UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-1272
EMANUELLA NKEM NNADOZIE; PERPETUA EZEH; SUNDAY AINA,
Plaintiffs – Appellants,
v.
GENESIS HEALTHCARE CORPORATION; GENESIS HEALTHCARE, LLC; GENESIS ELDERCARE NETWORK SERVICES, INC.; 9109 LIBERTY ROAD OPERATIONS, LLC, d/b/a Randallstown Center, d/b/a Patapsco Valley Center,
Defendants – Appellees.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:14-cv-02694-RDB)
Argued: January 25, 2018 Decided: April 17, 2018
Before KEENAN, WYNN, and HARRIS, Circuit Judges.
Affirmed in part, reversed in part, vacated in part, and remanded by unpublished opinion. Judge Wynn wrote the opinion, in which Judge Keenan and Judge Harris concurred.
ARGUED: Leizer Z. Goldsmith, GOLDSMITH LAW FIRM, LLC, Washington, D.C., for Appellants. Darryl G. McCallum, SHAWE & ROSENTHAL, LLP, Baltimore, Maryland, for Appellees. ON BRIEF: Elizabeth Torphy-Donzella, SHAWE & ROSENTHAL, LLP, Baltimore, Maryland, for Appellees. Unpublished opinions are not binding precedent in this circuit.
2 WYNN, Circuit Judge:
This appeal concerns an employment discrimination action brought by two nurses
and a nursing assistant against their former employers. They alleged discrimination and
retaliation on the bases of race and national origin, in violation of 42 U.S.C. § 1981 and
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court
granted summary judgment for the employers on all counts. Although we mostly agree
with the district court’s disposition, the court erred by mischaracterizing Plaintiff Perpetua
Ezeh’s two discriminatory hostile work environment claims—one on account of her race,
in violation of Section 1981, and the other on account of her national origin, in violation
of Title VII. Accordingly, we affirm in part, reverse in part, vacate in part, and remand for
further proceedings.
I.
Patapsco Valley Center (“the Center”) is a long-term nursing care facility located in
Randallstown, Maryland. The Center is managed by Defendant-Appellee Genesis
Eldercare Network Services, Inc. (“Genesis”) and staffed by Defendant-Appellee 9109
Liberty Road Operations, LLC (“Liberty Road,” and collectively with Genesis,
“Defendants”).
In late 2010, the Center was in a troubled state. During an August on-site
investigation, the Maryland Department of Health and Mental Hygiene discovered several
compliance problems. The Department thereafter imposed on the Center a monetary civil
penalty and threatened to revoke its operational license. In response, Genesis installed new
3 management at the Center by hiring Mary Hochradel (“Hochradel”) as Administrator and
Denise Zimmerman (“Zimmerman”) as Director of Nursing. The new managers were told
they were coming aboard “a poor performer,” and their job was to “turn it around” by
evaluating staff and, if necessary, taking corrective action. J.A. 530–37.
Plaintiffs Emanuella Nkem Nnadozie (“Nnadozie”), Perpetua Ezeh (“Ezeh”), and
Sunday Aina (“Aina,” and collectively with Nnadozie and Ezeh, “Plaintiffs”) are former
Center employees who worked under Hochradel and Zimmerman. All are of African
descent. Plaintiffs allege that, upon arriving at the Center, Zimmerman immediately
created a severe and hostile work environment and engaged in several acts of invidious
discrimination. Despite commonalities among their claims, Plaintiffs proceed individually.
A.
Plaintiff Nnadozie, a registered nurse, was born in Sierra Leone and raised in
Nigeria. Notwithstanding her history of alleged poor performance at another Genesis-
managed care center, Nnadozie applied for and was granted a transfer to the Center in
September 2009. She assumed work as a Unit Manager and Assistant Director of Nursing,
supervising the Center’s subacute unit. Between September and October of 2010, the
Center issued Nnadozie an “Individual Performance Improvement Plan,” instructing her to
improve her accountability, timeliness, and quality of patient care.
Tensions increased between Nnadozie and Center management after Zimmerman’s
arrival. Nnadozie claims that Zimmerman pressured her to discipline African staff while
preventing her from disciplining white staff. Moreover, Nnadozie and Zimmerman
4 repeatedly argued over Nnadozie’s work performance. During one dispute, Zimmerman
allegedly raised her hand to Nnadozie’s face and told her to “shut up.” J.A. 1284, 1770.
