Dooley v. Mylan, Inc. et al

Filing 227

MEMORANDUM OPINION AND ORDER GRANTING MYLAN PHARMACEUTICALS INC.S MOTION FOR SUMMARY JUDGMENT 141 : The Court GRANTS Mylans motion for summary judgment, DISMISSES WITH PREJUDICE Dooleys complaint, DENIES AS MOOT all pending motions, and DIRECTS the Clerk to remove this case from its active docket. Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of the Court to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 4/30/14. (jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DEBORAH A. DOOLEY,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:13CV1
(Judge Keeley)

MYLAN PHARMACEUTICALS, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING MYLAN PHARMACEUTICALS,
INC.’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 141]
Pending before the Court is the motion for summary judgment
filed by the defendant, Mylan Pharmaceuticals, Inc. (“Mylan”).
(Dkt. No. 141). For the reasons discussed during the March 29, 2014
hearing on the motion, and for those that follow, the Court GRANTS
Mylan’s motion.
I. PROCEDURAL HISTORY
On

November

27,

2012,

the

plaintiff,

Deborah

Dooley

(“Dooley”), sued Mylan in the Circuit Court of Monongalia County,
West Virginia. Mylan subsequently removed the action to this Court
on January 2, 2012, in accordance with 28 U.S.C. §§ 1331, 1367,
1441, and 1446. (Dkt. No. 1).
After filing a series of amended complaints, Dooley filed her
fifth, and final, amended complaint on June 28, 2013, in which she
alleged claims against Mylan for racial discrimination, harassment,
retaliation, and intentional infliction of emotional distress.
(Dkt. No. 60).

On January 13, 2014, Mylan filed a motion for

summary judgment based on a “Last Chance Agreement”

that it had

DOOLEY v. MYLAN

1:13CV1

MEMORANDUM OPINION AND ORDER GRANTING MYLAN PHARMACEUTICALS
INC.’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 141]
entered into with Dooley on June 24, 2009. (Dkt. No. 139). The
Court granted that motion on April 1, 2014. (Dkt. No. 162). Mylan
then filed the instant motion for summary judgment, (dkt. no. 141),
which is fully briefed and ripe for review.
II. FACTUAL BACKGROUND
The material facts in this case are largely undisputed and the
Court has considered all inferences to be drawn from the facts in
the light most favorable to the plaintiff.

Matsushita Electrical

Industrial Co., Ltd. v. Zenith Radio Corp., 574, 574 (1986).
A.

Dooley’s Employment History With Mylan
Dooley was hired by Mylan on March 25, 2002, as a tablet

inspector at its plant in Morgantown, West Virginia. (Brunette Aff.
¶ 9).

As a bargaining unit employee, the terms and conditions of

her employment were governed by a collective bargaining agreement
(“the Agreement”) between Mylan and the United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Allied, Industrial and
Service Workers International Union (the “Union”). Id. at ¶ 7.
Mylan terminated Dooley’s employment in April, 2002, for a
violation of the company’s anti-nepotism policy. (Pl. Tr., 63:5-23;
64:22-65:1). Dooley sued Mylan over this termination, a dispute
which the parties eventually settled
of

that

settlement,

Mylan

agreed
2

in September, 2005. As part
to

reinstate

Dooley

as

an

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INC.’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 141]
employee.
November

(Brunette Aff. ¶ 9). More than two (2) years later, on
12,

2007,

pursuant

to

the

terms

of

the

collective

bargaining agreement, Dooley transferred to the position of Clerk
in the Label Control Department, where she remained until she
resigned her employment in August, 2013.

(Pl. Tr., 69:22-71:5).

B. Dooley’s Bereavement Leave
While

employed

in

the

Labor

Control

Department,

Dooley

requested bereavement leave on June 2, 2009, to attend the funeral
of “her daughter’s grandfather” in Las Vegas. (Pl. Tr., 193:9 –
194:4).

