Max O. Cogburn Jr., United States District Judge.
The facts of this case are as follows. The Schiele Museum of Natural History is an agency of the City of Gastonia and falls under the Parks, Recreation and Cultural Services Department. (Deposition of Dr. Ann Tippitt (#14-7; 17-4) (hereinafter "Tippitt Depo.") pp. 26-28). Dr. Ann Tippitt is the Director of the Museum. Chuck Dellinger is the Director of the Parks, Recreation, and Cultural Services Department. (Tippitt Depo. p. 10; Deposition of Chuck Dellinger (##14-2;17-9) (hereinafter "Dellinger Depo.") pp. 7-9). Tony Pasour has been employed in various management positions at the Museum since 1993. He has been the Head of Interpretation at the Museum since 2010. (Tippitt Depo. pp. 13-15; Deposition of Tony Pasour (##14-6; 17-5) (hereinafter "Pasour Depo.") pp. 6-8). In the spring of 2012, Pasour interviewed Plaintiff and recommended that she be hired to fill the part-time Guest Services Specialist position. (Pasour Depo. p. 47). Her primary duties were to interact with the museum's school field trip clients and schedule these clients for the various educational events at the museum. (Pasour Depo. pp. 48-49).
Defendant states that by mid-summer of 2012, Plaintiff began to demonstrate performance issues by virtue of poor customer service skills and instances of unprofessional interactions with customers and staff. (Pasour Depo. pp. 49-71; (#14-9)). Pasour's deposition testimony indicates that he generally had concerns with her attitude and interpersonal skills more than concerns about her ability to handle tasks,
Plaintiff states that she met with Tippitt after receiving this suspension and produced positive evaluations by museum guests to refute Pasour's claims that she provided poor customer service. (Tippitt Depo. at p. 110). Plaintiff states that she informed Tippitt of multiple mistakes by Pasour, similar to those Plaintiff was accused of, but was unwilling to file a formal grievance or contest her suspension because she feared retaliation from Pasour. (#1-1 at ¶ 17; Tippitt Depo. at 49-50). Plaintiff also states that she told Tippitt at that time that Pasour screamed and yelled at women in the office, but not the men. (Dyer Depo. pp. 90-94). In terms of her experience working with Pasour, Plaintiff states that Pasour was often out of the office and unavailable during standard working hours, did not respond to many of
Defendant states that in February 2013, Tippitt and Pasour learned from Dellinger that there had been a mistake in budgeting the hours for several of the part-time museum employees, including those of Plaintiff. (Pasour Depo. pp. 170-174; Tippitt Depo. pp. 50-53). When Plaintiff was hired, Tippitt and Pasour mistakenly believed the position was budgeted for 1,400 hours, but it was actually budgeted for 990 hours. Tippitt and Pasour realized that Plaintiff and others were close to having exhausted those budgeted hours for the fiscal year, which ran July 1, 2012 — June 30, 2013. (Pasour Depo. pp. 170-174; Tippitt Depo. pp. 50-53).
On or about March 8, 2013, Pasour notified Plaintiff that the budgeted hours available for her position were approaching the maximum allowance of 990 hours for the fiscal year, and then told her that Defendant had reapportioned the remaining hours so that she could work through April. (Pasour Depo. pp. 170-174; Tippitt Depo. pp. 50-53). Pasour also discussed with Plaintiff that since the summer months did not require field trip scheduling, it would be best not to bring her back on July 1, 2013 (the start of the new fiscal year), but instead for her to begin in late August when the school field trip scheduling commenced. (Pasour Depo. p. 174). Plaintiff states that around that time — the day after she received notice that she would be furloughed — she made a verbal complaint about Pasour to Tippitt, telling Tippitt that she "wanted to make sure that [her] job was safe and secure because [she] felt like [Pasour] was trying to get [her] out the door because he hated women." (Dyer Depo. p. 96).
Plaintiff last worked on Thursday, April 5, 2013. Tippitt testified at her deposition that at the time Plaintiff stopped working, she "still needed improvement because all of the functions that really should have been with that job were not being performed within it," that Plaintiff had not met expectations, and that she would not have recommended that Plaintiff be hired back. (Tippitt Depo. pp. 56-57). Along the same lines, Defendant notes that in February 2013, Pasour produced a memo to Tippitt highlighting what he perceived as "continued poor performance" by Plaintiff. (Pasour Depo. p. 139). However, Dellinger testified at his deposition that he thought Plaintiff's performance had improved to the level of requiring no further attention by the early months of 2013. (Dellinger Depo. p. 65).
