Opinion
Civil Action 4:21-cv-1764-RBH-TER
07-24-2023
EURIZIEL EVERETT, Plaintiff, v. HORRY COUNTY POLICE DEP'T, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
This action arises out of Plaintiff's employment with Defendant. Plaintiff alleges causes of action for (1) discrimination and hostile work environment based on national origin in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000(e) et seq., (2) discrimination and hostile work environment based on disability in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., (3) retaliation in violation of Title VII, the ADA, and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq., (4) age discrimination and hostile work environment in violation of the ADEA, and (5) a state law claim for negligent supervision. Presently before the court is Defendant's Motion for Summary Judgment (ECF No. 34). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.
II. FACTS
Plaintiff was born on July 6, 1960, in Colon, Panama. Pl. Dep. p. 8 (ECF No. 34-2). She identifies as Latino. Pl. Dep. p. 44. At the age of 17, she moved to Spain where she lived for seven or eight years. Pl. Dep. p. 11. She then relocated to join her family in Gaithersburg, Maryland. After moving to the United States, she went to college “to learn more of my English and all that stuff” and then began a series of jobs and gained experience as an administrative assistant and payroll clerk at various businesses in the D.C./Maryland area. Pl. Dep. pp. 18, 20, 21, 23. In 2015, she and Mr. Everett relocated to Horry County, South Carolina. She attended Horry-Georgetown Technical College from August 2015 to November 2015 and received a certified nursing assistant degree. Pl. App. for Emp. (ECF No. 34-6). For approximately one year, she worked as a CNA for Nightingale's and Grand Strand Medical Center. While working as a CNA she injured both of her knees. Pl. Dep. p. 30. According to Plaintiff's deposition testimony, she had surgery on a torn meniscus for an injury she sustained at the hospital. She testified that she went to work for Horry County six months after recovering from surgery. Pl. Dep. pp. 29-31. She applied for a position as a Bilingual Spanish/English Administrative Assistant in the Horry County Police Department. Katie Badgett, the Horry County Assistant H.R. Manager, was on the hiring panel which recommended Plaintiff's hire to Police Chief Joe Hill. Badgett Dep. p. 39 (ECF No. 34-4). She was accepted for the position of Bilingual Spanish/English Administrative Assistant and began working October 30, 2017, at the Department's headquarters in Conway. SCHAC Inquiry Questionnaire (ECF No. 34-7).
Plaintiff initially worked at the front desk at the Department's Central Precinct. Her supervisor was Gwen Eckersly, the supervisor of the records department. Pl. Dep. pp. 36-37. She greeted guests, signed in visitors, and gave them badges, accepted FOIA requests, and other customer service tasks. Pl. Dep. pp. 37-40. She was also hired at a higher rate of pay as a bilingual speaker. Pl. Dep. pp. 43, 234. In July of 2018, Plaintiff received a score of “meets expectations” in every category of her evaluation. 2018 Evaluation (ECF No. 40-4 pp. 27-28). In July of 2019, Plaintiff received three “exceeds,” three “exceptional,” and two “meets expectations” on her evaluation. 2019 Evaluation (ECF No. 40-4, pp. 30-31).
Plaintiff testified that Ms. Eckersly was often rude to her and belittled her in front of customers, told her she did not know how to do things, and made fun of the way she dressed. Pl. Dep. pp. 40-42. In March of 2018, a co-worker of Plaintiff's, Mary Baldwin, told Plaintiff and another co-worker, Xiomara Van Fleterner, that they should not speak Spanish together in the office because it is rude to those who do not speak it. Sometime soon after, Baldwin complained to Ms. Eckersly that Plaintiff and Ms. Van Fleterner were speaking Spanish at work and she believed it was rude. Ms. Eckersly then spoke with Plaintiff and advised her not to speak Spanish with Xiomara so as not to offend Baldwin. Several weeks later, Plaintiff informed Ms. Van Fleterner about these instructions. Ms. Van Fleterner was offended and reported her concerns to Lt. Raul Denis, an Hispanic officer. HR Investigation Report (ECF No. 34-8). Plaintiff did not want to report the issue because she wanted to keep her job, but she participated in the investigation after Ms. Van Fletener reported the issue. Pl. Dep. p. 48, 51.
Following the investigation, both Ms. Eckersly and Ms. Baldwin were terminated from their employment with the Department. Plaintiff claims that after Ms. Eckersly's termination, that her coworkers were no longer friendly. She claims that she went to her immediate supervisor, Captain Stan Strickland, and he told her “I don't like that my right hand was fired.” Pl. Dep. p. 52. She also claims that she was “crying because people were looking at me like I had lep - leper or something. They were not saying good morning to me anymore, even when I told them. They always looked at me like - and they were nice to me before. Nobody wanted to talk to me, you know.” Pl. Dep. p. 52. A few months after the terminations, in approximately September of 2018, Plaintiff asked Strickland if she could transfer to the West Precinct because her current work environment was not healthy. Pl. Dep. p. 59. She also told Strickland that the transfer would be beneficial to her because the West Precinct was closer to her home, her father-in-law was there, and she would have the opportunity to visit with him during her lunch break. Pl. Dep. p. 60. Chief Hill approved her transfer to the West Precinct. Pl. Dep. p. 60. Plaintiff acknowledges in her Charge “I asked to be transferred to where I'm now at the West Precinct.” Charge of Discrimination (ECF No. 34-9).
Following the transfer, the HR Department next heard from Plaintiff in an e-mail on August 22, 2019. Pl. Email dated 8.22.19 (ECF No. 34-10). Plaintiff made no specific complaint and stated that she didn't want to file a report but she did want to talk with someone and seek some advice and guidance. After Ms. Ellis requested additional information, Plaintiff then prefaced a lengthy e-mail to Ms. Ellis with a statement that she was not interested in opening an investigation but wanted to seek advice on various complaints concerning her employment. Plaintiff mentioned the unfair treatment she felt she received in the Central Precinct after Ms. Eckersly and Ms .Baldwin were fired, the fact that there was rarely anyone working in the West Precinct and members of the public often complained to her about no one being there, that she was being watched because of what happened in the Central Precinct, that she did not receive shirts or a jacket like the others who worked there until she complained enough, that she was denied training opportunities, and that she was denied promotions. Ms. Ellis responded with another email detailing her options with specific references to county policies. Emails between Pl. and Ellis (ECF No. 34-11).
