Opinion
Civil No. CCB-02-3991.
June 7, 2004 June 10, 2004
MEMORANDUM
The defendants in this case have filed a motion for summary judgment (docket no. 22) seeking dismissal of all six counts of the plaintiff's race and sex discrimination complaint. The defendants maintain that the plaintiff's claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., are time-barred and that her parallel claims under 42 U.S.C. § 1983 are preempted by Title VII. In addition, the defendants contend that even if the court were to reach the merits, the facts in the record would fail to indicate a basis upon which relief could be granted. For the reasons that follow, I have concluded that the plaintiff's § 1983 claims are properly before the court, though the Title VII counts are indeed time-barred. I agree, however, that the record indicates no grounds for relief and I will therefore grant summary judgment on that basis.
I.
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment
shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion:
By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
"A party opposing a properly supported motion for summary judgment 'may not rest upon the mere allegations or denials of [his] pleadings,' but rather must 'set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must "view the evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or assessing the witness' credibility," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002), but the court also must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
II.
Briefly summarized, the facts in the record appear as follows when viewed in light of the Rule 56 standard. The plaintiff, Benita Shockley, served as an employee of Wicomico County, Maryland, one of the defendants in this case, at all relevant times from July 1987 forward. She began work at the Wicomico County Department of Corrections as a "fiscal specialist" but became Assistant Warden of Administration in July 1998. According to the official Department of Corrections hierarchy, Ms. Shockley's supervisor was the Deputy Director, a position filled as of July 1998 by Douglas Devenyns, but Ms. Shockley also dealt frequently with John Welch, the Director of the Department. Both Mr. Devenyns and Mr. Welch are white, whereas Ms. Shockley is African-American. Ms. Shockley has named Mr. Welch and Mr. Devenyns as defendants in addition to Wicomico County.
Mr. Welch was responsible for hiring Ms. Shockley, and it appears the two maintained a good working relationship, at least during the period before Mr. Devenyns was hired. Mr. Welch stated in his deposition that he believed Ms. Shockley "walked on water." (Welch Dep. at 48, Def.'s Mot. Ex. 2.) "She was good at her job. She was efficient," he said. ( Id.) "She knew what she was doing" and was a "trusted employee." ( Id. at 139.) By contrast, the relationship between Ms. Shockley and Mr. Devenyns was strained from the start. Ms. Shockley alleges that when they were first introduced Mr. Devenyns told her that he "was not used to women in [her] position." (Shockley Dep. at 350-51, Pl.'s Opp'n Ex. 2.) Though Ms. Shockley had previously reported directly to Mr. Welch despite the formal command structure, Mr. Devenyns asked that Ms. Shockley report to him so that he would "know everything that was going on," and Mr. Welch agreed. (Welch Dep. at 76.) Ms. Shockley, however, continued to bring issues directly to Mr. Welch on occasion, frustrating Mr. Devenyns. ( See id. at 77.) Mr. Welch recalls that Mr. Devenyns complained to him about Ms. Shockley roughly once or twice a month. ( Id. at 78.)
In April 1999, Mr. Welch and Mr. Devenyns angered Ms. Shockley by hiring Mark Stephenson, who was white, to fill the position of Assistant Warden of Central Booking, though Ms. Shockley had already advertised the position and scheduled other candidates for interviews. (Shockley Dep. at 384-87.) In August 1999, Mr. Devenyns wrote a memorandum to Ms. Shockley criticizing her handling of a rental agreement. Ms. Shockley wrote back defending her actions and accusing Mr. Devenyns of addressing the issue unprofessionally. ( See Def.'s Mem. Ex. 3.) In December 2000, the two sparred when a job candidate — a white woman — received interview questions in advance of her interview, apparently from Mr. Devenyns and Mr. Welch. ( See Lindsey Dep. at 68-69, Pl.'s Opp'n Ex. 7.) Ms. Shockley wanted the woman disciplined, but Mr. Devenyns refused. ( See Shockley Dep. at 402.) In May 2000, Ms. Shockley again wrote to Mr. Devenyns complaining of unprofessional conduct, this time in relation to his decision to remove two positions from Ms. Shockley's supervision. (Pl.'s Opp'n Ex. 19.) These and other incidents in the record suggest significant conflict between Ms. Shockley and Mr. Devenyns, if not also Mr. Welch, from July 1998 forward.
