T. S. ELLIS, III, District Judge.
Plaintiff in this five-count employment discrimination and retaliation case has been an employee of defendant for nearly twenty years, serving in the Fairfax County Fire and Rescue Department since August 1996. Plaintiff alleges that dating back to when she first began her employment with defendant in 1996, she has been subjected to discriminatory treatment on the basis of her race and sex. More recently, in February 2010 plaintiff was diagnosed with cancer, which plaintiff alleges prompted a new wave of discrimination on the basis of her disability in addition to the already allegedly prevalent racial and gender discrimination. Accordingly, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on January 29, 2014, and thereafter (presumably after obtaining a right to sue letter) filed this action on January 26, 2015, alleging (i) discrimination in violation of Title VII
Defendant Fairfax County filed a motion for summary judgment on all counts, which was thereafter fully briefed, argued, and taken under advisement. For the reasons that follow, the undisputed record facts disclose that defendant is entitled to judgment as a matter of law.
The undisputed facts central to this dispute may be succinctly stated.
In September 2005, plaintiff was promoted to Lieutenant in the Fire and Hazardous Materials Investigative Services Section ("FHMIS") in the Department's Fire Prevention Division, a sworn law enforcement position. Upon completion of the required academy training, plaintiff was sworn in as a law enforcement officer and officially became a Fire Investigator. In this position, plaintiff's job duties included (i) conducting investigations to determine the origins of fires, explosions, and hazardous materials cases, (ii) responding to hazardous material incidents, (iii) interviewing witnesses and examining incident scenes for evidence, (iv) preparing cases for prosecution, and (v) testifying in court.
In February 2010, plaintiff was diagnosed with cancer. Thereafter, in August 2010, plaintiff requested to be placed on light duty, and this request was granted. Plaintiff concedes she requested light duty because, as a result of her chemotherapy, she could not dig through debris to determine the origins of a fire or enter hazardous environments, both of which are listed in defendant's description of the "essential duties" of a Fire Investigator. See Def't Mem. Supp. (Doc. 35), Ex. 4. During her light duty, plaintiff temporarily swapped positions with a lieutenant in a technical support position, which did not require performance of duties inconsistent with her medical condition. In July 2011, plaintiff requested an extension of time on light duty beyond the one calendar year that Department policy allowed. This request was also granted. Then, in November 2011, Chief Barrero, plaintiff's supervisor, informed plaintiff that it was necessary to transfer plaintiff out of FHMIS, but in fact no transfer followed. Instead, plaintiff remained on light duty in FHMIS until December 2011, when she was medically cleared to return to regular shift duty as a Fire Investigator. She then resumed her former position.
In February 2012, plaintiff's cancer recurred, and plaintiff thereafter again requested light duty in April 2012, which Chief Barrero approved.
In August 2012, plaintiff submitted to the Department her first and only written complaint alleging discourteous and discriminatory treatment by Chief Barrero. Plaintiff concedes that defendant's response to this complaint resolved her issues with Chief Barrero and that there were no subsequent incidents of discourteous or discriminatory treatment by Chief Barrero at FHMIS. Def't Mem. Supp. at 6-7, ¶ 26; P. Opp. (Doc. 41) at 18, ¶ 16 (not denying the relevant portion of defendant's stated fact). In September 2013, plaintiff was medically cleared to return to regular duty and she then returned to shift work as a Fire Investigator.
Thereafter, in October 2013, defendant received a complaint from a rental property manager regarding employment verification information the property manager had received — ostensibly from human resources official Katrina Powell — regarding plaintiff's son, Armando, who had been employed with the Department from May 2013 until his termination in July 2013. When the property manager initially sought to verify Armando's employment with the Department, the property manager received, via fax, a signed employment verification form that listed a return telephone number, which the property manager then called to confirm the fax's authenticity. Over the telephone, the property manager spoke with a woman claiming to be Katrina Powell, the name matching the signature on the verification form. After observing that Armando never seemed to go to work, the property manager decided to double check his employment status. When the property manager again called the telephone number listed on the employment verification form, her call went to a voicemail system identifying the telephone number as plaintiff's rather than Powell's. From this, the property manager concluded that she had been deceived and lodged a complaint with defendant's human resources department.
The matter was referred to Guy Morgan, the Department's Professional Standards Investigator, who then investigated plaintiff for a series of unprofessional and unlawful acts while on duty as a sworn law enforcement officer, including:
Over the course of the investigation, plaintiff admitted that she made false statements about Armando's employment, at one point telling Morgan, "I'm telling you, I lied. I did lie. I lied."
In addition to being suspended without pay, plaintiff lost her position as a Fire Investigator and was transferred to the Operations Bureau to serve there as a lieutenant, the same rank she held prior to this reassignment. The undisputed record further reflects that defendant concluded that the transfer was necessary because Fire Investigators, as part of their duties, must be able to present reliable testimony in criminal trials. Plaintiff, as a result of a finding of a truthfulness violation, would not be able to offer such testimony without being subject to an attack on her credibility. Indeed, defendant considered plaintiff to pose a Brady
After her reassignment to the Operations Bureau, plaintiff, as part of her job duties, was required to perform fire suppression, which she had not performed since her promotion to Fire Investigator in 2005. Accordingly, prior to performing work in the field, plaintiff was required, consistent with standard operating procedures, to complete a Field Reentry Program. In January 2014, while participating in the Field Reentry Program, plaintiff filed her EEOC charge of discrimination.
In February 2014, plaintiff entered the second phase of the Field Reentry Program, which required plaintiff to begin working 24-hour shifts. Prior to completing this phase of the program, in June 2014 plaintiff requested a change in her work schedule so that she could work day shifts rather than 24-hour shifts. Plaintiff also submitted an ADA Accommodation Request Form in June 2014 requesting "day work." The Department granted plaintiff's request and assigned plaintiff to perform a temporary day work assignment in Headquarters beginning in June 2014. A little over a year later, in August 2015, the Department classified plaintiff as medically disqualified from performing the essential job tasks of a firefighter based on a recommendation from Dr. Donald Stewart, M.D. Since October 2015, plaintiff has been on leave under the Family Medical Leave Act.
Plaintiff alleges a number discriminatory actions reaching back nearly twenty years to the commencement of her employment with defendant in 1996. Specifically, the Amended Complaint alleges five counts:
Common to Counts I, II, IV, and V are claims that defendant violated the law by (i) transferring plaintiff to a new position, (ii) denying equal employment opportunities with respect to training, promotion, and compensation, (iii) creating a hostile work environment, and (iv) engaging in "disparate treatment." In addition, Count IV claims further violations of the ADA through defendant's (i) failure to accommodate plaintiff's disability and (ii) making unlawful inquiries into plaintiff's medical history. Yet, not all of these claims are properly presented here. Two important doctrines — exhaustion of administrative remedies and the statute of limitations — operate to bar certain of plaintiff's claims. Thus, analysis properly begins by identifying which of plaintiff's claims are ripe for adjudication and which of her claims are barred by a failure to exhaust administrative remedies or by the statute of limitations.