On April 13, 2013, Plaintiff sent an email to City Manager Ed Munn complaining of the way Pasour had treated her at work, including making specific complaints about the way he treated other women in the office. (Tippitt Depo. p. 125; Munn Depo at pp. 19-22; (#17-1 at p. 42)). This is the first time Plaintiff made a written complaint about Pasour's treatment towards her and, in general, other women. Subsequent e-mail correspondence between Plaintiff and Tippitt clarified that Plaintiff considered her complaint a formal grievance.
On April 23, 2013, Chuck Dellinger began an investigation of Plaintiff's grievance and conducted an on-site visit to the Schiele Museum. (Tippitt Depo. pp. 125, 139; Dellinger Depo. pp. 56, 75). As part of the investigation, he met with most of the museum staff, including all employees who worked under Pasour. (Dellinger Depo. p. 82). Mr. Dellinger also had a phone conference
Ultimately, Dellinger concluded there was no harassment or discrimination by Pasour towards women, and that while there were reports of Pasour being gruff, he was gruff towards both men and women. (Dellinger Depo. pp. 83-84). He recommended Pasour take a leadership class, but did not require it. (Pasour Depo. p. 180). Subsequently, Dellinger spoke with Plaintiff by telephone, indicating he had concluded his investigation and found no discrimination. (Dellinger Depo. pp. 133-34). On May 6, 2013, Dellinger issued a Memorandum titled "Grievance Determination" in which, among other things, Dellinger found no wrongdoing at the museum. (#14-9 p. 14). He also determined that Plaintiff did not allege sex-based discrimination against Pasour or the City.
Defendant states that following the investigation, Dellinger determined that Pasour would benefit from some voluntary supervisory training, that it was evident that Pasour needed a full-time office assistant, and that the museum should perform an assessment to determine if that could be done. (Dellinger Depo. pp. 19-21, 83; Pasour Depo. pp. 29-31). Pasour went to supervisory training and had additional coaching by Tippitt, and the Museum evaluated the potential for a full-time office assistant position for Pasour. (Dellinger 30(b)(6) Depo. (#14-3; 17-8) pp. 14-15, 95). Assistant Museum Director Carl McKinnon performed the evaluation in the summer of 2013. (#13-6). He determined that in order to establish a full-time position, the museum needed to find hours from other positions so as not to create additional personnel costs to the museum and the City.
Defendant states that on September 26, 2013, Dellinger called Plaintiff with the intent to inform her of this change and reorganization, and drafted a letter for Plaintiff setting forth the changes and her options. However, before speaking with Plaintiff or sending the letter, Dellinger received a letter dated September 27, 2013 from Plaintiff's counsel. (#14-9 at p. 13; Dellinger Depo. p. 137; Dyer Depo. pp. 7-9). In response, Defendant, through its counsel, sent correspondence to Plaintiff's attorney providing official notification that the part-time Guest Services Specialist position Plaintiff held would be permanently eliminated in thirty (30) days, or on November 15, 2013, under the City's Reduction in Force Policy. (#14-8). Plaintiff was also notified that she would be entitled to thirty (30) days severance pay and would be able to apply for any jobs available within the City, including the newly created Office Assistant position. (
Plaintiff states that the Office Assistant position was not advertised until March 2014, and the City did not notify Plaintiff of the posting. (30(b)(6) Depo at p. 88). Plaintiff did not apply for the new position, though she did apply for other jobs at the museum without any response. (Dyer Depo. p. 12-13).
Relevant to her allegations of discriminatory conduct and a hostile work environment, Plaintiff has introduced evidence that Pasour had a history of negative interactions with female subordinates. Verbal complaints were brought to Tippitt by former employees Becca Kirlin, Suzanne Simmons, and Amy Ballard,
By her Complaint (#1-1), Plaintiff alleged gender discrimination and retaliation in violation of Title VII (Count I), negligent supervision and retention of employee (Counts II and III), and wrongful termination in violation of North Carolina public policy (Count IV). Defendant moved for Summary Judgment on all claims. (#13). One week following oral arguments on Defendant's Motion for Summary Judgment, Plaintiff filed a "Stipulation of Dismissal of Plaintiff's Claim for Negligent Supervision and Negligent Retention With Prejudice" (#22), stating that pursuant to Fed. R. Civ. P. 41(a)(ii), Plaintiff stipulated to the dismissal of Plaintiff's claims for negligent supervision and negligent retention (Counts II and III) with prejudice. The court will therefore only proceed with an analysis of Counts I and IV.
Summary judgment shall be granted "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." FED. R. CIV. P. 56(a). A factual dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."
When ruling on a summary judgment motion, a court must view the evidence and any inferences from the evidence in the light most favorable to the nonmoving party.
At oral arguments, the court discussed with Plaintiff exactly what claims she is pursuing pursuant to Title VII. The complaint titles Count One as "Title VII-Gender Discrimination and Retaliation."
