Kimberly McKinnish v. Megan Brennan , 630 F. App'x 177 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2092
KIMBERLY J. MCKINNISH,
Plaintiff - Appellant,
v.
MEGAN J. BRENNAN, Postmaster General, U.S. Postal Service, 1
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Max O. Cogburn, Jr.,
District Judge. (1:13-cv-00087-MOC-DLH)
Argued: October 7, 2015 Decided: November 6, 2015
Before TRAXLER, Chief Judge, and KING and THACKER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Christopher Douglas Vaughn, THE VAUGHN LAW FIRM, LLC,
Decatur, Georgia, for Appellant. Paul Bradford Taylor, OFFICE
OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee. ON BRIEF: Anne M. Tompkins, United States Attorney,
1 Megan J. Brennan is substituted as Defendant-Appellee for
her predecessor, Patrick Donahoe, as Postmaster General of the
United States. See Fed. R. App. P. 43(c)(2).
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Kimberly McKinnish (“Appellant”) appeals from the
district court’s entry of summary judgment in favor of the
United States Postmaster General (“Appellee”). Appellant filed
a Title VII lawsuit against Appellee based on alleged sexual
harassment by David Duncan, an individual she refers to as her
supervisor. The district court, however, ruled that Duncan was
not her supervisor as a matter of law, based on the Supreme
Court’s recent decision in Vance v. Ball State University, 133
S. Ct. 2434 (2013). Therefore, Appellant was required to show
that Appellee was negligent, which the district court concluded
she did not do.
Even assuming Duncan was Appellant’s supervisor,
Appellant has not produced sufficient evidence that Duncan’s
actions culminated in a tangible employment action, and Appellee
is entitled to the benefit of the affirmative defense set forth
in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). We
affirm the district court on this ground.
I.
A.
Appellant worked for the United States Postal Service
in its Asheville, North Carolina office. She was a Transitional
Employee (“TE”), and her duties included delivering mail on
3
various routes when a permanent employee “was on vacation or
sick leave, or where a route did not have an assigned permanent
carrier.” J.A. 34. 2 All TEs were expected to deliver mail on
any available routes, including walking and riding routes.
While in the Asheville office, Appellant worked with
David Duncan. Appellant refers to Duncan as her “supervisor,”
but his legal status as to her is a matter of dispute. He was
classified by the Postal Service as an EAS-17 Supervisor of
Customer Service and was responsible for “supervising
subordinate employees in the performance of their assigned
duties.” J.A. 170. Specifically, his job description included
“evaluat[ing] the daily workload”; “mak[ing] carrier and route
assignments”; “mak[ing] temporary changes in routes and time
schedules”; “authoriz[ing] overtime work”; “[e]stablish[ing]
work schedules”; and “allocat[ing] work hours to meet service
requirements.” Id. at 114.
Beginning in January 2010 and continuing for
approximately ten months, Duncan and Appellant exchanged
numerous text messages and videos. The exchanges were often
sexually explicit in nature. During this time frame, Duncan
2 Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
4
also made requests that seemed based on his authority over
Appellant, as well as suggestions that he would reward Appellant
for her responses. See, e.g., J.A. 185 (“Even if I did have
them lined up, you would be in the front of the line!!!!!”); id.
at 190-91 (“Do you know rt 115?” 3 “I might can get you on it
tomorrow.”); id. at 192 (“Think you might can take a picture for
your ‘Master’ tonight?”).
Appellant claims that, generally, she responded to
Duncan’s requests by sending photos she found on the Internet or
text messages copying words from pornographic magazines. The
record also includes some of her messages from early November
2010, including the following texts: “WOW!! You definitely know
how to put a smile on my face”; “Good morning :)”; “LOL! You are
too funny :)”; and “OMG . . . I just saw it, sorry! I just adore
you :).” J.A. 59-60, 95.
