Amare v. Lazer Spot, Inc.

Filing 86

MEMORANDUM OPINION. Signed by Judge Thomas T. Cullen on 5/9/2024. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
AYAEL JADE AMARÉ,

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Plaintiff,
v.
LAZER SPOT, INC.,
Defendant.

Civil Action No. 5:22-cv-00005
MEMORANDUM OPINION
By:

Hon. Thomas T. Cullen
United States District Judge

Plaintiff Ayael Jade Amaré (“Amaré”) brought this action against Defendant Lazer
Spot, Inc. (“Lazer Spot”), alleging four causes of action related to her employment and
eventual termination from Lazer Spot: (1) hostile work environment under Title VII of the
Civil Rights Act (“Title VII”); (2) retaliation under Title VII; (3) discrimination under the
Americans with Disabilities Act (“ADA”); and (4) sexual harassment under the Virginia Values
Act (“VVA”).
The matter is now before the court on Lazer Spot’s motion for summary judgment.
The motion has been fully briefed and is ripe for decision. For the reasons discussed below,
the court will grant Lazer Spot’s motion as to Amaré’s ADA and VVA claims, but deny it as
to her Title VII claims.
I.

STATEMENT OF FACTS

The following facts are either undisputed or presented in the light most favorable to
Amaré, the nonmoving party. See Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013) (citing
Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011)).

Amaré is a transgender and intersex woman who began medically transitioning from
male to female in August 2018. (Amaré Dep. 34:7–8 [ECF No. 68-1].) In July 2017, Lazer Spot
hired Amaré as a yard driver at a Target distribution center in Stuarts Draft, Virginia. (Id.
34:19–35:20; Amaré Decl. ¶ 2 [ECF No. 70, Ex. A].) In that role, Amaré moved trucks around
the distribution center’s property (e.g., in and out of dock doors, throughout the parking lot,
etc.) according to Target’s needs. (Amaré Dep. 35:16–20.) Amaré claims that, during her
employment, she was subject to harassment because of her sex, gender identity, perceived
sexual orientation, and disabilities.
Several other Lazer Spot employees are relevant to Amaré’s lawsuit. This group
includes the three men who allegedly harassed her: Michael Hulvey, the site manager; Scott
Brown, a yard driver until May 2018 and then a crew leader; and Donnie Bussard, another
yard driver. (Id. 39:5–6; 49:24–50:10.) It also includes Corey Johnson, a regional manager;
Candice Mirasol, Lazer Spot’s Chief People Officer; and Marshall Schillinger, another yard
driver. (Id. 46:10–12, 51:16–23; Mirasol Decl. ¶ 1 [ECF No. 68-2].) Of these other people,
Amaré only discussed her gender identify or sexual orientation with Schillinger. (Amaré Dep.
65:13–16.)
The issues underlying Amaré’s claims stem from her working with Hulvey, Brown, and
Bussard. (Id. 49:18–21.) According to Amaré, these three individuals repeatedly harassed her
when she worked with them. (Amaré Decl. ¶¶ 1, 3–4.) They also allegedly called Amaré
derogatory names—like “fluffy” and “faggot”—outside of her presence based on their
perceptions of Amaré as a gay, cisgender man and generally “spew[ed] a lot of LGBTQ[I]A+
phobia in the workplace.” (Amaré Dep. 59:6–60:5, 63:24–64:1, 85:15.) The three men also

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purportedly made comments about, among other things, Amaré going to the restroom “to
masturbate,” “reinsert [her] butt plug,” and “stick a dildo up [her] ass.” (Id. 83:20–85:17.) She
contends that many of these comments were made to other employees at the Target location
and then relayed to her by those who heard the comments. (Id. 85:4–22.)
But Amaré also heard insults directly, either in-person or over the truck radios. (Amaré
Decl. ¶ 5.) For instance, Hulvey allegedly insinuated to Amaré that she had AIDS after he
found a syringe in a truck because he viewed Amaré as a gay man. (Amaré Dep. 59:6–19;
Mirasol Decl. Ex. D.) Hulvey also supposedly called Amaré “a queer” to her face. (Amaré
Dep. 68:21–69:5.) Most appallingly, Amaré claims she heard Bussard say that transgender
people were mentally ill and “the cure was a bullet between the eyes.” (Id. 64:2–7.)
Amaré reported the harassment to Lazer Spot’s human resources (“HR”) department
by emailing Mirasol about the issues on November 9, 2017, and September 19, 2018. (See
Mirasol Decl. Exs. D, E.) Upon receipt, Mirasol sent these complaints to Lazer Spot’s legal
and management teams. (Id. ¶¶ 7–8.) Amaré supposedly had two phone calls with Mirasol
regarding the work environment as well. (Amaré Dep. 81:22–25.) Amaré contends that she
also sent Johnson, the regional manager, “numerous text messages between December 2017
and December 2018 about the harassment” (Amaré Decl. ¶ 6), but does not remember if she
ever reported Bussard’s egregious comment about the “cure” for transgenderism (Amaré Dep.
67:13–16). Lazer Spot says she did not. (Mirasol Decl. ¶ 9; Johnson Decl. ¶ 6 [ECF No. 68-3].)
Because of Amaré’s reports, Johnson says he had “a very stern talk” with Hulvey in
December 2017. (Johnson Decl. Ex. B, 2017-12-21 103100 speakerphone CJ.mp3 12:54–13:10