Defendant has moved for summary judgment on all claims,
The court agrees that it was unclear from the face of the complaint that Plaintiff intended to assert a hostile work environment claim, as Count One expressly listed "Discrimination" and "Retaliation," but made no mention of a hostile work environment. However, the court finds that a claim for "Discrimination" under Title VII could plausibly encompass a hostile work environment claim. Though it would behoove Plaintiff to state her claims with greater precision in the future, the court finds that because Plaintiff alleged a hostile work environment several times in the body of the complaint, she should be allowed to amend her pleading to more clearly state such a claim.
For the reasons stated herein, the court finds Plaintiff has raised genuine issues of material fact as to her Title VII claims for retaliation and discriminatory discharge and will therefore deny summary judgment on Count One for those two avenues of relief under Title VII. To the extent that Defendant has moved for summary judgment on a Title VII hostile work environment claim, the court will deny that motion without prejudice, subject to renewal following the close of evidence at trial.
Under Title VII, it is unlawful for an employer to terminate an employee on the basis of the employee's gender. 42 U.S.C. § 2000e-2(a). To survive a motion for summary judgment, a Plaintiff asserting a Title VII claim must provide evidence of discrimination through either direct evidence or the now familiar burden-shifting
In order to establish a prima facie case for gender discrimination under the
Here, there is no dispute that Plaintiff satisfies the first two elements of a prima facie case: Plaintiff is a female and thus a member of the protected class, and she suffered an adverse employment action by virtue of her position being eliminated. The parties dispute whether Plaintiff was performing her job satisfactorily at the time of discharge. Defendant notes that both Pasour and Tippitt recommended that Plaintiff be terminated shortly after she started working. Tippitt also testified at her deposition that when Plaintiff last worked in April 2013, Plaintiff had not met expectations and she would not have recommended that she be hired back. (Tippitt Depo. pp. 85, 56-57). However, Dillinger stated in his deposition that he did not perceive Plaintiff as having any performance issues as of early 2013. Additionally, the fact that Defendant told Plaintiff that she would be allowed to apply for the new Office Assistant position indicates that Defendant was not entirely unsatisfied with Plaintiff's job performance. The court finds that a genuine issue of material fact exists on the third prong as to whether Plaintiff was performing her job satisfactorily at the time she last worked.
As to the fourth prong, the evidence here shows that Plaintiff was not technically replaced because her position was eliminated. However, Plaintiff has introduced evidence through her own testimony that Pasour routinely treated her disrespectfully, as well as testimony from Tippitt that three other women had complained about his management style. In the light most favorable to Plaintiff, the court finds that she has satisfied her burden of showing that she was treated differently than co-workers outside the protected class.
While the court finds that Plaintiff has stated a prima facie case, it also finds that Defendant has articulated a legitimate, non-discriminatory reason for its decision to eliminate Plaintiff's job. Defendant argues that as evidenced by the initial disciplinary action taken against Plaintiff, she was not performing to her employer's expectations and was still not meeting those expectations on her last day of work. Defendant also argues that the reorganizational needs of the Schiele Museum represent legitimate non-discriminatory reasons for the elimination of two guest services positions and the creation of the Office Assistant position. As noted above, the court finds that the evidence of Plaintiff's performance abilities at the time she was fired is insufficient to show that she was terminated on that basis. Indeed, Defendant explicitly told Plaintiff that she would be coming back to work in the fall at the time she last worked. However, the court does find that the reorganizational plan and ultimate elimination of Plaintiff's position in order to clear up funding for a new position is a legitimate, non-discriminatory reason for terminating her position.
Having made such determination, the burden now shifts to Plaintiff to introduce evidence of pretext. To show pretext,
To make a prima facie case of retaliation, Plaintiff must show that: (1) she engaged in a protected activity; (2) her employer acted adversely against her; and (3) the protected activity was causally connected to the employer's adverse action.
As to the second prong, Plaintiff clearly meets the requirement that her employer act against her because Defendant eliminated her job shortly after she made a complaint. As to the third prong, the courts finds that Plaintiff has presented evidence at this stage in the proceedings to satisfy the "but for" causation standard. In essence, but for her complaint about what she perceived as inappropriate treatment of women in the office, Defendant would not have made any sort of investigation. Defendant admits that the results of the investigation led them to terminate Plaintiff's position. At this stage, the court finds that Plaintiff has established a prima facie case of retaliation and will therefore deny Defendant's Motion for Summary Judgment as to this claim.
As to Plaintiff's claim for wrongful discharge brought pursuant to the North Carolina Equal Employment Practices Act ("NCEEPA"), that law states in relevant part:
N.C. Gen.Stat. § 143-422.2. The claim for wrongful discharge can be analyzed under the same analysis as the Title VII claim.