During this period, Mr. Welch and Mr. Devenyns made several adjustments to Ms. Shockley's job duties. As Assistant Warden of Administration, Ms. Shockley was responsible for, among other things, finances, payroll, and personnel. ( Id. at 75.) She had a "tremendous workload," according to Mr. Welch, and she "complained" about it. (Welch Dep. at 162-63.) Ms. Shockley herself stated during her deposition, in justification of overtime wages she received, that she was "doing two people's jobs" (Shockley Dep. at 496-97), and in a memo to Mr. Welch dated October 31, 2000 she stated that "the responsibilities that I have had to endeavor [ sic] is [ sic] too much for one person" (Def.'s Mem. Ex. 62). As the Department's operations expanded, Mr. Welch took steps to ease the burden on Ms. Shockley. On February 9, 2000, Mr. Welch announced a "Department Reorganization" in which the Records Section, previously under Ms. Shockley's control, was transferred to the supervision of Mr. Stephenson, the newly hired Assistant Warden of Central Booking. (Def.'s Mem. Ex. 6.) As of May 15, 2000, the Department established a new Support Services Division that assumed training and standards coordination functions previously within Ms. Shockley's purview. ( See Pl.'s Opp'n Ex. 18.) In addition, it appears that certain hiring responsibilities were transferred to the Human Resources Department, new assistants were hired, and certain records were computerized. ( See Pl.'s Opp'n Ex. 30.) Ms. Shockley was evidently dissatisfied with at least some of these changes, as she complained about the training and standards transfers in an angry memorandum to Mr. Devenyns. (Pl.'s Opp'n Ex. 19.)
At about the same time, the Department made changes to Ms. Shockley's compensation that Ms. Shockley felt were unfair. Whereas Ms. Shockley previously worked some fifteen hours of overtime every two weeks (Welch Dep. at 138-39), on March 23, 2000 Mr. Welch announced a new policy requiring that all overtime be approved by him personally, and on April 19, 2000 he indicated that under a new pay plan, Ms. Shockley's position, along with those of the other Assistant Wardens, the Deputy Director, and the Director, would be considered "exempt," and thus ineligible for overtime (Pl.'s Opp'n Ex. 12). Mr. Welch stated in his deposition that the other listed positions had previously been considered exempt, so the change affected only Ms. Shockley. (Welch Dep. at 161.)
In April 2000, in the midst of these personnel and pay changes, Rebecca Taylor-White and Stevie Prettyman, two members of the Wicomico County Council, approached Mr. Welch to demand an investigation of Ms. Shockley. Acting on the basis of complaints from employees including Mr. Devenyns and Mr. Welch's son-in-law Charles Chatham, the councilors questioned Ms. Shockley's qualifications, hiring practices, use of overtime, and absences for training. (Welch Dep. at 136-37.) Mr. Welch discussed the matter immediately with Mr. Devenyns ( id. at 147-48), and wrote to Ed Cox, the Human Resources Director, approximately one week later to seek a review of three issues raised by the councilors: (1) "Hiring Practices by the Personnel Department of the Wicomico County Department of Corrections (ie. [ sic] more preference given to black candidates over white candidates)"; (2) "Preferential Promotions and Pay (ie. [ sic] white Sergeants not being paid as much as black Sergeants)"; and (3) "Assistant Warden of Administration [that is, Ms. Shockley] trying to suppress salary appeals." (Pl.'s Opp'n Ex. 10.) On May 8, 2000, Mr. Cox submitted a report to Mr. Welch finding "no evidence" of racial preferences or appeals suppressions. (Pl.'s Opp'n Ex. 17.)