In January 2011, Zimmerman instituted a new attendance policy that required all
Assistant Directors of Nursing in charge of units, like Nnadozie, to begin their shifts at
7:00 a.m. Nnadozie asked to be excused from this requirement, but management denied
her request. Around that same time, Zimmerman assigned Nnadozie to oversee the
Center’s dementia unit, in addition to her normal duties, and moved Nnadozie’s office to
the Center’s basement—a location closer to the dementia unit.
Things came to a head when, after a dispute between Nnadozie and the Center’s
medical director over patient care, Zimmerman issued Nnadozie a “Final Written Warning”
on February 1, 2011. Id. at 1796. Three days later, Nnadozie resigned.
In May 2011, Nnadozie filed an Intake Questionnaire with the Equal Employment
Opportunity Commission (“EEOC”), alleging discrimination by Zimmerman and
Hochradel on the bases of race and national origin. After investigation, a formal Charge
of Discrimination followed on April 5, 2012. Nnadozie now brings claims of constructive
discharge, hostile work environment, and retaliation under both Section 1981 and Title VII.
However, although Nnadozie’s EEOC filings alleged discrimination on the bases of race
and national origin, her complaint alleged discrimination on the basis of national origin
only. See id. at 35–40.
B.
5 Plaintiff Ezeh is a registered nurse from Nigeria. Before working at the Center,
Ezeh worked for another Genesis-affiliated employer, Genesis Staffing, LLC. In April
2010, the Center hired her as an Assistant Director of Nursing for its dialysis unit.
Soon after Ezeh’s arrival, but before the leadership transition, Center management
began complaining of Ezeh’s lack of preparedness. As a result, Ezeh was issued an
“Individual Performance Improvement Plan” in September 2010. Id. at 1039. The Plan
stated that Ezeh had exhibited “poor performance” and insisted that she improve her
caregiving. Id. at 1040.
On June 10, 2011, Ezeh emailed the Center’s human resources manager to complain
about “disrespect and insults” she had received from her new supervisor, Zimmerman. J.A.
1583. Later that month, Zimmerman gave Ezeh a “Management Performance Appraisal,”
in which she rated Ezeh’s management, interpersonal, and communication skills as
“marginal,” indicating Ezeh’s performance was “below what is expected” and fell “short
of desired results.” Id. at 1050–51. A few weeks later, Ezeh took health leave pursuant to
the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. At the start of her
leave, Ezeh contacted the Genesis Corporate Hotline to complain again about ill-treatment
from Zimmerman. Ezeh also wrote to Genesis complaining of “persecution and inequitable
treatments based on color, race[,] national origin, and age,” id. at 737, and claimed that
“foreign nurses are denied work [at the Center] for no other reason except their
[n]ationality,” id. at 738.
Following her medical leave, Ezeh met with Zimmerman, Hochradel, and a Genesis
human resources manager to discuss going back to work. Rather than return to the Center,
6 Ezeh informed the Center that she would instead seek a transfer back to her former
employer, Genesis Staffing. Citing various infractions, Genesis refused to rehire her at
either site.
On February 4, 2012, Ezeh filed an EEOC Charge of Discrimination alleging
national origin discrimination and retaliation. Ezeh now brings claims of a hostile work
environment, retaliatory termination, and other retaliation on the bases of both race and
national origin under Section 1981 and Title VII.
As additional support for her charges, Ezeh alleges that, sometime between April
and July 2011, Zimmerman told Ezeh that she believed “Africans [were] going to kill” her
or make her “sick” by “putting voodoo on [her].” Id. at 1759. According to Ezeh,
Zimmerman kept a “voodoo catcher” in her office for protection and would perform a
“ritual in front of her door” before going inside. Id. Ezeh also claims that Zimmerman
screamed in her face on at least two occasions, spoke to her inappropriately, and
commented that there were “too many Nigerians,” both at the Center and in her class at
Baltimore City Community College, where Zimmerman worked as a teacher. Id. at 1591,
1797.
Another former Center employee, Robin Ross (“Ross”), testified that voodoo was
indeed a “big thing” for Zimmerman, id. at 1075, and that Zimmerman would “often make
comments about how she didn’t like the Africans and wanted them all out of the building,”
id. at 1079. In September 2011, Ross sent an email to Genesis’s corporate headquarters
expressing concern about Zimmerman’s alleged request to help her “get rid of the African
people at Genesis.” Id. at 1124.
