Biddle v. Fairmont Supply Company et al
Filing
104
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING AS MOOT PARTIES' MOTIONS IN LIMINE. The Court grants the Defendant's 80 Motion for Summary Judgment and denies as moot the following motions in limine: Dkt Nos. 91 92 93 94 95 96 97 98 99 100 101 and 102 . It is further ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. Pursuant to Federal Rule of Civil Procedure 58, the Clerk is directed to enter judgment in this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 9/24/15. (mh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CACIE BIDDLE,
Plaintiff,
v.
Civil Action No. 1:14CV122
(STAMP)
FAIRMONT SUPPLY COMPANY,
a foreign corporation,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND DENYING AS MOOT PARTIES’ MOTIONS IN LIMINE
I.
Procedural History
The plaintiff commenced this civil action in Marion County,
West Virginia, which the defendants, Fairmont Supply Co. and Consol
Energy, later removed.
Following that removal, the parties then
stipulated that defendant Consol Energy, Inc. should be dismissed
without prejudice.
ECF Nos. 8 and 9.
Thus, the only remaining
defendant is Fairmont Supply Company (“the defendant”). Later, the
plaintiff filed a motion to file an amended complaint.
granted the plaintiff’s motion.
ECF No. 34.
defendant’s motion for summary judgment.
1
This Court
At issue now is the
ECF No. 80.1
On September 1, 2015, this Court sent a letter to counsel
indicating its ruling as to the defendant’s motion for summary
judgment and the parties’ motions in limine. ECF No. 103. This
memorandum opinion and order serves as the formal ruling on those
motions.
II.
Facts
The defendant hired the plaintiff in July 2009 as a warehouse
manager in Bridgeport, West Virginia.
In her initial performance
reviews from 2009 and 2010, the plaintiff’s supervisors informed
her about areas of her work performance that needed improvement.
At that time, those supervisors believed that the plaintiff was
making an effort to improve.
Starting in 2011, however, the supervisors began to be more
concerned about the plaintiff’s work performance.
They pointed to
recurring issues such as improper maintenance of the warehouse,
untimely responses to inquiries by employees and clients, and
inaccurate inventory packing for customer deliveries.
Exs.
10
and
14.
plaintiff’s
In
hopes
supervisors
of
resolving
implemented
Improvement Plan for the plaintiff.
that plan with the plaintiff.
performance
did
not
a
those
issues,
90-Day
Id. at Ex. 11.
ECF No. 81
the
Performance
They reviewed
Although the plan was in place, her
substantially
improve.
The
plaintiff’s
supervisors repeatedly counseled the plaintiff about her daily
responsibilities.
month period.
This occurred approximately 20 times over a 13-
Id. at Ex. 2.
Based on those repeated occurrences,
the defendant ultimately terminated the plaintiff’s employment in
February 2013.
While working for the defendant, the plaintiff states that her
supervisors asked her to engage in questionable conduct, such as
2
refraining from listing certain employees with Driving-Under-theInfluence (“DUI”) charges and not filing incident reports for
broken light bulbs. The plaintiff also alleged that her supervisor
yelled at her, that he referred to her once as “Sweetheart,” and
that she was assigned “secretarial” tasks despite being a manager.
Approximately one week before the defendant terminated her
employment, the plaintiff contacted her human resources (“HR”)
manager by instant message.
Id. at Ex. 15.
called her HR manager by telephone.2
The plaintiff then
During that phone call, the
plaintiff claimed that she felt harassed because of her work
performance.
More
specifically,
she
disagreed
supervisor’s perception of her work performance.
with
her
The HR manager
informed the plaintiff that if she felt harassed, then a formal
investigation would be conducted into the allegations.
Further,
the HR manager assured the plaintiff that if she wanted to file a
complaint about the harassment, the plaintiff would face no risk of
retaliation.
That HR manager also offered to speak with the
plaintiff and her supervisor. The plaintiff neither filed a formal
complaint nor further inquired about the alleged harassment.
As a result of having her employment terminated, the plaintiff
claims that she suffered lost wages, emotional distress, and other
similar harms. In Count I, the plaintiff claims that the defendant
2
The HR manager made notes about the phone call. ECF No. 81
Ex. 16.
The plaintiff affirmed that those notes were a “fair
summary” of what occurred. Id. at Ex. 5.