Nevertheless, the County Council persisted in its demands. To respond to the Council's concern "that employees who were promoted were not given the appropriate raises by our Assistant Warden of Administration [that is, Ms. Shockley]," Mr. Welch requested on May 19, 2000 that Mr. Devenyns compile data on the name, race, sex, and pay grade of all employees who received promotions during the previous four years. (Pl.'s Opp'n Ex. 20.) Evidently, Mr. Welch also requested information regarding Ms. Shockley's travel and training reimbursements, as on June 2, 2000, Mr. Devenyns reported back to Mr. Welch that "it [was] [his] opinion that but for one request, the purpose of which is unknown, all training attended by Ms. Shockley was relevant, pertinent and germane to her position as the lead Administrative Officer for the institution." (Pl.'s Opp'n Ex. 22.) In addition, later that month, Mr. Devenyns requested information regarding Ms. Shockley's secondary employment and the authorization for previous overtime wages. ( See Pl.'s Opp'n Ex. 23-29.)
On June 13, 2000, Charles Habliston, the Department's Internal Auditor, reported preliminarily on an audit of Ms. Shockley's operations. He noted several late payments on Department invoices and other minor discrepancies, but predicted that the changes to Ms. Shockley's workload would prevent the problems from recurring. ( See Pl.'s Opp'n Ex. 30.) As the investigation continued, Ms. Shockley's next pay raise, scheduled for June 13, 2000, was held in abeyance. (Pl.'s Opp'n Ex. 31, 32.) On July 22, 2000, roughly a month after inmate checks and money orders totaling over $3,000 were found in the desk drawer of an employee under Ms. Shockley's supervision ( see Def.'s Mem. Ex. 21, 22), Mr. Habliston issued a second report reaching the following conclusion:
In her early years as chief administrative specialist, Mrs. Shockley performed her duties with commendable competence. The [Detention] Center's operations were much smaller and the variety of administrative tasks less numerous. As the Detention Center grew, more responsibilities — not only in administrative operations, but quantity of staff supervised — expanded also.
The several areas of unsatisfactory performance — untimely payment of vendor invoices, lack of month-end reconciliation of the Inmates Account and failure to provide adequate record retention, indicate an administrative deficiency that can be attributed to the rapid growth in the Detention Center's scope of operations. On one hand, the situation we are faced with may result from a lack of capacity to manage the increased operations. On another hand, the seer [ sic] quantity of tasks she has attempted to perform herself could be the cause. Possibly, a bit of both.
(Def.'s Mem. Ex. 22.) Mr. Habliston recommended that a new Chief Accountant be hired at "the same Staff level as Mrs. Shockley or above," and that a "management advisory firm be engaged to study the entire administrative operation of the Detention Center." ( Id.) On August 4, 2000, Mr. Welch issued a memorandum indicating that the County Council had approved a management study of the Department's administrative operations. (Def.'s Mem. Ex. 32.) Whether the county also hired a Chief Accountant is unclear, though it appears a new staff accountant was employed as of July 2000. (Shockley Dep. at 507.) Mr. Habliston continued to review the Department's operations, preparing further reports in September and October 2000. (Def.'s Mem. Ex. 51, 55, 56.)
Ms. Shockley eventually received the anticipated raise in August 2000, though for an amount less than she had expected based on the raises given to other employees. ( See Shockley Dep. at 509, 513.) Between September 14, 2000 and October 30, 2000, Ms. Shockley reduced her work schedule to two days per week on the advice of a mental health therapist. ( See Pl.'s Opp'n Ex. 43.) Upon her return, Mr. Welch advised Ms. Shockley that, "in an effort to ensure the daily Administrative needs of the Department are met and in order to alleviate some of the particulars that may have contributed to your current condition," Ms. Shockley's prior responsibilities pertaining to the "fiscal operation" of the Department were being transferred to another employee "until further notice." (Pl.'s Opp'n Ex. 46.) Ms. Shockley was to continue to handle payroll and personnel functions. ( See id.; Def.'s Mem. Ex. 61.) On October 31, 2000, Ms. Shockley responded to Mr. Welch in a memorandum. "Your letter stated that it is your understanding that the cause of my stress is due to the current demands of my work," she wrote. "My stress is however, a result of not only the workload that I have had to endure for the past years, but also a direct result of the working environment and mistreatment in which I have to endure and suffer from [ sic]." (Def.'s Mem. Ex. 62.) "I am happy to know," Ms. Shockley went on, "that you have finally realized that the responsibilities that I have had to endeavor [ sic] is [ sic] too much for one person, let along [ sic] having to work with inadequate staff." ( Id.) On December 5, 2000, Mr. Welch restored Ms. Shockley's former duties. (Def.'s Mem. Ex. 64.)