7 C.
Finally, Plaintiff Aina, born in Nigeria, began working as a geriatric nursing
assistant at the Center in February 2009. Aina received disciplinary warnings from his
supervisors almost immediately. Afterwards, Aina continued to have problems at work.
In June 2011, he was issued a “Final Written Warning” and suspended without pay for
allegedly failing to take proper care of a resident. Id. at 1799. Believing he had done
nothing wrong, Aina disputed his suspension and filed an Intake Questionnaire with the
EEOC, alleging discrimination on the basis of national origin. When Aina returned to the
Center post-suspension, Hochradel allegedly said that she wanted to fire him because “they
have a lot of Africans here.” Id. at 1628. Aina eventually was fired after failing to report
a bruise on a patient’s face.
Months after being terminated, Aina filed a Charge of Discrimination with the
EEOC, alleging his prior suspension was motivated by national origin discrimination. Aina
now brings claims of a hostile work environment, retaliatory termination, and other
retaliation on the basis of national origin, under Section 1981 and Title VII.
D.
On January 31, 2017, the district court granted summary judgment for Defendants
on all counts. In so doing, the district court construed all of Plaintiffs’ allegations as being
based solely on their national origin as “Africans” or “Nigerians,” and not on any “specific
ethnic characteristic” that might reasonably fall under a broad understanding of race, as
opposed to national origin. Id. at 1802. Because Section 1981 “prohibits discrimination
on the basis of race, but . . . does not bar discrimination purely on the basis of national
8 origin,” the district court concluded that all of Plaintiffs’ Section 1981 claims failed. Id. at
1801 (internal quotation marks omitted). For that reason, the district court only analyzed
Plaintiffs’ Title VII claims, disposing of each for failure to either present a triable issue of
material fact or exhaust the available administrative remedies. Accordingly, the court
entered judgment in favor of the Defendants. Plaintiffs timely appealed.
II.
“We review de novo the district court’s grant of summary judgment.” Lawson v.
Union Cty. Clerk of Court, 828 F.3d 239, 247 (4th Cir. 2016). “Summary judgment is
appropriate only in those cases where the pleadings, affidavits, and responses to discovery
‘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.’” Spriggs v. Diamond Auto Glass, 242 F.3d 179,
183 (4th Cir. 2001) (quoting Fed. R. Civ. P. 56(c)). In reviewing a motion for summary
judgment, the court “cannot weigh the evidence or make credibility determinations.”
Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015). In other
words, “[s]ummary judgment cannot be granted merely because the court believes that the
movant will prevail if the action is tried on the merits.” Id. at 568 (internal quotation marks
omitted).
We begin, as the district court did, with Plaintiffs’ claims under Section 1981.
Section 1981 provides in part that “[a]ll persons within the jurisdiction of the United States
shall have the same right in every State and Territory to make and enforce contracts, to sue,
9 be parties, give evidence, and to the full and equal benefit of all laws . . . as is enjoyed by
white citizens.” 42 U.S.C. § 1981(a). Although Section 1981 does not explicitly use the
word “race,” the Supreme Court has construed the statute to ban all racial discrimination
in the making of public and private contracts. See Saint Francis Coll. v. Al-Khazraji, 481
U.S. 604, 609 (1987) (citing Runyon v. McCrary, 427 U.S. 160, 168, 174–75 (1976)). This
includes race-based employment discrimination. See Yashenko v. Harrah’s NC Casino
Co., 446 F.3d 541, 551–52 (4th Cir. 2006).
For purposes of Section 1981, the concept of “race” is much broader than our
modern understanding of the term. See Saint Francis Coll., 481 U.S. at 609–13. As the
Supreme Court detailed in Saint Francis College, in light of the legislative history of
Section 1981 and prevailing mid-19th century notions about race, it is clear that “Congress
intended to protect from discrimination identifiable classes of persons who are subjected
to intentional discrimination solely because of their ancestry or ethnic characteristics.
Such discrimination is racial discrimination that Congress intended § 1981 to forbid,
whether or not it would be classified as racial in terms of modern scientific theory.” Id. at
613 (emphasis added). This might be a “loose sense of the word ‘race,’ but the loose sense
is the right one to impute to a race statute passed in 1866.” Abdullahi v. Prada USA Corp.,
520 F.3d 710, 712 (7th Cir. 2008). Putting this understanding into practice, other circuits
have found that Section 1981 protects against discrimination based on being Jewish, Sinai
v. New England Tel. & Tel. Co., 3 F.3d 471, 474–75 (1st Cir. 1993), “Middle Eastern,”
Amini v. Oberlin Coll., 259 F.3d 493, 503 (6th Cir. 2001), or Iranian, Pourghoraishi v.