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[hereinafter Dec. 2017 Call].)1 Amaré asserts, however, that this conversation did not alleviate
the harassment; in fact, it only worsened. (See Amaré Dep. 91:25–92:4; Amaré Decl. ¶ 4;
Johnson Decl. Ex. B, 2018-9-20 1718 speakerphone CJ.mp3 2:20–2:25, 5:30–5:36 [hereinafter
Sept. 2018 Call].) Nine months later, after Amaré emailed Mirasol about the continued
harassment, Johnson spoke with Hulvey again and relayed to him that, if Amaré’s complaints
were true, he and the other drivers needed to stop harassing her. (Sept. 2018 Call 1:34-2:10.)
At least until the time Amaré was terminated, Hulvey, Brown, and Bussard remained Lazer
Spot employees. (Amaré Dep. 81:6–17.)
Amaré had unexcused absences from work on December 11 and 13, 2018, and she was
late to work on December 14. (Id. 52:14–25.) On December 28, Johnson fired Amaré. (Id.
35:4, 51:24–52:4.) Johnson claims the decision to terminate Amaré was entirely his own and
based on her unexcused absences and tardiness in December, along with a previous write-up
she received for an unexcused absence on June 12, 2018. (Johnson Decl. ¶ 7.) Amaré contends
that she should not have been written up for the June absence because Hulvey approved her
taking that day off, which she planned to do because the day was a trigger for her
post-traumatic stress disorder (“PTSD”), but he reversed course “at the last minute.” (Amaré
Decl. ¶ 11.) In any event, according to Amaré’s co-worker, it was unusual for Johnson to
terminate Amaré for unexcused absences because other Lazer Spot employees were not
disciplined for missing work without notice. (Schillinger Decl. ¶¶ 10–11 [ECF No. 70, Ex. B].)

Citations that include “.mp3” are to audio files that Lazer Spot produced as part of Johnson’s declaration.
The audio files are surreptitious recordings Amaré made of certain telephone calls and meetings, which were
turned over during discovery. (See Johnson Decl. ¶ 8, Ex. B.) These files are available in the clerk’s office via
Box.com.
1

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In April 2019, following her termination, Amaré filed a charge of discrimination with
the Equal Employment Opportunity Commission (“EEOC”) under her name at the time,
Christopher Black. (Compl. Ex. B. [ECF No. 2-3].) She changed her name to Ayael Jade Amaré
in June 2019, so the EEOC issued an amended charge in April 2020 with her new name. (See
Compl. Exs. A, C [ECF Nos. 2-2, 2-4]; Amaré Dep. 82:17–22.) Except for the name change,
the amended charge was the same as the initial charge. (Compare Compl. Ex. B, with Compl.
Ex. C.) After receiving notices of her right to sue from the EEOC (Compl. Exs. D–E [ECF
Nos. 2-5, 2-6]), Amaré filed a timely complaint in this court on January 25, 2022 (ECF No.
2-1).
Following a prolonged procedural history that is not relevant here, Lazer Spot moved
for summary judgment on all of Amaré’s claims on March 22, 2024. (Mot. Summ. J. [ECF No.
67].) Amaré filed her response in opposition on April 5, which included sworn declarations by
Amaré and Schillinger as exhibits.2 (Pl.’s Opp’n Br. [ECF No. 70].) The court heard arguments
on the motion on April 24. (ECF No. 74.)
II.

STANDARD OF REVIEW

Under Rule 56(a), the court can only “grant summary judgment if 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Glynn, 710 F.3d at 213. When making this determination, the court considers “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with [any] affidavits”

2

Lazer Spot did not oppose the consideration of these later declarations at this stage.