Ms. Shockley first presented her discrimination claims in an Equal Employment Opportunity Commission ("EEOC") charge dated July 29, 2000. ( See Def.'s Mem. Ex. 42, 43.) Ms. Shockley points to several incidents that she believes indicate that the investigation, pay raise delay, and responsibility changes she underwent were motivated by racial and sexual bias. First, as was noted earlier, Ms. Shockley alleges that Mr. Devenyns told her when they first met in July 1998 that he was "not used" to a woman in her position. (Shockley Dep. at 350-51.) According to Ms. Shockley, Mr. Devenyns later told her in December 1999 while the two were discussing a clothing allowance for employees that "the only way women could get clothing allowance here is if they let me inspect their pantyhose." (Shockley Dep. at 389.) Ms. Shockley alleges that she complained about this comment to Mr. Welch but Mr. Welch simply laughed and noted that "Mr. Devenyns puts his foot in his mouth. . . . Something like that." ( Id. at 393-94.) In April 2000, Ms. Shockley says she brought this comment, as well as a remark on an employee's menstrual cycle and other comments that Ms. Shockley was unable to recall at her deposition, to the attention of Mr. Cox, who, she says, told her that Mr. Devenyns was a "fine man" and that she should not pursue the matter. (Shockley Dep. at 455-59.) In May 2000, Ms. Shockley recalls attending a meeting where Mr. Stephenson indicated that his wife wanted breast implants and Mr. Welch and Mr. Devenyns joked that they would perform the surgery. (Shockley Dep. at 484.)
Mr. Devenyns denies making this comment. ( See Devenyns Dep. at 150-51, Def.'s Mem. Ex. 4.)
As concerns race discrimination, Ms. Shockley alleges several race-related comments on the part of her supervisors. In December 1999, Mr. Welch remarked to Ms. Shockley that she was Wicomico County's second highest paid African-American employee. (Shockley Dep. at 595.) In April 2000, Mr. Welch allegedly told a fellow employee in a conversation regarding Ms. Shockley that "they" had acquired too much authority and he "was going to fix that." (Lindsey Dep. at 23, Pl.'s Opp'n Ex. 7.) The employee understood the "they" in Mr. Welch's comment to refer to African-Americans. ( Id. at 24-25.) On April 6, 2000, Mr. Devenyns told the Wicomico County Council at a closed budget meeting that Cubans, Nigerians, Haitians, and Jamaicans should not be housed at a Wicomico County facility under a proposed lease to the Immigration and Naturalization Service due to historical problems with individuals in those groups. ( See Pl.'s Opp'n Ex. 39.) In August 2000, Ms. Shockley's husband, Ken Shockley, who considered the remark racist, demanded at a series of County Council meetings that action be taken against Mr. Devenyns. ( See Pl.'s Opp'n Ex. 39, 40.) On August 23, 2000, an employee reported to Ms. Shockley that Mr. Devenyns had stated, in the context of a story about a group of African-Americans, that "the poor black bastards could not swim." (Pl.'s Opp'n Ex. 51.)
In September 2000, several years before her deposition, this employee prepared a written statement about the same conversation. (Pl.'s Opp'n Ex. 11.) The prior statement indicates that Mr. Welch believed Ms. Shockley would soon "fall" but makes no mention of a comment that African-Americans in general had acquired too much power.
In addition, Ms. Shockley suggests that her supervisors aimed to retaliate against her because of her handling of a discrimination charge brought against a fellow employee, Sonny Roberts, who is African-American. Ms. Shockley says that two employees under her supervision approached her in January 1999 with allegations of sexual harassment and she directed them to file a report. ( See Shockley Dep. at 360-61.) Mr. Roberts was ultimately suspended and found guilty of sexual harassment and conduct unbecoming an officer in administrative proceedings. Ms. Shockley, who states in her complaint that the charges were "trumped up" (Compl. ¶ 17(h)), alleges that county officials discussed the case with her sometime in 1999 but expressed disappointment that her testimony was unfavorable to the county. (Shockley Dep. at 368, 371-74.)