Flying J, Inc., 449 F.3d 751, 757 (7th Cir. 2006). Similarly, with evidence of some nexus
10 between ethnic or ancestral characteristics and workplace discrimination, there is no reason
why a plaintiff cannot bring a Section 1981 claim on the basis of being “African” or
“Nigerian.”
Still, the scope of Section 1981 protection is not unlimited. It is true that “the line
between discrimination based on ancestry or ethnic characteristics and discrimination
based on place or nation of . . . origin is not a bright one.” Saint Francis Coll., 481 U.S. at
614 (Brennan, J. concurring) (internal quotation marks and citations omitted). Trying to
draw clear distinctions between someone’s ethnicity and national origin can often amount
to impossible hairsplitting. In some instances, evidence of discrimination based on national
origin may even be “identical as a factual matter” to discrimination based on ethnicity or
ancestry. Id. However, at the very least, a Section 1981 claim must allege race-based
discrimination. See, e.g., Torgerson v. City of Rochester, 643 F.3d 1031, 1053 (8th Cir.
2011) (en banc) (dismissing Section 1981 claim where plaintiff pleaded discrimination on
the basis of national origin only); El-Zabet v. Nissan N. Am., Inc., 211 F. App’x 460, 462–
63 (6th Cir. 2006) (per curiam) (same); see also Fed. R. Civ. P. 8(a) (“A pleading that states
a claim for relief must contain . . . a short and plain statement of the claim showing that the
pleader is entitled to relief.” (emphasis added)). In other words, allegations of
discrimination based purely on national origin are insufficient to state a Section 1981 claim.
Here, neither Nnadozie nor Aina alleged race-based discrimination in their
complaint. Instead, both plaintiffs alleged discrimination on the basis of national origin
alone. See J.A. 35–45. To escape this otherwise fatal defect in their complaint, Plaintiffs
argue that “[a] Section 1981 ‘national origin’ discrimination claim not directly identifying
11 a ‘race’ basis by name can be legally sufficient.” Appellant’s Br. at 23. But courts have
dismissed Section 1981 claims when a plaintiff fails to allege discrimination based on race,
ancestry, or ethnicity. 1 See, e.g., Torgerson, 643 F.3d at 1053; El-Zabet, 211 F. App’x at
462–63; Ana Leon T. v. Fed. Reserve Bank of Chi., 823 F.2d 928, 931 (6th Cir. 1987) (per
curiam). Because Nnadozie and Aina have failed to allege race-based discrimination under
Section 1981, we agree with the district court’s dismissal of their Section 1981 claims.
That being said, we disagree with the district court’s decision to dismiss those
claims with prejudice. Below, the district court concluded that Plaintiffs’ Section 1981
claims fail as a matter of law, thereby entitling Defendants to summary judgment and
warranting dismissal with prejudice. In so doing, however, it is unclear whether the district
court looked to the summary judgment record or solely considered the adequacy of the
allegations in the complaint. Specifically, in dismissing Plaintiffs’ Section 1981 claims,
the district court neither cited nor referenced any evidence contained in the record. To the
contrary, the district court’s opinion referenced only the allegations made by Plaintiffs in
their complaint. Because the extent to which the district court may have relied on evidence
1 Plaintiffs cite one out-of-circuit case for this misguided contention, Abdullahi v. Prada USA Corp., 520 F.3d 710 (7th Cir. 2008). There, the Seventh Circuit reversed the district court’s dismissal of a pro se plaintiff’s Section 1981 claims. The plaintiff’s original complaint had alleged discrimination on the basis of race, but the amended complaint did not. Id. at 711–13. Finding it rather “unlikely” that the plaintiff’s omission was intentional, and “bearing in mind her pro se status,” the Seventh Circuit concluded that the district court was “premature” in dismissing the plaintiff’s Section 1981 claim. Id. at 712. At best, Abdullahi amounts to an unusual and case-specific diversion from normal pleading requirements.