3
violated
the
West
Virginia
Human
Rights
Act
(“WVHRA”)
by
discriminating against the plaintiff based on her gender. Count II
alleges that the defendant retaliated against the plaintiff in
violation of the WVHRA.
Count III contends that the defendant
created a hostile work environment that subjected the plaintiff to
harassment.3 For relief, the plaintiff seeks compensatory damages,
front pay, punitive damages, and attorney’s fees and costs.
III.
Applicable Law
Under Rule 56(c) of the Federal Rules of Civil Procedure,
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the
record, including depositions, documents, electronically
stored
information,
affidavits
or
declarations,
stipulations . . . admissions, interrogatory answers, or
other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible
evidence to support the fact.
Fed. R. Civ. P. 56(c).
The party seeking summary judgment bears
the initial burden of showing the absence of any genuine issues of
material fact.
(1986).
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
“The burden then shifts to the nonmoving party to come
3
In Count IV, the plaintiff claims that the defendant might
contend that all claims must be resolved under a dispute resolution
policy of the defendant. If that occurred, the plaintiff sought a
declaratory judgment from the Court that any type of arbitration
provision that may apply be considered unconscionable. However, in
neither the motion for summary judgment nor any prior filings, the
parties do not address that count. Accordingly, this memorandum
opinion and order will not consider that claim as neither party has
addressed it.
4
forward with facts sufficient to create a triable issue of fact.”
Temkin v. Frederick County Comm’rs, 945 F.2d 716, 718 (4th Cir.
1991), cert. denied, 502 U.S. 1095 (1992) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). However, as the
United States Supreme Court noted in Anderson, “Rule 56(e) itself
provides that a party opposing a properly supported motion for
summary judgment may not rest upon the mere allegations or denials
of his pleading, but . . . must set forth specific facts showing
that there is a genuine issue for trial.”
Id. at 256.
“The
inquiry performed is the threshold inquiry of determining whether
there is the need for a trial -- whether, in other words, there are
any genuine factual issues that properly can be resolved only by a
finder of fact because they may reasonably be resolved in favor of
either party.”
Id. at 250; see also Charbonnages de France v.
Smith, 597 F.2d 406, 414 (4th Cir. 1979) (Summary judgment “should
be granted only in those cases where it is perfectly clear that no
issue of fact is involved and inquiry into the facts is not
desirable to clarify the application of the law.” (citing Stevens
v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950))).
In Celotex, the Supreme Court stated that “the plain language
of Rule 56(c) mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party
5
will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322.
In reviewing the supported underlying facts, all inferences must be
viewed in the light most favorable to the party opposing the
motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
IV.
Discussion
In its motion for summary judgment, the defendant argues that
no genuine issues of material fact exist for three reasons. First,
concerning the WVHRA discrimination claim, the defendant argues no
proof of discrimination exists.
Therefore, the plaintiff cannot
show that “but for” her gender, the defendant would not have
terminated her employment. In support of that claim, the defendant
asserts
that
performance.
the
plaintiff
provided
less
than
stellar
work
Thus, the termination of the plaintiff’s employment
was justified on nondiscriminatory grounds.
The defendant points
to specific instances of the plaintiff’s poor management, such as
untimely deliveries, poor responses to internal inquiries, and
insufficient safety preparation for drivers. Even if the plaintiff
proves her prima facie case of discrimination, the defendant argues
that it had a legitimate reason for terminating the plaintiff’s
employment. Second, concerning the unlawful retaliation claim, the
defendant contends that the plaintiff was discharged over a year
after the plaintiff engaged in any alleged protective activity.
Because no nexus exists between the alleged protective activity and
6
the
termination
of
employment,
retaliation claim lacks merit.
the
defendant
believes
the
Third, the defendant argues that
the plaintiff provides insufficient evidence to prove her hostile
work environment claim.
In
response,
the
plaintiff
first
contends
that
she
has
sufficient evidence regarding her WVHRA claim, specifically the
“but for” element.
Next, the plaintiff asserts that she received
essentially no warnings about her poor work performance.
The
plaintiff believes that the record creates doubts regarding the
defendant’s legitimate reasons for firing her.
The plaintiff then
argues that although she did not file a formal complaint about her
alleged harassment, she contacted her HR manager. Further, because
she feared that filing a formal complaint would result in further
harassment or retaliation, the plaintiff believes that such a
complaint was unnecessary.