The EEOC declined to litigate Ms. Shockley's claims and instead provided her with a notice of her right to sue dated August 15, 2001. (Def.'s Mem. Ex. 67.) Ms. Shockley filed a civil action in state court on November 20, 2001. The defendants removed the case to federal court on December 10, 2002.
The defendants were not served until 2002.
III.
Ms. Shockley's complaint includes three Title VII counts and three § 1983 counts. The defendants argue that both sets of claims must be dismissed on procedural grounds. The Title VII claims (counts one, two, and three) are time-barred, they argue, because Ms. Shockley filed her complaint more than 90 days after receiving her right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC"), while the § 1983 claims (counts four, five, and six) are preempted because Title VII affords a more specific set of remedies covering the same conduct.The defendants are correct that the Title VII claims are untimely. By Ms. Shockley's own admission, she received her right-to-sue letter from the EEOC on August 21, 2001. ( See Pl.'s Opp'n at 27 n. 11.) She then had 90 days to file a civil action. See 42 U.S.C. § 2000e-16(c). Ms. Shockley evidently mailed her complaint to the court by Federal Express on November 19, 2001, the ninetieth day after her receipt of the letter, but the court did not receive the document until November 20. ( See Pl.'s Opp'n at 27 n. 11.) Because a civil action is commenced by the "filing" of a complaint with the court, the controlling date for limitations purposes is the date on which the court received Ms. Shockley's complaint, not the date on which she mailed it. See Fed.R.Civ.P. 3, 5(e). Ms. Shockley has not advanced any basis for equitable tolling of the limitations period, so the tardiness of her complaint bars her Title VII claims even though she missed the mark by only one day. See, e.g., Harvey v. City of Bern Police Dep't, 813 F.2d 652, 653, 654 (4th Cir. 1987) (dismissing suit filed on ninety-first day); Roberson v. Bowie State Univ., 899 F. Supp. 235, 238-39 (D. Md. 1995) (same).
The § 1983 claims, however, remain viable. The defendants argue that Ms. Shockley's failure to comply with the procedural requirements of Title VII's "comprehensive remedial scheme" precludes her from pursuing employment discrimination claims under § 1983. Yet the Fourth Circuit has held repeatedly that Title VII does not preempt parallel § 1983 claims in cases of public employment, see, e.g., Booth v. Maryland, 327 F.3d 377, 382-83 (4th Cir. 2003); Beardsley v. Webb, 30 F.3d 524, 526-27 (4th Cir. 1994), and the court is not free to disregard this precedent. Accordingly, Title VII does not preempt Ms. Shockley's § 1983 claims, and the procedural time limits applicable to Title VII have no bearing on these counts of her complaint.
As the Booth court explains, a footnote in Hughes v. Bedsole, 48 F.3d 1376, 1378 n. 6 (4th Cir. 1995), led several district courts to conclude that Beardsley had been superceded. See Booth, 327 F.3d at 382-83 (collecting cases). The Fourth Circuit rejected that view in Booth. See id. at 383.
IV.
In her Opposition to the defendants' summary judgment motion, Ms. Shockley advances four theories of relief under § 1983: (1) race discrimination, (2) sex discrimination, (3) retaliation, and (4) interference with the right of intimate association. Employment-related discrimination and retaliation claims under § 1983 are analyzed according to the same proof standards as Title VII claims. See Wells v. Montgomery County, 187 F. Supp.2d 543, 546-47 (D. Md. 2002).