Appellant did not report this conduct to her employer;
rather, her husband found the messages on November 16, 2010, and
reported them to the Postal Service. Appellant claims that she
only participated in the exchanges “due to a change in my work
status when I did not participate and for fear that I would be
retaliated against if I did not.” J.A. 180. Appellant
3
Route 115 was a desirable route because of the ease of
access to the boxes and relatively flat terrain.
5
explained that she received “favorable treatment” when she
complied with Duncan’s requests, id., and when she did not honor
Duncan’s requests, Duncan brought her in to work after the other
workers and gave her “bad” routes, id. at 182, 73. Nonetheless,
Appellant testified that overall, in 2010 her “hours of work
remained fairly constant” and she “made more money [that year]
than [she] ever made.” Id. at 74.
At no point did Appellant tell anyone at the Postal
Service about the messages or otherwise avail herself of the
protections and procedures laid out in the Postal Service’s
sexual harassment policy. She claimed she was afraid
“management[] would look at me like I was a troublemaker and I
would lose my job.” J.A. 79.
B.
Appellant filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”) alleging that she was sexually
harassed by Duncan. The EEOC issued a decision finding no
actionable claim, and the Postal Service reviewed and adopted
that decision, concluding, “[Y]ou have not shown that you were
the victim of illegal discrimination.” J.A. 12.
On March 28, 2013, Appellant filed an action in the
Western District of North Carolina against Appellee, alleging
one count of sexual harassment. On April 28, 2014, Appellee
filed a motion for summary judgment, which the district court
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granted on August 15, 2014. See McKinnish v. Donahoe, 40 F.
Supp. 3d 689 (W.D.N.C. 2014). The district court concluded that
Duncan was a coworker, not a supervisor, under the Supreme
Court’s recent decision in Vance v. Ball State University, 133
S. Ct. 2434 (2013). It then decided Appellant presented no
evidence that the Postal Service’s investigation was inadequate;
therefore, Appellee was not negligent in controlling Appellant’s
working conditions. See McKinnish, 40 F. Supp. 3d at 697.
II.
We may affirm the district court’s decision “on any
grounds apparent from the record.” United States v. Price, 777
F.3d 700, 707 (4th Cir. 2015) (internal quotation marks
omitted). We review the district court’s grant of summary
judgment de novo, “drawing reasonable inferences in the light
most favorable to the non-moving party.” Butler v. Drive Auto.
Indus. of Am., Inc., 793 F.3d 404, 407 (4th Cir. 2015) (internal
quotation marks omitted). This court “shall grant summary
judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). We have held, “A mere
scintilla of proof . . . will not suffice to prevent summary
judgment; the question is ‘not whether there is literally no
evidence, but whether there is any upon which a jury could
properly proceed to find a verdict for the party’ resisting
7
summary judgment.” Peters v. Jenney, 327 F.3d 307, 314 (4th
Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251 (1986)).
III.
The parties dispute whether Duncan was Appellant’s
supervisor as a matter of law pursuant to Vance v. Ball State
University, 133 S. Ct. 2434 (2013). Even assuming he was,
however, we conclude that Appellant has not marshaled sufficient
evidence to demonstrate that Duncan’s conduct culminated in a
tangible employment action, and Appellee has successfully raised
the affirmative defense set forth in Faragher v. City of Boca
Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742 (1998) (the “Faragher-Ellerth defense”).
Title VII is violated “when the workplace is
permeated with discriminatory intimidation, ridicule, and
insult, that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive
working environment . . . .” Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 116 (2002) (internal quotation marks and
alteration omitted). The district court construed Appellant’s
complaint to contain two causes of action under Title VII: a
hostile work environment claim and a quid pro quo harassment
claim. For both causes of action, there must be some basis for
imputing liability to the employer. See Freeman v. Dal-Tile
8
Corp., 750 F.3d 413, 420 (4th Cir. 2014); Okoli v. City Of
Baltimore, 648 F.3d 216, 222 (4th Cir. 2011).