Finally, concerning the plaintiff’s
hostile work environment claim, the plaintiff contends that her
supervisor regularly yelled at her and engaged in similar harassing
conduct.
For those reasons, the plaintiff believes that the
defendant’s motion should be denied.
For the reasons set forth below, the defendant’s motion for
summary judgment is granted.
Further, the currently pending
motions in limine filed by the plaintiff and defendant are denied
as moot.
7
The
plaintiff’s
claims
will
be
discussed
in
the
order
presented in her complaint.
A.
Employment Discrimination under the WVHRA
Under
the
WVHRA,
it
is
unlawful
for
an
employer
to
discriminate against an individual regarding “compensation, hire,
tenure, terms, conditions or privileges of employment if the
individual is able and competent to perform the services required,
even if such individual is blind or disabled.”
W. Va. Code
§ 5-11-9 (2012). Further, “discrimination” means “to exclude from,
or fail or refuse to extend to, a person equal opportunities
because of race, religion, color, national origin, ancestry, sex,
age, blindness, disability or familial status and includes to
separate or segregate.”
Id. § 5-11-3(h).
To prove a prima facie case of employment discrimination under
the WVHRA, the plaintiff must show that “(1) the plaintiff is a
member of a protected class,” (2) the employer “made an adverse
decision against plaintiff,” and (3) but for the plaintiff’s
protected status, the employer would not have made the adverse
decision. Syl. Pt. 3, Conaway v. E. Assoc’d Coal Corp., 358 S.E.2d
423 (W. Va. 1986); see Smith v. Sears, Roebuck & Co., 516 S.E.2d
275 (W. Va. 1999; Barefoot v. Sundale Nursing Home, 457 S.E.2d 152,
161 (W. Va. 1995); McCauley v. Merrimac, Inc., 460 S.E.2d 484 (W.
Va. 1995)(per curiam).
In proving the third requirement, the
plaintiff must show evidence that would “sufficiently link” the
8
plaintiff’s protected member status and the employer’s decision to
infer that the employer used discriminatory criteria. Conaway, 358
S.E.2d at 429-30 (footnotes omitted); Smith, 516 S.E.2d at 279.
This could include an (1) employer’s admission, (2) eliminating an
apparently legitimate reason for the decision in showing unequal or
disparate treatment between protected class members and others, or
(3) “using statistics in a large operation” to show that protected
class members received “substantially worse” treatment.
Conaway,
358 S.E.2d at 429-30 (footnotes omitted).
If the plaintiff satisfies her burden, then the defendant must
offer a legitimate, nondiscriminatory reason for the employment
Barefoot, 457 S.E.2d 152, 160.
decision.
After the defendant
presents such reasons, the plaintiff may then demonstrate that
either (1) the defendant treated “age, gender, or ancestry” as a
determinative
defendant’s
factor
in
rationale
its
employment
serves
as
decision
merely
a
or
(2)
pretext
the
for
discrimination. Id. To show pretext, a plaintiff must show direct
or circumstantial evidence of falsity or discrimination.
Id.
In this case, the plaintiff satisfies the first requirement
because she is a member of a protected class based on her gender.
See W. Va. Code § 5-11-3(h).
The parties do not dispute that fact.
In addition to being a member of a protected class, the plaintiff
satisfies
the
second
requirement
9
because
the
defendant,
her
employer, made an adverse decision against the plaintiff.
The
parties also do not dispute that fact.
The question is whether the plaintiff satisfies the third
requirement of her prima facie case.
The plaintiff must show that
“but for” her gender, the defendant would not have terminated her
employment.
See Conaway, 358 S.E.2d at syl. pt. 3.
facts
that
show
the
plaintiff
has
requirement of her prima facie case.
plaintiff
received
performance.
multiple
not
However, the
satisfied
the
third
The record shows that the
warnings
about
her
poor
work
Indeed, the plaintiff’s supervisors noted that they
had to counsel the plaintiff about her poor work performance
approximately 20 times over a 13-month period.
The
defendant
provides
a
thorough
number
ECF No. 81 Ex. 2.
of
emails
between
supervisors, wherein they describe the plaintiff’s less-thanstellar work performance and their repeated discussions with the
plaintiff about such performance.
Id. at Exs. 10 and 14.
The
defendant even provided the plaintiff with a 90-Day Performance
Improvement Plan, which ultimately did not remedy the situation.
