Tamika Ray v. International Paper Company ( 2018 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-2241
TAMIKA RAY,
Plaintiff - Appellant,
v.
INTERNATIONAL PAPER COMPANY,
Defendant – Appellee.
----------------------------------------------------
U. S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Amicus Supporting Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Spartanburg. Timothy M. Cain, District Judge. (7:15-cv-05009-TMC)
Argued: September 25, 2018 Decided: November 28, 2018
Before KING and KEENAN, Circuit Judges, and John A. GIBNEY, Jr., United States
District Judge for the Eastern District of Virginia, sitting by designation.
Vacated and remanded by published opinion. Judge Keenan wrote the opinion, in which
Judge King and Judge Gibney joined.
ARGUED: Brian Patrick Murphy, STEPHENSON & MURPHY, LLC, Greenville,
South Carolina, for Appellant. James Walker Coleman, IV, K&L GATES LLP,
Charleston, South Carolina, for Appellee. Paul D. Ramshaw, UNITED STATES
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for
Amicus Curiae. ON BRIEF: Meg E. Sawyer, Karen E. Spain, K&L GATES LLP,
Charleston, South Carolina, for Appellee. James L. Lee, Deputy General Counsel,
Jennifer S. Goldstein, Associate General Counsel, Elizabeth E. Theran, Acting Assistant
General Counsel, Office of General Counsel, UNITED STATES EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Amicus
Curiae.
2
BARBARA MILANO KEENAN, Circuit Judge:
Tamika Ray, an employee of International Paper Company (IPC), appeals from
the district court’s award of summary judgment to IPC in Ray’s action alleging a hostile
work environment and retaliation under Title VII of the Civil Rights Act of 1964 (Title
VII), 42 U.S.C. §§ 2000e through 2000e-17. Upon our review, we conclude that there
are genuine disputes of material fact with respect to both claims. We therefore vacate the
district court’s judgment and remand for further proceedings.
I.
We present the facts in the light most favorable to Ray, the nonmoving party, and
draw all reasonable inferences in her favor. Rosetta Stone Ltd. v. Google, Inc., 676 F.3d
144, 150 (4th Cir. 2012) (citation omitted). IPC, which manufactures and distributes
packaging boxes, hired Ray in 2002 to work as a “bundler” in its converting department.
In 2007, Ray was promoted to the position of “operator.”
Johnnie McDowell was Ray’s supervisor in both positions. In 2013, Ray was
transferred to the shipping department to work as a “bander operator.” In that
department, Ray reported to a different supervisor, Benjamin Owens, for the beginning of
her shift, and to McDowell when Owens was not present. 1
1
For purposes of summary judgment, the district court assumed that McDowell
was Ray’s supervisor at all relevant times. On appeal, neither party challenges this
characterization.
3
Beginning in 2003, one year after Ray began working at IPC, McDowell started
acting inappropriately toward Ray, including asking Ray to engage in sexual activity with
him and offering to pay her for those acts. McDowell also made several overtly sexual
comments to Ray, stating that he wished he could “bend her over [his] desk,” that he
would father a child with her, and that he would engage in sexual activity with Ray’s
sister-in-law if Ray did not acquiesce to his demands. McDowell also asked Ray to show
him her “cootie,” “cha-cha,” and “monkey,” comments that Ray construed as requests to
see her genitals. On one occasion, McDowell grabbed Ray’s thigh while the two were
alone in his office. McDowell continued this conduct despite Ray’s repeatedly refusing
his advances and asking him to stop.
In 2013, several years after McDowell’s conduct began, Ray reported McDowell’s
behavior to Owens, and to Derrick Smith, another IPC supervisor. Ray explained that
McDowell would not leave her alone and was “ragging her” because she would not “have
sex” with him. Although Owens and Smith offered to “say something” about Ray’s
allegations, she declined out of fear of retaliation. Nevertheless, Ray would “frequently
call Owens” requesting to leave work and asking if another employee could cover her
shift because of McDowell’s continued offensive conduct.
Under IPC’s anti-harassment policy, when a supervisor is notified of potential
harassment or discrimination, the supervisor is required to report that allegation to his
manager, to a human resources representative, or to IPC’s legal department. Neither
Owens nor Smith formally reported any of Ray’s complaints. Although Ray asked
4
Owens and Smith not to report her first complaint, there is no evidence in the record that
she told Owens not to report her later complaints.