Both Title VII and the ADA require a plaintiff to exhaust administrative remedies before pursuing litigation in federal court. See Syndor v. Fairfax Cnty., 681 F.3d 591, 593 (4th Cir. 2012) ("[T]he ADA incorporates [Title VII]'s . . . requirement that a plaintiff must exhaust his administrative remedies by filing a charge with the EEOC before pursuing a suit in federal court."). Nor is this a mere formality; exhaustion is an integral part of the enforcement scheme for these statutes. Specifically, by channeling allegations of discrimination through the EEOC in the first instance, the exhaustion doctrine operates to provide employers with notice of the alleged violations and to allow the EEOC to use administrative conciliation to address and, where appropriate, to remedy any violations more quickly and inexpensively than may be typically accomplished through litigation. See id. Given the important role of the administrative process, courts have understandably and uniformly determined that the scope of a plaintiff's right to sue is limited by the contents of the charge of discrimination filed with the EEOC. See id. (citing Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009)). Thus, the touchstone of the administrative exhaustion analysis is whether the allegations in the complaint are reasonably related to the EEOC charge such that the claims in the complaint "can be expected to follow from a reasonable administrative investigation." Smith v. First Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000). In other words, a claim in a complaint that is not explicitly disclosed in an EEOC charge is nonetheless administratively exhausted if a reasonable administrative investigation would have disclosed the alleged conduct. By contrast, where the factual allegations in the formal lawsuit "reference different time frames, actors, and discriminatory conduct" when compared with the EEOC charge, the claims have not been exhausted. Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005).
It follows that an EEOC charge of race discrimination cannot support a lawsuit for sex discrimination, nor can an EEOC charge of retaliation support a lawsuit for discriminatory employment practices. Syndor, 681 F.3d at 593. But at the same time, a broad charge of "discrimination in promotion" or "retaliation" may support a subsequent lawsuit based on aspects of a promotional system or retaliatory conduct that differ from that detailed in the EEOC charge. Id. at 594. Although it is appropriate to construe EEOC charges "liberally" because "lawyers do not typically complete the administrative charges," the fact remains that a plaintiff cannot bring a lawsuit on a claim unless the EEOC charge made it reasonably likely that the EEOC would discover and investigate the claim. See Chacko, 429 F.3d at 509; Syndor, 681 F.3d at 594 (the goal of administrative exhaustion is "to strike a balance between providing notice to employers and the EEOC on the one hand and ensuring plaintiffs are not tripped up over technicalities on the other.").
As noted supra, plaintiff's Amended Complaint asserts four claims with respect to plaintiff's allegation of discrimination and retaliation in violation of Title VII in Counts I and II: (i) transfer into a new position, (ii) denial of equal employment opportunities in training, promotion, and benefits, (iii) creation of a hostile work environment, and (iv) imposition of "disparate treatment." Am. Comp. ¶¶ 32, 36. In addition to each of the foregoing claims, which also appear in plaintiff's ADA causes of action in Counts IV and V, plaintiff further alleges discrimination in violation of the ADA through (i) defendant's failure to provide a reasonable accommodation for plaintiff's disability
Accordingly, to determine whether plaintiff's claims have been properly exhausted, it is necessary to compare plaintiff's allegations in her EEOC charge with the claims asserted in the Amended Complaint. The claims "reasonably related" to the EEOC allegations are administratively exhausted and properly presented here; otherwise, the claims have not been exhausted and are barred from presentation here. On review of the allegations in the EEOC charge and the claims in the Amended Complaint, it is clear that some of plaintiff's claims are exhausted and others are not.
Plaintiff's EEOC charge of discrimination contains the following allegations:
See Def't Mem. Supp., Ex. 36. Allegation (5) is clearly "reasonable related" to plaintiff's claim in this litigation — in Counts I, II, IV, and V — that she was transferred into a new position as the result of discrimination and retaliation. Similarly, allegations (2) and (4) constitute examples of "disparate" treatment, which plaintiff also claims in Counts I, II, IV, and V. And finally, allegations (1) and (3) may be liberally construed as alleging hostile work environments, which plaintiff once again claims as part of Counts I, II, IV, and V.
Yet, entirely absent from plaintiff's EEOC charge is any indication that plaintiff was denied "equal employment opportunities" in training, promotion, or compensation as claimed in the Amended Complaint. These claims in the Amended Complaint are not reasonably related to the allegations in the EEOC charge; a reasonable administrative investigation would not have disclosed these claims. As such, these claims are unexhausted and not properly presented here.
Similarly, the EEOC charge does not encompasses plaintiff's claims for failure to accommodate or making unlawful inquiries into plaintiff's medical records. Although plaintiff's EEOC charge alleges a continuing action of disability discrimination, the only specific reference to a failure to accommodate is mentioned in the context of plaintiff's conflict with Chief Barrero in February 2010. For purposes of this litigation, however, plaintiff's claim of failure to accommodate and making unlawful medical inquiries focus on events occurring in June 2014 and interactions with Phyllis Schwartz from defendant's Human Resources department. Am. Comp. ¶¶ 17-23. Simply put, the EEOC would not be put on notice to investigate these claims in the Amended Complaint, as they focus on timeframes and actors entirely different from the timeframe and actors in the EEOC charge. Cf. Chacko, 429 F.3d at 506 (no administrative exhaustion where the complaint references "different time frames [and] actors" from the EEOC charge). Moreover, plaintiff concedes that she did not file an amendment to the original EEOC charge to include these allegations. See Tr. at 39:22-40:6.
Nonetheless, plaintiff attempts to save these claims in the present litigation by relying on the "continuing violation" doctrine to argue that these allegations are "reasonably related" to the allegations in the original charge. See id. This argument misunderstands the "continuing violation" doctrine, which has nothing to do with the operation of the exhaustion requirement; rather, the "continuing violation" doctrine addresses the statutory limitations period and "allows for consideration of incidents that occurred outside the time bar when those incidents are part of a single, ongoing pattern of discrimination, i.e., when the incidents make up part of a hostile work environment claim." Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (emphasis added). In short, because the claims in the Amended Complaint focus on timeframes and actors different from the allegations in the EEOC charge, the claims here are not "reasonably related" to the EEOC charge allegations, and plaintiff has not provided any authority to suggest that the "continuing violation" doctrine excuses the duty to amend an EEOC charge (or, perhaps, to file an entirely new charge).
Accordingly, plaintiff's claims of (i) denial of "equal employment opportunities" with respect to promotion, training, and compensation in violation to Title VII and the ADA that appear in Counts I, II, IV, and V, (ii) failure to accommodate in violation of the ADA that appear in Count IV, and (iii) making improper medical inquiries in violation of the ADA that appear in Count IV, are barred by the doctrine of administrative exhaustion. The only claims that have been properly exhausted are plaintiff's claims with respect to her transfer, the Minimum Staffing Qualifications Standard, the downgrading of her performance evaluation, and the hostile work environment.
The statute of limitations also operates to bar certain of plaintiff's claims. As relevant here, an EEOC charge must be filed within 300 days after the alleged unlawful employment practice occurred.
Plaintiff's allegation that defendant discriminatorily required her to take the "Minimum Staffing Qualifications Standard" is time barred because the undisputed record facts reflect that this occurred in 2007, well beyond the 300-day limitations window. Similarly, any failure by defendant to provide a reasonable accommodation in 2010, following plaintiff's initial cancer diagnosis, is likewise barred as beyond the 300-day limitations period. Moreover, with respect to plaintiff's hostile work environment claims, plaintiff's EEOC charge lists "02-01-2010" as the earliest date of discrimination. Def't Mem. Supp., Ex. 36. Accordingly, the appropriate scope for plaintiff's hostile work environment claims goes back no further than February 2010.