One of Plaintiff's responsibilities at the West Precinct was handling the weekly payroll and transferring that information to the central office. The West Precinct was a much smaller office than the Conway office. The police department shared a building with the Magistrate in Green Sea, South Carolina. The physical office contained work areas for the Captain, Lieutenant, the part-time Victims Advocate, the desk officer, Jennifer Sims, and Plaintiff. Pl. Dep. pp. 70-72. The two dozen or so patrol officers assigned to the Precinct had access to the office and would often use Plaintiff's workspace during off-hours. Officer Sims was the desk officer and the main point of contact for routine tasks involving the patrol officers. On Friday, August 30, 2019, both Plaintiff and Officer Sims were in the office prior to office hours beginning. Plaintiff overheard Officer Sims on the phone with a patrol officer. An altercation ensued between Plaintiff and Officer Sims which was disruptive enough to attract the attention of employees in the Magistrate's office. They tried “to calm the situation down.” Pl. Statement (ECF No. 34-12). In her deposition, Plaintiff testified that Sims was very loud on the phone and talking about personal stuff while Plaintiff was trying to do payroll. Plaintiff testified that she repeatedly tried to get the attention of Sims because she needed some time sheets from her, but Sims repeatedly ignored her. After Sims got off the phone, she went into Plaintiff's office, got in her face with her fists, and said “don't you ever, never tell me what to do. I'll get to you when I get to you.” Sims continued yelling at Plaintiff until other employees from the Magistrate's Office came in to try and calm her down. Pl. Dep. pp. 104-07.
This incident occurred the Friday before Labor Day. Plaintiff did not work Tuesday, September 3rd; however she called Lt. Powell the Saturday after the incident and informed him of the altercation with Officer Sims and indicated she was interested in pursuing a report. Plaintiff also requested that Powell not speak with Sims until she had had an opportunity to present him with her side of the story. Hurricane Dorian impacted the State the rest of the week and it was not until September 10th that Plaintiff returned to her office. When she had an opportunity to speak with Powell, he acknowledged that Ms. Sims had previously contacted him and explained her version of the events. Plaintiff became angry and accused him of going behind her back. Pl. Dep. p. 109. Plaintiff also witnessed Sims go into Powell's office and overheard Powell tell her to write a letter of explanation. Plaintiff told him that he was not supposed to tell her what to say, and he told her to “get the F out of my office.” Pl Dep. p. 111. Plaintiff went back to her office and wrote her own report to give to Katie Badgett, the Horry County Assistant HR Director. Pl. Dep. p. 111.
On that same day, Plaintiff met with Mrs. Badgett, the Horry County Assistant HR Director, and another HR employee, Rosie Yordanova. Ms. Badgett described this as a 2-3 hour meeting. Ms. Badgett testified that “She didn't make an appointment, she came by and so, we met and talked.” Badgett Dep. p. 18. She came by a second time the next day and requested a meeting with Denise Hagemeier, the HR Legalist. Plaintiff provided a written statement with her concerns on September 11, 2019. Pl. Statement. In the written complaint, Plaintiff described the recent altercation with Officer Sims and declared that she believed that retaliation was occurring because of her role in the investigation that led to the termination of Ms. Eckersly and Ms. Baldwin. She reported that (1) there was too much socializing in the office that occurred between other employees, (2) co-employees would not inform her where they were going when they left the office, (3) Lt. Powell breached her confidence when he told other employees about citizens' complaints she was receiving, (4) she was not allowed to enroll in training classes she wished to attend, (5) she did not get department shirts like the other administrative assistants until she demanded it, and (6) she was not interviewed for other county positions outside of the police department that she had applied for. Pl. Statement.
The HR representatives advised Plaintiff that an investigation would be conducted. On September 15, 2019, Deputy Chief Winburn issued an Officer's Report regarding the August 30, 2019, incident. Officer's Report (ECF No. 40-3 p. 4). After reviewing the matter, the HR representatives determined that regardless of the outcome of the investigation, Plaintiff was not going to be happy given the extensive complaints she had against Officers Sims and Powell. Mrs. Hagemeier undertook an effort to make a special transfer of Plaintiff from the Police Department to the Clerk of Court's office. An accommodation was accomplished for the transfer. There were several e-mails back and forth from Plaintiff and Mrs. Hagemeier regarding the position. Plaintiff initially accepted the transfer but later changed her mind when Mrs. Hagemeier requested that she release any claims associated with her alleged harassment/retaliation complaints. Pl. Dep. pp. 189-91; Emails between Pl. and Hagemeier (ECF No. 34-13).
Plaintiff then offered to resign in return for the County not opposing her unemployment or disability claims. Mrs. Hagemeier then prepared a Separation Agreement and Release of Claims. Separation Agreement and Release (ECF No. 34-14). Section 5 of the Separation Agreement contained the County's pledge not to oppose any claim for unemployment benefits or disability insurance. Emails re Unemployment (ECF Nos. 34-15, 34-16). Mrs. Hagemeier explained to Plaintiff that the County could not guarantee that she would be eligible for unemployment or disability insurance; however, the County would not oppose her application. On September 30, 2019, Plaintiff did sign the Separation Agreement and Release of Claims, which contained a 7-day revocation period. Separation Agreement and Release.
On September 30, 2019, Plaintiff also filed a Charge of Discrimination with the South Carolina Human Affairs Commission (SCHAC). Charge of Discrimination (ECF No. 34-9).
On October 2, 2019, Mrs. Hagemeier issued a Human Resources Report of Investigation, which addressed Plaintiff's complaints regarding “operational issues,” “inappropriate comments by a former supervisor,” and “a loud confrontation by a coworker.” Report of Investigation (ECF No. 40-4 pp. 34-37). Hagemeier concluded that Plaintiff's complaints of harassment, discrimination, and retaliation were unsubstantiated, but that it was substantiated that both Plaintiff and Sims “were involved in a personal altercation during which both employees were yelling and approached each other in a manner that was inappropriate and unprofessional with regard to their workplace communications.” Id. Hagemeier indicated that if both employees were still employed, it would be recommended that they both receive written reprimands. However, because Plaintiff was no longer employed, Hagemeier recommended that Sims receive a written reprimand. Id.