All of the above facts show that the defendant provided the
plaintiff numerous opportunities to improve her work performance.
It
would
be
quite
unusual
for
an
employer
engaging
in
discriminatory conduct to pursue such corrective and positive
endeavors
for
the
benefit
of
the
plaintiff.
In
fact,
the
supervisor who hired the plaintiff stated that they hired the
10
plaintiff because “we felt that [the plaintiff] was qualified to
come in at that position and be trained in the areas she might
lacked [sic] some things that we needed.
There was a good balance
of what we were looking for and what we saw as a potential upside.”
Id. at Ex. 2.
The plaintiff has proffered insufficient evidence,
if any, that would “sufficiently link” the plaintiff’s gender and
the employer’s adverse decision.
Conaway, 358 S.E.2d at 429-30
(footnotes omitted); Smith, 516 S.E.2d at 279.
Therefore, the
plaintiff has thus far failed to prove her prima facie case.
Even if the plaintiff proved her prima facie case, the
defendant
offers
a
legitimate,
terminating her employment.
record
of
poor
work
nondiscriminatory
reason
for
The plaintiff maintained a consistent
performance,
which
included
lackluster
inventory management, inadequate safety measures, and noncompliance
with other company procedures.
ECF No. 81 Ex. 10.
Neither the
plaintiff nor the record shows that the defendant maintained a
discriminatory reason for terminating the plaintiff’s employment.
Rather, the record demonstrates a warranted dissatisfaction in the
plaintiff’s
performance,
rectifying the situation.
followed
by
numerous
attempts
at
The defendant repeatedly notified the
plaintiff of her need to improve.
Clearly, the defendant has
proffered a legitimate, nondiscriminatory reason for terminating
the plaintiff’s employment.
11
As stated above, the burden shifts back to the plaintiff to
show that the defendant’s legitimate reason serves as merely a
pretext for a discriminatory motive.
must
show
direct
discrimination
by
or
the
To show pretext, a plaintiff
circumstantial
defendant.
evidence
Phrased
of
falsity
another
way,
or
“the
plaintiff must prove both that the reason was false and that
discrimination was the real reason for the challenged conduct.”
DeJarnette v. Corning, Inc., 133 F.3d 293, 298 (4th Cir. 1998)
(internal citations, quotations, and emphasis omitted).
case, the plaintiff offers no such evidence.
repeated
work
performance
complaints
by
In this
In addition to the
the
defendant,
the
plaintiff received the same disciplinary and counseling practices
as other employees of the defendant.
ECF No. 81 Exs. 2, 25, and 7.
Moreover, the plaintiff received numerous opportunities to resolve
her
performance
terminated.
issues
before
her
employment
was
ultimately
The plaintiff has not proffered evidence, either
circumstantial or direct, that the defendant’s allegations of poor
performance were false.
Rather, the record shows an employee who
over a 13-month period received many warnings that the defendant
was
not
satisfied
with
her
work
performance.
Further,
the
plaintiff received opportunities, including a 90-Day Performance
Improvement Plan, to improve her performance to a satisfactory
level.
12
The only evidence that the plaintiff proffers is that she
thought her work was satisfactory and that her coworkers thought
she did a good job.
However, the United States Court of Appeals
for the Fourth Circuit has explicitly stated that “it is the
perception of the decision maker which is relevant, not the selfassessment
of
the
plaintiff.”
(internal
citations
and
DeJarnette,
quotations
133
omitted).
F.3d
at
Even
299
more
straightforward, “the plaintiff’s perception of [her]self” is
irrelevant, and that “plaintiff’s coworkers may have thought that
[she] did a good job, or that [she] did not deserve [to be
discharged], is close to irrelevant.”
quotations omitted).
Id. (internal citations and
Therefore, the fact the plaintiff believes
that she provided satisfactory work, or that her coworkers thought
the same, carries little weight.
Without more, such a self-
assessment by the plaintiff is not enough to show pretext, or
frankly,
to
satisfy
any
of
the
discrimination claim under the WVHRA.
established
demonstrated
her
discrimination
that
genuine
other
for
a
Thus, the plaintiff has not
claim
issues
requirements
of
under
the
material
WVHRA,
fact
or
exist.
Accordingly, the defendant’s motion for summary judgment must be
granted as to that claim.
B.