In early 2014, McDowell learned that Ray had complained about his conduct. He
confronted Ray and asked if she had reported him for sexual harassment. Ray denied
making any complaints, and McDowell informed her that such a report could “get him in
a lot of trouble.”
Around the same time in 2014, McDowell informed Ray that she could no longer
perform “voluntary” overtime work before the beginning of her regular work shifts.
Before McDowell imposed this restriction, Ray often had arrived four hours before her
scheduled shift to perform overtime work.
Because Ray was paid one and one half times her normal rate of pay for overtime
work, the voluntary overtime that she performed represented a significant portion of her
income. After McDowell suspended Ray from performing voluntary overtime work,
other “bander operators” still were allowed to work voluntary overtime hours. Also, IPC
employees, including Ray, were required to work additional hours on a mandatory basis
at the end of their shift when an employee on the next shift failed to appear for work.
On September 22, 2014, Ray reported McDowell’s conduct of sexual harassment
to officials in IPC’s human resources department. She informed those officials that
McDowell repeatedly had propositioned her to have sex, and she provided the names of
three other IPC employees to corroborate her allegations. IPC personnel investigated
Ray’s complaint over the next few days, and conducted interviews of McDowell and
other employees.
5
Based on these interviews, the IPC investigators learned that McDowell had told
two other employees that he wanted to have sex with Ray, and that McDowell had
commented to another employee that Ray was “looking good.” One employee also told
IPC investigators that McDowell often spent time near Ray’s banding machine, and that
Ray had complained about McDowell’s repeated requests that she engage in sex acts with
him.
Although McDowell “den[ied] ever saying anything sexual to or about [Ray,]” the
IPC investigators concluded that McDowell was lying. Nevertheless, IPC did not
discipline McDowell. The investigators reasoned that Ray’s allegations were not
corroborated by the statements from other employees, because none of those employees
had witnessed McDowell making comments of a sexual nature to Ray. Ultimately, IPC
officials instructed McDowell not to communicate directly with Ray in the future.
Ray complained on two other occasions about McDowell to officials in IPC’s
human resources department, in November 2014 and again in June 2015. Ray claimed
that McDowell continually “stared” at her, and that he sabotaged her work on the
production line. According to Ray, McDowell’s acts of interference prevented her from
properly “banding” the units for shipping and caused production delays.
IPC conducted an investigation of Ray’s new complaints. One employee
confirmed that McDowell had been staring at Ray, and stated that this conduct made that
employee feel “uncomfortable.” Other employees related that McDowell manually
adjusted the production line to make Ray’s job more difficult, and that McDowell was
6
“picking on” Ray. Again, IPC did not discipline McDowell, but instructed him to stop
“manually adjust[ing] the line.”
In November 2015, Ray filed a complaint in the district court alleging that she was
subjected to a hostile work environment based on McDowell’s acts of sexual harassment.
Ray also asserted a separate claim of retaliation. Upon IPC’s motion, a magistrate judge
recommended that summary judgment be granted in favor of IPC on both claims. The
district court adopted the magistrate judge’s recommendation over Ray’s objections.
With respect to Ray’s hostile work environment claim, the district court determined that
McDowell’s harassing conduct was not imputable to IPC. The district court also
concluded that Ray failed to establish a prima facie case of retaliation. Ray now appeals.
II.
We review the district court’s award of summary judgment de novo. Rosetta
Stone Ltd., 676 F.3d at 150. Summary judgment is appropriate only “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.
We begin by addressing Ray’s hostile work environment claim, starting with the
legal principles relevant to her claim. Title VII states that “[i]t shall be an unlawful
employment practice for an employer . . . to discriminate against any individual with
respect to [her] . . . compensation, terms, conditions, or privileges of employment,
because of . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Because an employee’s work
7
environment is a term or condition of employment, harassment based on sex is actionable
under Title VII. See EEOC v. R&R Ventures, 244 F.3d 334, 338 (4th Cir. 2001) (citing
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 73 (1986)). To succeed on a hostile
work environment claim alleging sexual harassment, a plaintiff must show that the
offensive conduct (1) was unwelcome, (2) was based on her sex, (3) was “sufficiently
severe or pervasive to alter [her] conditions of employment and to create an abusive work
environment,” and (4) was imputable to her employer. Crockett v. Mission Hosp., Inc.,