On October 3, 2019, Plaintiff and Mrs. Hagemeier exchanged their final two e-mails. Emails between Pl. and Hagemeier (ECF No. 34-17). Plaintiff declared that she “found out several things you didn't even offer, advise me of, etc. So the agreement is off. I am quitting my job with the County... .” Id. Hagemeier advised Plaintiff that she understood from Plaintiff's email that she was revoking her signature on the Separation Agreement, her separation date would be September 30, 2010, and her separation would be reflected as “voluntary resigned,” which would be communicated to the South Carolina Department of Employment and Workforce (SCDEW). Id.
Disability Allegations
In her Complaint, the Plaintiff alleges that she was subjected to commentary regarding her disabilities and age on a regular basis. She also claims that she requested an accommodation which was refused. The Plaintiff claims that while working the front desk at the Central Precinct, she asked Chief Hill to put a button on her desk that would allow her to open the front door without having to stand and open the door herself. She testified that Chief Hill agreed and a button was installed. She claims that after her transfer to the West Precinct, she requested from Lt. Powell the same accommodation “And I said to Mr. Powell, can you just put - tell them to put another of those buttons here, so I don't have to get up every five minutes and interrupt my work and everything. He's like, they're not going to do it - they are not going to do it for you. I'm like, for me? But they would do it for somebody else? And he's like, no. They're not going to do it. Period.” Pl. Dep. pp. 152-53.
In his deposition, Lt. (now Captain) Powell was asked whether the Plaintiff ever requested a reasonable accommodation due to her knees or disabilities. He testified:
In the past, in the department at the central precinct, there has always been a button that she could press to allow people in. Due to safety concerns, that button was no longer used. And the purpose was so that the administrative assistant would have to stand up, open the door and they would have to physically give a visitor into the
department a lanyard to wear around their neck to identify them. So it was a - a safety issue, not only for us, but also for our - CJIS system with our criminal histories that employees have to run, officers. We're - we just can't allow anyone just to walk around the department for any reason. So we have to have some kind of form and control. She requested a button. I did speak with Chief Winburn about that and we were doing away with the one in Central, due to the safety reasons. But she never gave me any form or documentation from a doctor or anyone that said she needed accommodation for any reason.
Powell Dep. pp. 13-14 (ECF No. 34-5).
Captain Hutchins was also questioned on this issue. He did not recall the Plaintiff ever requesting a button at her desk but testified that on its face, that would be a challenge to maintain security in the building:
With the evidence, you know, that officers bring in and our computer systems and all that, we take reasonable efforts to make sure that all our doors are lockable and we have a passcode to - an access that employees that are authorized access to our area, they buzz in by placing the key reader up and it'll unlock the door. Ms. Euri, being an - an unsworn, unarmed officer would raise extreme concern to myself that if she was buzzing people in and they would pose a threat to her, with her being right there at the front, she would be placing herself in extreme peril in today's day and time. . with the our armed officers may not be there, because they - they work out - out of their patrol cars. I'm not in the office all the time, my lieutenant may not be in and are the only other ones are in that office. So therefore, we try to isolate any of our non-armed employees from the - from the general public, I mean, just for obvious reasons.
Hutchins Dep. pp. 17-18 (ECF No. 34-3).
Hutchins was also asked whether the Plaintiff had ever indicated to him that she had any type of disability:
A. “The only potential time that she had made a reference to a disability was during the - when we had the interview or the discussion with her in reference to the incident with her and Officer Sims. She made reference that she had some sort of P.T.S.D. from (an event) some time ago in her - in her past. And that was the only mention she had made of it. It was just in her conversation. She said well, you know, I have all these problems because I have - have P.T.S.D. .
Q. Did she ask for any type of accommodation for that?
A. No, sir. No, sir.
Hutchins Dep. pp. 20-21.
Training Allegations
On April 25, 2019, Plaintiff requested to attend a continuing education class to further her career with the Defendant which included Microsoft-Database design, queries and reports, Microsoft Excel Basics, how to communicate with tack and professionalism, and managing emotions under pressure. Emails regarding training (ECF No. 40-1, pp. 8-9). Powell recalled the Plaintiff requesting training while she was at the West Precinct.
She presented me with two brochures that I remember requesting training. I want to say that one of those was specific to a MacBook system, which we do not utilize. And I spoke to her about that request. We had a few conversations. I also spoke with our records supervisor to see what training would be appropriate for Ms. Everett in the performance of her duties. And we were looking at ways to accommodate her with training. At the time, the budget constraints, the training was going to have to be specific to local training and relatively close that she could drive and return the same day. But due to budget constraints, we were unable to provide that training, because we had to focus our priorities on our law enforcement officers. I did have a discussion with Chief Winburn and we probably looking at the next budget year to get her any training. .. .Because if I recall, her request was in the summer, close to the July, which is the ending of our year. And at that time, it's just really impossible to get training because of our - trying to get our budget in order and make the appropriate preparations.
Powell Dep. pp. 8-9.
Uniform Allegation
Ms. Badgett had a specific recollection of the Plaintiff's complaints regarding uniforms:
A. She had asked for shirts that other employees had and she told us that she knew that they had the shirts. And as a matter of fact, they had a closet back at central precinct that was full of shirts and uniforms. In which she said that there was government waste, that they did not give them out to others. And I did ask about that and they said that their policy was when people go, that they have to take back those uniforms and then they destroy them.
Q. .. Did she complain that some of the employees had multiple shirts
A. Yes.
Q. -while she only had one?
A. Yes, she-she did.
Q. Did you look into that allegation?
A. Yes. And those were people that would have gotten shirts over time. So some of the shirts could have been older than others, but it was -- nobody was given - given
extra shirts.
Badgett Dep. p. 37.