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filed by the parties. Celotex, 477 U.S. at 322. Whether a fact is material depends on the relevant
substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Only disputes over
facts that might affect the outcome of the suit under the governing law will properly preclude
the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be
counted.” Id. (citation omitted). The moving party bears the initial burden of demonstrating
the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If that burden has been
met, the nonmoving party must then come forward and establish the specific material facts in
dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586–87 (1986).
In determining whether a genuine issue of material fact exists, the court must view the
facts and draw all reasonable inferences in the light most favorable to the nonmoving party.
Glynn, 710 F.3d at 213. Indeed, “[i]t is an ‘axiom that in ruling on a motion for summary
judgment, the evidence of the nonmovant is to be believed, and all justifiable inferences are
to be drawn in his favor.’” McAirlaids, Inc. v. Kimberly-Clark Corp., 756 F.3d 307, 310 (4th Cir.
2014) (internal alteration omitted) (quoting Tolan v. Cotton, 572 U.S. 650, 651 (2014)).
Moreover, “[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.” Anderson, 477
U.S. at 255. The nonmoving party must, however, “set forth specific facts that go beyond the
‘mere existence of a scintilla of evidence.’” Glynn, 710 F.3d at 213 (quoting Anderson, 477 U.S.
at 252). It may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat
a motion for summary judgment. See Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874–75 (4th
Cir. 1992).

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III.

ANALYSIS

Although Amaré’s ADA and VVA claims fail as a matter of law, material factual
disputes preclude summary judgment on her Title VII claims.
A. Title VII Claims: Hostile Work Environment and Retaliation
1. Administrative Exhaustion
As a threshold matter, Lazer Spot contends that Amaré did not exhaust administrative
remedies for her Title VII claims because the allegations in her complaint exceed the scope of
her EEOC charge. (See Def.’s Br. at 10–12 [ECF No. 68].) Amaré disputes this, arguing that
the allegations in her EEOC charge are reasonably related to those in her complaint. (Pl.’s
Opp’n Br. at 3–5.) The court agrees with Amaré.
Exhaustion of administrative remedies under Title VII requires the plaintiff to file a
charge of discrimination with the EEOC and receive a right-to-sue letter from that agency
before bringing suit in federal court. Ray v. Amelia Cnty. Sheriff’s Off., 302 F. App’x 209, 212–13
(4th Cir. 2008); see 42 U.S.C. §§ 2000e-5(b), (f)(1). The “exhaustion requirement is a
non-jurisdictional ‘processing rule, albeit a mandatory one’ that must be enforced when
properly raised.” Walton v. Harker, 33 F.4th 165, 175 (4th Cir. 2022) (quoting Fort Bend Cnty. v.
Davis, 139 S. Ct. 1843, 1851 (2019)). “Rather than ‘a formality to be rushed through,’ this
exhaustion requirement is ‘an integral part of the Title VII enforcement scheme.’” Sydnor v.
Fairfax Cnty., 681 F.3d 591, 593 (4th Cir. 2012) (quoting Chacko v. Patuxent Inst., 429 F.3d 505,
510 (4th Cir. 2005)). Allowing the EEOC the “first crack at these cases respects Congress’s
intent ‘to use administrative conciliation as the primary means of handling claims, thereby

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encouraging quicker, less formal, and less expensive resolution of disputes.’” Id. (quoting Chris
v. Tenet, 221 F.3d 648, 653 (4th Cir. 2000)).
Based on these principles, a plaintiff’s Title VII claim is confined to “the scope of the
administrative investigation that can reasonably be expected to follow the charge of
discrimination.” Khoury v. Meserve, 85 F. App’x 960, 960 (4th Cir. 2004); see Hentosh v. Old
Dominion Univ., 767 F.3d 413, 416 (4th Cir. 2014). In other words, “factual allegations made in
formal litigation must correspond to those set forth in the administrative charge.” Chacko, 429
F.3d at 509. “If the discrimination claims ‘exceed the scope of the EEOC charge and any
charges that would naturally have arisen from an investigation thereof, they are procedurally
barred.’” Walton, 33 F.4th at 172 (quoting Chacko, 429 F.3d at 509).
Here, Amaré’s EEOC charge asserts that in September and December 2018, Hulvey,
Brown, and Bussard made lewd and derogatory comments to her—including calling her
“queer” and “faggot”—because of how they perceived her sexual orientation. (See EEOC
Charge ¶ 1 [ECF No. 2-4].) The charge further states that, in December 2018, Amaré
complained to her regional manager, Johnson, and Lazer Spot HR about the comments, and
that she was written up and terminated the same month. (Id.) As such, Amaré alleges in the
charge that she was discriminated against based on her sexual orientation and retaliated against
for complaining about that discrimination, in violation of Title VII. (Id. ¶ 3.)
Amaré’s complaint sets forth similar, but more detailed, allegations related to her Title
VII claims. For example, she alleges that Hulvey, Brown, and Bussard repeatedly harassed her
based on their perceptions of her as a gay man. (Compl. ¶ 13 [ECF No. 2].) This harassment
purportedly included the three men frequently calling Amaré “derogatory names such as