Vance explains that if the alleged harasser is a
supervisor,
[and] the supervisor’s harassment culminates
in a tangible employment action, the
employer is strictly liable. But if no
tangible employment action is taken, the
employer may escape liability by
establishing, as an affirmative defense,
that (1) the employer exercised reasonable
care to prevent and correct any harassing
behavior and (2) that the plaintiff
unreasonably failed to take advantage of the
preventive or corrective opportunities that
the employer provided.
133 S. Ct. at 2439 (citing Faragher, 524 U.S. at 807; Ellerth,
524 U.S. at 765); see also Boyer-Liberto v. Fontainebleau Corp.,
786 F.3d 264, 278 (4th Cir. 2015) (en banc). Therefore, we
first turn to whether Duncan’s alleged harassment culminated in
a tangible employment action.
A.
A “tangible employment action” is “a significant
change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in
benefits.” Vance, 133 S. Ct. at 2442 (quoting Ellerth, 524 U.S.
at 761). There is no record evidence demonstrating that Duncan
had the authority to hire, fire, promote, or reassign Appellant
9
to a position with significantly different responsibilities.
Therefore, we look to whether Duncan made a “significant change
in [Appellant’s] benefits.” This court has quoted with favor
the Eleventh Circuit’s statement that “[a] reduction in an
employee’s hours, which reduces the employee’s take-home pay,
qualifies as a tangible employment action.” Dulaney v.
Packaging Corp. of Am., 673 F.3d 323, 331 n.7 (4th Cir. 2012)
(quoting Cotton v. Cracker Barrel Old Country Store, Inc., 434
F.3d 1227, 1231 (11th Cir. 2006)).
On this point, Appellant presents an attachment to her
EEOC complaint, wherein she stated, “During the course of []
Duncan’s repeated solicitations, . . . he . . . reduce[d],
alter[ed], and change[d] my working hours . . . .” J.A. 167.
She also stated that Duncan “started [b]ringing [her] in at
9:30-10:00 A.M. and the other TE’s were [b]eginning work at 7:30
A.M.” Id. at 182.
Appellant’s fellow carriers also submitted affidavits
in support of her claim. An affidavit from fellow carrier
Kimberly Taylor stated, “[Duncan] would bring her in late at 10
and the rest of the TE’s would be starting at 7:30.” J.A. 183.
Another, from Cassandra Pee, stated, “I saw that she was coming
in later than the other TE. I also notices [sic] she was not
working as much as the other TE’s.” Id. at 184. Taylor also
declared,
10
[Appellant] would always get the worst
routes and when she would question [her]
supervisor she would be told that[’]s how it
is. The reason I know this is we (other
carriers) would question why [Appellant]
would get dumped on all the time. I have
worked for the Post Office for 15+ years and
I have never seen someone treated as poorly
as she was treated.
Id. at 183.
Appellant also admitted, however, that TEs “kind of
fill in where they need a carrier on a transitional basis,” and
she did not always “have the same route every day,” but her
routes would “change by the day.” J.A. 71. Indeed, Duncan
stated that all TEs were sometimes scheduled to work five days,
and sometimes six days, and if a TE “was going to work six days
in a week, they would be scheduled to come in later in the day
on some days that week to keep their basic weekly hours around
forty.” Id. at 228. Appellant has presented nothing to dispute
this testimony. Therefore, the fact that Appellant was coming
in later on certain days, or that an employee observed that she
was “not working as much,” does not necessarily mean that her
hours were reduced. In fact, Appellant herself admitted that
her “hours [] remained fairly constant.” Id. at 74. Moreover,
the record includes timesheets from each of the 16 weeks that
Appellant worked a six-day workweek in 2010, and these
timesheets show that during these pay periods, she was receiving
11
anywhere from 3.5% to 22.9% overtime, and she never dropped
below a 40-hour workweek.
Appellant has presented no means to delineate
timesheets during periods when she succumbed to Duncan’s
requests to periods when she did not. Appellant has presented
no gauge of how her hours converted to pay during the time she
was texting with Duncan, and how that pay may have decreased or
increased. To the extent the case law dictates that a tangible
employment action can be a positive change in benefits (an issue
we do not decide today), we have nothing, besides Appellant’s
bare assertions, demonstrating that her hours were increased
after responding to Duncan’s requests. See Thompson v. Potomac
Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (holding
“[c]onclusory or speculative allegations do not suffice” to
demonstrate a genuine issue of material fact).