Promotion Allegation
The Plaintiff also alleges that the Defendant failed to provide her promotions. In her communications with the Human Affairs Commission Investigators, Plaintiff alleged that she felt that Katie Badgett and Denise Hagemeier were blocking her attempts at securing another position. The Plaintiff did submit numerous applications through the HR Department's online system. Pl. Online Apps. (ECF No. 34-18). Ms. Badgett testified that the HR Department would present her office with a position description which they would post with a start and end dates for applications. All of the applications would be submitted online. When the listing closed, the HR Department would either send all of the applications to the departments or they would vet the applications to determine whether the applicant met the requisite minimum requirements. Badgett Dep. pp.10-11, 29. The County records indicate that the Plaintiff applied for thirty-two (32) positions and was qualified for all but six (6). Pl. Online Apps. The only specific position which she mentions not being selected was back at the Central Precinct office. She was interviewed for the position which was eventually given to an Hispanic male, Paul Reyes. Plaintiff acknowledged in her testimony that she was not aware of Mr. Reyes's qualifications for the position. Pl. Dep. pp. 94-96.
III. STANDARD OF REVIEW
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party 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). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 87475 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4thCir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
IV. DISCUSSION
A. Discrimination
In her complaint, Plaintiff alleges that she was discriminated against on the basis of her national origin, her age, and her disability. Title VII makes it “an unlawful employment practice for an employer - (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin .” 42 U.S.C. § 2000(e-2)(a)(1). The ADEA makes it unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age. 29 U.S.C. § 623(a)(1). The ADA prohibits employers from “discriminating against a qualified individual on the basis of disability in regard to ...the hiring, advancement, or discharge of employees,... and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). This “includes .not making reasonable accommodations.” 42 U.S.C. § 12112(b)(5)(A).
When, as here, Plaintiff relies on circumstantial evidence in support of her discrimination claims rather than direct evidence, the Court analyzes the claims using the burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995) (holding that McDonnell Douglas scheme of proof applies to ADA claims). Under this framework, Plaintiff must first establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. If Plaintiff establishes a prima facie case, then the burden shifts to Defendant to articulate legitimate, nondiscriminatory reasons for the actions challenged. Id. Once Defendant articulates a legitimate, nondiscriminatory reason for its actions, the “presumption of discrimination drops out of the picture,” and Plaintiff must prove by a preponderance of the evidence that the legitimate, nondiscriminatory reasons offered are a mere pretext for unlawful discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Throughout this process, Plaintiff retains the burden of proving that HGV was motivated by unlawful discrimination. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 286 (4th Cir. 2004) (citing Reeves, 530 U.S. at 153).
The Supreme Court has noted that it “has not definitively decided” whether the McDonnell Douglas framework, first developed in the context of Title VII cases, “is appropriate in the ADEA context.” Gross v. FBL Financial Services, Inc., 557 U.S. 167, 175 n.2, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). In the absence of further direction from the Supreme Court, the Fourth Circuit precedent has consistently applied the McDonnell Douglas framework to ADEA claims. See Hill, 354 F.3d at 285; see also Bodkin v. Town of Strasburg, 386 Fed.Appx. 411, 2010 WL 2640461 at *4-5 (4th Cir. June 29, 2010) (continuing to apply the McDonnell Douglas framework to ADEA claims following the Gross opinion); Loose v. CSRA Inc., No. 19-2394, 2021 WL 4452432, at *2 (4th Cir. Sept. 29, 2021) (continuing to apply the McDonnell Douglas framework to ADEA claims).
To establish a prima facie case of discrimination, a plaintiff must show that (1) she belongs to a protected class; (2) she suffered an adverse employment action; (3) at the time of the adverse action, she was performing her job at a level that met her employer's legitimate expectations; and (4) she suffered the adverse action under circumstances giving rise to an inference of unlawful discrimination. Adams v. Trustees of the Univ. of N.C. -Wilmington, 640 F.3d 550, 558 (4th Cir. 2011). It is undisputed that Plaintiff, a Latina woman who was 57 at the time Defendant hired her, falls within the relevant protected classes with respect to her national origin and age discrimination claims. However, with respect to her disability discrimination claim, Defendant argues that Plaintiff fails to show she was disabled.
To fall within the ADA's protected class, a plaintiff must be a qualified individual with a disability. Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 572 (4th Cir. 2015). The ADA defines “disability” as: "(1) ‘a physical or mental impairment that substantially limits one or more major life activities' (the ‘actual-disability' prong); (2) ‘a record of such impairment' (the ‘record-of' prong); or (3) ‘being regarded as having such an impairment' (the ‘regarded-as' prong).” Summers v. Altarum Inst., Corp., 740 F.3d 325, 328 (4th Cir. 2014); see 42 U.S.C. § 12101(1). A “qualified individual” includes: “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(a)(8). Plaintiff argues that Defendant regarded her as having a disability, but fails to point to any evidence in support. To demonstrate that she was regarded as disabled, a plaintiff must show that (1) her employer “mistakenly believe[d] that [she] has a physical impairment that substantially limits one or more major life activities,” or (2) her employer “mistakenly believe[d] that an actual, nonlimiting impairment substantially limits one or more major life activities.” Haulbrook v. Michelin N. Am., 252 F.3d 696, 703 (4th Cir. 2001) (citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999)). “The fact that an employer is aware of an employee's impairment, without more, is ‘insufficient to demonstrate either that the employer regarded the employee as disabled or that perception caused the adverse employment action.'” Id. (citing Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d Cir.1996)). Plaintiff asserts that her supervisors were aware of her knee issues because she requested a button to open the door rather than having to get up from her desk each time the door needed to be opened. Lt. Powell acknowledged in his deposition that such a button existed at the Central Precinct, though it was no longer in use due to security concerns, and that Plaintiff requested that the same button be installed at the West Precinct, but she never gave him any form or documentation from a doctor that she needed an accommodation for any reason. Powell Dep. 14. Plaintiff has failed to point to any testimony in the record that Lt. Powell or any other supervisor knew specifically that Plaintiff had problems with her knees, much less that they mistakenly believed any such impairment substantially limited a major life activity. Therefore, Plaintiff fails to present sufficient evidence to show that she belongs to a protected class for purposes of any discrimination claim under the ADA. Therefore, summary judgment is appropriate as to Plaintiff's claims of discrimination, including any failure to accommodate claim, under the ADA.