717 F.3d 348, 354 (4th Cir. 2013) (citation omitted).
In determining whether the conduct alleged may be imputed to the employer, the
employer’s liability “may depend on the status of the harasser.” Vance v. Ball State
Univ., 570 U.S. 421, 424 (2013). When a supervisor is the harasser and the “harassment
culminates in a tangible employment action, the employer is strictly liable.” Id. To make
such a showing, a plaintiff must demonstrate both that any action taken against her was
“tangible,” such that the action constituted a “significant change in employment status,”
and that there was “some nexus” between the harassment and the tangible action taken.
See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998); Dulaney v. Packaging
Corp. of Am., 673 F.3d 323, 331-32 (4th Cir. 2012). If the plaintiff fails to carry her
burden in this regard, the employer is entitled to assert an affirmative defense commonly
8
known as the Ellerth/Faragher defense. 2 Ellerth, 524 U.S. at 765; Faragher v. City of
Boca Raton, 524 U.S. 775, 807 (1998).
With regard to her hostile work environment claim, Ray contends that she suffered
a tangible employment action as a result of McDowell’s acts of sexual harassment.
Therefore, Ray argues that the district court erred in failing to hold IPC strictly liable for
McDowell’s actions and in permitting IPC to assert the Ellerth/Faragher defense. We
address Ray’s arguments in turn.
i.
Ray asserts that McDowell’s decision to deny her voluntary overtime work
qualified as a tangible employment action. IPC, however, argues that Ray did not suffer
any pecuniary loss from the denial of voluntary overtime and that, therefore, the
elimination of her voluntary overtime hours did not qualify as a tangible employment
action. Relying on Ray’s pay records, IPC contends that because Ray earned more
money from overtime work in 2015 than in 2014, she cannot show that she lost any
income as a result of McDowell’s actions. We disagree with IPC’s argument.
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.” Ellerth, 524 U.S.
2An employer can prevail on this defense by establishing that (1) the employer
exercised reasonable care to prevent and correct any harassing behavior, and (2) the
plaintiff unreasonably failed to take advantage of the preventive or corrective
opportunities that the employer provided. Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at
807.
9
at 761. In most cases, a tangible employment action “inflicts direct economic harm.” Id.
at 762. This Court has recognized that a decrease in hours, if it reduces an “employee’s
take-home pay,” can constitute a tangible employment action. See Dulaney, 673 F.3d at330 n.7 (quoting Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1231
(11th Cir. 2006)).
We conclude that the record before us could support a jury determination that Ray
suffered a tangible employment action when McDowell eliminated her voluntary
overtime work. Ray testified that McDowell’s decision preventing her from performing
this higher-paying work negatively affected her income. Prior to McDowell’s action,
Ray regularly was permitted to work for four hours before her shift, earning around
$24.00 per hour instead of her normal rate of $16.25 per hour. Ray explained that these
almost daily voluntary overtime hours were a “significant part of [her] earnings.” A
reasonable jury could determine that losing this amount of income constituted a
“significant change in [Ray’s] benefits.” Ellerth, 524 U.S. at 761.
Our conclusion is not altered by IPC’s contention that Ray received a greater
amount of overtime hours in 2015 than she received in 2014. Ray did not claim that her
ability to earn overtime pay was eliminated completely. Rather, she contended that
McDowell and IPC eliminated her opportunity to perform voluntary overtime work,
which had been her regular practice. There is no dispute that Ray continued to work
overtime hours after her regular shift when needed to “cover” for an absent employee.
Thus, Ray’s total amount of overtime income in 2015 bears little relevance to her claim
that her income was affected negatively, at least for a period, because she was denied the
10
opportunity to do voluntary overtime work. Accordingly, we hold that the record shows
disputed issues of material fact regarding the issue whether Ray’s loss of voluntary
overtime work constituted a tangible employment action.
ii.
We turn to consider whether Ray demonstrated a sufficient nexus between
McDowell’s offensive conduct toward her and the claimed tangible employment action.
IPC argues that there is no evidence that McDowell denied Ray the ability to perform
voluntary overtime work because Ray refused to submit to McDowell’s sexual demands.
We disagree.