Of the plaintiff's four theories, only the first requires significant discussion. Ms. Shockley's evidence of sex discrimination amounts to a handful of stray remarks by Mr. Devenyns. These remarks, though distasteful, do not approach the level of severity or pervasiveness that would be required to establish a hostile environment claim. See, e.g., Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 773 (4th Cir. 1997) ("Title VII is not a federal guarantee of refinement and sophistication in the workplace — in this context, it prohibits only harassing behavior that is so severe or pervasive as to render the workplace objectively hostile."). Nor has Ms. Shockley demonstrated that any of the alleged comments occurred in a context indicating that bias tainted an actionable job decision. As a result, Ms. Shockley's gender discrimination claim is deficient as a matter of law. See Reece v. Martin Marietta Techs., Inc., 914 F. Supp. 1236, 1240 n. 5 (D. Md. 1995) ("Under Title VII, a prima facie case of sex discrimination requires showing a connection between sex and the adverse employment decision."). The retaliation theory is similarly meritless because none of the events Ms. Shockley believes were adverse employment actions occurred under circumstances suggesting a connection to either Ms. Shockley's meeting with Mr. Cox or her refusal to testify favorably in the Roberts case — the two grounds for retaliation she alleges. See, e.g., Settle v. Baltimore County, 34 F. Supp.2d 969, 993 (D. Md. 1999) (indicating that a retaliation claim requires a "causal connection . . . between the protected activity and the adverse action"), aff'd, 203 F.3d 820 (4th Cir. 2000) (unpublished table opinion); Nichols v. Comcast Cablevision of Md., 84 F. Supp.2d 642, 659 (D. Md.) (indicating that the occurrence of an adverse job decision after a protected act "is insufficient by itself to establish a causal connection"), aff'd, 217 F.3d 840 (4th Cir. 2000) (unpublished table opinion). Furthermore, even if Ms. Shockley could establish a prima facie case of retaliation, the documented problems with Ms. Shockley's performance indicate a legitimate non-discriminatory reason for the county's actions, as will be discussed below in the context of the race discrimination claims. See Elries v. Denny's, Inc., 179 F. Supp.2d 590, 598 (D. Md. 2002) (noting that an employer may rebut a prima facie case of retaliation by presenting a legitimate non-discriminatory reason for the disputed action that is not shown to be mere pretext). As for intimate association, even assuming, as Ms. Shockley claims, that retaliation against an employee for her spouse's public statements may infringe upon a constitutionally protected interest, there is, once again, no evidence to suggest that any action directed at Ms. Shockley was based on her husband's public statements, much less designed to interfere with her marital relationship. In fact, many of the job decisions at issue in this litigation occurred before Mr. Shockley even made his demands for action against Mr. Devenyns.
Changes to Ms. Shockley's responsibilities and pay were already underway by the time Ms. Shockley met with Mr. Cox in early April 2000, and there is no evidence to suggest that the County Councilors who prompted the investigation and further changes knew or had reason to know of the meeting. As for the Roberts matter, it appears that the disputed job actions were not even close in time to Ms. Shockley's discussion of the case with county officials, as the conversation she alleges occurred some time in 1999 — Ms. Shockley could not recall exactly when ( see Shockley Dep. at 368) — whereas her claims are based on job decisions made in 2000 ( see Pl.'s Opp'n at 36).
As concerns race discrimination, Ms. Shockley's evidence is somewhat more substantial, but it, too, falls short of indicating grounds for relief. A discrimination plaintiff must establish, as "an absolute precondition to suit," that some "adverse employment action" took place. Settle, 34 F. Supp.2d at 987. An employer's conduct satisfies this standard if the asserted "act or harassment results in an adverse effect on the 'terms, conditions, or benefits' of employment." Von Gunten v. Maryland, 243 F.3d 858, 866 (4th Cir. 2001) (quoting Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 243 (4th Cir. 1997)). If an adverse employment action is established, the plaintiff may then prove discrimination by either direct or circumstantial evidence, or under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).
Ms. Shockley appears to rely only on the burden-shifting approach, as her brief discusses only that method of proof. At any rate, "[d]irect evidence [of discrimination] is evidence that can be interpreted as an acknowledgment of discriminatory intent by the defendant," Wells, 187 F. Supp.2d at 547 (internal quotations omitted), and the only allegation in the record that even arguably satisfies this standard is the alleged statement by Mr. Welch that African-Americans had too much power in the Department. As will be explained in more detail below, this statement cannot, by itself, justify a claim of discrimination because it is highly ambiguous and is contradicted by other, more substantial evidence in the record.