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faggot and queer” and suggesting she—who presented as male at the time—was in a sexual
relationship with a male co-worker, Schillinger. (Id. ¶¶ 14–15, 17.) The complaint also states
that Brown and Bussard said “transgender people . . . were mentally ill and should be subjected
to ‘corrective rape’ or shot.” (Id. ¶ 21.) Amaré claims that she reported this harassment to
Johnson and Lazer Spot’s HR department, but they took little, if any, meaningful action to
stop it. (Id. ¶¶ 20–22, 24.) Amaré further asserts in her complaint that she was terminated in
retaliation for complaining about the harassment and that Lazer Spot’s stated reason for her
termination—her unexcused absences—was pretextual. (Id. ¶¶ 19, 41, 43.) In support of this
contention, she alleges that, after her termination, Hulvey said, “[M]e and [Johnson] finally
found a reason to get rid of him,” and Brown said, “[N]ow that the faggot is gone this site is
better off.” (Id. ¶ 19.)
Lazer Spot argues that the Title VII harassment allegations in Amaré’s complaint
“exceed what would naturally have arisen from an investigation of the Charge.” (Def.’s Br. at
11–12.) Specifically, it claims that the EEOC charge only alleges two instances of sexual
harassment—in September and December 2018—while the complaint alleges discrimination
since November 2017. (Id. at 12.) Lazer Spot accurately summarizes explicit differences
between the charge and complaint, but its argument too narrowly construes
administrative-exhaustion requirements. The claims in a complaint only need to be reasonably
related to, or expected to follow from an investigation of, an administrative charge. Sydnor, 681
F.3d at 594. The allegations in an EEOC charge do not need to precisely match those set forth
in a complaint. Cf. Alvarado v. Bd. of Trs. of Montgomery Cmty. Coll., 848 F.2d 457, 460 (4th Cir.

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1988) (citation omitted) (“EEOC charges must be construed with utmost liberality since they
are made by those unschooled in the technicalities of formal pleading.”).
In this matter, the specific allegations in Amaré’s charge are reasonably related to the
harassment allegations in her complaint. Both focus on the same type of discrimination (sexual
harassment), by the same people (Hulvey, Brown, and Bussard), in the same place (at the
Target distribution center). See Sydnor, 681 F.3d at 594. Additionally, a meaningful investigation
of Amaré’s allegations in her EEOC charge would have been expected to reveal the panoply
of harassment she allegedly faced at Lazer Spot, including the incidents that are set forth in
greater detail in her complaint. The EEOC charge therefore served its primary purpose by
notifying Lazer Spot of the alleged wrongdoing and giving it the opportunity to investigate
and resolve the issue. See Chacko, 429 F.3d at 510 (noting one of the primary goals of the
exhaustion requirement is to “notif[y] the employer of the alleged discrimination”).
Accordingly, Amaré exhausted administrative remedies for her hostile-work-environment
claim.
For the retaliation claim, Lazer Spot concedes that the EEOC charge sets forth alleged
retaliation that resulted in Amaré’s termination in December 2018. (See id. at 12 (“The only
retaliation in the Charge is a write-up and Amaré’s termination in December 2018.”).) The
complaint alleges the same (Compl. ¶¶ 19, 41, 43), so Title VII’s exhaustion requirement is
satisfied for this claim.
2. Hostile Work Environment
Lazer Spot also challenges the merits of Amaré’s Title VII allegations. To establish a
hostile-work-environment claim under Title VII, Amaré must show that “there is (1)