Employers are held strictly liable for a supervisor’s harassment when the
supervisor has been “aided by the agency relationship” in causing the tangible
employment action. Ellerth, 524 U.S. at 761-62 (“When a supervisor makes a tangible
employment decision, there is assurance the injury could not have been inflicted absent
the agency relation.”). Although the harasser’s direct involvement is not required to
demonstrate that the alleged harassment culminated in a tangible employment action, see
Dulaney, 673 F.3d at 332-33, when the harasser acts as decisionmaker with respect to the
claimed tangible employment action this nexus requirement is easily met. Ellerth, 524
U.S. at 762-63 (“Whatever the exact contours of the aided in agency relation standard, its
requirement will always be met when a supervisor takes a tangible employment action
against a subordinate.” (emphasis added)); cf. Brown v. Perry, 184 F.3d 388, 395 (4th
Cir. 1999) (concluding that no tangible employment action was taken when the alleged
11
harasser “took no part in any decision to hire, fire, discharge, transfer, or reassign [the
subordinate], or in any way to alter her employment benefits”).
Here, the record shows that McDowell was responsible for the decision to
eliminate Ray’s voluntary overtime work. McDowell’s direct involvement in the action
obviates any concern about whether his conduct could be imputed to IPC. See Ellerth,
524 U.S. at 762 (“[A] tangible employment action taken by the supervisor becomes for
Title VII purposes the act of the employer.”). Additionally, Ray testified that McDowell
repeatedly had offered her money in exchange for sex. On one occasion after eliminating
her ability to perform voluntary overtime work, McDowell asked Ray whether she
wanted to make extra money and told her to meet him after work. Thus, on the present
record, it is impossible to separate McDowell’s motive for eliminating Ray’s voluntary
overtime work from McDowell’s inappropriate conduct. See Dulaney, 673 F.3d at 333(holding that summary judgment is inappropriate when there is “uncertainty” about
whether a nexus exists between harassment and a claimed tangible employment action);
Ballinger v. N.C. Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir. 1987)
(“[S]ummary judgment is seldom appropriate in [employment discrimination] cases
wherein particular states of mind are decisive as elements of [a] claim or defense.” (third
alteration in original) (quoting Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th
Cir. 1979))).
A reasonable jury could determine that McDowell’s ongoing harassment of Ray
and his direct involvement in the decision to deny her voluntary overtime work were
sufficiently linked. Viewing the facts in the light most favorable to Ray, we hold that the
12
district court erred in determining as a matter of law that Ray failed to present sufficient
evidence that McDowell’s harassment culminated in a tangible employment action. 3
B.
We next consider Ray’s claim of retaliation. Ray contends that a jury reasonably
could determine that she was denied voluntary overtime work because she complained
about McDowell’s harassment. IPC argues in response that the district court correctly
held that a denial of overtime work does not constitute an “adverse employment action”
for purposes of a Title VII retaliation claim. Alternatively, IPC contends that Ray failed
to establish a causal link between her complaints about McDowell’s conduct and the
elimination of her voluntary overtime hours. We disagree with IPC’s arguments.
Under Title VII, it is unlawful for an employer to discriminate against an
employee because she has opposed any unlawful employment practice, or has made a
charge or has participated in an investigation. 42 U.S.C. § 2000e-3(a). A prima facie
case of retaliation requires proof that: (1) the plaintiff engaged in protected activity, (2)
she suffered an adverse employment action, and (3) there was a causal connection
between the protected activity and the adverse action. Foster v. Univ. of Md.-E. Shore,
787 F.3d 243, 250 (4th Cir. 2015).
Here, there is no dispute that Ray engaged in protected activity under Title VII
when she complained to Owens in 2013 about McDowell’s acts of harassment. 4 Thus,
3
Because we conclude that there is a genuine question of fact regarding whether
Ray suffered a tangible employment action, we do not address further the elements of the
Ellerth/Faragher defense.
13
we focus on the question whether McDowell’s action barring Ray from performing
voluntary overtime work was an “adverse employment action” within the meaning of
Title VII, and whether there was a causal connection between Ray’s protected activity
and the adverse employment action.
i.