The summary judgment standard is too well-settled to warrant extensive discussion. A motion for summary judgment should be granted "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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party seeking summary judgment has the initial burden to show the absence of a material fact. See id. at 325. To defeat a motion for summary judgment, the non-moving party must set forth specific facts showing that there is a genuine issue for trial. See Covenant Media of S.C., LLC v. City of N. Charleston, 493 F.3d 421, 436 (4th Cir. 2007). In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the non-moving party with all reasonable inferences from those facts drawn in favor of that party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). An issue of material fact is genuine when "the evidence . . . create[s] [a] fair doubt; wholly speculative assertions will not suffice." Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985).
Plaintiff's claim in Count I alleging disparate treatment on the basis of race and sex stemming from her transfer to the Operations Bureau is appropriately analyzed under the well-established McDonnell Douglas framework.
To establish a prima facie case of discrimination under Title VII, plaintiff must show (i) membership in a protected class, (ii) satisfactory job performance, (iii) adverse employment action, and (iv) different treatment from similarly situated employees outside the protected class. Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010). Defendant concedes that plaintiff is a member of a protected class for the purpose of her Title VII claims but disputes all remaining elements of plaintiff's prima facie case. Because the record clearly reflects that plaintiff's transfer to the Operations Bureau did not constitute an "adverse employment action" and that plaintiff was not treated differently from similarly situated employees outside the protected class with respect to her transfer to the Operations Bureau, it is appropriate to assume without deciding for the purposes of the present motion that plaintiff can establish that she was performing her job satisfactorily at the time of the alleged disparate treatment. In other words, it is unnecessary to reach or to decide every issue that the parties dispute because the undisputed record facts clearly reflect two sufficient bases upon which to conclude that plaintiff cannot establish a prima facie case of discrimination under Title VII based on her transfer to the Operations Bureau. Moreover, even assuming that plaintiff can establish a prima facie case, it is clear that the undisputed record discloses that defendant's legitimate and non-discriminatory justification is not pretextual.
With respect to plaintiff's claim that her transfer from FHMIS to the Operations Bureau was discriminatory, the Fourth Circuit's decision in Boone v. Goldin, 178 F.3d 253 (4th Cir. 1999), is instructive. There, the plaintiff was an African-American female who alleged a violation of the antidiscrimination and anti-retaliation provisions of Title VII when her employer reassigned her to an unfamiliar new position. Id. at 254. The Fourth Circuit concluded that even if the transfer caused plaintiff increased stress, the transfer did not constitute an "adverse employment action" because "reassignment can only form the basis of a valid Title VII claim if the plaintiff can show that the reassignment had some significant detrimental effect." Id. at 256. As the Fourth Circuit explained, "[a]bsent evidence that a new position is significantly more stressful than the last, vague allegations of stress resulting from reassignment cannot support a claim of discrimination under Title VII." Id. Subsequently, the Fourth Circuit has reaffirmed that a transfer is only actionable as an adverse employment action if it entails a "significant detrimental effect" such as a "decrease in compensation, job title, level of responsibility, or opportunity for promotion." James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 376 (4th Cir. 2004) (quoting Boone, 178 F.3d at 256-57) (internal quotations omitted).
The undisputed record facts disclose that plaintiff has never been demoted, her rank has never been decreased, and her transfer to the Operations Bureau actually increased the number of people over whom she had supervisory authority.
Simply put, plaintiff's objections to her reassignment to the Operations Bureau focus on the fact that the job duties were different and, in plaintiff's view, less desirable, neither of which is sufficient to constitute an adverse employment action. Without some more tangible detrimental effect such as a reduction in pay or rank, which the record does not reflect occurred, a reassignment is not actionable as an adverse employment action for purposes of Title VII. See James, 368 F.3d at 376. Here, plaintiff has failed to provide specific record evidence establishing a qualifying significant detrimental effect of any sort. Accordingly, the Title VII discrimination claim in Count I stemming from plaintiff's transfer to the Operations Bureau fails.
Although the conclusion that plaintiff's transfer to the Operations Bureau was not an "adverse employment action" is sufficient for defendant to prevail with respect to that claim in Count I, it is appropriate to consider that even if plaintiff's transfer were an adverse employment action, plaintiff cannot show that she was treated differently from similarly situated individuals outside of the protected class as required in the fourth prong of the McDonnell Douglas prima facie case framework. Although establishing comparators is not necessary as a matter of law, plaintiff must establish by some means that her circumstantial evidence supports a reasonable inference of unlawful discrimination. See Bryant v. Aiken Regional Med. Ctrs. Inc., 333 F.3d 536, 545 (4th Cir. 2003). Here, plaintiff has chosen to rely on comparators to satisfy this requirement, but her efforts in this regard fail.
The undisputed record discloses only one similarly situated comparator, Paul White, who is outside of a protected class.
Plaintiff contends that other Caucasian men were treated better than plaintiff despite having committed more significant violations. Specifically, plaintiff points to Michael Reilly, David Lauler, and Joseph Vacchio as comparators. Yet, none of these individuals are "similar in all relevant respects" in that none "engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Haywood v. Locke, 387 F. App'x 355, 359 (4th Cir. 2010) (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)) (internal quotations omitted). To the contrary, the undisputed record facts reveal that none of these ostensible comparators committed a violation relating to truthfulness; plaintiff has no evidence to the contrary.
Assuming, arguendo, that plaintiff can show a prima facie case of unlawful discrimination, the burden now shifts to defendant to produce a legitimate, non-discriminatory justification for the allegedly disparate treatment. Defendant has done so by producing evidence that plaintiff's transfer to the Operations Bureau was the result of an internal investigation that concluded that plaintiff violated a series of Department rules by falsely verifying to a civilian property manager that her son was a Department employee. Because these findings reflected on plaintiff's truthfulness, and because plaintiff's position as a Fire Investigator required her to be able to testify effectively in court, the Department concluded that plaintiff could not properly perform this duty given Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. Specifically, plaintiff's credibility was jeopardized and her testimony would be subject to impeachment in any criminal case in which she participated in her official role. As a result of this Brady issue, plaintiff was reassigned to a role that would not entail the essential Fire Investigator's function of providing reliable testimony in court.
Given that defendant has adduced evidence of a legitimate and non-discriminatory reason for plaintiff's reassignment, the burden now shifts back to plaintiff to show that the proffered justification was a mere pretext for discrimination. In order to show pretext with respect to Count I, plaintiff argues that there is no factual basis for defendant's conclusion. This attack on the factual basis for plaintiff's transfer to the Operations Bureau fails.
Plaintiff's argument has several layers. First, plaintiff essentially argues that defendant could not prove in court that she actually committed the conduct alleged, namely lying and forgery, because there is no evidence of fraudulent intent. P. Opp. at 26-27. And, plaintiff continues, if there was no intent to deceive, then there was no felonious conduct, and thus plaintiff does not pose a problem under Brady. Tr. at 25:5-7. Thus, plaintiff argues that defendant's conclusion about plaintiff's truthfulness violation did not warrant her transfer to the Operations Bureau because "there are other things that could have been used to deal with [that] issue." Tr. at 30:11-13.