Helen Bertalan, day shift supervisor, completed a “Death

in the Family” form, which Dooley then signed, that indicated her
request for bereavement leave was due to the death of her fatherin-law. (Pl. Tr., 190:17 – 191:24); (Brunette Aff. ¶ 13, Ex. M).
After Dooley returned from Las Vegas, however, Mylan’s Human
Relations Department discovered that the funeral she had attended
was actually that of her ex-father-in-law, a relationship that did
not entitle her to bereavement leave under Mylan’s policy. (Pl.
Tr., 191:18-21); (Brunette Aff. ¶ 14).
Due to this apparent violation of the bereavement leave
allowed under Mylan’s policy, Mylan suspended Dooley on June 12,
2009, pending completion of an investigation into the matter.
(Brunette Aff. ¶ 15, Ex. N). Following that investigation, Jessica

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MEMORANDUM OPINION AND ORDER GRANTING MYLAN PHARMACEUTICALS
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Pforr, Senior Human Relations Associate at Mylan, confirmed that
Dooley had attended the funeral of her ex-father-in-law, which
violated Mylan’s Code of Conduct. (Pl. Tr. p. 195:6-19). Rather
than terminate her employment for violating the company’s Code of
Conduct, however, Mylan entered into a Last Chance Agreement with
Dooley and the Union that had represented her during Mylan’s
investigation into the matter. (Brunette Aff. ¶ 16, Ex. O). As part
of that Agreement, Dooley acknowledged she had engaged in conduct
violative of Mylan’s Code of Conduct that warranted termination of
her employment. Id. Mylan, Dooley and the Union then “agreed that,
in lieu of termination of [her] employment, Dooley [would] return
to work” subject to the terms of the Agreement, which included a
fifteen day suspension and waiver of any claims Dooley might have
against Mylan relating to any events occurring prior to entering
into

the

Agreement.

Id.

(Emphasis

added).

Dooley

ultimately

returned to work on July 9, 2009. Id. at ¶ 17, Ex. P.
C. Dooley’s Complaints Regarding E-Mail Messages
Approximately two (2) years after she entered the Last Chance
Agreement, on June 23, 2011, Dooley filed a complaint via e-mail
with Mylan’s Corporate Compliance Department, to which she attached
e-mail messages from two co-workers, Joyce Jones (“Jones”) and Rob
Barker (“Barker”), that she found to be inappropriate. (Goletz Aff

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INC.’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 141]
¶ 6, Ex. X). She complained that Jones had sent her e-mails stating
Mylan had been sold to another company, and that Barker had sent emails that were “political contraband.” Id.

The e-mail messages

sent by Jones and Barker forwarded to Mylan by Dooley were dated
April

23,

2010,

June

September 28, 2010.

24,

2010,

September

15,

2010,

and

Id.

Pursuant to company policy, Jim Brunette (“Brunette”), Mylan’s
Manager of Employee Relations, investigated Dooley’s complaint.
(Brunette Aff. ¶ 19). In doing so, he conducted interviews with
Jones and Barker regarding their e-mail messages, during which he
informed them about Mylan’s harassment policy. Id. at ¶ 20. It is
undisputed that, following these interviews, Dooley received no
more offensive e-mail messages from Jones. Id.
On September 5, 2012, however, Dooley filed another complaint
with

Mylan’s

Corporate

Compliance

Department

regarding

other

offensive e-mail messages she had received. (Goletz Aff. ¶ 8, Ex.
Y). In this instance, she forwarded e-mail messages containing
political jokes, primarily related to President Obama’s economic
policies.

Id.

After

receiving

her

complaint,

Tom

Pirozzi

(“Pirozzi”), Mylan’s Vice President and Chief Compliance Officer,
attempted

to

schedule

a

meeting

with

Dooley

to

discuss

her

complaint. Id. at ¶ 10, Ex. Z. Dooley responded by requesting that

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INC.’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 141]
she be allowed to have her attorney present during the meeting.
Pirozzi informed Dooley that, pursuant to the Agreement, she was
entitled to have a representative of the Union present, but not an
attorney. Id. Following this exchange, Dooley never responded
further to Pirozzi’s request to meet with her, and no meeting
occurred.
D. Dooley’s Parking Violations
On August 11, 2011, Mylan’s Corporate Compliance Department
received an anonymous complaint about Dooley parking in a reserved
space, rather than in the general parking lot designated for
bargaining unit employees.

Id. at ¶ 11, Ex. AA. The caller

indicated that he had received a ticket after parking in a reserved
space, but Dooley had not.

As a result of the complaint, Mylan

conducted an investigation into the matter.

Id.

The next day, August 12, 2011, Shane Swick (“Swick”), Label
Control Supervisor, observed Dooley parking in a reserved space,
and requested that she move her car and park in the general parking
lot in the future. Id. at ¶ 13, Ex. BB. Despite this, on August 17,
2011, Dooley again parked in a reserved parking space and received
a parking ticket as a consequence.
The

next

day,

August

18,

Id. at ¶ 14, Ex. BB.

2011,

Dooley

met

with

George

Spanovich (“Spanovich”), Senior Manager of Corporate Security, to
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discuss parking related concerns.

Id. at ¶ 15, Ex. BB.