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unwelcome conduct; (2) that is based on [her sexual orientation]; (3) which is sufficiently
severe or pervasive to alter [her] conditions of employment and to create an abusive work
environment; and (4) which is imputable to” Lazer Spot. Boyer-Liberto v. Fontainebleau Corp., 786
F.3d 264, 277 (4th Cir. 2015) (cleaned up). On brief, the parties only disputed whether genuine
issues of material facts existed as to the third and fourth elements. At the motion hearing,
however, Lazer Spot acknowledged that there is a jury question regarding the fourth element.
The court finds that there is also a genuine dispute of material fact on the third element, so
the claim survives summary judgment.
i. Severe or Pervasive Conduct
The test for severe or pervasive conduct has both subjective and objective components;
it requires a plaintiff to establish that “she perceived—and that a reasonable person would
perceive—the environment to be abusive or hostile.” Walker v. Mod-U-Kraf Homes, LLC, 775
F.3d 202, 208 (4th Cir. 2014). In applying this test, the court must consider the totality of the
circumstances, including: “the frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Harris v. Forklift Sys., Inc., 510
U.S. 17, 23 (1993). In order to be actionable, the “conduct must be [so] extreme [as] to amount
to a change in the terms and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998). A hostile work environment is one “pervaded with discriminatory conduct
‘aimed to humiliate, ridicule, or intimidate,’ thereby creating an abusive atmosphere.” E.E.O.C.
v. Sunbelt Rentals, Inc., 521 F.3d 306, 316 (4th Cir. 2008) (quoting Jennings v. Univ. of N.C., 482
F.3d 686, 695 (4th Cir. 2007)). This typically involves repeated conduct but can also be based

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on an “an isolated incident of harassment . . . that . . . is extremely serious.” See Boyer-Liberto,
786 F.3d at 277 (citing Faragher, 524 U.S. at 788) (cleaned up). Nonetheless, mere “rude
treatment by [co-workers],” Baqir v. Principi, 434 F.3d 733, 747 (4th Cir. 2006), or “callous
behavior by [one’s] superiors,” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th
Cir. 2003), is not actionable under Title VII.
Lazer Spot argues that any unwelcome conduct by its employees was not severe or
pervasive because most of the discriminatory comments Amaré alleges were not made in her
presence. (Def.’s Br. at 20–21.) There may be a higher bar for a claimant to show a hostile
work environment based on statements made outside of her presence, but “comments made
to others are . . . relevant to determining whether [Amaré] was subjected to severe or pervasive
. . . harassment.” Sunbelt Rentals, Inc., 521 F.3d at 317 (cleaned up). In any event, Lazer Spot’s
argument is a red herring; Amaré does not exclusively base her hostile-work-environment
claim on second-hand comments. Amaré asserts that multiple disparaging comments were
made to her directly, including Hulvey suggesting that she had AIDS and calling her a queer.
(Amaré Dep. 59:8–10, 68:21–69:7; Mirasol Decl. Ex. D.) She also heard denigrating comments
over the truck radios (Amaré Decl. ¶ 5), and Bussard allegedly stated, in Amaré’s presence,
that LGBTQIA+ people are mentally ill and transgender people could be “cured” with a
“bullet between the eyes” (Amaré Dep. 64:1–23; see Def.’s Br. at 21).
These purported actions, viewed in the light most favorable to Amaré, satisfy the
subjective and objective components of severe or pervasive conduct. It is undisputed that
Amaré subjectively perceived Lazer Spot as a hostile work environment based on her
co-workers’ comments. (E.g., Amaré Dep. 66:12, 67:1–7.) A jury could also find that a

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reasonable person would perceive the work setting as abusive and hostile. Indeed, Bussard’s
comment suggesting LGBTQIA+ individuals should be shot likely creates a genuine dispute
of fact about this objective component on its own because it involved a threat of death or
severe physical harm. See Pryor v. United Air Lines, Inc., 791 F.3d 488, 497 (4th Cir. 2015); see
also Sunbelt Rentals, Inc., 521 F.3d at 318 (quoting White v. BFI Waste Servs., 375 F.3d 288, 298
n.6 (4th Cir. 2004)) (“[T]he presence of ‘physical threats undeniably strengthens a hostile work
environment claim.’”); Boyer-Liberto, 786 F.3d at 284 (“[A]n employee will have a reasonable
belief that a hostile work environment is occurring based on an isolated incident if that
harassment is physically threatening or humiliating.”). When considering that comment
together with the many other derogatory statements allegedly made by Lazer Spot employees
about Amaré, a jury could easily determine that her work environment was objectively abusive
and hostile. See Sunbelt Rentals, Inc., 521 F.3d at 317–18. Accordingly, “the conduct at issue in
this case is far removed from the mere off-hand comments or teasing that courts have found
of insufficient severity” for a Title VII cause of action, and a reasonable jury could view it as
so severe that it rises to the level of a hostile work environment. Pryor, 791 F.3d at 497.
ii. Conduct Imputable to Lazer Spot
There is also a genuine dispute of material fact about whether the purported
harassment can be imputed to Lazer Spot. Although an employer is “not strictly liable for acts
of harassment that occur in the workplace[,] . . . [it] maintains a responsibility to reasonably
carry out . . . dual duties of investigation and protection.” Id. It is well-established that “an
employer may be liable for hostile work environments created by co-workers and third parties
‘if it knew or should have known about the harassment and failed to take effective action to