With respect to her remaining discrimination claims based on national origin and age, Defendant does not dispute that Plaintiff was performing her job at a level that met her employer's legitimate expectations. However, it does dispute the remaining two prima facie factors as to both national origin and age. Defendant argues that Plaintiff cannot show that she suffered an adverse employment action or that, even if she did, such adverse action occurred under circumstances giving rise to an inference of discrimination.
For the purposes of a discrimination claim, an “adverse employment action” is one that “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Hoyle v. Freightliner, LLC, 650 F.3d 321,337 (4th Cir. 2011) (internal quotation marks omitted). In other words, Plaintiff must show that the action “adversely affect[ed] the terms, conditions, or benefits of the plaintiff's employment.” Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (internal quotation marks omitted). To qualify as an adverse employment action, the harm alleged must “work a ‘significant' detriment” on a plaintiff. Adams v. Ann Arundel Cty. Pub. Sch., 789 F.3d 422, 431 (4th Cir. 2015). In her complaint, Plaintiff alleges that she suffered the following adverse employment actions: subjecting her to commentary, failing to promote her, failing to transfer her, denying her work uniforms, denying her training, and subjecting her to hostilities. Compl. ¶ 74 (ECF No. 1-1). Plaintiff's allegations that she was subjected to “commentary” and “hostilities” do not necessarily arise to the level of an adverse employment action unless, when taken together, created a hostile work environment. Therefore, those allegations will be considered with respect to her hostile work environment claim, discussed below.
There are very few facts in the record regarding the denial of uniforms. In her Charge of Discrimination, Plaintiff alleged that other administrative assistants got new uniform shirts and a jacket and she did not. Charge of Discrimination. Badgett recalled Plaintiff complaining that the other employees had multiple shirts that she did not have, and Badgett looked into Plaintiff's complaint and learned that other employees had older shirts that they had gotten in the past. Badgett Dep. p. 37. Nevertheless, this slight does not rise to the level of an adverse employment action. “[N]ot everything that makes an employee unhappy is an actionable adverse action.” Settle v. Balt. Cnty., 34 F.Supp.2d 969, 989 (D. Md. 1999) (internal quotation and citation omitted), affd sub nom. Harris v. Earp, 203 F.3d 820 (4th Cir. 2000), and affd sub nom. Settle v. Balt. Cnty. Police Dep't, 203 F.3d 822 (4th Cir. 2000). Plaintiff puts no evidence in the record as to how the lack of multiple uniform shirts adversely affected the terms, conditions, or benefits of her employment or worked a significant detriment on her. Therefore, her discrimination claims fail as to this alleged action.
Likewise, her claim that she was denied training fails to rise to the level of an adverse employment action. Plaintiff requested training in April of 2019. Lt. Powell testified that at the time of Plaintiff's request, there was not room in the budget to provide the requested training. The denial of training is not an adverse employment action unless the denial affects “the plaintiff's pay, hours, job title, responsibilities, promotional opportunities, and the like.” Walker v. D.C., 279 F.Supp.3d 246, 262 (D.D.C. 2017) (citations omitted); see also Jensen-Graf v. Chesapeake Emp'rs' Ins. Co., 616 Fed.Appx. 596, 598 (4th Cir. 2015) (denial of training course not adverse action when plaintiff pled no facts indicating whether course was required for her professional development or showing how she was harmed by denial); Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 651 (4th Cir. 2002) (finding that the employer's denial of training opportunities for the plaintiff did not constitute an adverse employment action where the plaintiff could only speculate that the denial affected the plaintiff's ability to be promoted). Thus, Plaintiff's discrimination claims fail as to the alleged denial of training as well.
Plaintiff also alleges that the denial of her requested transfer amounts to an adverse employment action. It is undisputed that Plaintiff requested and was granted a transfer from the Central Precinct to the West Precinct in September of 2018 following Ms. Eckersly's and Ms. Baldwin's terminations. It is not clear from the record which transfer she requested and did not receive. Nevertheless, a denial of a transfer amounts to an adverse employment action only if the denial results in materially adverse consequences affecting the terms, conditions, or privileges of the plaintiff's employment. See, e.g., Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (providing that a “decrease in ... level of responsibility, or opportunity for promotion” may constitute an adverse employment action) (quoting Boone v. Goldin, 178 F.3d 253, 256-57 (4th Cir. 1999)); Forgus v. Mattis, 753 Fed.Appx. 150, 153 (4th Cir. 2018) (citing Brown v. Advocate S. Suburban Hosp., 700 F.3d 1101, 1108 (7th Cir. 2012)); Call v. Panchanathan, No. 1:20-cv-260, 2021 WL 4206423, at *7 (E.D. Va. Sept. 15, 2021) (collecting cases); Kitlinski v. Barr, No. 1:16-cv-60, 2019 WL 7816853, at *3 (E.D. Va. Apr. 10, 2019) (observing that the “mere refusal to grant a transfer that an employee desires does not qualify as an adverse employment action unless the decision had some significant detrimental effect on the employee”), aff'd, 994 F.3d 224 (4th Cir. 2021). There is no evidence in the record that Plaintiff was denied a transfer or, if she was, that the denial had a significant detrimental effect on her. Therefore, her discrimination claims fail as to any alleged denial of a transfer.
Finally, Plaintiff alleges that she suffered an adverse employment action when she was denied a promotion. The record reflects that Plaintiff applied for numerous other positions with the County. However, she addresses only one position, albeit very generally. In her response, Plaintiff states that she “applied for a promotion but was denied that promotion. The Defendant intentionally changed the title of the position. The Plaintiff had extensive experience in payroll and was qualified for the position. The gentleman who is now performing the position is younger and performing the position of payroll clerk.” Pl. Resp. p. 23. The Supreme Court has identified a failure to promote as a “significant change in employment status” which meets the definition of an adverse employment action. Burlington Indus. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Accordingly, Plaintiff meets the third prima facie requirement for retaliation claims-adverse employment action- only with respect to her the denial of a promotion. The court need address the final requirement-that she suffered the adverse action under circumstances giving rise to an inference of unlawful discrimination-only as to the promotion denial.