Unlawful Retaliation under the WVHRA
The WVHRA prohibits retaliatory discharge, such as “any form
of
reprisal
or
otherwise
discriminat[ing],”
13
against
a
person
“because he or she has opposed any practices or acts forbidden
under” the WVHRA or because that person “filed a complaint,
testified, or assisted in any proceeding under” the WVHRA.
W. Va.
Code § 5-11-9(7)(C). The Supreme Court of Appeals of West Virginia
has interpreted such protected activity or opposition as “that
which challenges any practices or acts forbidden under” the WVHRA.
Hanlon v. Chambers, 464 S.E.2d 741, 753 (W. Va. 1995) (internal
quotations omitted).
In Hanlon, the Court held that the WVHRA
prohibited
an employer or other person from retaliating against any
individual for expressing opposition to a practice that
he or she reasonably and in good faith believes violates
the provisions of the Human Rights Act. This standard
has both an objective and a subjective element.
The
employee’s opposition must be reasonable in the sense
that it must be based on a set of facts and a legal
theory that are plausible. Further, the view must be
honestly held and be more than a cover for troublemaking.
Id. at 754.
A protected activity includes the filing of a
complaint against an employer for discrimination.
See, e.g., Roth
v. DeFeliceCare, Inc., 700 S.E.2d 183, 193 (W. Va. 2010); FMC Corp.
v. W. Va. Human Rights Comm’n, 403 S.E.2d 729, 732 (W. Va. 1991).
To prove a prima facie case of retaliatory discharge under the
WVHRA, a plaintiff must prove the following: “‘(1) that the
complainant engaged in protected activity, (2) that complainant’s
employer
was
aware
of
the
protected
activities,
(3)
that
complainant was subsequently discharged and (absent other evidence
tending
to
establish
a
retaliatory
14
motivation),
(4)
that
complainant’s discharge followed his or her protected activities
within such period of time that the court can infer retaliatory
motivation.”
Hanlon, 464 S.E.2d at syl. pt. 10 (quoting Syl. Pt.
4, Frank’s Shoe Store v. W. Va. Human Rights Comm’n, 365 S.E.2d (W.
Va. 1986); see Syl. Pt. 1, Brammer v. W. Va. Human Rights Comm’n,
394 S.E.2d 340 (W. Va. 1990).
In
this
unlawfully
case,
the
retaliated
plaintiff
against
her
claims
that
because
she
certain decisions by her supervisor.
the
defendant
disagreed
with
Further, the plaintiff
contends that the defendant retaliated against her because she
raised a claim of harassment.
That harassment was related to the
plaintiff’s disagreement about the defendant’s assessment of her
job performance. As will be discussed below, the plaintiff’s claim
is slightly misguided.
The plaintiff allegedly disagreed with her supervisor about
whether a hose technician should be listed under a Department of
Motor Vehicles (“DMV”) record review, and whether she needed to
file an incident report about a broken light bulb. The plaintiff’s
supervisor responded in the negative to both of those questions.
Regarding the hose technician, the plaintiff believed that the hose
technician had been charged with a DUI while driving a company
truck.
By excluding him from the DMV record review, the plaintiff
allegedly believed that her supervisor attempted to hide the fact
of his prior charge so he could continue to operate company
15
vehicles.
As to the light bulb, a coworker broke a light bulb, and
the plaintiff sought to file an incident report.
Her supervisor
believed such report was unnecessary.
Regarding the disagreement between her and her supervisor
about listing the hose technician and filing an incident report,
this Court does not believe those actions constitute a protected
activity.
As stated earlier, a protected activity is one that
“challenges any practices or acts forbidden under” the WVHRA.
Hanlon, 464 S.E.2d at 753 (internal quotations omitted).
Whether
to list certain technicians or whether to file an incident report
for a broken lightbulb are not, in the context of this civil
action, protected activities.
Refraining to do either did not
violate the WVHRA.
Further, both events occurred in 2012, which
was
year
more
than
a
plaintiff’s employment.
before
the
defendant
terminated
the
In light of the inconsequential nature of
the two incidents, that time span does not create an inference of
a retaliatory motive. See, e.g., Frank’s Shoe Store, 365 S.E.2d at
259 (finding termination from employment one week after filing a
sexual
discrimination
complaint
as
creating
an
inference
of
retaliatory motivation). Thus, even if the two incidents described
above were protected activities, the plaintiff has not established
her prima facie case.