12 outside of the parties’ pleadings is unclear, we think it best to treat the district court’s
disposal of Plaintiffs’ claims as a judgment on the pleadings. See A.S. Abell Co. v. Chell,
412 F.2d 712, 715 (4th Cir. 1969); Rutherford v. United States, 702 F.2d 580, 581 n.1 (5th
Cir. 1983). Moreover, because the district court’s analysis rested solely on the adequacy
of the allegations in Plaintiffs’ complaint, and in light of the Supreme Court’s expansive
definition of “race” under Section 1981, we think it best to vacate the order of dismissal
with prejudice and remand the case to the district court. On remand, the court should
determine whether the inadequacy of Plaintiffs’ pleadings could be cured through
amendment, thus rendering dismissal without prejudice appropriate.
We also disagree with the district court’s conclusion that Ezeh, in particular, did not
allege race-based discrimination with respect to her hostile work environment claim under
Section 1981. For purposes of both Section 1981 and Title VII claims, a hostile work
environment is one that is “permeated with discriminatory intimidation, ridicule, and insult
. . . that is sufficiently severe or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993) (internal citation and quotation marks omitted). Thus, to prevail on a hostile work
environment claim under Section 1981, a plaintiff must show that there is “(1) unwelcome
conduct; (2) that is based on the plaintiff’s . . . race; (3) which is sufficiently severe or
pervasive to alter the plaintiff’s conditions of employment and to create an abusive work
environment; and (4) which is imputable to the employer.” Boyer-Liberto v. Fontainebleau
Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc). Viewed in the light most favorable to
Ezeh, we believe that the evidence in the record could allow a rational factfinder to
13 conclude that Ezeh endured unwelcome conduct, based on her race, that was severe or
pervasive enough to constitute a hostile work environment, and that such conduct is
imputable to her employer.
Unlike Nnadozie and Aina, Ezeh does allege discrimination on the basis of race in
her complaint. Moreover, Ezeh assembles the following evidence in support of her hostile
work environment claim: (1) Ezeh’s own sworn testimony alleging that Zimmerman made
statements that Africans were plaguing her with voodoo, (2) sworn testimony alleging
Zimmerman screamed in her face; (3) Ross’s sworn testimony alleging that Zimmerman
routinely instructed Ross to “get rid of the Africans”; and (4) Ross’s testimony that
Zimmerman mainly screamed at African nurses. Whether this evidence supports an
objectively hostile or abusive environment is “judged from the perspective of a reasonable
person in the plaintiff’s position.” Boyer-Liberto, 786 F.3d at 277 (internal quotation
marks omitted). In making this evaluation, we must consider a number of factors, including
“the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance,” Harris, 510 U.S. at 23.
The district court concluded that Ezeh’s claims were not based on any “specific
ethnic characteristics associated with” being African or Nigerian that could fit under
Section 1981’s broad umbrella. J.A. 1801. We disagree. Ezeh’s evidence, if found
credible by a factfinder, shows that Zimmerman stereotyped her African employees as
voodoo practitioners, which, in conjunction with her other evidence, provides a basis for
finding discrimination based on ethnicity or ancestry, and, therefore, on race.
14 Defendants argue that because “voodoo is a religion, which . . . is also practiced in
places such as Canada, the nations of the Caribbean and the United States,” this evidence
cannot form part of a Section 1981 claim. Appellee’s Br. at 27. But shared religious
practice can be a facet of ethnic or ancestral identity. See Shaare Tefila Congregation v.
Cobb, 481 U.S. 615, 617–18 (1987) (reversing court of appeals dismissal of plaintiffs’
claim based upon plaintiffs’ status as Jewish people). And the assumption, based on
stereotype alone, that employees with shared ancestry also share a common religious
practice is exactly the type of broad-brush appraisal suggesting an ethnic characterization.
As such, the combination of the alleged voodoo commentary and hostility towards African
employees provides a basis for a reasonable jury to conclude that Ezeh endured
unwelcome, race-based conduct from her supervisor that was pervasive and severe. 2
The district court, citing our opinion in Mackey v. Shalala, 360 F.3d 463, 469–70
(4th Cir. 2004), discounted Ezeh’s sworn deposition testimony as “self-serving opinions,”
insufficient to establish a case of discrimination. J.A. 1815. We, however, find Mackey
inapposite. There, a federal employee, Mackey, brought a sex discrimination claim against
the Department of Health and Human Services (“HHS”) after being passed over for a
2 On similar facts, the U.S. District Court for the District of Maryland reached the same conclusion in Mandengue v. ADT Security Systems, Inc., No. ELH-09-3103, 2012 WL 892621 (D. Md. March 14, 2012). There, the plaintiff—a black woman of Cameroonian origin—filed suit against ADT Security Systems, alleging, inter alia, that she was subjected to a hostile work environment on the basis of race, in violation of Section 1981. Id. at *29 n.34. In denying summary judgment to ADT, the district court relied on the plaintiff’s sworn testimony in which she alleged that her ADT supervisor had suggested that she was performing “voodoo” or “witchcraft” on customers and remarked that she should “go back to Cameroon.” Id. at *28.