At its core, plaintiff's attack on defendant's investigation is a request for judicial intervention "as a kind of super-personnel department weighing the prudence of employment decisions," a practice in which the federal courts do not engage. DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998). To be sure, one way to create a factual issue as to pretext is to present sufficient evidence to create an inference that the proffered legitimate reason for the employment decision has no basis in fact. Sharif v. United Airlines, Inc., No. 14-cv-1294, 2015 WL 4042173, at *6 (E.D. Va. July 1, 2015). But in the Fourth Circuit, as elsewhere, a plaintiff must do more than demonstrate that an employer's belief is incorrect; plaintiff must present evidence reasonably calling into question the honesty of the employer's belief.
It must be acknowledged at the outset that plaintiff does not and cannot deny that she confessed to untruthfulness during the course of the Department's investigation into whether she provided false information about her son's employment with the Department. Plaintiff argues that when she admitted to lying, she was conceding only that she made a statement that was technically untrue but that she did so without any intent to deceive. See Tr. 23:20-24:2. Certainly, the undisputed record reflects that plaintiff's admission included that qualification that plaintiff was operating "with the understanding that [her son] would start up [with the Department] in January." Def't Mem. Supp., Ex. 17 at 38:17-29. But this does not undermine the fact that plaintiff also acknowledges that what she did was wrong, id. at 1:01:09-18, and that she had no right to make the statements she made, id. at 1:25:46-51. Nothing plaintiff argues calls into question the ultimate conclusions reached in the investigation. That is, just because plaintiff denies that she acted with a fraudulent or felonious intent does not mean that the Department could not reach the conclusion that she knowingly made false statements based on other facts disclosed in the investigation.
With respect to the quality of the investigation, the undisputed record facts reflect that Guy Morgan, the Department's investigator, interviewed the rental property manager to whom the alleged misrepresentations were made, reviewed the property manager's documents bearing the misrepresentations, and interviewed the human resources official whose signature was allegedly forged on the fax message in order to perpetrate the misrepresentation.
To the extent plaintiff argues that any procedural irregularities tainted the Department's investigation, she simply asserts that she was given a letter suspending her from law enforcement and placing her on administrative leave before she was interviewed. P. Opp. at 7, ¶ 26. This assertion falls far short of undermining the adequacy of the investigation and the accuracy of the conclusions reached. The undisputed record detailing the conduct of the investigation makes clear that plaintiff's suspension prior to her interview was reasonable as there was then sufficient reason to believe that plaintiff had committed the alleged violations. Conceivably there are ways in which the Department's investigation could have been improved, but the standard is reasonableness, not perfection. See Murphy, 549 F. App'x at 322. On the undisputed factual record, no reasonable jury could find that the Department's conclusion that plaintiff committed the alleged violations was not based on particularized facts that were uncovered through an acceptably thorough and fair investigation. Accordingly, there are no grounds to conclude that defendant did not honestly believe that plaintiff committed the alleged truthfulness violations.
Plaintiff's protest that she does not pose a problem under Brady fails for similar reasons. The undisputed record evidence shows that defendant subjectively believed that plaintiff posed a Brady issue.
Moreover, although plaintiff does not raise additional grounds to allege pretext, it is worth briefly reviewing two common methods of establishing pretext in order to underscore the soundness of the conclusion reached here that plaintiff cannot satisfy her burden to show pretext warranting trial. First, the record is devoid of any evidence that the final decision-maker, Fire Chief Bowers, ever made any comments suggesting animus based on race or sex, or even anything personally disparaging about plaintiff. Cf. Lindemann & Grossman, supra n.18, 65 n.208 ("Comments by non-decision makers consistently have been held to be insufficient evidence of pretext even to defeat an employer's motion for summary judgment."). Second, as noted in Part IV-B, supra, there is no comparative evidence from which an inference of discrimination can be drawn.
Accordingly, even assuming that plaintiff has a prima facie case of disparate treatment as to her transfer to the Operations Bureau, the undisputed record facts point convincingly to the conclusion that defendant's proffered legitimate reason for the action was not a pretext for discrimination, and no reasonable jury could conclude otherwise. As such, summary judgment must be entered in favor of defendant on the disparate treatment claim in Count I.
In Count II, plaintiff re-alleges that her transfer from FHMIS to the Operations Bureau violated Title VII, this time on the basis that it was retaliatory. Once again, the McDonnell Douglas framework applies, meaning (i) plaintiff must first establish a prima facie case of retaliation, (ii) then the burden shifts to defendant to articulate a legitimate, non-retaliatory reason for the adverse employment action giving rise to the claim, and (iii) then the burden shifts back to plaintiff to produce evidence sufficient to find that defendant's articulated reason is a mere pretext for illegal retaliation. See Foster, 787 F.3d at 250. To establish a prima facie case, a retaliation plaintiff under Title VII must show (i) that she engaged in a protected activity, (ii) that she suffered an adverse employment action, and (iii) that there is a causal link between the protected activity and the employment action. See id. Defendant assumes for the purpose of summary judgment that plaintiff engaged in protected activity as required for her retaliation claims, but all remaining elements of plaintiff's prima facie cases remain disputed.
The first basis on which plaintiff's claim in Count II fails is identical to the first basis on which the claim failed under Count I, namely that plaintiff's transfer to the Operations Bureau does not constitute an "adverse employment action." Thus, for the same reasons stated in Part IV-A, supra, plaintiff cannot establish a prima facie case of retaliation under Title VII.
But even assuming plaintiff could prove a prima facie case of retaliation, plaintiff cannot show that defendant's proffered legitimate and non-retaliatory reason for the transfer is a mere pretext for retaliation. As in Count I, defendant submits that plaintiff's transfer to the Operations Bureau was the result of an internal investigation that concluded that plaintiff violated a series of Department rules, including those touching on truthfulness. In response, plaintiff presents two theories of pretext: (i) that there is no factual basis for defendant's conclusion (the same argument advanced as to Count I) and (ii) that the decision-makers knew of plaintiff's complaints against Chief Barrero and therefore intentionally placed her into a high-risk position in the Operations Bureau.
Plaintiff's first pretext argument fails for the same reason that it failed under Count I. Indeed, the analysis in Part IV-C, supra, applies with full force under Count II because plaintiff cannot show that defendant did not subjectively believe that she committed a truthfulness violation that warranted the challenged transfer. Plaintiff's second argument fares no better; plaintiff cites no evidence in the record to support her allegation that the decision-maker knew of plaintiff's protected activity. See P. Opp. at 9-10, ¶ 42; 19, ¶ 23 (making the conclusory allegation without citing record evidence). Although the record reflects that Chief Baker knew of plaintiff's complaints about Chief Barrero, the record does not reflect that the ultimate decision maker, Fire Chief Bowers, knew of plaintiff's complaints.
Moreover, the law is now clear that it is not sufficient for a Title VII retaliation plaintiff to show that retaliatory animus was one of several motivating factors underlying an employment decision. Rather, a retaliation plaintiff must show that the unlawful retaliation would not have occurred in the absence of the alleged retaliatory animus. See Foster, 787 F.3d at 249. Put differently, if the same adverse action would have occurred even in the absence of the employer's wrongful retaliatory animus, then plaintiff's claim must fail. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2525 (2013) ("It is thus textbook tort law that an action `is not regarded as a cause of an event if the particular event would have occurred without it.'"). Because, as noted supra n.21, plaintiff has admitted defendant's version of the facts — that the transfer was because of the conclusion that plaintiff presented a Brady problem — it cannot be said that the transfer would not have occurred in the absence of retaliatory animus.