At that

meeting, she told Spanovich she was being singled out for scrutiny
regarding parking, and also that she needed to park in a reserved
space because she had a foot injury that prevented her from walking
long distances. Id. at ¶ 16, Ex. BB. Spanovich assured Dooley she
was not being singled out for scrutiny, and also suggested that she
visit with an employee nurse in order to obtain a reasonable
parking accommodation for her foot injury. Dooley, however, never
sought such an accommodation. Id.
E. Dooley’s Complaints Regarding Post-It Note in Cubical
On March 22, 2012, Brunette held an employee meeting regarding
issues in the Label Control Department. (Brunette Aff. ¶ 23, Ex.
T). During that meeting, Dooley reported that, a year earlier, she
had found a post-it note in her cubicle that read “Bid Out Black
Bitch.” Id. She admitted that she had not provided anyone at Mylan
with the original, or even a copy, of the note, and that she had
not previously reported receiving it.

Id. at

¶ 25, Ex. T.

Brunette requested that she bring a copy of the note to him so that
he could initiate an investigation.

Id. at ¶ 26, Ex. T.

On the

next day, March 23, 2012, however, Dooley informed Swick, the Label
Control Supervisor, that she would not provide Brunette with a copy
of the note. Id.

Consequently, because Dooley had discovered the
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offending note over a year before reporting it to Mylan and then
refused to provide anyone with either the original or a copy of it,
Mylan was unable investigate the matter further. Id. at ¶ 27; see
also, (Brunette Dep., 67:10-11) (“I had nowhere to go, nowhere to
start, nowhere to start that investigation.”).
F. Dooley’s Resignation from Mylan
On January 16, 2013, Dooley stopped reporting to work as a
result

of

medical

issues

related

to

workplace

stress

and

depression. (Pl. Tr., 76:16-23). On July 19, 2013, she informed
Swick via an e-mail that she would be medically cleared to return
to work on July 29, 2013. Id. at 255:13-23. Swick responded by
providing her with instructions for returning to work, including
the suggestion that she check in with Bobbi Neal (“Neal”), employee
nurse, and Susan Dotson (“Dotson”), Human Resources Representative,
so that any procedures necessary to accommodate her return could be
addressed. Id. at 255:24-256:17. Dooley, however, never checked in
with either Neal or Dotson.

Id. at 257:3-16.

On July 24, 2013, Swick sent Dooley another e-mail message to
provide additional information regarding her return, including
information

about

a

new

dress

code

and

a

locker assignment.

(Brunette Aff. Ex. V). Despite these communications, Dooley never
returned to work at Mylan. Id. Rather, on July 31, 2013, she mailed

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INC.’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 141]
a letter to Swick announcing her resignation effective August 7,
2013. Her letter stated her resignation was due to discriminatory
treatment, and that her “complaints of age, race, sex, disability,
et cetera, discrimination have fallen on deaf ears.” (Pl. Tr.,
268:22-269:7).
III. LEGAL STANDARD
Summary
documents,

judgment

is

electronically

declarations,

stipulations

appropriate
stored
.

.

where

the

information,
.,

admissions,

“depositions,
affidavits

or

interrogatory

answers, or other materials” show 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(c)(1)(A), (a). When ruling on
a motion for summary judgment, the Court reviews all the evidence
“in the light most favorable” to the nonmoving party. Providence
Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir.
2000). The Court must avoid weighing the evidence or determining
the truth and limit its inquiry solely to a determination of
whether genuine issues of triable fact exist. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).

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IV. ANALYSIS
A.

Racial Discrimination Claims (Counts One and Four)
Dooley alleges that Mylan discriminated against her on the

basis of race in violation of Title VII, Section 1981, and the
Human Rights Act.

(Dkt. No. 60).

Specifically, she contends that

she received fewer job assignments than her co-workers, was issued
a parking ticket, and was constructively discharged, solely because
of her race.
When evaluating a plaintiff’s racial discrimination claims,
courts

apply the burden shifting framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The McDonnell
Douglas framework imposes on a plaintiff the initial burden of
establishing a prima facie case of employment discrimination. Once
that prima facie case has been established, the burden shifts to
the employer to articulate a nondiscriminatory reason for its
action.

If the employer establishes such a reason, the burden

shifts back to the plaintiff to show that the reason articulated by
the employer was merely a pretext. Lewis v. Potter, 2007 U.S. Dist.
LEXIS 7825, 2007 WL 419374 (N.D. W. Va. Feb. 2, 2007).
To establish a prima facie case of discrimination under the
facts here, Dooley must establish the following: 1) that she is a
member

of

a

protected

class;

2)
10

that

she

performed

her

job

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satisfactorily; 3) that she suffered an adverse employment action;
and 4) that Mylan treated employees outside of her protected class
differently. Coleman v. Maryland Court of Appeals, 626 F.3d 187,
190 (4th Cir. 2010).