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stop it . . . by responding with remedial action reasonably calculated to end the harassment.’”
Id. at 498 (quoting Sunbelt Rentals, Inc., 521 F.3d at 319) (cleaned up). Stated differently, there
are two requirements for harassment to be imputed to an employer: the employer (1) had
actual or constructive knowledge of the harassment and (2) did not take reasonable steps to
end it. See id.
For the first element, “[k]nowledge of harassment can be imputed to an employer if a
‘reasonable [person], intent on complying with Title VII,’ would have known about the
harassment.” Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 334 (4th Cir. 2003) (quoting Spicer v.
Va. Dep’t of Corr., 66 F.3d 705, 710 (4th Cir. 1995)). An employer cannot avoid Title VII liability
for co-worker harassment “by adopting a ‘see no evil, hear no evil’ strategy,” id., or simply
because the plaintiff did not report every incident of harassment using the employer’s formal
procedures, see Reid v. Dalco Nonwovens, LLC, 154 F. Supp. 3d 273, 293 (W.D.N.C. 2016). The
record must be viewed as a whole, and “[e]vidence of repeated complaints to supervisors and
managers creates a triable issue as to whether the employer had notice of the harassment.”
Sunbelt Rentals, Inc., 521 F.3d at 320 (citing Harris v. L & L Wings, Inc., 132 F.3d 978, 982 (4th
Cir. 1997)).
Lazer Spot’s argument that the alleged harassment in this matter cannot be imputed to
it rests in large part on its employees’ representations that Amaré never reported Bussard’s
heinous LGBTQIA+ comment to them. (Def.’s Br. at 21–22; see Mirasol Decl. ¶ 9; Johnson
Decl. ¶ 6.) While they may not have had specific knowledge of that particularly odious
comment, it is undisputed that both Lazer Spot’s HR department and Johnson were otherwise
aware of the supposed harassment Amaré regularly faced based on her complaints in

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November 2017 and September 2018. (See, e.g., Mirasol Decl. ¶¶ 7–8; Dec. 2017 Call; Sept.
2018 Call.) Amaré further states that she sent Johnson “numerous text messages between
December 2017 and December 2018” (Amaré Decl. ¶ 6) and had two phone calls with Mirasol
(Amaré Dep. 81:22–25) about the abusive work environment. Schillinger avers that he also
reported the harassment to Lazer Spot’s HR department and that Hulvey, Brown, and
Bussard’s derogatory comments about Amaré were made “on an almost weekly basis” to other
employees of both Lazer Spot and Target. (Schillinger Decl. ¶¶ 4, 8.) Even if neither Mirasol
nor Johnson knew of the most egregious comment, the alleged frequency of the offensive
conduct and repeated complaints create a genuine dispute of material fact regarding Lazer
Spot’s actual or constructive knowledge about the harassment. See, e.g., Sunbelt Rentals, Inc., 521
F.3d at 318–20.
Because a jury could find that Lazer Spot had knowledge of the harassment, the
harassing conduct is imputed to it for purposes of summary judgment unless there is no
genuine dispute of material fact that Lazer Spot took action that was “reasonably calculated to
end the harassment.” Id. at 319 (internal citation omitted). As Lazer Spot concedes, there is a
genuine dispute about the sufficiency of its corrective action.
“[T]he reasonableness of a company’s actions depends, in part, on the seriousness of
the underlying conduct.” Pryor, 791 F.3d at 498. In assessing the reasonableness of an
employer’s response, the court considers, among other things, “the promptness of the
employer’s investigation when complaints are made, whether offending employees were
counseled or disciplined for their actions, and whether the employer’s response was actually
effective.” E.E.O.C. v. Xerxes Corp., 639 F.3d 658, 669 (4th Cir. 2011).