Accordingly, even assuming that plaintiff has established a prima facie case of retaliation as to her transfer to the Operations Bureau—which she has not—the undisputed record facts are such that no reasonable jury could conclude that defendant's proffered legitimate reason for the transfer was pretextual or retaliatory, and summary judgment must therefore be entered in favor of defendant on the disparate treatment retaliation claim in Count II.
In Count IV, plaintiff once again challenges her transfer to the Operations Bureau—this time as discriminatory in violation of the ADA—in addition to alleging that her performance review was downgraded based on her disability. Discrimination claims under the ADA, like discrimination claims under Title VII, utilize the McDonnell Douglas framework. See Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995). Thus, (i) plaintiff must first establish a prima facie case of discrimination, (ii) then the burden shifts to defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action giving rise to the claim, and (iii) then the burden shifts back to plaintiff to produce evidence sufficient to find that defendant's articulated reason is a mere pretext for illegal discrimination. See id.
To establish a prima facie case of discrimination under the ADA, plaintiff must show (i) that she was a qualified individual with a disability, (ii) that she was satisfactorily performing her job, (iii) that she suffered an adverse employment action, and (iv) that the adverse employment action "occurred under circumstances that raise a reasonable inference of unlawful discrimination." See id. Defendant contests each element of plaintiff's prima facie case, but it is unnecessary to resolve each dispute because the undisputed record facts disclose that neither plaintiff's transfer nor the downgrading of her performance review constitutes a qualifying "adverse employment action."
With respect to plaintiff's transfer to the Operations Bureau, the adverse employment action analysis is identical to that discussed in Part IV-A, supra. Similarly, plaintiff's claim that her performance evaluation was downgraded based on her disability in violation of the ADA is not sufficient, absent more, to constitute an adverse employment action.
Once again, even assuming that plaintiff could establish a prima facie case with respect to her transfer to the Operations Bureau, she would be unable to show that defendant's proffered legitimate and non-discriminatory explanation for the transfer was a mere pretext for discrimination. Again, defendant submits that plaintiff's transfer to the Operations Bureau was the result of an internal investigation that concluded that plaintiff violated a series of Department rules, including those touching on truthfulness. In Count IV, plaintiff offers two arguments to establish pretext: (i) that there is no factual basis for defendant's conclusion (as argued in Counts I and II) and (ii) that the decision-makers knew of plaintiff's medical condition and therefore intentionally placed her into a high-risk position in the Operations Bureau.
Plaintiff's first argument fails for precisely the same reasons as the same argument failed under Counts I and II, namely that plaintiff cannot show that defendant did not subjectively believe the proffered basis. And plaintiff's second argument, like her second argument in Count II, fails because plaintiff cites no evidence in the record to support her allegation of the decision-maker's knowledge. See P. Opp. at 9-10, ¶ 42; 19, ¶ 23 (making the conclusory allegation without a single citation to record evidence). Indeed, the record actually contradicts the assertion that defendant knowingly placed plaintiff in a high-risk position for which she was not equipped because of her medical condition. Plaintiff concedes that she was capable of performing in the Operations Bureau as of August 2013, id. at 10, ¶ 46, and her medical records reflect that she was fully fit for operational status as of that same time. See Def't Reply (Doc. 45), Ex. 8 (August 2, 2013 medical release to return "to full duty work immediately"). Thus, plaintiff's conclusory allegation that the decision-maker knew that she would face medical difficulty in the Operations Bureau is without support in the record. Finally, although plaintiff does not raise this as a grounds to argue pretext, it is worth mentioning that the record does not reflect that Fire Chief Bowers, the final decision-maker regarding plaintiff's transfer, ever made any comments suggesting animus based on disability, or even anything personally disparaging about plaintiff. Cf. Lindemann & Grossman, supra n.18, 65 n.208 ("Comments by non-decision makers consistently have been held to be insufficient evidence of pretext even to defeat an employer's motion for summary judgment.").
For the foregoing reasons, plaintiff's ADA claims of disparate treatment stemming from her transfer to the Operations Bureau and the downgrading of her performance evaluation both fail. As such, summary judgment for defendant in this regard is appropriate.
In Count V plaintiff repackages her disparate treatment claims from Count IV as ADA retaliation claims. As noted, ADA claims utilize the McDonnell Douglas framework such that (i) plaintiff must first establish a prima facie case of retaliation, (ii) then the burden shifts to defendant to articulate a legitimate, non-retaliatory reason for the adverse employment action giving rise to the claim, and (iii) then the burden shifts back to plaintiff to produce evidence sufficient to find that defendant's articulated reason is a mere pretext for illegal retaliation. See Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995).
In order to establish a prima facie case of retaliation under the ADA, plaintiff must show (i) that she engaged in a protected activity, (ii) that she suffered adverse employment action, and (iii) that there is a causal link between the protected activity and the employment action. See Reynolds v. Am. Nat'l Red Cross, 701 F.3d 143, 154 (4th Cir. 2012). Defendant assumes for the purpose of summary judgment that plaintiff engaged in protected activity, but the remaining elements of the prima facie case are in dispute.
Plaintiff's claims, both as to her transfer to the Operations Bureau and the downgrading of her performance evaluation, fail at the outset because neither constitutes an "adverse employment action" for the reasons set forth in Part VI, supra. Moreover, as to the transfer to the Operations Bureau, plaintiff would be unable to show that defendant's proffered legitimate and non-retaliatory justification for the employment action was a mere pretext. As discussed in Part IV-C, supra, plaintiff's attack on the factual basis for defendant's proffered explanation is unavailing. Moreover, as discussed in Part V, supra, plaintiff also cannot meet the heightened causation standard for a retaliation claim, namely that an adverse employment action is only actionable as retaliation if retaliatory animus was the "but for" cause of the action.
Plaintiff's only remaining claims in Counts I, II, IV, and V focus on her allegations of a hostile work environment. To survive summary judgment on these claims, plaintiff must demonstrate that a reasonable jury could find (i) unwelcome harassment; (ii) based on membership in a protected class or based on protected activity; (iii) that is sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (iv) some factual basis on which to impute liability for the harassment to the employer. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183-84 (4th Cir. 2001).
Importantly, hostile work environments are not per se forbidden under Title VII and the ADA; rather, Title VII and the ADA only prohibit hostile work environments based on a statutorily protected characteristic (e.g., race, religion, and sex) or activity (e.g., opposing discrimination). Accordingly, no matter how difficult or stressful supervisors or coworkers make one's job, the conditions are only actionable under Title VII and the ADA if there is "some independent evidence of . . . animosity" towards a protected characteristic or activity. See Gilliam v. S.C. Dep't of Juvenile Justice, 474 F.3d 134, 143 (4th Cir. 2007). The Fourth Circuit has repeatedly indicated that at the summary judgment stage it is appropriate to disregard conclusory statements and focus only on those allegations that indicate animosity based on protected characteristics or activity. See id. at 142-43; Baqir v. Principi, 434 F.3d 733, 746-47 (4th Cir. 2006); Causey v. Balog, 162 F.3d 795, 801 (4th Cir. 1998).
