an orderly and
nondisruptive manner.” Kubicko v. Ogden Logistics Servs., 181 F.3d 544, 551 (4th Cir. 1999).
An employee’s participation activity is protected when he or she makes a charge, testifies,
or participates “in any manner in a Title VII investigation, proceeding, or hearing.” Id.
Plaintiff asserts that VHDA retaliated against her in violation of Title VII by denying
her the developmental opportunity and by terminating her following her complaints to
management. However, Plaintiff fails to satisfy the first prima facie element of her
retaliation claim, since, viewing the evidence in the light most favorable to Plaintiff, she has
not shown that she engaged in a protected activity. An employee who complains to her
employer has engaged in protected opposition activity under Title VII only if the employee
held an objectively reasonable belief in light of all of the circumstances that her employer is
violating or had violated Title VII. Jordan v. Alt. Res. Corp., 458 F.3d 332, 340‐41 (4th Cir.
2006)(“[A]n employee seeking protection from retaliation must have an objectively
reasonable belief in light of all the circumstances that a Title VII violation has happened or
is in progress.”); see Gray v. Walmart Stores, Inc., 7:10‐CV‐171‐BR, 2011 U.S. Dist. LEXIS
51155, at *21 (E.D. N.C. May 12, 2011)(citing Jordan).
14
Further, the employee must complain about activity that constitutes unlawful
discrimination under Title VII, rather than about unfair treatment generally. See Monk v.
Potter, 723 F.Supp.2d 860, 880 (E.D. Va. 2010)(“Title VII does not prohibit retaliation
against employees who do not allege unlawful discrimination”); see also Mixon v. Charlotte‐
Mecklenburg Sch., 3:11‐CV‐228‐MOC‐DSC, 2011 U.S. Dist. LEXIS 124291, at *17 (W.D. N.C.
Aug. 5, 2011)(“Title VII requires that employees provide some kind of notice to their
employer that they are complaining about prohibited practices covered by the statute.
Generalized complaints about disputes or annoyances in the workplace are insufficient”);
Gray, 2011 U.S. Dist. LEXIS 51155, at *21 (finding no protected activity where the plaintiff’s
emails to management did not mention racial discrimination, harassment, or retaliation);
Richardson v. Richland Cnty. Sch. Dist. No. One, 52 Fed. Appx. 615, 617 (4th Cir.
2002)(unpublished)(holding that a plaintiff could not show that she engaged in protected
activity because she did not present evidence that she informed her employer that her
complaints were based on race or age discrimination).
In this case, neither of Plaintiff’s complaints to Cavanaugh and McBride complained
of activity that was unlawful under Title VII, and therefore, Plaintiff has not established the
first prima facie element. With regards to Plaintiff’s claim that her May 2010 email to
Cavanaugh prompted Cavanaugh to retaliate by denying Plaintiff the developmental
opportunity in July 2010, the email challenges the grounds for extending Plaintiff’s
probation and asserts that Cavanaugh’s interpretation of loitering is vague and “allows HR
to enforce this rule arbitrarily and with obvious bias.” (Pl. Dep. Ex. 24 at VHDA000280.)
Plaintiff’s email continues that “this selective enforcement violates the Due Process Clause
of the 14th Amendment,” and she concludes that the process was “designed to undermine
15
or sabotage any reasonable and apparent attempt to comply,” basing this belief on “the
ambiguity of the Performance Correction Counseling form, compounded by the multiple
sources of reference and arbitrary enforcement which has violated [Plaintiff’s] civil
liberties.” (Id. at VHDA000280‐81.) Nowhere does this email claim that Plaintiff is being
discriminated against because of her race and/or sex, and Plaintiff has since acknowledged
that her reference to her civil liberties meant only that she was found to have violated her
probation without due process, that is, without being given an opportunity to explain her
side of the situation. (Pl. Dep. 153‐54, 240.) While Plaintiff certainly complains of unfair
treatment, “Title VII does not ensure that employees will always be treated fairly. . .” Jones
v. Karnick, Inc., No. 8:11‐1554‐HMH‐JDA, 2012 U.S. Dist. LEXIS 972, at *8 (D. S.C. Jan. 3,
2012)(internal citations omitted). Plaintiff has not satisfied the first prima facie element as
her email does not complain of unlawful activity under Title VII, and there is no evidence
that it would have been objectively reasonable to believe that the selective rule
enforcement she was complaining of was a violation of Title VII.
Similarly, Plaintiff’s complaint to McBride that she was tired of being falsely accused
and harassed does not complain of unlawful activity under Title VII. Plaintiff assumes that
McBride was physical with her due to her sex and that he accused her of being angry out of
a belief that she is an “angry black woman” (Pl. Dep. 248), but her complaint was a
generalized grievance that did not reference race or sex in any way. Plaintiff has not shown
that it was objectively reasonable to believe that, by falsely accusing and harassing her,
McBride had violated Title VII, and thus, she has not established that her complaint was
protected activity. Since Plaintiff has not satisfied the first prima facie element of a
16
retaliation claim, the Court need not consider the remaining elements4 nor proceed with
the McDonnell Douglas analysis. Therefore, the Court GRANTS the Motion for Summary
Judgment as to Count Two. Further, in light of the Court’s ruling on VHDA’s Motion for
Summary Judgment, the Court hereby DENIES AS MOOT Plaintiff’s Motion for Sanctions.
V.
CONCLUSION
For the reasons stated above, VHDA’s Motion for Summary Judgment is GRANTED.
In addition, Plaintiff’s Motion for Sanctions for Spoliation of Evidence is DENIED AS MOOT.
Let the Clerk send a copy of this Memorandum Opinion to Plaintiff, who appears pro
se, and all counsel of record.
An appropriate order shall issue.
_____________________/s/________________
James R. Spencer
United States District Judge
ENTERED this 26th day of February 2013.
Notably, Plaintiff herself claims that McBride never told Cavanaugh about her complaints
(Pl. Resp. Mot. Sum. J. 11), and Plaintiff does not contend that the managers who
terminated her were otherwise aware; thus, Plaintiff could not satisfy the third prima facie
element, because even if this complaint were protected activity, “the employer's knowledge
that the plaintiff engaged in a protected activity is absolutely necessary to establish the
third element of the prima facie case” in a retaliation claim. Dowe v. Total Action Against
Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998).
4
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?