In the promotion context, courts typically find “circumstances giving rise to an inference of discrimination” if the plaintiff can show that the position remained open or was filled by a similarly qualified applicant outside the protected class. See Page v. Bolger, 645 F.2d 227, 229-30 (4th Cir. 1981). In her deposition, Plaintiff testifies that the payroll clerk position for which she applied was given to a Hispanic male named Paul Reyes. There is no competent evidence in the record regarding Mr. Reyes's age. Thus, Plaintiff fails to show that he was outside her protected age class for an age discrimination claim. Further, there is no specific evidence in the record regarding Mr. Reyes's national origin. Nevertheless, even if the record did contain evidence to show that Mr. Reyes was outside the relevant protected classes, Plaintiff fails to show that he and Plaintiff were similarly qualified for the position. Plaintiff admits in her deposition that she was not aware of Mr. Reyes's qualifications for the payroll clerk position. Therefore, she fails to present evidence sufficient to give rise to an inference of discrimination.
The Supreme Court has held that “national origin discrimination as defined in Title VII encompasses discrimination based on one's ancestry.” See Cortezano v. Salin Bank & Trust Co., 680 F.3d 936, 940 (7th Cir. 2012) (citing Espinoza v. Farah Mfg. Co., 414 U.S. 86, 89 (1973)). In so finding, the Court defined the scope of the term “national origin” in Title VII, holding that “Title VII's prohibition against national origin discrimination protects against discrimination in the workplace on the basis of ‘where a person was born, or, more broadly, the country from which his or her ancestors came.' ” Barnette v. Tech. Int'l, Inc., 1 F.Supp.2d 572, 577 (E.D. Va. 1998) (quoting Espinoza, 414 U.S. at 88); see also McNaught v. Va. Cmty. Coll. Sys., 933 F.Supp.2d 804, 817 (E.D. Va. 2013) (same). Plaintiff was born in Panama. The record does not reveal where Mr. Reyes was born or the country of his ancestors.
In sum, Plaintiff fails to present sufficient evidence to create a dispute of fact with respect to any of her discrimination claims under the ADA, the ADEA, or Title VII. Specifically, she fails to show that she falls within a protected class under the ADA, that she suffered an adverse employment action for discrimination purposes other than the denial of a promotion, and she fails to show that the denial of the promotion occurred under circumstances that would give rise to an inference of discrimination. Accordingly, summary judgment is appropriate on Plaintiff's national origin, age, and disability discrimination claims.
B. Hostile Work Environment
Plaintiff also asserts that she suffered a hostile work environment because of her national origin, her age, and her disability. “Because ‘an employee's work environment is a term or condition of employment, Title VII creates a hostile working environment cause of action.'” Crockett v. Mission Hosp., Inc., 717 F.3d 348, 354 (4th Cir. 2013) (quoting EEOC v. R&R Ventures, 244 F.3d 334, 338 (4th Cir. 2001)); see also Baqir v. Principi, 434 F.3d 733, 746 n.14 (4th Cir. 2006) (assuming without deciding that a hostile work environment claim is cognizable under the ADEA); Fox v. Gen. Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001) (ADA). Plaintiff must show that she suffered from harassment that was (1) unwelcome, (2) based on a protected status, (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive atmosphere, and (4) imputable to the employer. EEOC v. C. Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009); Baqir, 434 F.3d at 746; Fox, 247 F.3d at 177. As an initial matter, for the same reasons discussed above, Plaintiff fails to show that she is a qualified individual with a disability. Thus, her hostile work environment claim based on disability under the ADA fails.
Defendant argues that Plaintiff fails to present sufficient evidence to show that she suffered from harassment that was based on a protected status or that was sufficiently severe or pervasive to create an abusive atmosphere. In her response, Plaintiff asserts that “the employees in the West Precinct ... were clearly creating a hostile work environment for [Plaintiff] based on her participation in the investigation into discrimination.” Pl. Resp. p. 25. However, though she asserts that her work environment was hostile and states that others “treat[ed] her badly,” she never specifically points to any harassment she suffered other than the altercation with Sims and the complaint by Baldwin about her speaking Spanish in the Central Precinct. While the complaint about Plaintiff speaking Spanish is sufficient to show that at least some of the unwelcome harassment was based on her national origin, there is no evidence in the record that she suffered any harassment because of her age. Accordingly, her hostile work environment claim based on age under the ADEA fails.
The question remains, however, whether any unwelcome harassment based upon Plaintiff's national origin was sufficiently severe or pervasive to alter the terms of Plaintiff's employment and create an abusive atmosphere. “Element three of a hostile work environment claim [sufficiently severe or pervasive] requires a showing that ‘the environment would reasonably be perceived, and is perceived, as hostile or abusive.'” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (citing Harris v. Forklift Systems. Inc., 510 U.S. 17, 22 (1993)). The conduct must be both subjectively and objectively offensive in order to be cognizable under Title VII. Harris, 510 U.S. at 21-22. To be expected, courts often assume the conduct is subjectively offensive. See Ziskie v. Mineta, 547 F.3d 220, 227 (4th Cir.2008). “[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering ‘all the circumstances.' ” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367). Factors to consider include “(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee's work performance.” Smith v. First Union Nat'l Bank, 202 F.3d 234, 242 (4th Cir.2000). Harassment is severe or pervasive only if the workplace is “pervaded with discriminatory conduct aimed to humiliate, ridicule, or intimidate.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 316 (4th Cir. 2008) (internal quotation marks omitted). Rude treatment, callous behavior, and a routine difference of opinion and personality conflict do not suffice to state a hostile work environment claim. Id. at 315-16. “[S]imple teasing, off-hand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal citations and quotation marks omitted). The Fourth Circuit has “recognized that plaintiffs must clear a high bar in order to satisfy the severe or pervasive test.” Sunbelt Rentals, Inc., 521 F.3d at 315.