It is well-settled that "whether an environment is `hostile' or `abusive' can be determined only by looking at all the circumstances," which includes considering the frequency of the 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 v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Moreover, a work environment is only hostile if a plaintiff subjectively perceived it as such and a reasonable person would find it abusive. See id. at 21-22. Importantly, the Supreme Court has "made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment." Faragher, 524 U.S. at 788 (emphasis added). Thus, hostile work environment plaintiffs "must clear a high bar in order to satisfy the severe or pervasive test," and the task on summary judgment "is to identify situations that a reasonable jury might find to be so out of the ordinary as to meet the severe or pervasive criterion," i.e., instances in which the environment was rife with discriminatory or retaliatory conduct that was "persistent, demeaning, unrelenting, and widespread" and "aimed to humiliate, ridicule, or intimidate." EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315-16 (4th Cir. 2008) (internal quotations omitted).
Because a hostile work environment claim requires a "totality of the circumstances" review, it is appropriate to begin the analysis by cataloguing the relevant circumstances occurring within the relevant timeframe.
As analysis now properly turns to evaluating these circumstances, it is important to note at the outset that plaintiff's vague and conclusory allegations of "harassment," a "hostile work environment," or "threatening" behavior — such as in circumstances 8, 9, 13, 16, 21, 24, and 28 — are insufficient to survive a motion for summary judgment; rather, the focus must be on the accusations that contain some particularity. See Causey, 162 F.3d at 801 (disregarding "conclusory" allegations in answers to interrogatories and limiting the analysis to the "sufficiently detailed" accusations).
Moreover, many of the relevant circumstances reflect no explicit or implicit animus on any protected basis.
With regard to plaintiff's race and sex based hostile work environment claims, which arise from Count I, the Fourth Circuit's Gilliam decision is particularly instructive. There, the plaintiff alleged racially hostile work environment created by her supervisor. Although the record there reflected that the supervisor never made any racial comments or slurs to or about the plaintiff, the plaintiff claimed in her deposition that she inferred racial animus from the supervisor's actions. 474 F.3d at 135. Significantly, the plaintiff in Gilliam failed to show that she was treated differently than comparable individuals outside of the protected class. Id. at 142. The Fourth Circuit concluded that there was no "independent evidence of racial animosity" sufficient to support a prima facie case of a racially hostile work environment. Id. at 143. The same result obtains here for the same reasons. Plaintiff does not allege that any supervisor or coworker ever made an overtly racial comment, but instead seeks to infer racial animus from actions that are neutral on their face and for which there is no evidence of differential treatment based on race. And as to sexual harassment, only one of plaintiff's allegations — circumstance 5 — overtly suggests a sex-based motivation, and even then on the spectrum of severity the comment about "break[ing] a nail" is quite benign and hardly rises to the level of severity required for actionable sexual harassment in the workplace. See Harris, 510 U.S. at 21 (hostile work environment requires a workplace so "permeated" with "discriminatory intimidation, ridicule, and insult" that is "sufficiently severe or pervasive" to alter the conditions of employment) (internal quotations omitted). Moreover, plaintiff's conclusory allegation in circumstance 5 that Chief Reilly harassed plaintiff because of her gender by suggesting that she speak with the Department's counselor is insufficient to survive summary judgment. An expression of concern that plaintiff was depressed can hardly constitute harassment. And even if Chief Reilly did not like plaintiff, plaintiff has adduced no evidence that his concern was not motivated by, for instance, concern for the safety of others in the Department or a genuine concern for her. Indeed, it is telling that plaintiff does not allege that Reilly commented on his concerns publicly or in any manner "aimed to humiliate, ridicule, or intimidate" plaintiff. Sunbelt Rentals, 521 F.3d at 316.
To the extent racial or sexual animus can be inferred from differential treatment in any of the circumstances, such animus is present only in circumstances 10, 21, and 22. Plaintiff's complaint in circumstance 22 about being transferred to a fire station that she suggests was known for hostility to women and minorities is if no moment; plaintiff's only concrete complaint is that she was met with a "cold welcome" before promptly being transferred to a different station, a transfer plaintiff wanted. Title VII is not a "civility code for the American workplace," and "cold" treatment is far from extreme enough to qualify as harassment. See id. at 315. The remaining two isolated examples of differential treatment occurred roughly a year apart and neither was "extremely serious," thus likewise falling far short of clearing the high bar for a hostile work environment claim. See Faragher, 524 U.S. at 788. Moreover, with specific regard to circumstance 21, in which plaintiff alleges that she was treated worse than a comparable white male during her reentry training, it must be noted that the undisputed record facts clearly indicate that (i) plaintiff was required to complete reentry training, (ii) the reentry training required successful completion of a task called "the Maze," and (iii) the Department guidelines for successful completion clearly show that plaintiff's first attempt was a failure.
In sum, plaintiff has adduced no record evidence that any supervisor or coworker ever made an explicitly race-based comment, and plaintiff points only to a single relatively benign incident of sex-based commentary (the "break a nail" comment). And plaintiff's attempt to demonstrate race or sex based animus by way of differential treatment likewise fails because plaintiff can identify at most two relatively benign isolated incidents. As such, plaintiff cannot show harassment "because of" her race or sex and, even assuming she could do so, the incidents alleged fall far short of being sufficiently severe or pervasive so as to constitute a hostile work environment. See Harris, 510 U.S. at 21 (hostile work environment requires a workplace so "permeated" with "discriminatory intimidation, ridicule, and insult" that is "sufficiently severe or pervasive" to alter the conditions of employment) (internal quotations omitted). Thus, plaintiff's hostile work environment claim in Count I fails.
Analysis now properly turns to plaintiff's hostile work environment claim under the ADA in Count IV. To be sure, plaintiff's supervisors or colleagues spoke directly to plaintiff about her cancer, but no reasonable jury could conclude that these circumstances constitute disability-based harassment. For example, plaintiff complains in circumstance 11 that Chief Reilly asked her how she was doing and why she did not take alternative placement. Based on plaintiff's own presentation of the events, she does not suggest that Chief Reilly was mocking or humiliating her. And circumstance 24—in which Chief Barrero said "sick leave is for people who are sick"—must be considered in the context of the full record. Specifically, plaintiff's own recounting of the incident does not indicate that she was actually sick when she requested to go home on sick leave; rather, she states that she was "weigh[ed] down" by vague "constant harassment." P. Opp., Ex. D at 23. Moreover, plaintiff's own recounting of the story indicates that Chief Barrero said she could go home on sick leave if the Department's doctor determined she was actually sick. Id. at 23-24. In the context of all the facts, plaintiff's treatment had nothing to do with animus towards her on the basis of her disability.
Plaintiff takes particular issue with Chief Barrero's three attempts to transfer plaintiff out of FHMIS in circumstances 1, 3, and 8. Importantly, none of these interactions evidence animus because of plaintiff's disability. To the contrary, based on plaintiff's own version of events, Chief Barrero, at each of these three isolated incidents, gave plaintiff a legitimate and non-discriminatory reason for wanting to transfer her, namely because her light duty accommodation was imposing a hardship (or, in ADA parlance, an "undue hardship"
The other circumstances claimed by plaintiff to support her hostile work environment are similarly unavailing. Notably, circumstance 18, concerning the alleged downgrading of plaintiff's performance evaluation, reveals that, contrary to plaintiff's representation in the EEOC charge, the basis for the downgrading was not her disability but her status as a light duty employee, in which capacity she was not able to perform the required duties of her job.