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In this matter, the parties dispute whether Lazer Spot’s response to Amaré’s complaints
of harassment was reasonable. Lazer Spot believes that its response was reasonably calculated
to address the alleged harassment. (Def.’s Br. at 22–23.) Mirasol forwarded Amaré’s
complaints to management and its legal department. (Mirasol Decl. ¶¶ 7–8.) Johnson had “a
very stern talk” with Hulvey about Amaré’s complaints in December 2017, approximately one
month after Amaré sent them to HR. (See Dec. 2017 Call 12:54–13:10; Mirasol Decl. Ex. D.)
Johnson replaced Hulvey as Amaré’s supervisor because of her complaints. And when Amaré
complained to HR in September 2018 that the harassment had continued, Johnson told
Hulvey the same day that he and the other drivers needed to stop harassing Amaré if she was
telling the truth. (See Sept. 2018 Call 1:34–2:10; Mirasol Decl. Ex. E.)
While a jury could credit these actions as valuable, it could still find that Lazer Spot did
not act reasonably to end the harassment based on other evidence, such as Hulvey, Brown,
and Bussard apparently never receiving counselling or discipline outside of Johnson’s verbal
warnings. Johnson issued this light reprimand despite knowing that previous discussions with
these men about the claimed harassment were unsuccessful and that Amaré perceived the
harassment as worsening over time. (See Sept. 2018 Call 2:10–2:25, 5:30–5:36.) As such, a jury
could determine that Lazer Spot’s response was “reluctant and reactive” and not reasonably
calculated to stop the harassment. See Pryor, 791 F.3d at 499–500. A genuine dispute of fact
therefore remains about whether the alleged harassment can be imputed to Lazer Spot.3
At bottom, the record in this case requires the weighing of evidence and the drawing
of legitimate inferences from the facts to determine whether the claimed harassment was

3

To its credit, Lazer Spot conceded as much at oral argument on its motion.

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severe or pervasive, what knowledge Lazer Spot had about it, and if Lazer Spot took
reasonable steps to end it. Making those determinations is the function of a jury, Anderson, 477
U.S. at 255, so the court will deny Lazer Spot’s motion for summary judgment on Amaré’s
hostile-work-environment claim.
3. Retaliation
In addition to her hostile-work-environment claim, Amaré also asserts a claim against
Lazer Spot for retaliation under Title VII. “To establish a prima facie case of retaliation in
contravention of Title VII, a plaintiff must prove (1) that she engaged in a protected activity,
as well as (2) that her employer took an adverse employment action against her, and (3) that
there was a causal link between the two events.” Boyer-Liberto, 786 F.3d at 281 (cleaned up).
The parties do not dispute that the evidence satisfies the first two elements of a
retaliation claim. Amaré’s complaints to Lazer Spot HR and management about alleged sexual
harassment is protected activity. See, e.g., Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 122 (4th
Cir. 2021). And Lazer Spot took an adverse employment action against Amaré when it
terminated her in December 2018.4 See id. They disagree on the third element, although Lazer
Spot admitted at the motion hearing that whether this element is satisfied may be an issue for
the jury.

The complaint also sets forth (1) a more difficult workload and (2) threats of a write-up or termination for
being unproductive as purported adverse employment actions against Amaré. (Compl. ¶¶ 41–42.) But Amaré
conceded any retaliation claim based on those actions—assuming, without deciding, that she even could pursue
a claim on those grounds—because her response brief did not address Lazer Spot’s arguments that neither are
adverse employment actions. See, e.g., Allen v. City of Dunn, No. 5:22-cv-114, 2023 WL 8934647, at *9 (E.D.N.C.
Dec. 27, 2023) (“Failing to respond . . . to arguments in the moving party’s briefing[] constitutes a concession
of an issue . . . .”).
4

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Lazer Spot contends that there is no causal connection between Amaré’s complaints
and her termination because she was terminated for a legitimate, non-discriminatory reason:
she had three unexcused absences. (Def.’s Br. at 15; Johnson Decl. ¶ 7.) Amaré, however,
asserts that proffered reason is pretextual and points to Schillinger’s declaration that Lazer
Spot typically did not discipline employees in any way, let alone terminate them, for unexcused
absences. (Pl.’s Opp’n Br. at 7–8; Schillinger Decl. ¶¶ 10–11.) Schillinger’s sworn statement
about the disparate treatment of similarly situated employees would allow a reasonable jury to
infer that Lazer Spot’s actual reason for firing Amaré was to retaliate against her for
complaining about the sexual harassment she faced, not because of her unexcused absences.
See Jennings v. Frostburg State Univ., 679 F. Supp. 3d 240, 279 (D. Md. 2023) (quoting Walker v.
Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015)) (“A plaintiff may support an inference that the
employer’s stated reasons were pretextual, and the real reasons were prohibited discrimination
or retaliation, by citing the employer’s better treatment of similarly situated employees outside
the plaintiff’s protected group.”). Because inferences must be drawn from the record about if
there was a causal link between Amaré’s harassment complaints and Lazer Spot firing her, the
court must deny summary judgment on the Title VII retaliation claim.
B. ADA Claim
Next, Lazer Spot argues that summary judgment is appropriate on Amaré’s ADA claim
because she did not exhaust her administrative remedies for this claim. Unlike its similar
argument for the Title VII claims, this argument is persuasive as to the ADA claim.
The ADA incorporates Title VII’s enforcement procedures, “including the
requirement that a plaintiff must exhaust [her] administrative remedies by filing a charge with