The record reflects that, while in the Central Precinct, a co-worker, Ms. Baldwin, and Plaintiff's supervisor, Mrs. Eckersly, told Plaintiff not to speak Spanish in the office. As a result, both employees were terminated, and Plaintiff was transferred to the West Precinct at her request because she felt ostracized following their termination. Though Plaintiff emailed a list of complaints to HR regarding the West Precinct on August 22, 2019, she did not mention any harassment. The altercation with Ms. Sims occurred on August 30, 2019, which included yelling and what Plaintiff perceived to be physical threats because Ms. Sims clenched her fists and got into Plaintiff's face. However, there is no indication in the record that the incident with Ms. Sims was based on Plaintiff's national origin. Later, in Plaintiff's written statement dated September 11, 2019, Plaintiff stated that she overheard Lt. Powell complaining about her to someone in the Central Precinct and stating “who does she think she is? These Mexicans come over here and who do they think they are?” Pl. Statement. She also complained in that statement of the incident with Sims, Lt. Powell telling her to get out of his “fucking office” when she complained about how he was handling her incident with Sims, inappropriate comments by a former Captain, who asked her if she had ever had an affair and if she had “ever tried a black,” Sims asking if she thought she was better than the rest of the office because she did not go to lunch with them, Sims and the employees of the Magistrate's office gossiping and not working, Sims calling her a “bitch,” things being stolen from her desk, Lt. Powell telling the other employees that Plaintiff was complaining about them, and not receiving uniform shirts, training, or promotions. Pl. Statement.
The only alleged harassment as indicated by Plaintiff that can be attributed to her national origin is any treatment by Lt. Powell. There is no evidence in the record that Sims or any of the other employees held any animus towards Plaintiff because of her national origin. She indicated in her statement that Jeff Gore, not Lt. Powell, was responsible for getting her the uniform shirts and jackets, and there is no indication in the record that Lt. Powell had any involvement with any of the promotions for which Plaintiff applied. A reasonable person could not conclude that any of this treatment was because of Plaintiff's national origin. See McIver v. Bridgestone Ams., Inc., 42 F.4th 398, 409 (4th Cir. 2022) (explaining that plaintiff's own conjecture cannot “impute a racial character to what appears to be neutral” behavior).
The treatment Plaintiff received by Lt. Powell is not sufficiently severe or pervasive to rise to the level of a hostile work environment. As stated above, rude treatment, callous behavior, routine difference of opinion, and isolated incidents (unless extremely serious) do not give rise to a hostile work environment. At most, Plaintiff shows that Lt. Powell told other employees that she was complaining about them and cussed at her and told her to get out of his office when she accused him of improperly handling the incident with Sims. This conduct fails to show workplace that is so “permeated with ‘discriminatory intimidation, ridicule, and insult,' ” that it “would reasonably be perceived, and is perceived, as hostile or abusive.” See Harris, 510 U.S. at 21, 22, 114 S.Ct. 367 (quoting Meritor, 477 U.S. at 65, 106 S.Ct. 2399). Accordingly, Plaintiff fails to show that she suffered a hostile work environment because of her national origin or, as set forth above, because of her age or a disability. Thus, summary judgment is appropriate on those claims.
Plaintiff also mentions constructive discharge in her response, though she does not allege constructive discharge in her complaint. Even if she had, such a claim would fail. To prove constructive discharge, the working conditions must be “so intolerable that a reasonable person would have felt compelled to resign.” Pa. State Police v. Suders, 542 U.S. 129, 147 (2004). This “intolerability” standard is higher than the severe or pervasive standard required to prove a hostile work environment claim. Tawwaab v. Virginia Linen Service, Inc., 729 F.Supp.2d 757, 783 (D. Md. 2010) (citing Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1050 (7th Cir. 2000) (“[W]orking conditions for constructive discharge must be even more egregious than the high standard for hostile work environment.”)). Because Plaintiff has failed to present sufficient evidence to prove her hostile work environment claim, she likewise fails to create a dispute of fact as to constrictive discharge.
However, Plaintiff also asserts that she suffered a hostile work environment in retaliation for her participation in the investigation into Mrs. Baldwin's and Mrs. Eckersly's complaints of her and her co-worker speaking Spanish, which is discussed below in connection with her retaliation claims.
C. Retaliation
Plaintiff also alleges a cause of action for retaliation under Title VII, the ADEA, and the ADA. Title VII makes it an “unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Likewise, the ADEA prohibits employers from discriminating against an employee who “has opposed any practice made unlawful by this section, or because such individual ... has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.” 29 U.S.C. § 623(d). Section 503 of the ADA prohibits retaliation against an employee “because [that] individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing [thereunder].” 42 U.S.C. § 12203(a).
To establish a prima facie case of retaliation under Title VII, the ADEA, of the ADA a plaintiff must first show that she engaged in protected activity, (2) the employer took adverse employment action against her, and (3) a causal connection existed between the protected activity and the adverse action. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir.1985); Laughlin v. Metropolitan Washington Airports Authority, 149 F.3d 253, 258 (4th Cir.1998); Causey v. Balog, 162 F.3d 795, 803 (4th Cir.1998); Haulbrook v. Michelin N. Am., 252 F.3d 696, 702 (4th Cir. 2001) (ADA); Davis v. Durham Mental Health Developmental Disabilities Substance Abuse Area Auth., 320 F.Supp.2d 378, 408 (M.D. N.C. 2004) (noting that in analyzing retaliation claims brought under the ADEA, courts use the same standards as those for retaliation claims brought under Title VII).
A plaintiff may engage in protected activity by opposing an employment activity that was “actually unlawful under” the relevant discrimination statute or that the plaintiff reasonably believed was unlawful. Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 282 (4th Cir. 2015) (quoting EEOC v. Navy Fed. Credit Union, 424 F.3d 397 (4th Cir. 2005)). Complaints about management activities that would not constitute unlawful discrimination do not count as protected activity. See Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 216-17 (4th Cir. 2002). Plaintiff participated in the 2018 investigation into Mrs. Baldwin and Mrs. Eckersly's comments about Plaintiff and her co-worker speaking Spanish, which ultimately led to their termination. Plaintiff asserts that she also complained in 2019. The complaints Plaintiff submitted on August 22, 2019, and September 11, 2019, referenced unfair treatment following the 2018 investigation, Lt. Powell's comment about “these Mexicans,” and other complaints, set forth in more detail above, that did not involve discrimination based on age or a disability. There is no evidence in the record that Plaintiff opposed any employment activity that was unlawful or that she believed to be unlawful under either the ADEA or the ADA. Therefore, Plaintiff's retaliation claims under the ADEA and the ADA are without merit and summary judgment is appropriate on those claims. However, she did make complaints regarding her national origin.