Plaintiff's final set of disability-centered allegations relate to her initial attempt in June 2014 to obtain an ADA accommodation. In circumstance 27, plaintiff contends that her union treated her worse than a similarly-situated white male with a similar type of cancer, but the record is devoid of any evidentiary basis by which the union's actions can be imputed to defendant. Finally, circumstance 28 details plaintiff's conflicts with Phyllis Schwartz, a human resources official, following plaintiff's request for an accommodation. Plaintiff alleges that she was harassed by Schwartz during Schwartz's attempt to obtain from plaintiff authorization to speak with plaintiff's doctor. This "harassment" is nothing more than a few in-person conversations that became heated followed by an email. There is nothing to suggest that Schwartz was in any way engaged in an attempt to humiliate or ridicule plaintiff; Schwartz was merely doing her job, which required that she interact with plaintiff to explore possible accommodations. See Keith v. Cnty. of Oakland, 703 F.3d 918, 929 (6th Cir. 2013) ("The duty to engage in [an] interactive process with a disabled employee is mandatory and requires communication and good-faith exploration of possible accommodations.").
Defendant correctly points out that because assessing a hostile work environment claim requires evaluating the totality of the circumstances, it is insufficient to look only at plaintiff's allegations when other circumstances are relevant. With respect to plaintiff's allegations of animus based on her disability, circumstances 2, 6, 20, 26, and 27 support the conclusion that plaintiff did not endure a hostile work environment. Specifically, in August 2010 plaintiff was given a light duty assignment within FHMIS even though defendant's view was that plaintiff was unable to perform the essential functions of her job. Moreover, the Department made an exception to its rules in order to grant plaintiff's request for an extension of light duty beyond the one calendar year maximum. When plaintiff requested another light duty assignment in April 2012, Chief Barrero approved it, and the record does not reflect that he made any disparaging comments or otherwise express any animus in doing so. Later, after plaintiff was found to have committed misconduct for which termination would have been appropriate, Fire Chief Bowers granted plaintiff's request to have her sanction reduced to a ten-day suspension without pay. During reentry training following plaintiff's reassignment, circumstance 26 shows that plaintiff's complaints about Chief Barrero resulted in her being transferred to a fire station where another chief had specifically requested her. Finally, in June 2014 when plaintiff requested a "day work" assignment in place of her 24-hour shift schedules in the Operations Bureau, the request was promptly granted even though plaintiff had a Class A medical status and was considered fully operational. In short, the record reflects that defendant has accommodated plaintiff's requests even when, in defendant's view, it had no legal obligation to do so. When plaintiff's allegations, which suggest only the ordinary office conflicts many workers experience daily, are viewed in light of the many circumstances in which plaintiff was afforded positive treatment, it is clear that plaintiff's work environment was not rife with animus, and certainly not severe or pervasive. See Harris, 510 U.S. at 21 (hostile work environment requires a workplace so "permeated" with "discriminatory intimidation, ridicule, and insult" that is "sufficiently severe or pervasive" to alter the conditions of employment) (internal quotations omitted).
In sum, plaintiff's disability hostile work environment claim in Count IV centers chiefly on her conflicts with Chief Barrero. Yet, plaintiff has no evidence of specific actions or statements indicating hostility by Chief Barrero, or anyone, towards disabled persons generally or cancer patients specifically. Plaintiff's attempt to impute animus based on reprimands (circumstance 23) or undesirable work assignments (circumstances 3 and 8) relies on speculation and conjecture. Moreover, plaintiff's conclusory statements about "constant harassment" lack the requisite specificity at which to engage in meaningful analysis. See Causey, 162 F.3d at 801 (disregarding "conclusory" allegations in answers to interrogatories and limiting the analysis to the "sufficiently detailed" accusations). When review is limited only to specific and concrete allegations, it is clear that plaintiff may have had numerous unpleasant run-ins with Chief Barrero over several years, but these incidents of rudeness and conflicts reflect neither impermissible animus nor are they sufficiently severe or pervasive to establish a hostile work environment that was directed at humiliation, ridicule, or intimidation.
Plaintiff's retaliatory hostile work environment claims in Counts II and V also fail. As the Supreme Court made clear in Nassar, retaliation claims require "but for" causation. Put differently, Nassar requires plaintiffs to prove that the adverse action would not have occurred in the absence of the retaliatory animus. See 133 S.Ct. at 2525. Here, plaintiff's causation theory is clearly lacking. Prior to plaintiff's August 2012 written complaint to Deputy Chief Baker, the record does not reflect when any other potentially protected verbal complaints were made or which of plaintiff's alleged harassers, if any, knew of such complaints. Accordingly, plaintiff cannot show that any harassment occurring before August 2012 was caused by protected activity. Moreover, plaintiff has conceded that her August 2012 complaint to Deputy Chief Baker led to no "subsequent incidents of discourteous or discriminatory treatment by Barrero at FHMIS." Def't Mem. Supp. at 6-7, ¶ 26; P. Opp. at 18, ¶ 16 (not denying the quoted portions of defendant's stated fact). And even assuming for purposes of summary judgment that plaintiff's written complaint to Deputy Chief Baker was protected activity, there is no evidence that any of the other supervisors between August 2012 and plaintiff's transfer to the Operations Bureau knew of this activity.
In January 2014, plaintiff was returned to the supervision of Chief Barrero and thereafter filed an EEOC charge of discrimination, but there is no evidence that Chief Barrero knew of plaintiff's new protected activity, nor is there any temporal proximity between plaintiff's protected August 2012 activity and any negative treatment in January 2014. Moreover, it is undisputed that by February 2014 plaintiff was transferred from Chief Barrero's supervision after she requested such a transfer. Plaintiff's only other allegation of retaliation is her claim that defendant has failed to provide her a reasonable accommodation under the ADA, but that discrete alleged failure, which is not properly presented in this case, does not constitute a severe or pervasive working condition cognizable as a hostile work environment claim. Indeed, circumstance 27 shows that plaintiff was given what she requested. Accordingly, there is no basis from which a reasonable jury could conclude that plaintiff's protected activity was the "but for" cause of any alleged harassment. Thus, plaintiff's hostile work environment claims in Counts II and V must fail.
As a global observation about plaintiff's hostile work environment claims across all counts, it should be noted that although there is recent authority in the Fourth Circuit suggesting a more relaxed "severe or pervasive" test, there is no reason to believe that this authority has much bearing here. In Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 280 (4th Cir.) (en banc), the Fourth Circuit concluded that two uses of a highly charged racial epithet were sufficient to create a jury question on severity. But the logic of Boyer-Liberto rested on the acknowledgment that there are certain words with such a deep history of animus that these words have no place in any work environment. See id. The use of such words in the workplace, therefore, is clearly "out of the ordinary." Sunbelt Rentals, 521 F.3d at 315. Here, no single discrete act or set of discrete acts both (i) evidences animus sufficient to satisfy the causation requirement and (ii) draws on deep social or historical undercurrents of disdain with the same force as the epithet in Boyer-Liberto. To the contrary, plaintiff's complaints of rudeness, callousness, insensitivity, unfairness, anger, or spite center in large part on the routine and ordinary aspects of office life such as cold treatment by coworkers (circumstances 4 and 22) or frustrating equipment policies (circumstances 17 and 25). Apart from one incident of relatively benign offensive language (the "break a nail" comment in circumstance 5), the record contains no evidence from which any reasonable jury could infer an intent to intimidate or humiliate, and the acts described with any specificity do not rise to the severe or pervasive standard Harris requires. In short, while plaintiff has produced a number of incidents claimed to constitute a hostile work environment, they are not severe or pervasive in the sense required by law. See Harris, 510 U.S. at 21 (hostile work environment requires a workplace so "permeated" with "discriminatory intimidation, ridicule, and insult" that is "sufficiently severe or pervasive" to alter the conditions of employment) (internal quotations omitted).