Mylan contends that Dooley is unable to

satisfy this test.
Dooley, an African-American woman, is a member of a protected
class.

Further, as her supervisor stated in his deposition, she

performed satisfactory work. (Swick Dep., 9:3-6). Thus, the only
questions for the Court to determine are whether Dooley suffered an
adverse employment action, and whether Mylan treated Caucasian
employees differently than she was treated.
1. Adverse Employment Action
In order for Dooley to establish that she suffered an adverse
employment action, she must provide evidence that she was subject
to a “significant change in employment status, such as firing,
failing to

promote,

reassignment

with

significantly different

responsibilities, or a decision causing a significant change in
benefits.”
(1998).

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761

Here, as has been noted earlier, Dooley alleges that she

was given fewer job assignments than her co-workers, received a
parking ticket, and was constructively discharged while working at
Mylan.

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MEMORANDUM OPINION AND ORDER GRANTING MYLAN PHARMACEUTICALS
INC.’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 141]
As to her job assignments, Dooley argues that less senior
Label Control Clerks were given opportunities over her, such as
running print jobs for research and development labels, and working
in the department’s reconciling area.

(Pl. Tr., 141:11-142:6).

The fact that Dooley received fewer job tasks than her co-workers,
however, does not in and of itself constitute an adverse employment
action. As she readily admitted in her deposition, the decrease in
tasks did not lead to a change in pay or conditions of her
employment.

Id. at 142:7-16.

Similarly, Dooley’s receipt of a parking ticket did not change
the terms and conditions of her employment, and thus did not
constitute an adverse employment action. (Brunette Aff. ¶ 22).
Furthermore, it is undisputed that she received the ticket after
repeatedly parking without permission in a reserved space. The
parking ticket did not result in any disciplinary action or fine.
Instead, Mylan attempted to assist Dooley by recommending that she
seek parking accommodations for an injured foot. Id.
Dooley also argues that she was constructively discharged from
her job at Mylan.

(Dkt. No. 150). Notably, however, Dooley never

alleged the issue of constructive discharge in her complaint.
Although she moved to amend her complaint for a sixth time in order
to add a separate claim for constructive discharge, the Court

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MEMORANDUM OPINION AND ORDER GRANTING MYLAN PHARMACEUTICALS
INC.’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 141]
denied that motion, made after discovery had closed, as untimely.
(Dkt. No. 144); See Foman v. Davis, U.S. 178, 182 (1962)(holding
that leave to amend should be denied upon a showing of undue delay
and repeated failure to cure deficiencies by amendments previously
allowed); Kerns v. Range Resources-Appalachia, LLC, 2011 WL 3753117
*3 (N.D.W.Va. 2011). Thus, Dooley has no claim of constructive
discharge pending in this case. Nevertheless, even had she raised
the issue of constructive discharge in a timely manner, her claim
would fail for the following reasons.
In order to state a claim for constructive discharge, Dooley
must establish that Mylan made her working conditions intolerable,
thereby forcing her to quit her job.
770 F.2d 1251, 1255 (4th Cir. 1985).

Bristow v. Daily Press, Inc.,
Dooley alleges that she was

forced to resign from Mylan following an extended medical leave of
absence caused by work-related stress and depression, and also
because she was subjected to unnecessary administrative procedures,
including being directed to contact Neal and Dotson prior to her
return.

(Dkt.

No.

150).

Dooley’s

argument,

however,

grossly

misrepresents the factual nature of her situation.
It is undisputed that she was off work from January 16, 2013,
until she was medically cleared to return to work on July 29, 2013.
(Pl. Tr., 76:16-19; 255:13-20). Only the period of time from

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MEMORANDUM OPINION AND ORDER GRANTING MYLAN PHARMACEUTICALS
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January 28, 2013 through March 14, 2013, was due to any workrelated psychological problems. (Dean Decl. Ex. B). Her absences
after that date were due to preexisting pulmonary and orthopedic
problems. Id.
Swick, Dooley’s supervisor, welcomed her back to work in an email message and sent her other messages encouraging her to return
to work and providing the necessary instructions and information to
assist her return. (Pl. Tr., 255:13-259:1). Dooley’s argument, that
Swick’s directive to call Neal and Dotson to discuss her return was
“completely unnecessary and overly burdensome,” id., is wholly
without merit. Swick only recommended that Dooley call Neal and
Dotson to

ensure

that she

was

reactivated

in

the

electronic

timekeeping system and received any necessary accommodations for
ongoing health issues.
Under

any

unthreatening,

objective

arguably

even

analysis,
helpful,

these

messages

administrative

were

actions.