15 managerial position and reassigned, allegedly in retaliation for having filed EEOC
complaints. Id. at 466–67. The only connection between Mackey’s EEOC complaints and
the alleged retaliation, however, was her own speculation that she had been reassigned for
voicing her complaints. Thus, in affirming the district court’s entry of judgment in favor
of HHS, we noted that “[a] plaintiff’s own self-serving opinions, absent anything more, are
insufficient to establish a prima facie case of discrimination.” Id. at 469–70 (first emphasis
added) (citing Goldberg v. B. Green and Co., 836 F.2d 845, 848 (4th Cir. 1988)).
In contrast to Mackey’s unadorned opinion as to the basis for her discrimination,
Ezeh has presented testimony replete with alleged facts about the work environment at the
Center and her supervisors’ behavior. That Ezeh’s allegations lack extensive corroborating
evidence is of little import, because the volume of corroborating evidence “relates only to
the credibility and weight of the evidence, which are issues for the jury.” EEOC v.
Warfield-Rohr Casket Co., 364 F.3d 160, 164 (4th Cir. 2004) (emphasis added); see also
United States v. Stein, 881 F.3d 853, 856 (11th Cir. 2018) (en banc) (“Nothing in Rule 56
prohibits an otherwise admissible affidavit from being self-serving. And if there is any
corroboration requirement for an affidavit, it must come from a source other than Rule
56.”); Payne v. Pauley, 337 F.3d 767, 772–73 (7th Cir. 2003) (explaining same). And, in
any event, the district court completely ignored Ross’s testimony, which corroborated
Ezeh’s testimony about Zimmerman’s mistreatment of African employees and obsession
with voodoo. As we have previously explained, “comments made to others are also
relevant to determining whether [a plaintiff] was subjected to severe or pervasive . . .
harassment.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 317 (4th Cir. 2008) (internal
16 quotation marks omitted). Because there are genuine disputes of material fact present in
the record, a jury—not the court—should decide whether Ezeh was subjected to a hostile
work environment. Thus, we conclude that the district court erred in granting summary
judgment to Defendants on Ezeh’s discriminatory hostile work environment claim under
Section 1981.
Finally, although the district court scrutinized Ezeh’s retaliatory hostile work
environment claim under Title VII only, we agree with the district court’s assessment of
that claim and find it equally applicable to Ezeh’s retaliation claim under Section 1981.
See Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 217 (4th Cir. 2016) (explaining
that elements to establish prima facie claim of retaliation under Title VII and Section 1981
are identical). To make out a prima facie case of retaliation, an employee “must show (i)
that she engaged in protected activity; (ii) that her employer took adverse action against
her; and (iii) that a causal relationship existed between the protected activity and the
adverse employment activity.” Id. (internal brackets omitted). On the evidence in the
record, Ezeh has failed to demonstrate any causal link between activity protected under
Section 1981 and an adverse employment action. Ezeh argues that her receipt of a negative
performance evaluation less than a month after sending Genesis management an email
complaining about Zimmerman’s alleged discrimination amounts to an adverse
employment action that would not have occurred but for her allegation of discrimination.
