Frieda Dortch v. Cellco Partnership

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 16, 2019
• Docket: 18-2108
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-2108

FRIEDA DORTCH,

Plaintiff - Appellant,

v.

CELLCO PARTNERSHIP, d/b/a Verizon Wireless,

Defendant - Appellee,

and

VERIZON WIRELESS,

Defendant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Donald C. Coggins, Jr., District Judge. (3:17-cv-00145-DCC)

Submitted: April 16, 2019 Decided: May 16, 2019

Before NIEMEYER and THACKER, Circuit Judges, and DUNCAN, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Shannon Polvi, CROMER BABB PORTER & HICKS, LLC, Columbia, South Carolina, for Appellant. William H. Floyd, Sara S. Svedberg, NEXSEN PRUET, LLC, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

Frieda Dortch appeals the district court’s order adopting the magistrate judge’s

report and granting summary judgment to her former employer, Cellco Partnership

(“Verizon”), on her hostile work environment and discrimination claims raised pursuant

to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 2000e to 2000e-

17 (West 2012 & Supp. 2018), and the Age Discrimination in Employment Act of 1967

(ADEA), 29 U.S.C.A. §§ 621 to 634 (West 2008 & Supp. 2018). Finding no error, we

affirm the district court’s order.

We “review[] de novo the district court’s order granting summary judgment.”

Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 565 n.1 (4th Cir. 2015). “A

district court ‘shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”

Id. at 568 (quoting Fed. R. Civ. P. 56(a)). “A dispute is genuine if a reasonable jury

could return a verdict for the nonmoving party.” Id. (internal quotation marks omitted).

In determining whether a genuine dispute of material fact exists, “we view the facts and

all justifiable inferences arising therefrom in the light most favorable to . . . the

nonmoving party.” Id. at 565 n.1 (internal quotation marks omitted). However, “the

nonmoving party must rely on more than conclusory allegations, mere speculation, the

building of one inference upon another, or the mere existence of a scintilla of evidence.”

Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 540 (4th

Cir. 2015) (internal quotation marks omitted).

3 Dortch contends that the district court erred in rejecting her hostile work

environment claim by concluding that the alleged harassment was not severe or pervasive

and in finding that Verizon was not on notice of the harassment. To establish a hostile

work environment claim, “a plaintiff must show that the offending conduct (1) was

unwelcome, (2) was because of her [race or] sex, (3) was sufficiently severe or pervasive

to alter the conditions of her employment and create an abusive working environment,

and (4) was imputable to her employer.” Foster v. Univ. of Md.-E. Shore, 787 F.3d 243,

254 (4th Cir. 2015). Harassment is considered sufficiently severe or pervasive so as to

alter the terms or conditions of the employment if a workplace is “permeated with

discriminatory intimidation, ridicule, and insult.” Harris v. Forklift Sys., Inc., 510 U.S.

17, 21 (1993) (internal quotation marks omitted). The standard for proving an abusive

work environment is intended to be a high one because it is designed to “filter out

complaints attacking the ordinary tribulations of the workplace.” Faragher v. City of

Boca Raton, 524 U.S. 775, 788 (1998) (internal quotation marks omitted). Thus, the

plaintiff must show not only that she subjectively believed her workplace environment

was hostile, but also that a reasonable person could perceive it to be objectively hostile.

Hoyle v. Freightliner, LLC, 650 F.3d 321, 333 (4th Cir. 2011). “Such proof depends

upon the totality of the circumstances, including the frequency of the discriminatory

conduct; its severity; whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with an employee’s work

performance.” Bonds v. Leavitt, 629 F.3d 369, 385 (4th Cir. 2011) (internal quotation

marks omitted).

4 We conclude that the district court did not err in rejecting Dortch’s claim.

Dortch’s supervisor’s investigation into her team members’ dissatisfaction with her and

his subsequent decision to place Dortch on a performance improvement plan (“PIP”) did

not create an abusive working environment. See id. (concluding plaintiff’s allegations

regarding “actions taken against her in response to the concerns regarding her

performance, fall well short of alleging an abusive working environment”). While one of

Dortch’s subordinates cursed at her during an altercation, “Title VII does not create a

general civility code in the workplace.” Mosby-Grant v. City of Hagerstown, 630 F.3d

326, 335 (4th Cir. 2010) (internal quotation marks omitted). Moreover, several observers

noted that this employee made his remarks after Dortch acted unprofessionally towards

him, demonstrating that this was an ordinary workplace dispute.

We further conclude that the district court correctly concluded that there is no

basis to impute any liability to Verizon for the coworker harassment. For a coworker’s

unwelcome conduct to be attributable to the employer, “the employee must show that the

employer was negligent in controlling working conditions—that is, the employer knew or

should have known about the harassment and failed to take effective action to stop it.”

