Kathleen Munive v. Fairfax County School Board , 700 F. App'x 288 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-1692
KATHLEEN MUNIVE,
Plaintiff - Appellant,
v.
FAIRFAX COUNTY SCHOOL BOARD; DEBRA REEDER; KEVIN NORTH;
JACK DALE; PHYLLIS PAJARDO,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Claude M. Hilton, Senior District Judge. (1:16-cv-01075-GBL-IDD)
Submitted: September 19, 2017 Decided: November 7, 2017
Before DUNCAN and HARRIS, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
Kathleen Munive, Appellant Pro Se. Laurie Kirkland, BLANKINGSHIP & KEITH, PC,
Fairfax, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kathleen Munive appeals the district court’s order dismissing her complaint
raising retaliation claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e to 2000e-17 (2012), and 42 U.S.C. § 1983 (2012). On appeal, Munive does not
contest the district court’s dismissal of her § 1983 claims. Accordingly, we affirm this
portion of the district court’s order. See 4th Cir. R. 34(b); Jackson v. Lightsey, 775 F.3d
170, 177 (4th Cir. 2014); Williams v. Giant Food Inc., 370 F.3d 423, 430 n.4 (4th Cir.
2004). Because we agree with Munive that the district court erred in dismissing her Title
VII claim, we vacate this portion of the district court’s order and remand for further
proceedings.
We review de novo a district court’s dismissal of a complaint under Fed. R. Civ.
P. 12(b)(6), accepting factual allegations in the complaint as true and “draw[ing] all
reasonable inferences in favor of the [nonmoving party].” Kensington Volunteer Fire
Dep’t v. Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012) (internal quotation marks
omitted). To survive a motion to dismiss, the complaint’s “[f]actual allegations must be
enough to raise a right to relief above the speculative level” and sufficient “to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 570 (2007). “A court may grant a [Rule] 12(b)(6) motion on statute of limitations
grounds only if the time bar is apparent on the face of the complaint.” Semenova v. Md.
Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017) (internal quotation marks omitted).
For a plaintiff to bring a retaliation claim pursuant to Title VII, she must establish
that she suffered an adverse action. Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d
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562, 578 (4th Cir. 2015). “[A] plaintiff must show that a reasonable employee would
have found the challenged action materially adverse, which in this context means it well
might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (internal
quotation marks omitted). An adverse action need not affect the terms and conditions of
employment. Id. at 64. However, there must be “some direct or indirect impact on an
individual’s employment as opposed to harms immaterially related to it.” Adams v. Anne
Arundel Cty. Pub. Schs., 789 F.3d 422, 431 (4th Cir. 2015).
Here, Munive contends that, after she filed a charge of discrimination with the
Equal Employment Opportunity Commission (EEOC), her employer retaliated against
her by failing to remove a reprimand letter from her personnel file as promised and that
she lost out on a promotion because the letter remained in her file. We conclude that
these facts are sufficient to state a retaliation claim. In Adams, we noted that reprimands
and poor performance evaluations alone “are much less likely to involve adverse
employment actions than the transfers, discharges, or failures to promote whose impact
on the terms and conditions of employment is immediate and apparent.” Id. The
plaintiff’s claim in Adams failed because he “failed to link such matters . . . to some
material change in the conditions of his employment.” Id. However, here, Munive
alleged that the failure to remove the reprimand letter cost her a promotion, and we have
held that the denial of a promotion constitutes an adverse action under Title VII’s
antiretaliation provision. Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011).
A reasonable employee could well be dissuaded from opposing unlawful conduct if she
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knows that her opportunities for promotion could be lost by her employer refusing to
remove a reprimand, as promised, because she has engaged in protected activity.
Although Munive concedes she cannot challenge the reprimand itself, we
conclude that the statute of limitations does not bar our consideration of the collateral
consequences flowing from the reprimand. Before a plaintiff may file suit under Title
VII, she is required to file a charge with the EEOC. 42 U.S.C. § 2000e-5(f)(1). In the
case of a state, such as Virginia, that has a deferral agency, the plaintiff must file her
EEOC charge within 300 days of the alleged discriminatory act. Id.; see Tinsley v. First
Union Nat’l Bank, 155 F.3d 435, 440 (4th Cir. 1998), abrogated on other grounds by
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). “Each incident of
discrimination and each retaliatory adverse employment decision constitutes a separate
actionable unlawful employment practice.” Morgan, 536 U.S. at 114 (internal quotation
marks omitted). We conclude that the denial of Munive’s request to remove the
reprimand letter constituted a discrete act of retaliation. Importantly, Munive does not
contend that the reprimand itself was unlawful. Cf. Martin v. Sw. Va. Gas Co., 135 F.3d
307, 310 (4th Cir. 1998) (“An employer’s refusal to undo a discriminatory decision is not
a fresh act of discrimination.” (internal quotation marks omitted)). While discovery may
ultimately prove that Munive’s claims are time-barred or that no retaliation occurred,
Munive has pled a plausible claim of retaliation, and the complaint does not reflect facts
to support a statute of limitations defense. Semenova, 845 F.3d at 567.
Accordingly, we affirm the district court’s order as to Munive’s § 1983 claim,
vacate it as to the Title VII retaliation claim, and remand for further proceedings. We
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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 IN PART;
VACATED IN PART; AND REMANDED
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