However, Ezeh’s history of poor work performance rebuts such a conclusion. In particular,
the record is undisputed that Genesis management had discussed Ezeh’s substandard job
performance at least two weeks prior to Ezeh’s protests. And, as mentioned above, Ezeh
17 had been told that her performance was substandard even before Zimmerman arrived at the
Center. Accordingly, Defendants are entitled to summary judgment on Ezeh’s retaliatory
hostile work environment claims. See Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008)
(“Workers are shielded from retaliation on account of their assertion of rights protected
under Title VII. But a complaining worker is not thereby insulated from the consequences
of insubordination or poor performance.”). 3
We now shift to Plaintiffs’ claims under Title VII, beginning with Aina’s. 4 The
only Title VII claim Aina raised on appeal—discriminatory termination on the basis of
national origin—fails. As the district court correctly found, Aina cannot maintain this
cause of action under Title VII because he failed to mention any facts related to his
3 With respect to Ezeh’s race-based discrimination claims arising out of her alleged termination, we also agree with the district court’s conclusion that Ezeh was not, in fact, terminated. Ezeh’s own resignation letter, dated October 28, 2011, states that she wanted to leave the Center and return to her old employer, Genesis Staffing, due to Zimmerman’s “unvarying directive to arrive at 7am,” which she found “unfeasible.” J.A. 1059, 1817– 18. We therefore agree with the district court that, having failed to make out a prima facie case of discriminatory or retaliatory termination, summary judgment on Ezeh’s termination claims is appropriate. See Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 188 (4th Cir. 2004). 4 We note that Plaintiffs have waived any right to challenge on appeal the district court’s dismissal of several of their claims, given that Plaintiffs have failed to raise such challenges in their opening brief to this Court. See Brown v. Nucor Corp., 785 F.3d 895, 918 (4th Cir. 2015) (“The doctrine of waiver derives from the Federal Rules of Appellate Procedure, which require that the argument section of an appellant’s opening brief contain the ‘appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.’” (emphasis added) (quoting Fed. R. App. P. 28(a)(8)(A))). Accordingly, this opinion addresses only the claims properly before us.
18 termination in his EEOC Charge of Discrimination. This Court has explained that “[a]n
individual alleging discrimination in violation of Title VII must first file an administrative
charge with the EEOC.” Chacko v. Patuxent Inst., 429 F.3d 505, 508 (4th Cir. 2005) (citing
42 U.S.C § 2000e-5(e)). The charge must “describe generally the action or practices
complained of,” id. at 509 (quoting 29 C.F.R. § 1601.12(b) (2004)), so as to provide
adequate notice to the charged party, Balas v. Huntington Ingalls Indus., Inc., 711 F.3d
401, 407 (4th Cir. 2013). Although this Court construes EEOC charges liberally, our
liberal construction only stretches so far. For instance, “[a] claim will . . . typically be
barred if the administrative charge alleges one type of discrimination—such as
discriminatory failure to promote—and the claim encompasses another type—such as
discrimination in pay and benefits.” Chacko, 429 F.3d at 509. Accordingly, “[t]he filing
of an administrative charge is not simply a formality to be rushed through so that an
individual can quickly file his subsequent lawsuit.” Id. at 510. Because Aina’s Charge of
Discrimination lacks any reference to his alleged discriminatory termination, he has failed
to exhaust his administrative remedies as required by Title VII. Thus, the district court
correctly granted summary judgment on Aina’s Title VII termination claim.
The Title VII claims Nnadozie raises on appeal also flounder. First, the district
court rightly found that Nnadozie has failed to raise a triable issue of fact regarding her
discriminatory hostile work environment claim. In particular, Nnadozie failed to adduce
evidence sufficient to support an inference of discrimination on the basis of national origin,
much less clear the “high bar” that is required to satisfy the “severe or pervasive” test.
Sunbelt Rentals, 521 F.3d at 315. As this Court has explained, “complaints premised on
19 nothing more than rude treatment by coworkers, callous behavior by one’s superiors, or a
routine difference of opinion and personality conflict with one’s supervisor . . . are not
actionable under Title VII.” Id. at 315–16 (internal citations, brackets, and quotations
marks omitted). Nnadozie’s allegations of poor performance evaluations, workplace
disagreements with Zimmerman, an additional workload, and an office relocation simply
cannot demonstrate an environment “permeated with discriminatory intimidation” on
account of her national origin. Harris, 510 U.S. at 21 (internal quotation marks omitted).
Second, Nnadozie has not established a prima facie case of retaliation. Because
Nnadozie has failed to demonstrate a causal connection between the protected activities
she may have engaged in and any subsequent adverse treatment, she cannot prevail on her
retaliatory hostile work environment claim under Title VII. See Ziskie, 547 F.3d at 229.
Nnadozie argues that her objection to Zimmerman’s alleged targeting of African
employees was so close in time to her “Final Written Warning” and office relocation that
those actions must have been retaliatory. Appellant’s Br. at 39–41. But, as with Ezeh,
Nnadozie’s prior history of negative performance evaluations fatally weakens this slim
temporal connection. No rational factfinder could conclude that Nnadozie’s objections
were the but for cause of any adverse employment action she may have experienced.