(Dotson Dep., 47:8-9). Further, Dooley had undertaken similar
procedures upon returning from prior leaves of absence. (Id. at
39:22-40:6). Thus, there are no material facts in dispute as to
whether Mylan acted intentionally to cause Dooley’s resignation, or
from which a fact finder could conclude that her working conditions

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were so intolerable that a reasonable person in her position would
have felt compelled to resign. Bristow, 770 F.2d at 1255.
2. Mylan’s Treatment of Caucasian Employees
Dooley also must establish that Mylan treated other, similarly
situated persons outside of her protected class more favorably.
Coleman, 626 F.3d at 190. In an attempt to do so, she first asserts
that Mylan treated Caucasian employees preferentially with respect
to receiving job opportunities and parking privileges.1 (Dkt. No.
60). Her evidence, however, utterly fails to substantiate those
assertions. In point of fact, the evidence introduced by the
parties establishes that all bargaining unit employees, regardless
of

race,

were

given

equal

opportunity

to

take

on

new

job

assignments, and also were required to park in the same general
parking area. (Brunette Aff. ¶ 22); (Goletz Aff. ¶ 11).
Dooley further asserts that she was disparately treated when
she attempted to return to work on July 29, 2013, following her
extended medical leave. (Dkt. No. 60). She claims no Caucasian
employee had to undergo the unnecessary and overly burdensome
procedures Swick required her to undertake, such as informing Neal
1

In her Complaint, Dooley also argues that Mylan treated nonminority employees differently with respect to bereavement leave.
The Court, however, dismissed this claim as time barred under the
Last Chance Agreement that Dooley entered into with Mylan. (Dkt.
No. 162).
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and Dotson about her return. She also offers the affidavit of Julia
Boone, a fellow African American co-worker, to establish that Boone
also was forced to undergo unnecessarily burdensome procedures
following a medical leave.
As this Court has already concluded, the procedures Swick
asked

Dooley

to

undertake

were

not

burdensome,

but

rather

reasonably related to her return to work. Moreover, Dooley has
failed to present even a scintilla of evidence that any Caucasian
employee returning from an extended medical leave did not receive
the same or similar directions.
Furthermore, the affidavit of Boone is not something that this
Court may fairly consider at this stage of the litigation given
that Dooley failed to disclose Boone’s name as a witness during
discovery.

See, Fed. R. Civ. P. 26(a)(1); Ace American Insurance

Co., et. al., v. McDonald’s Corp., 2012 WL 2523883, (D.Md. June 28,
2012) (finding that witness disclosures made after the close of
discovery are untimely). Despite having filed initial disclosures
and formal answers to interrogatories regarding the names and
contact

information

of

individuals

she

intended

to

use

as

witnesses, Dooley never disclosed Boone’s name until she attached
Boone’s affidavit to her response to Mylan’s motion for summary
judgment. See, Frazier v. Layne Christensen Co., 370 F.Supp.2d 823,

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827 (W.D. Wis. 2005)(striking affidavits submitted in support of
summary judgment motion because affiants were not identified in
Rule 26(a) disclosures).

Thus, Dooley cannot rely on Boone’s

affidavit

a

to

establish

prima

facie

case

of

racial

discrimination.2
B.

Racial Harassment (Counts One, Three, Four, and Six)
Dooley

harassment.

also

alleges

that

(Dkt. No. 60).

Mylan

subjected

her

to

racial

In support of this allegation, she

contends she found an inappropriate post-it note in her cubical,
and also received discriminatory e-mail messages while working at
Mylan.3 (Dkt. No. 60).
Title VII makes it unlawful for an employer “to discriminate
against any individual with respect to his compensation, terms,
conditions,

or

privileges

of

employment,

because

individual’s....race.” 42 U.S.C. 2000e-2(a)(1) (2000).

of

such

“Since an

employee’s work environment is a term or condition of employment,

2

Because Dooley has failed to establish a prima facie case of
discrimination, the Court need not perform the remainder of the
McDonnell Douglas analysis. 411 U.S. at 802.
3