An adverse employment action is one that “well might have dissuaded a
reasonable worker” from engaging in protected conduct. Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation and citation omitted). This
standard for establishing an adverse employment action under Title VII’s antiretaliation
provision is more expansive than the standard for demonstrating a tangible employment
action under the statute’s antidiscrimination provisions. See id. at 67. The Supreme
Court explained the rationale underlying this broader standard: “Title VII depends for its
enforcement upon the cooperation of employees who are willing to file complaints and
act as witnesses. . . . Interpreting the antiretaliation provision to provide broad protection
from retaliation helps ensure the cooperation upon which accomplishment of the Act’s
primary objective depends.” Id. Nevertheless, although an adverse action need not
“affect the terms and conditions of employment,” id. at 64, there must be “some direct or
4
Although IPC disputes that Ray made complaints in 2013, Ray stated in her
deposition and in her interrogatory responses that she had “frequently” told Owens about
McDowell’s harassment during this period. For purposes of summary judgment, we view
these facts in the light most favorable to Ray.
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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).
The district court determined that Ray’s loss of voluntary overtime work was not a
materially adverse action because there was no evidence that her income decreased as a
result. We disagree. As explained above, Ray has adduced sufficient evidence at this
stage of the proceedings that she earned substantially less income after complaining about
McDowell’s conduct. On its face, this decrease in income constituted an adverse
employment action. See Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999) (explaining
that an actionable adverse employment action is one in which an employee suffers a
“discharge, demotion, decrease in pay or benefits, loss of job title or supervisory
responsibility, or reduced opportunities for promotion” (emphasis added)).
We need not decide whether every reduction in an employee’s overtime hours can
qualify as an adverse employment action. It is sufficient in this case that there is
evidence that Ray lost a “significant part of [her] earnings.” See Lewis v. City of
Chicago, 496 F.3d 645, 653-54 (7th Cir. 2007) (stating that a loss of overtime can be an
adverse employment action for retaliation purposes); Shannon v. BellSouth Telecomms.,
Inc., 292 F.3d 712, 716 (11th Cir. 2002) (same); see also Garmon v. Nat’l R.R. Passenger
Corp., 844 F.3d 307, 314 (1st Cir. 2016) (“[I]t seems foreseeable that, at least in some
contexts, decreased overtime opportunities could cause a ‘material’ change in the
conditions of a plaintiff’s employment.”). Accordingly, we hold that there remains a
dispute of material fact regarding whether Ray’s loss of voluntary overtime work was
sufficiently severe to constitute an adverse employment action.
15
ii.
We turn to consider the “causal nexus” issue in Ray’s retaliation claim. We
examine whether Ray’s retaliation claim is supported by evidence that her complaints
about McDowell’s conduct resulted in the elimination of her voluntary overtime work.
The district court concluded that the time period between Ray’s complaints to Owens and
McDowell’s decision cutting her overtime hours was too great to establish the required
causal connection.
Viewing the record in the light most favorable to Ray, we conclude that she has
presented sufficient evidence at the summary judgment stage to support her retaliation
claim. As noted above, the evidence shows that Ray complained about McDowell to
Owens multiple times, and that McDowell learned about these complaints and confronted
Ray in “early 2014.” Around the same time, McDowell prevented Ray from engaging in
her usual practice of performing voluntary overtime work. Although Ray’s proffered
timeline is not precise, at the summary judgment stage of proceedings we must draw all
reasonable inferences in Ray’s favor. Rosetta Stone Ltd., 676 F.3d at 150; see also
Foster, 787 F.3d at 251 (“[T]he burden for establishing causation at the prima facie stage
[of a Title VII retaliation claim] is ‘less onerous.’” (citation omitted)). Based on the
record before us, a jury reasonably could determine that McDowell retaliated against Ray
after learning that she had complained about him to other IPC supervisors. Accordingly,
16
we conclude that there are disputed issues of material fact with respect to Ray’s
retaliation claim against IPC. 5
III.
For these reasons, we vacate the district court’s award of summary judgment in
favor of IPC, and remand the case to the district court for further proceedings.
VACATED AND REMANDED
5
Because the district court held that Ray failed to establish a prima facie case of
retaliation, the district court did not address whether IPC had a legitimate,
nondiscriminatory reason for the adverse action and whether Ray could prove that any
reason offered by IPC was merely pretextual. See Foster, 787 F.3d at 250. We decline to
consider those issues in the first instance.
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