Accordingly, summary judgment for Defendants is warranted.
Third, because Nnadozie cannot maintain a hostile work environment claim, the
district court properly dismissed her claims of constructive discharge. Although hostile
work environment claims are assessed under a “severe and pervasive” standard,
constructive discharge claims are evaluated under an objective “intolerability” standard,
20 requiring a plaintiff to prove “circumstances of discrimination so intolerable that a
reasonable person would resign.” EEOC v. Consol Energy, Inc., 860 F.3d 131, 144 (4th
Cir. 2017) (quoting Green v. Brennan, 136 S. Ct. 1769, 1779 (2016)). The “intolerability”
standard governing constructive discharge claims is more stringent than the “severe and
pervasive” standard for hostile work environment claims. See Amirmokri v. Balt. Gas &
Elec. Co., 60 F.3d 1126, 1133 (4th Cir. 1995) (explaining that hostile work environment
claims require “less severe” conditions vis-á-vis the intolerable conditions necessary for
constructive discharge claims); see also Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311,
316 n.4 (3d Cir. 2006) (same); Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1050
(7th Cir. 2000) (same); Landgraf v. USI Film Prods., 968 F.2d 427, 430 (5th Cir. 1992)
(same). Having failed to show hostile conditions that were severe and pervasive, Nnadozie
similarly cannot show that conditions at the Center were intolerable. Accordingly, the
district court properly granted summary judgment to the Defendants on these claims.
We arrive, finally, at Ezeh’s claims under Title VII. In support of her claim of
discriminatory hostile work environment on the basis of national origin, Ezeh relies on the
same evidence underlying her Section 1981 discriminatory hostile work environment claim
on the basis of race. See supra Part II-A. We find that this evidence is, likewise, sufficient
for a reasonable jury to find that Ezeh experienced a hostile work environment on account
of her national origin. It may seem peculiar that the same evidence can underlie both a
race-based Section 1981 claim and a national-origin-based Title VII claim. However,
because the line between ethnicity and national origin is, once again, “not a bright one,”
materials showing that Ezeh was discriminated against for being “African” can fairly
21 support either claim. See Saint Francis Coll., 481 U.S. at 614 (Brennan, J., concurring)
(noting that, in the Title VII context, national origin, ethnicity, and ancestry often “overlap
as a legal matter”); Guessous, 828 F.3d at 225–26 (concluding that district court “put itself
in the place of the jury” when it determined that comments made by plaintiff’s supervisor
evinced animus based on national origin and religion only, because jury could conclude
that such comments were also “motivated by broader ethnic animus”); Vill. of Freeport v.
Barrella, 814 F.3d 594, 606 (2d Cir. 2016) (“[C]laims based on race and national origin
may substantially overlap or even be indistinguishable depending on the specific facts of a
case.” (internal quotation marks omitted)).
Defendants are entitled, however, to summary judgment on Ezeh’s remaining Title
VII claims. Specifically, Ezeh’s decision to resign from the Center nullifies her wrongful
termination claims, and, as discussed above, her retaliation claims fail because she has not
demonstrated a causal relationship between a protected activity and any adverse
employment action she allegedly suffered. Lastly, having checked only the “national
origin” box on her EEOC Charge, Ezeh’s race-based claims under Title VII are foreclosed
for failure to exhaust administrative remedies.
III.
In sum, we agree with the district court’s dismissal of Nnadozie and Aina’s Section
1981 claims, but vacate and remand the dismissal insofar as the claims were dismissed with
prejudice. We conclude that the district court erred in dismissing Ezeh’s Section 1981
claims, as she has sufficiently alleged discrimination on the basis of race. However, we
22 nonetheless conclude that summary judgment is appropriate for Defendants on all but one
of her claims under Section 1981; we reverse the district court’s grant of summary
judgment on Ezeh’s race-based hostile work environment claim. And finally, we affirm
the district court’s grant of summary judgment to Defendants on of all but one of Plaintiffs’
Title VII claims; we reverse the district court’s grant of summary judgment on Ezeh’s
hostile work environment claim on the basis of national origin under Title VII. For the
foregoing reasons, the judgment of the district court is
AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND REMANDED
FOR FURTHER PROCEEDINGS.