One circumstance that merits mention is circumstance 15, in which plaintiff allegedly found a substance resembling marijuana in her work vehicle. No doubt, such an occurrence is out of the ordinary, but it is not so out of the ordinary on this record to survive summary judgment. A similar incident did survive summary judgment in Hoyle v. Freightliner, LLC, 650 F.3d at 321 (4th Cir. 2011), but Hoyle is easily distinguished from the record here. In Hoyle, a female plaintiff found that a tampon had been affixed to a key ring for a truck in plaintiff's work area. Id. at 326. Later, another employee overheard a group of male coworkers laughing about the incident, which suggested culpability for the prank. See id. Importantly, the Fourth Circuit noted that (i) a tampon "has strong sex-specific connotations" and (ii) the truck in which the tampon was placed would be used either by the plaintiff or another female employee. See id. at 332. Moreover, this incident occurred in a work environment that had been "sexualiz[ed] . . . by placing photos of nude women or women in sexually provocative dress and poses in common areas." Id. at 331-32. Here, the work environment was not otherwise rife with racial, sexual, or disability animus, and there is no evidence to suggest that anyone was playing a cruel joke on plaintiff specifically. And, unlike in Hoyle, plaintiff has no evidence to suggest who the perpetrator(s) might be. Moreover, a bag of a substance resembling marijuana does not have strong connotations specific to race, sex, or disability. Thus, even if the incident here was a joke at plaintiff's expense — of which there is no evidence, unlike in Hoyle — there is no basis on which to conclude that it was a joke at the expense of a protected trait or activity. And finally, whereas the truck in Hoyle was set to be used by one of two female employees, plaintiff's own recounting of the incident here acknowledges that other investigators "constantly" used her vehicle, which counsels against any inference that the substance was placed intentionally in order to target plaintiff (as opposed to targeting another employee or merely being left behind on accident). P. Opp., Ex. D at 17.
In conclusion, the undisputed record evidence does not disclose treatment that was so severe or pervasive as to constitute a hostile work environment with respect to any protected characteristic or activity. Indeed, the undisputed record facts show that plaintiff's complaints were often addressed and her requests were often granted.
Finally, plaintiff alleges in Count III that defendant is liable under 42 U.S.C. § 1983 for violating plaintiff's First and Fourteenth Amendment rights.
A municipality is only liable under § 1983 if the municipality deprives a plaintiff of federal rights (i) through an official written policy, (ii) through the affirmative decisions of individual policymaking officials, (iii) through the omissions of policymaking officials that manifest deliberate indifference to the rights of citizens, or (iv) through a "persistent and widespread" custom that is so well settled that it has the force of law. See Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999). Significantly, § 1983 does not provide for municipal liability on a theory of respondeat superior. Id. Here, plaintiff asserts three theories of municipal liability: (i) that defendant acted through the policymaking officials of the Fairfax County Fire Department; (ii) that there is custom of intimidation and discrimination; and (iii) that defendant failed to train employees about the relevant rights.
Plaintiff's first theory fails because a municipality can only be liable for the acts of those officials who have final policymaking authority for the municipality itself. See City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988). That is, plaintiff cannot prevail simply because someone with policymaking authority undertook a discriminatory action as that would constitute respondeat superior liability. Instead, a municipality is liable only for the affirmative decisions of "final policymakers" for the municipality. If the Department's policymakers' decisions are subject to review by the municipality, then the fire department policymakers do not have "final policymaking authority." See id. at 127 ("[W]hen a subordinate's decision is subject to review by the municipality's authorized policymakers, they have retained the authority to measure the official's conduct for conformance with their policies."). Whether an entity or official has "final policymaking authority" is a question of state law. Id. at 123. And it is clear that under Virginia law the final policymaking body for Fairfax County is the Fairfax County Board of Supervisors. See Va. Code § 15.2-403 ("The board shall be the policy-determining body of the county."). Plaintiff points to no evidence that this final policymaking authority has been delegated to the policymaking officials in the Department such that the Department officials' decisions are not subject to review. Accordingly, municipal liability is inappropriate here based on the actions of the Department officials.
Plaintiff's second theory fails because in order to show the existence of a "custom" that imputes liability to a municipality, plaintiff must show that "the duration and frequency of the practices warrant a finding of either actual or constructive knowledge by the municipal governing body that the practices have become customary among its employees." Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir. 1987). Here, plaintiff points to no evidence of "recorded reports to or discussion by a municipal governing body." Id. (describing how to prove "actual knowledge"). Moreover, plaintiff identifies no evidence that the practices are "so widespread or flagrant that in the proper exercise of its official responsibilities the governing body should have known of them." Id. (describing how to prove "constructive knowledge"). In fact, the undisputed record evidence shows that in the past five years, plaintiff is the only female African-American employee to complain of discrimination to defendant's Office of Human Rights and Equity Programs ("OHREP") or to the Department's internal Equal Opportunity Office. Moreover, over the last five years the Department has received a total of fourteen discrimination complaints, of which (i) two were withdrawn, (ii) one was resolved via mediation, and (iii) eleven were investigated and determined to be unfounded. And of the seven complaints to OHREP in the past five years (other than plaintiff's), only one was substantiated, resulting in prompt remedial action. Thus, plaintiff cannot show a custom of discrimination of which defendant was actually or should have been aware.
Finally, plaintiff's third theory — failure to train — fails for similar reasons. To establish municipal liability for failure to train, plaintiff must show that defendant acted with "deliberate indifference" to the rights at issue. City of Canton v. Harris, 489 U.S. 378, 388 (1989). This, in turn, requires proof of actual or constructive notice of the need for different training. See Connick v. Thompson, 563 U.S. 51, 59 (2011). As above, plaintiff adduces no evidence to show actual or constructive notice of constitutional violations requiring different training such that defendant can be held liable for any failure to train.
Even setting aside the foregoing rationales, for the reasons stated in Parts IV through VIII, supra, plaintiff has not adduced any evidence from which a reasonable jury could conclude that "a predicate constitutional violation," namely race or sex discrimination, occurred within the two year statutory period preceding the filing of this action. Such a deprivation is a necessary predicate to municipal liability. See Baker v. D.C., 326 F.3d 1302, 1306 (D.C. Cir. 2003). This is so even when the theory is failure to train. See Harris, 489 U.S. at 392. The failure to produce record evidence sufficient to establish the deprivation of a federal right is dispositive. Yet, even assuming that discrimination occurred within the statutory period, plaintiff has not produced evidence sufficient to support the imposition of municipal liability under § 1983. And, in any event, it is sufficient for defendant to prevail on Count III that plaintiff failed to oppose defendant's motion with respect to this count, as noted supra n.35. Thus, defendant is entitled to summary judgment on Count III.
For the foregoing reasons, the undisputed record reflects that defendant is entitled to summary judgment on all counts.
An appropriate order will issue.