Appellant has failed to present more than a “mere
scintilla of proof” that Duncan’s conduct resulted in a
“significant” change in her benefits, and we conclude that there
is no evidence “upon which a jury could properly proceed to find
a verdict” in her favor on this issue. Peters v. Jenney, 327
F.3d 307, 314 (4th Cir. 2003) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251 (1986)). Therefore, Appellant
has not created a genuine dispute of fact on the issue of
12
whether Duncan’s actions culminated in a tangible employment
action.
B.
We have explained, “[W]hen the harasser is a
supervisor, the employer is presumptively liable under the
doctrine of respondeat superior, unless the Faragher–Ellerth
defense applies.” Dulaney, 673 F.3d 323, 330 n.7. Thus,
Appellee can escape liability by establishing, by a
preponderance of the evidence: (1) it exercised reasonable care
to prevent and correct any harassing behavior; and (2) Appellant
unreasonably failed to take advantage of the preventive or
corrective opportunities that the employer provided. See
Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807.
1.
We first address whether there is any dispute that the
employer exercised reasonable care to prevent and correct
Duncan’s harassing behavior.
We have held that “dissemination of an effective anti-
harassment policy provides compelling proof that an employer has
exercised reasonable care to prevent and correct sexual
harassment.” Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d
261, 268 (4th Cir. 2001) (internal quotation marks omitted).
Here, Appellee had a clear and comprehensive policy. It
explained, first, to “[t]ell the [h]arasser to [s]top!” J.A.
13
139. It also gave supervisors direction to “[c]onduct a
thorough inquiry” and “[t]ake prompt action to put an end to the
harassment.” Id. at 141. And most importantly, it explained
that employees who are being harassed should report to a
supervisor, manager, Human Resources personnel, or the
inspector; or “if [the employee is] uncomfortable,” he or she
could “ask a union representative or coworker” to help report
the conduct. Id. at 140. 4 Further, the Postal Service clearly
took swift action to correct the harassment. After Appellant’s
husband made his report, Duncan was terminated, and there was no
further harassment.
2.
Next, we look to whether Appellant unreasonably failed
to take advantage of the preventive or corrective opportunities
that the Postal Service provided. Appellant contends that she
did not want to report the harassment because it made her
uncomfortable and she feared negative repercussions at her job.
See, e.g., J.A. 58 (“I didn’t want to . . . ruffle any feathers,
4
Appellant claims the policy was not effective and calls
the investigation into her case a “sham,” but she produces no
evidence to support this claim. Appellant’s Br. 7. Rather, the
evidence shows that management responded rapidly to complaints
from another employee regarding Duncan’s alleged harassment, and
in Appellant’s case, Investigator Charles Fiske conducted a
thorough yet swift investigation, culminating in Duncan’s
termination.
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get anybody mad at me or anything.”); id. at 147 (“I don’t like
confrontation especially with my supervisor who controls my work
life.”).
However, “an employer cannot be expected to correct
harassment unless the employee makes a concerted effort to
inform the employer that a problem exists.” Barrett v. Applied
Radiant Energy Corp., 240 F.3d 262, 268 (4th Cir. 2001)
(internal quotation marks omitted). “Little can be done to
correct th[e] objectionable behavior unless the victim first
blows the whistle on it. An employee’s subjective fears of
confrontation, unpleasantness or retaliation thus do not
alleviate the employee’s duty . . . to alert the employer to the
allegedly hostile environment.” Id. (alteration and internal
quotation marks omitted). Based on this precedent, Appellant’s
reasons for not reporting the alleged harassment are simply not
sufficient.
For these reasons, Appellee has satisfied the elements
of the Faragher-Ellerth affirmative defense, and Appellant
cannot defeat the motion for summary judgment.
IV.
For the foregoing reasons, we affirm the district
court.
AFFIRMED
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