Concerning the alleged retaliation for filing a claim of
harassment, that would appear to be a protected activity.
16
The
Supreme Court of Appeals of West Virginia has held that as such.
See, e.g., Roth, 700 S.E.2d at 193; FMC Corp., 403 S.E.2d at 732.
The plaintiff complained to the appropriate HR manager that she was
being unfairly harassed about her work performance.
Id. at Ex. 5.
She did so by instant messaging and calling her HR manager.
However, notes taken by the HR manager from the phone call point
out that the plaintiff simply disagreed with her supervisor’s
assessment of her work.
The HR manager offered to investigate the
plaintiff’s concerns if the plaintiff wished.
Further, the HR
manager assured her that she would not be retaliated against if an
investigation occurred.
Id. at Exs. 15 and 16.
The plaintiff
confirmed that the HR manager’s notes about her discussion with the
plaintiff were a “fair summary” of what occurred.
Id. at Ex. 5.
In addition, the plaintiff confirmed that she did not file a claim
for harassment.
Id.
The problem, however, is that the plaintiff did not file a
claim of harassment.
ECF No. 81 Exs. 5 and 15.
One of the
requirements for proving a prima facie case of unlawful retaliation
is that the employer was aware of the protected activities.
Without filing a complaint of harassment, the defendant would not
have been aware of the plaintiff’s protected activity.
As stated
by the defendant, the plaintiff “could not have been retaliated
against because of a harassment claim she did not make.”
Although
the defendant allegedly terminated the plaintiff’s employment
17
within a week after she contacted the HR manager, the record does
not
show
that
her
supervisors
were
aware
of
her
harassment
concerns. Moreover, the plaintiff refrained from filing a claim of
harassment, and an investigation did not occur.
The HR manager
repeatedly reassured the plaintiff, both by instant messages and by
phone, that she would not face retaliation for filing a claim or
for having an investigation occur.
ECF No. 81 Exs. 15 and 16.
Those facts, coupled with the repeated instances of the plaintiff’s
performance issues, show that the plaintiff’s employment was not
terminated due to unlawful retaliation under the WVHRA.
C.
Hostile Work Environment/Harassment
A prima facie case for harassment under the WVHRA, which is
based on a hostile work environment, requires that a plaintiff
prove the following: “(1) the subject conduct was unwelcome; (2) it
was based on the sex of the plaintiff; (3) it was sufficiently
severe
or
pervasive
to
alter
the
plaintiff’s
conditions
of
employment and to create an abusive work environment; and (4) it
was imputable on some factual basis to the employer.”
Spicer v.
Com. of Va., Dep’t of Corr’ns, 66 F.3d 705, 710 (4th Cir. 1995)
(citing Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993)); Syl.
Pt. 6, Constellium Rolled Products Ravenswood, LLC v. Griffith, 775
S.E.2d 90 (W. Va. 2015).
As to the third element, it is both a
subjective and objective standard.
That means a plaintiff “must
show that [he or she] did perceive, and a reasonable person would
18
perceive, the environment to be abusive or hostile.”
E.E.O.C. v.
Central Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009).
“When determining whether the harassing conduct was objectively
severe or pervasive, we 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.
at 176 (internal
citations and quotations omitted).
As
previously
mentioned,
the
plaintiff
claims
that
her
supervisor yelled at her, that her supervisor referred to her once
as “Sweetheart,” and that the plaintiff believed that she performed
more secretarial rather than supervisory duties.
plaintiff’s assertions are questionable at best.
However, the
The record shows
that the plaintiff’s coworkers recounted no instances of unwelcome
conduct by the plaintiff’s supervisor, such as yelling, touching,
or
derogatory
references.
See
ECF
No.
81
Exs.
2
(coworker
described interactions between the plaintiff and supervisor as “run
of
the
mill”),
17
(a
different
coworker
never
observed
the
supervisor use derogatory names such as “honey” when referencing
female employees), and 18 (a different coworker never observed the
plaintiff’s supervisor engage in harassing conduct). Moreover, the
plaintiff stated that the alleged harassment was based on her work
performance.
Id. at 5.
Indeed, the plaintiff explicitly stated
19
that the harassment stemmed from “performance issues.”
Id.
The
plaintiff does not show specific instances where her supervisors
engaged in unwelcome conduct that was based on the plaintiff’s
gender. Furthermore, the plaintiff points to no proof that her job
requirements were more or less “secretarial” than other managers.