Dooley also asserts that, in 2007, she was referred to as a
“lazy nigger,” and in 2008, she was treated rudely by co-workers at
Mylan. However, these claims were dismissed as time-barred pursuant
to the Last Chance Agreement Dooley entered into with Mylan. (Dkt.
No. 162).
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Title VII creates a hostile working environment cause of action.”
EEOC v. R&R Ventures, 244 F.3d 334, 338 (4th Cir. 2001).
In

order

to

prove

that

Dooley

suffered

from

a

“discriminatorily hostile or abusive work environment,” Harris v.
Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.E.2d.
295 (1993),
unwelcome,

she
2)

must

based

demonstrate
upon

her

that the

race,

harassment

3)sufficiently

was

1)

severe

or

pervasive to alter the conditions of her employment and create an
abusive atmosphere, and 4) imputable to her employer. Ocheltree v.
Scollon Productions, Inc., 335 F.3d 331 (4th Cir. 2003). The parties
do not contest that the alleged harassment was unwelcome; what they
do disagree about is whether the remaining elements of the claim
have been established.
1. Harassment Based Upon Race
In order to survive summary judgment, Dooley must present
sufficient

evidence

that

the

alleged

harassing

conduct

“was

motivated by [racial] animosity.” Gilliam v. South Carolina Dep’t
of Juvenile Justice, 474 F.3d 134, 142 (4th Cir. 2007).

She

asserts that the post-it note in her cubicle reading “Bid Out Black
Bitch,” and the derogatory e-mail messages she received from coworkers, were racially motivated.

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DOOLEY v. MYLAN

1:13CV1

MEMORANDUM OPINION AND ORDER GRANTING MYLAN PHARMACEUTICALS
INC.’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 141]
There can be no debate that the words on the post-it note
sufficiently evince harassment based on Dooley’s race.

However,

the substance of the e-mail messages she received do not establish
a prima facie case that they were racially based.
Turning to the content of those messages, Dooley complained
that her co-worker, Jones, informed other co-workers via e-mail
that the CEO had sold Mylan.

She also complained that Barker, and

others, sent e-mail messages that were “political contraband.”
(Goletz Aff. Ex. X).

Clearly, Jones’s e-mail had no racial basis;

moreover, Dooley never complained to anyone at Mylan that the other
e-mail messages, which she described as “political contraband,”
were racially motivated. (Goletz Aff. ¶ 7, Ex. X). Rather, she
stated that she wished to stop receiving them. Id.
The

e-mail

messages

described

by

Dooley

as

“political

contraband” stated: “America needs Obamacare like Nancy Pelosi
needs a Halloween mask;” “If Nancy Pelosi and Obama were on a boat
in the middle of the ocean and it started to sink, who would be
saved?

America;”

and

a

newspaper

article

entitled

“Mylan

Pharmaceuticals Stabbing Faked.” Based on the content of these
messages, which dealt mainly with politics and office gossip, not
race, Dooley has failed to meet her burden of establishing a prima
facie case that those messages were racially motivated.

19

DOOLEY v. MYLAN

1:13CV1

MEMORANDUM OPINION AND ORDER GRANTING MYLAN PHARMACEUTICALS
INC.’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 141]
2. Severe or Pervasive Racial Harassment
Next, Dooley must establish that the alleged racial harassment
she suffered while at Mylan was “sufficiently severe or pervasive
to alter the conditions of [her] employment and create an abusive
working environment.” Harris, 510 U.S. at 21, 114 S.Ct. 367.
Specifically, she must identify instances where the environment was
“pervaded with discriminatory conduct aimed to humiliate, ridicule,
or intimidate, thereby creating an abusive atmosphere.” EEOC v.
Subelt Rentals Inc., 521 F.3d 306, 316 (4th Cir. 2008). Further,
she must establish that the environment was both subjectively and
objectively abusive. Id.
a. Subjective Abuse
In response to Dooley’s argument that the work environment at
Mylan was subjectively abusive, Mylan asserts that only the post-it
note involved the issue of race, and the evidence establishes that
she was not substantially affected by it. (Dkt. No. 142).
Dooley waited over a year to report the existence of the postit note, and then hindered Mylan’s investigation into the matter by
refusing to produce a copy of the note when her supervisor asked
her to do so.

Further, she has neither alleged nor offered any

evidence that receiving the post-it note interfered with her work
performance, or was physically threatening or humiliating. Thus,
20

DOOLEY v. MYLAN

1:13CV1

MEMORANDUM OPINION AND ORDER GRANTING MYLAN PHARMACEUTICALS
INC.’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 141]
based on the totality of the circumstances, the Court cannot find
that Dooley has established a prima facie case of subjective abuse.
b. Objective Abuse
Mylan further contends that, even if Dooley could establish a
prima facie case of subjective abuse, she has not established that
her work environment was objectively abusive.