Although Ms. Shockley claims to have documented "numerous actions that may be considered adverse to her employment" (Pl.'s Opp'n at 36), in fact the only arguable "adverse employment actions" in the record are the denial of overtime and the delay in Ms. Shockley's pay raise. The investigation, by itself, is not actionable because the problems Mr. Habliston uncovered showed that a review of Ms. Shockley's performance was warranted. "[I]f a disciplinary investigation is reasonably rooted in articulable facts justifying such an investigation, neither inconvenience nor emotional anxiety on the employee's part will constitute an 'employment injury' sufficient to render the investigation itself an adverse employment action independently cognizable under Title VII." Settle, 34 F. Supp.2d at 992. Ms. Shockley also claims to have suffered racial harassment, but, as with her sex discrimination claim, the handful of alleged race-related comments do not suffice to establish an adverse employment action on a hostile environment theory. See Hartsell, 123 F.3d at 773. Nor do the changes to Ms. Shockley's job responsibilities indicate a basis for recovery. While a "significant" change to Ms. Shockley's job duties — for example, one that "exposed her to more dangerous conditions or stifled advancement by preventing her from obtaining a professional license" — might materially alter the terms, conditions, or benefits of her employment, see Von Gunten, 243 F.3d at 868, Ms. Shockley has not pointed to any evidence, apart from her own subjective dissatisfaction, to indicate that the adjustments in her case affected the status or conditions of her job in any important respect. See Nichols, 84 F. Supp.2d at 654 (noting that an adverse employment action requires "more than a mere inconvenience or an alteration of job responsibilities" (internal quotations omitted)). Indeed, her own admission that she felt overworked suggests that some adjustment was necessary, even if the specific changes made were not to her liking.
The removal of all "fiscal operations" from Ms. Shockley's purview on October 30, 2000 might be an exception, but Ms. Shockley makes no attempt to detail what these operations were and whether they were significant. Besides, there is no evidence that this decision was discriminatory. The change in responsibilities appears reasonable in light of Ms. Shockley's reduced work schedule during the preceding six weeks, and the restoration of the suspended duties barely a month later makes it implausible to claim that the suspension was motivated by race rather than Mr. Welch's stated concern about Ms. Shockley's ability to handle the work. Cf. Evans v. Techs. Applications Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996) (indicating that when the person who makes an adverse promotion decision is the same person who hired the plaintiff there is a "powerful inference that the failure to promote her was not motivated by discriminatory animus" (internal quotations omitted)).
Ms. Shockley also complains that she was not given a designated parking spot though other employees were (Shockley Dep. at 536-39), but because Ms. Shockley has "utterly failed to proffer evidence that [denial] of this benefit adversely affected her," the denial of a reserved parking spot is not an actionable job decision. See Von Gunten, 243 F.3d at 867 (concluding that the withdrawal of use of a state vehicle was not actionable under Title VII).
In any event, Ms. Shockley has failed to advance facts supporting a claim of discrimination with respect to any of the job actions she disputes. To state a prima facie case of disparate treatment, Ms. Shockley must show, in addition to an adverse employment action: (1) that she is a member of a protected class; (2) that she was performing her duties in a satisfactory manner; and (3) that the circumstances surrounding the adverse employment action rationally support the inference that the adverse employment action was motivated by unlawful considerations. See Chika v. Planning Research Corp., 179 F. Supp.2d 575, 581 (D. Md. 2002). "This initial showing requires the plaintiff to produce a set of facts which would enable the fact-finder to conclude with reasonable probability that in the absence of any further explanation, the adverse employment action was the product of race or sex discrimination." Id. (internal quotations, alterations, and emphasis omitted).
Ms. Shockley cannot make this prima facie showing because the record fails to demonstrate that she was performing her duties satisfactorily. To the contrary, Ms. Shockley herself concedes that she was "doing two people's jobs," and she complained in October 2000 that "the responsibilities that I have had to endeavor [ sic] is [ sic] too much for one person." Mr. Habliston's reports, moreover, include uncontradicted evidence of significant difficulties in the areas under Ms. Shockley's supervision — difficulties that, in his view, necessitated administrative changes. Ms. Shockley cannot establish that she was entitled to overtime and a pay raise, let alone a continuation of all her prior responsibilities, because she has not pointed to any evidence indicating that this view of her performance was false.