Based on the evidence, or the lack thereof, proffered by the
plaintiff, it is clear she has not established her hostile work
environment claim.
The plaintiff’s situation is in stark contrast to cases
involving actual harassment based on a hostile work environment.
A suitable example occurred in E.E.O.C. v. Central Wholesalers,
Inc., 573 F.3d 167 (4th Cir. 2009).4
an
African-American
female,
In that case, the plaintiff,
complained
of
harassment
to
coworkers, supervisors, and the president of the company.
her
More
specifically, her coworkers used racial slurs and derogatory terms
to describe women. Further, her coworkers used excessive profanity
and viewed pornography at work.
Id. at 170.
The plaintiff
repeatedly informed her coworkers and supervisors that she objected
to such behavior, and she filed a complaint that resulted in an
4
Although Central Wholesalers, Inc. did not involve a claim
under the WVHRA, the same elements and standards of proof applied
to the harassment based on a hostile environment claim as they do
when brought under the WVHRA. Compare Syl. Pt. 6, Constellium
Rolled Products Ravenswood, LLC v. Griffith, 775 S.E.2d 90 (W. Va.
2015).
20
investigation.
The defendant provided limited responses to the
plaintiff’s complaints, and implemented some corrective action.
Based on the conduct described above, the Court determined
that the harassment was unwelcome, and that the harassment was
based on the plaintiff’s gender and race.
In particular, they
noted that the racial slurs and profanity related to her race and
gender. The Court then found that her environment was subjectively
and objectively abusive.
More specifically, the Court found that
her repeated complaints to supervisors about harassment showed that
she
believed
her
work
environment
was
hostile
and
abusive.
Further, the plaintiff satisfied the objective component based on
her coworkers use of racial slurs, profane language regarding
women, watching pornography at work, and other excessively lewd
conduct.
Id. at 176.
Finally, the Court found that the plaintiff
showed a basis for finding the defendant liable, because she
repeatedly complained about the harassment to her supervisors.
Moreover, those supervisors, despite knowing about the explicitly
harassing
conduct,
engaged
in
insufficient
remedial
efforts.
Therefore, the Court in Central Wholesalers, Inc. found that the
plaintiff established her claim and demonstrated triable issues of
fact.
Comparing the facts of Central Wholesalers, Inc. to those of
this civil action, the plaintiff has neither established her claim
nor demonstrated triable issues of fact.
21
Unlike the plaintiff in
Central Wholesalers, Inc., the plaintiff here never filed a formal
complaint of harassment, and only spoke one time with her HR
manager.
work
Further, any alleged harassing conduct was based on her
performance.
In
contrast,
the
plaintiff
in
Central
Wholesalers, Inc. filed a formal complaint and repeatedly informed
her supervisors and the president of the company that she objected
to the ongoing harassment.
More importantly, the harassment in
Central Wholesalers, Inc. was clearly based on the plaintiff’s race
and gender.
The actions of the plaintiff’s coworkers in Central
Wholesalers, Inc. also subjectively and objectively created an
abusive hostile work environment.
Those actions included yelling
at the plaintiff, using excessive profanity and racial slurs, and
watching pornography, among other harassing and inappropriate
conduct.
In this case, the plaintiff points to three unsubstantiated
instances involving yelling, a reference to her as “Sweetheart,”
and claiming she engaged in secretarial tasks despite being a
manager.
None of those claims are substantiated except by the
plaintiff’s testimony, and the record paints a completely different
picture.
The plaintiff here has not shown, among other things,
that any of that above conduct subjectively and objectively created
a hostile and abusive work environment.
In short, the plaintiff has not met her burden as to her
hostile work environment claim.
More generally, the plaintiff has
22
not met her burden as to any of her claims alleged in the
complaint, or at least shown that genuine issues of material fact
exist. Because such issues are not present, the defendant’s motion
for summary judgment must be granted in its entirety.
V.
Conclusion
For the reasons discussed above, the defendant’s motion for
summary judgment (ECF No. 80) is GRANTED.
Accordingly, the
currently pending motions in limine (ECF Nos. 91, 92, 93, 94, 95,
96, 97, 98, 99, 100, 101, 102) are DENIED AS MOOT.
Further, it is
ORDERED that this civil action be DISMISSED and STRICKEN from the
active docket of this Court.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:
September 24, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
23
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