Id.

It argues that

the instances described by Dooley are the kind of common, petty
occurrences found in many workplaces. Dooley responds that a
reasonable person in her position would have found the environment
at Mylan abusive. (Dkt. No. 150).
When determining whether harassing conduct was “objectively
severe or pervasive,” a court must look at “all 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.”

Id.

In

order

to

be

actionable, the harassing “conduct must be [so] extreme [as] to
amount to a change in the terms and conditions of employment.”
“Simple teasing, offhand comments, and isolated incidents will not
amount to discriminatory changes in the terms and conditions of
employment.” Id.

21

DOOLEY v. MYLAN

1:13CV1

MEMORANDUM OPINION AND ORDER GRANTING MYLAN PHARMACEUTICALS
INC.’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 141]
1) Post-It Note
From the totality of the evidence surrounding Dooley’s receipt
of the post-it note, it is clear that the incident involved an
isolated instance of inappropriate workplace behavior that did not
“amount to discriminatory changes in the terms and conditions of
[Dooley’s] employment.” Id. The Fourth Circuit previously has
concluded that similar conduct does not rise to the level of severe
and pervasive harassment. Mosby-Grant v. City of Hagerstown, 630
F.3d 326 (4th Cir. 2010) (no severe and pervasive conduct where
employee overheard racial jokes between two co-workers – one in
protected class – and also overheard two offensive remarks directed
at individuals in another protected class within five months); Lacy
v. Amtrak, 205 F.3d 1333 (4th Cir. 2000) (no severe and pervasive
conduct where employee claims manager called her “black bitch”
outside her presence, derogatory cartoons place in her locker, she
was reprimanded, and unfairly overloaded with work assignments).
Thus, Dooley has failed to meet her burden of establishing that the
post-it note created an objectively abusive work environment.
2) E-Mail Messages
The

e-mail

messages

Dooley

received

were

not

racially

motivated, but rather related to politics and office gossip.

Even

assuming that they were racially motivated, however, Dooley must
22

DOOLEY v. MYLAN

1:13CV1

MEMORANDUM OPINION AND ORDER GRANTING MYLAN PHARMACEUTICALS
INC.’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 141]
still

show

that

they

created

an

objectively

hostile

work

environment.
Courts have consistently held that such e-mail messages are
insufficient to establish severe and pervasive racial harassment.
See, Gibbs v. Brown Univ., No. 09-cv-392 WL 1299950 (D.R.I. Mar.
31, 2011 (racially inflammatory e-mail comment that Obama would be
“assassinated and would “never be president because he was black”
did not support a hostile work environment claim); Rozier v. United
Metal Fabricators, Inc., No. 3:09-cv-257, 2012 WL 170197 (W.D.Pa.
Jan. 19, 2012) (racial slurs regarding then-candidate Barack Obama
were

neither

sufficiently

severe

nor

pervasive

to

constitute

hostile work environment); Shuler v.Corning, No. 4:09-cv-19, 2008
WL 3929139 (W.D.Va. Aug. 21, 2008) (comments about then candidate
Barack Obama’s race and use of the term “black” were insufficient
to constitute hostile work environment); Shaw v. City of W. Monroe,
No. 12-cv-0318, 2013 WL 1385628 (W.D.La. Apr. 3, 2013) (pictures of
men hanging, anti-Obama political cartoons, and co-worker’s use of
“nigger” insufficient to constitute hostile work environment).
Consistent with such legal precedent, the e-mail messages Dooley
received cannot be construed as sufficiently severe and pervasive
as to constitute a prima facie case of objective abuse. Thus, the
Court concludes that Dooley’s receipt of the post-it note and e-

23

DOOLEY v. MYLAN

1:13CV1

MEMORANDUM OPINION AND ORDER GRANTING MYLAN PHARMACEUTICALS
INC.’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 141]
mail

messages

does

not

constitute

a

racially

hostile

work

environment.
3. Imputability of Racial Harassment to Mylan
Finally, even if Dooley could establish a racially hostile
work environment, she also must establish “some basis for imputing
liability on” Mylan. Gilliam, 474 F.3d at 142.

An employer is

“subject to vicarious liability to a victimized employee for an
actionable hostile work environment created by supervisor with
immediate authority over the employee.” Burlington Industries, Inc.
V. Ellerth, 524 U.S. 742, 765 (1998).