Nevertheless, Plaintiff's discussion of her retaliation claims in her response is brief. After setting forth the applicable law, Plaintiff addresses retaliation in one paragraph:
The Plaintiff has established all of the requirements of retaliation, the Plaintiff participated and/or reported Discrimination a hostile work environment, differential treatment and discrimination in 2018 and again in June of 2019. The Plaintiff was then treated differently after the reports. The Plaintiff is only required to present a genuine issue of material fact as to the failure to select and the rational of the department. The Defendant decided to treat her differently and create such a hostile work environment she was constructively discharged.
Pl. Response p. 27. The only adverse action Plaintiff identifies here is the creation of a hostile work environment.
A prima facie claim for retaliatory harassment requires establishing the same facts as a retaliation claim, save that the adverse action element is replaced by “subjected to severe or pervasive retaliatory harassment by a supervisor.” Hinton v. Virginia Union Univ., 185 F.Supp.3d 807, 840 (E.D. Va. 2016) (citing Laster v. City of Kalamazoo, 746 F.3d 714, 731 n. 5 (6th Cir.2014), reh'g denied (Apr. 2, 2014)); see also Boyer-Liberto, 786 F.3d at 283. Therefore, to state a prima facie claim for retaliatory harassment, Plaintiff must show (1) protected activity; (2) that she was subjected to severe or pervasive retaliatory harassment by a supervisor; and (3) a causal link between the protected activity and the harassment. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006); Boyer-Liberto, 786 F.3d at 283; Laster, 746 F.3d at 731. Rather than showing that the unwelcome harassment was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive atmosphere, as with a typical hostile work environment claim, a plaintiff asserting a retaliatory hostile work environment claim must show unwelcome harassment that was “so severe or pervasive that it would dissuade a reasonable worker from making or supporting a charge of discrimination.”Laurent-Workman v. Wormuth, 54 F.4th 201, 217 (4th Cir. 2022) (discussing White, 548 U.S. at 64, which “impose[d] a less demanding heuristic for retaliation claims”)). However, this “standard continues to separate significant from trivial harms and unquestionably leaves in place a plaintiff's burden to show the allegedly hostile work environment was motivated by retaliatory animus. ” Ogbonna-McGruder v. Austin Peay State Univ., No. 3:21-CV-00506, 2023 WL 3572891, at *15 (M.D. Tenn. May 19, 2023) (internal citations omitted) (citing Smith v. RB Distribution, Inc., 498 F.Supp.3d 645, 664 (E.D. Pa. 2020) (quoting Komis v. Sec'y of the Dept. of Labor, 918 F.3d 289, 299 (3d Cir. 2019))). Although comments made by Powell, such as referring to “these Mexicans” and telling her to get “the F” out of his office when she accused him of improperly handling the incident with Sims, are not sufficiently severe or pervasive to alter the conditions of her employment and create an abusive atmosphere, they arguably could be sufficiently severe or pervasive that it would dissuade a reasonable worker from making or supporting a charge of discrimination.
However, Plaintiff cannot show a causal connection between this conduct by Powell and any protected activity on her part. “[A] causal connection for purposes of demonstrating a prima facie case exists where the employer takes adverse employment action against an employee shortly after learning of the protected activity.” Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004). However, the temporal nexus between two events cannot provide proof of causation unless the “temporal proximity between an employer's knowledge of protected activity and an adverse employment action” was “very close.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (internal quotation marks omitted). Plaintiff's initial participation in the investigation into Mrs. Baldwin and Mrs. Eckersly's comments about Plaintiff and her co-worker speaking Spanish occurred between March and May of 2018. Plaintiff has failed to show when Powell's “these Mexicans” comment was made, but him yelling at her to get “the F” out of his office occurred on September 11, 2019, well over a year after her participation into the 2018 investigation. Although there is no “bright temporal line,” the Fourth Circuit has held that “[e]ven a mere ten-week separation between the protected activity and [adverse action] ‘is sufficiently long so as to weaken significantly the inference of causation between the two events.'” Perry v. Kappos, 489 Fed.Appx. 637, 643 (4th Cir. 2012) (quoting King v. Rumsfeld, 328 F.3d 145, 151 n. 5 (4th Cir. 2003)). In addition, though Plaintiff later engaged in protected activity again by complaining about Lt. Powell referring to “these Mexicans,” that complaint was not made until after Lt. Powell told her to get “the F” out of his office. Therefore, such conduct cannot be said to have been in retaliation for any protected activity by Plaintiff. Accordingly, summary judgment is appropriate as to Plaintiff's retaliatory hostile work environment claim as well.
D. Negligent Supervision
Plaintiff also asserts a state law claim for negligent supervision. Title 28 U.S.C. § 1367(c)(3) provides, in pertinent part, “[t]he district courts may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has original jurisdiction....” The Fourth Circuit has recognized that “trial courts enjoy wide latitude in determining whether or not to retain jurisdiction over state claims when all federal claims have been extinguished.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir.1995) (holding district court did not abuse its discretion in declining to retain jurisdiction over the state law claims). See also, e.g., United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Revene v. Charles County Comm'rs, 882 F.2d 870, 875 (4th Cir.1989). In determining whether to retain jurisdiction, courts consider “the convenience and fairness to the parties, existence of any underlying issues of federal policy, comity, and considerations of judicial economy.” Shanaghan, 58 F.3d at 110. Here, the undersigned recommends that the district judge decline to retain supplemental jurisdiction over Plaintiff's state law claims. There are no issues of federal policy underlying the remaining state law claims. In addition, comity favors remand since the remaining claims are quintessential state law questions. In United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Supreme Court cautioned that “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a superfooted reading of applicable law....if the federal law claims are dismissed before trial ... the state claims should be dismissed as well.” Accordingly, should the district judge accept the recommendation with respect to Plaintiff's federal claims, it is recommended that the court decline to exercise jurisdiction over the remaining state law claim and remand this case to the Court of Common Pleas, Horry County, South Carolina.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendant's Motion for Summary Judgment (ECF No. 34) be granted as to Plaintiff's Title VII, ADEA, and ADA causes of action, and the Court decline to exercise jurisdiction over Plaintiff's state law claim and remand the remaining claim to the Court of Common Pleas, Horry County, South Carolina.