In addition, the circumstances of the job decisions in question, as evidenced by the record, fail to support an inference of unlawful discrimination. To be sure, the allegation that Mr. Welch said African-Americans had acquired too much power, if true, could suggest a racial motivation for his decisions. Yet the evidence of this remark is highly ambiguous. The witness who reported this conversation could not recall during her deposition what specifically led her to believe Mr. Welch was referring to African-Americans in general, rather than Ms. Shockley and another employee in particular. A written statement given by the witness some two and a half years earlier — just five months after the alleged incident — describes the conversation in detail but makes no mention at all of the "they" comment, casting further doubt on the allegation. ( See Pl.'s Opp'n Ex. 11.) In addition, there is no evidence to corroborate this allegation of racial bias, as the only other alleged racial comment by Mr. Welch — his remark that Ms. Shockley was the county's second highest paid African-American employee — was not clearly discriminatory and was not made in a context that suggests discrimination with respect to any actionable job decision. Moreover, the fact that Mr. Welch hired Ms. Shockley establishes a "powerful inference" that later actions he took against her were "not motivated by discriminatory animus." See Evans v. Techs. Applications Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996). As for Mr. Devenyns's statement on the immigration detainees and his reference to "black bastards," these remarks, again, appear to be isolated incidents and bear no evident connection to the job decisions at issue. More to the point, after Mr. Welch retired and Mr. Devenyns was appointed Director in late December 2000 ( see Devenyns Dep. at 360, Def.'s Mem. Ex. 4), Mr. Devenyns designated an African-American, namely, Colonel William Young, to serve as acting Director in his absence. ( See Def.'s Mem. Ex. 66.) In light of this decision and the substantial and uncontradicted evidence that administrative difficulties necessitated the changes to Ms. Shockley's duties, the few isolated race-related remarks alleged by Ms. Shockley do not suffice to establish a prima facie case of discrimination.
Mr. Devenyns states in his deposition that he decided not to hire a new deputy director "for at least a year, because there were certain fundamental changes I wanted to make" (Devenyns Dep. at 360), so it appears that at the time Colonel Young was appointed the position given to him was the second highest in the Department. Ms. Shockley applied for the position of Deputy Director when it initially became available, but she has not alleged that the decision not to hire her (or anyone at all) was an adverse employment action.
Finally, even if Ms. Shockley could establish a prima facie case, the benign, administrative reasons for the Department's actions afford a legitimate non-discriminatory justification that Ms. Shockley has not shown to be mere pretext. By all accounts, Ms. Shockley felt overworked and the performance of units under her supervision was suffering. "Job performance and relative employee qualifications are widely recognized as valid, non-discriminatory bases for any adverse employment decision." Evans, 80 F.3d at 960. Thus, to rebut the county's professed explanation for its actions, Ms. Shockley would need to show that her employer's real motivation was racial animus, yet her evidence of discrimination is too sparse and ambiguous to permit a reasonable fact-finder to disbelieve the performance-related explanations advanced by the defendants and believe instead that discrimination occurred. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000).
In short, Ms. Shockley has failed to advance evidence indicating a viable claim of employment discrimination or retaliation under § 1983. Accordingly, the defendants' motion for summary judgment will be granted as to these counts as well as the Title VII claims, and Ms. Shockley's complaint will be dismissed.
V.
Because I have concluded that Ms. Shockley has failed to indicate a basis for relief under § 1983, I will not reach the defendants' remaining arguments concerning qualified immunity and Wicomico County's appropriateness as a defendant.
A separate Order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby Ordered that:1. the defendants' Motion for Summary Judgment (docket no. 22) is GRANTED;
2. the plaintiff's complaint is DISMISSED;
3. copies of this Order and the accompanying Memorandum shall be sent to counsel of record; and
4. the clerk of the court shall CLOSE this case.