Further, when an employee is

racially harassed by a co-worker, rather than a supervisor, an
employer is only liable “if it knew or should have known about the
harassment and failed to take effective action to stop it.” Howard
v. Winer, 446 F.3d 559, 565 (4th Cir. 2006).
Here, Dooley does not allege that she was harassed by her
immediate supervisors; her complaints center around conduct by her
co-workers. (Dkt. No. 60). Thus, she must establish that Mylan both
knew about the alleged harassment and also failed to take proper
remedial action “reasonably calculated to end the harassment.” Id.
at 565.
Dooley contends that her complaints were not taken seriously
by Mylan. (Dkt. No. 60). The undisputed evidence adduced by the

24

DOOLEY v. MYLAN

1:13CV1

MEMORANDUM OPINION AND ORDER GRANTING MYLAN PHARMACEUTICALS
INC.’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 141]
parties, however, is to the contrary: Mylan undertook or attempted
to undertake proper remedial actions each time it became aware of
Dooley’s complaints.
Regarding the post-it note incident, Dooley waited over a year
to report the incident to Mylan, (Brunette Aff. ¶ 23, Ex. T), and
refused to produce a copy of the post-it note at issue when Mylan
attempted to initiate an investigation of the matter. Id. at ¶ 27.
Additionally,
Dooley’s

Mylan

non-race

took
related

proper

remedial

complaints.

actions

Concerning

respecting
the

e-mail

messages under review, Brunette investigated Dooley’s first set of
complaints,

and

counseled

both

Jones

and

Barker

on

Mylan’s

harassment policy. (Brunette Aff. ¶ 20). Pirozzi attempted to
conduct an investigation regarding Dooley’s second set of e-mail
related complaints, but following his denial of her request to
bring her attorney rather than the approved union representative to
the meeting, Dooley rebuffed his attempt to schedule a second
meeting to discuss the matter further. (Goletz Aff. ¶ 10, Ex. Z).
Such evidence does not support even an inference that Mylan
knew of problems yet failed to take proper remedial actions to
address Dooley’s complaints. On the contrary, Mylan either acted on
the complaints, or attempted to act on them but could not in the

25

DOOLEY v. MYLAN

1:13CV1

MEMORANDUM OPINION AND ORDER GRANTING MYLAN PHARMACEUTICALS
INC.’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 141]
face of Dooley’s lack of cooperation. Mylan therefore may not be
held liable for Dooley’s alleged harassment.
C.

Retaliation (Counts Two and Five)
Dooley asserts claims against Mylan for retaliation pursuant

to Title VII, Section 1981, and the Human Rights Act. (Dkt. No.
60). She argues that Mylan retaliated against her by suspending her
on June 12, 2009 for misusing bereavement leave. When Dooley signed
the Last Chance Agreement with Mylan, however, she voluntarily
agreed

not

to

file

any

action

or

complaint

challenging

or

protesting any action taken by Mylan before June 24, 2009. Her
claims for retaliation violate this agreement, and therefore must
be dismissed.
D.

Intentional Infliction of Emotional Distress (Count Seven)
Finally, Dooley asserts a claim for intentional infliction of

emotional

distress

based

on

the

racial

discrimination

and

harassment to which she was allegedly subjected while working at
Mylan. (Dkt. No. 60). The underlying factual allegations upon which
she bases this claim are the same ones on which she relies to
support her discrimination and harassment claims. Because Congress
has provided a separate statutory remedy for her discrimination and
harassment allegations under Title VII of the Civil Rights Act of
1964, Dooley is barred from bringing a separate claim for emotional
26

DOOLEY v. MYLAN

1:13CV1

MEMORANDUM OPINION AND ORDER GRANTING MYLAN PHARMACEUTICALS
INC.’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 141]
distress.

See Knox v. Wheeling-Pittsburgh-Steel Corporation, 899

F.

1529,

Supp.

1535

(N.D.W.Va.

1995);

Guervara

v.

K-Mart

Corporation, 629 F.Supp. 1189 (S.D.W.Va. 1986); Taylor v. City
National Bank, 642 F.Supp. 989, 998 (S.D.W.Va. 1986). Thus, her
claim for intentional infliction of emotional distress is preempted
by the statutory remedies available to her.
V.

CONCLUSION

For the reasons discussed, the Court GRANTS Mylan’s motion for
summary judgment, DISMISSES WITH PREJUDICE Dooley’s complaint,
DENIES AS MOOT all pending motions, and DIRECTS the Clerk to remove
this case from its active docket.
It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
the Court to enter a separate judgment order and to transmit copies
of both Orders to counsel of record.
DATED: April 30, 2014.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

27