Strothers v. City of Laurel, 895 F.3d 317, 332 (4th Cir. 2018) (internal quotation marks

omitted). “[O]nce an employer has notice of harassment, it must take prompt remedial

action reasonably calculated to end the harassment.” Freeman v. Dal-Tile Corp., 750

F.3d 413, 424 (4th Cir. 2014) (internal quotation marks omitted). “Relatedly, a plaintiff

seeking to impute liability to her employer for harassment by a co-worker may not be

able to establish the employer’s negligence if she did not report the harassment.” Boyer-

5 Liberto v. Fontainebleau Corp., 786 F.3d 264, 278 (4th Cir. 2015) (en banc). Verizon

learned of Dortch’s subordinate’s profanity and conducted an investigation. While

Dortch is dissatisfied that the investigation revealed that she was partially at fault for the

incident, she offers no more than conclusory assertions to support her claim that her

subordinate was not punished for his role in the incident. Moreover, Dortch does not

allege that her subordinate engaged in any more profane conduct after the incident. See

Foster, 787 F.3d at 255 (finding no basis to impute liability to employer where employer

immediately investigated incident, disciplined harasser, and harassment stopped after

investigation). Finally, as to Dortch’s subordinate who possessed a book on Nazi

Germany at his desk, Dortch concedes that she did not alert Verizon to her discovery of

the book. Thus, Verizon was not on notice that it needed to correct any behavior.

Accordingly, the district court correctly granted summary judgment on Dortch’s hostile

work environment claim. And because Dortch failed to establish this claim, the district

court correctly rejected her constructive discharge claim as well. See Pa. State Police v.

Suders, 542 U.S. 129, 149 (2004).

Dortch also argues that the district court erred in rejecting her discrimination

claims. A plaintiff may establish a race or sex discrimination claim under Title VII

through two avenues of proof. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d

277, 284 (4th Cir. 2004) (en banc), abrogated on other grounds by Univ. of Tex. Sw.

Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). “First, a plaintiff may establish a claim of

discrimination by demonstrating through direct or circumstantial evidence that sex [or

race] discrimination motivated the employer’s adverse employment decision.” Id.

6 Second, a plaintiff may proceed under the familiar McDonnell Douglas 1 pretext

framework. Id. at 285. Dortch proceeded under the pretext framework. 2

To establish her prima facie case of discrimination, Dortch was required to show:

“(1) membership in a protected class; (2) satisfactory job performance; (3) adverse

employment action; and (4) different treatment from similarly situated employees.”

Goode v. Cent. Va. Legal Aid Soc’y, Inc., 807 F.3d 619, 626 (4th Cir. 2015). If she did

so, Verizon was required to proffer a legitimate, nondiscriminatory reason for its

employment decisions. Hill, 354 F.3d at 285. Dortch then has the burden to show that

Verizon’s legitimate reason was, in fact, a pretext for intentional discrimination. Id.

Here, the district court determined that Dortch failed to establish an adverse

employment action or satisfactory job performance. We agree. “An adverse employment

action is a discriminatory act that adversely affects the terms, conditions, or benefits of

the plaintiff’s employment.” Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir.

2007) (brackets and internal quotation marks omitted). “A reassignment can only form

the basis of a valid Title VII claim if the plaintiff can show that the reassignment had

1 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2 Although Dortch briefly argues that she established her claim through the mixed motive framework, she failed to develop this argument in her brief, instead arguing the district court erred in concluding she failed to establish her prima facie case of discrimination. Accordingly, she has forfeited appellate review of any mixed motive claim. See Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (“A party waives an argument by failing to present it in its opening brief or by failing to develop its argument—even if its brief takes a passing shot at the issue.” (alterations and internal quotation marks omitted)).

7 some significant detrimental effect.” James v. Booz-Allen & Hamilton, Inc., 368 F.3d

371, 376 (4th Cir. 2004) (internal quotation marks omitted). Examples of an adverse

employment action include a “decrease in compensation, job title, level of responsibility,

or opportunity for promotion.” Id. (internal quotation marks omitted).

While Dortch challenges the PIP, a final written warning, and her 2015

performance review, “a poor performance evaluation is actionable only where the

employer subsequently uses the evaluation as a basis to detrimentally alter the terms or

conditions of the recipient’s employment.” Id. at 377 (internal quotation marks omitted).

Here, Dortch identified two consequences from her negative performance review—the

shift change and a lesser bonus. Although Dortch stated that she was forced to work a

less desirable shift because of her low performance rating, this minor shift change does

not amount to an adverse employment action as she was not forced to work additional

hours for less pay and her job duties did not change.

Assuming that the lesser bonus constitutes an adverse employment action, see

Russell v. Principi, 257 F.3d 815, 819 (D.C. Cir. 2001), we conclude that Dortch was not

meeting Verizon’s legitimate performance expectations. While Dortch claims she was a

good performer, her own testimony “cannot establish a genuine issue as to whether [she]

was meeting [Verizon’s] expectations.” King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir.

2003). Moreover, while one of Dortch’s former coworkers and a subordinate believed

she did not have the communication problems identified by Verizon, it is the perception

of the decisionmaker that is relevant. Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th

Cir. 2000). Most of Dortch’s subordinates, as well as several coworkers, complained

8 about her management style and communication skills, and Verizon can legitimately

expect its supervisors to treat their subordinates with respect.

Accordingly, we affirm the district court’s order. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

AFFIRMED