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the EEOC before pursuing a suit in federal court.” Sydnor, 681 F.3d at 593; see supra section
III.A.1 (discussing how the allegations in a plaintiff’s complaint must be reasonably related to
those in her EEOC charge). Amaré failed to exhaust administrative remedies for her ADA
claim because the disability-related allegations in her EEOC charge and complaint have
insufficient overlap.
Amaré’s EEOC charge broadly describes two disability-related matters. First, she
claims that Hulvey asked to see her medical records, but Johnson told her not to worry about
sharing them after she expressed discomfort with the request. (EEOC Charge ¶ 1.) Second,
she claims that Lazer Spot wrote her up for not showing up to work on June 12, 2018, despite
Hulvey and Johnson knowing she would be out that day because of a “disability[-]related
issue.” (Id.)
Her complaint sets forth different disability-related allegations, primarily related to
irritable bowel syndrome (“IBS”), Type 2 diabetes, and PTSD. (See Compl. ¶ 26.) In her
complaint, Amaré claims that Hulvey and Brown harassed her because she frequently needed
to use the restroom due to her IBS and diabetes. (Id. ¶ 31.) She further claims that Hulvey
“threatened her with write-ups and/or termination” and gave her a negative job evaluation
because of her restroom breaks. (Id. ¶¶ 28–29.) And she alleges that Lazer Spot employees
denied her breaks for meals and checking her blood sugar, refused to accept the results of a
Department of Transportation physical, and harassed her after she suffered an on-the-job
injury that changed her job function. (Id. ¶¶ 32, 34, 39.) These assertions depict regrettable
conduct if true, but they are not set forth in—or reasonably related to—the allegations in the
EEOC charge about Hulvey requesting Amaré’s medical records and not granting her

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requested time off.5 Accordingly, an ADA claim based on these factual allegations is
procedurally barred. See Chacko, 429 F.3d at 509–10.
To be sure, Amaré’s EEOC charge and complaint overlap insofar as both reference
Hulvey requesting her medical records (compare EEOC Charge ¶ 1, with Compl. ¶¶ 29, 38), but
the filings markedly differ in terms of the alleged conduct related to that request. The EEOC
charge states that Hulvey requested Amaré’s medical records once in December 2017, which
Johnson told her “not to worry” about sharing. (EEOC Charge ¶ 1.) As such, the charge
indicates that this issue was resolved by Johnson’s directive and does not allege continued
harassment related to it. The complaint, on the other hand, claims that Hulvey gave Amaré a
lower job-evaluation and continued to harass her, at least until September 2018, because she
did not share her medical records. (Compl. ¶¶ 29, 38.) The complaint, unlike the charge, also
states that Amaré complained to Lazer Spot’s HR department, rather than to Johnson, about
Hulvey’s request. (Id. ¶ 38.) The charge and complaint therefore set forth “different time
frames, actors, and discriminatory conduct” related to Hulvey’s medical-records request, so an
ADA claim based on the request cannot proceed due to a failure to exhaust administrative
remedies. See Chacko, 429 F.3d at 506.

Amaré’s EEOC charge could arguably be construed as setting forth an ADA claim based on Lazer Spot’s
failure to accommodate her June 2018 time-off request for a disability-related issue (EEOC Charge ¶ 1), which
she also mentions in her declaration and response brief (Amaré Decl. ¶ 11; Pl.’s Opp’n Br. at 10). Her complaint,
however, never discusses the incident, and Amaré cannot sustain an ADA claim based on items mentioned in
her EEOC charge, discovery, or a brief, but not pleaded in her complaint. See Coon v. Georgia Pac. Corp., 829
F.2d 1563, 1568–70 (11th Cir. 1987); cf. Dove Air, Inc. v. Fla. Aircraft Sales, LLC, No. 1:10-cv-47, 2011 WL
3475972, at *8 (W.D.N.C. Aug. 9, 2011) (collecting cases to support that a plaintiff “cannot constructively
amend its [c]omplaint by asserting an argument in a responsive brief”).

5

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C. VVA Claim
Finally, as Amaré concedes, the court must grant summary judgment on the VVA claim
because the VVA was not enacted until after she worked at Lazer Spot and does not apply
retroactively.
IV.

CONCLUSION

For the foregoing reasons, the court will grant Lazer Spot’s motion for summary
judgment as to Amaré’s ADA and VVA claims, but deny it as to her Title VII claims.
The Clerk is directed to forward a copy of this Memorandum Opinion and the
accompanying Order to all counsel of record.
ENTERED this 9th day of May, 2024.

HON. THOMAS T. CULLEN
UNITED STATES DISTRICT JUDGE

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