Fox v. Leland Volunteer Fire/Rescue Department, Inc. , 648 F. App'x 290 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1364
SARA L. FOX,
Plaintiff - Appellant,
v.
LELAND VOLUNTEER FIRE/RESCUE DEPARTMENT, INC.; JOHN GRIMES,
in his individual and official capacities as Chief of the
Department,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:12-cv-00354-FL)
Argued: March 21, 2016 Decided: May 5, 2016
Before AGEE and THACKER, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
ARGUED: Sara Lyn Faulman, WOODLEY & MCGILLIVARY, LLP,
Washington, D.C., for Appellant. Paul H. Derrick, DERRICK LAW
GROUP, Raleigh, North Carolina, for Appellees. ON BRIEF: Thomas
A. Woodley, WOODLEY & MCGILLIVARY, LLP, Washington, D.C., for
Appellant. Melody J. Jolly, CRANFILL SUMNER & HARTZOG LLP,
Wilmington, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Until her termination on January 5, 2011, Sara L. Fox
(“Fox”) was a lieutenant with the Leland Volunteer Fire/Rescue
Department (“the Department”) in Brunswick County, North
Carolina. The Department is staffed by nineteen career
firefighters and approximately eighty-five other individuals who
serve on a volunteer basis. Fox was the first female career
employee to be promoted to the position of lieutenant. In that
capacity, she served as a shift supervisor overseeing not only
firefighting operations, but also training and administrative
duties.
In her complaint, Fox alleges that during her service as a
shift supervisor, she was subjected to continuous condescending
and disrespectful behavior from her male subordinates. The
persistent hostility, she contends, resulted in a hostile work
environment, which she attributes to her gender. She further
alleges that she was subsequently terminated in retaliation for
filing complaints about her workplace treatment. Fox named both
the Department and its Chief, John Grimes (“Chief Grimes”), as
defendants.
Finding that Fox failed to either forecast evidence linking
the alleged hostile work environment to her sex, or demonstrate
that the true motivation for her termination was retaliation,
the district court granted the Defendants’ motion for summary
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judgment as to the hostile work environment and retaliatory
discharge claims under Title VII of the Civil Rights Act; her
claim for retaliation for speaking out about her alleged sexual
harassment as a matter of public concern, in violation of the
First Amendment; and her claim of violations of the Equal
Protection Clause of the Fourteenth Amendment.
While we agree that Fox’s evidence fails, as a matter of
law, to support her hostile work environment, First Amendment,
and Equal Protection claims, we vacate and remand as to Fox’s
claim of retaliatory discharge, in violation of Title VII of the
Civil Rights Act.
The Department serves five counties in North Carolina.
Chief Grimes oversees the Department’s operations. The
Department is governed by a seven person board of directors, of
which Chief Grimes is not a member. The chain of command
consists of Chief Grimes, an assistant chief, two captains, and
eight lieutenants. Four of the eight lieutenants are career
firefighters. Each lieutenant supervises a shift of paid and
volunteer employees.
Fox began her career in July 2008 as a
firefighter/paramedic. After her first year of service,
following a competitive application process, she was promoted to
lieutenant and placed in charge of “D” shift, which, according
to the record, had a reputation for being dysfunctional.
4
From the inception of her command, she experienced what she
describes as disparate treatment and harassment from her
subordinates. This included declining to eat food which she
purchased and prepared at her own expense, ignoring her attempts
to organize or facilitate training, and leaving the fire station
without her permission. Fox maintained that her immediate
subordinates, the relief supervisors, were impertinent and
disrespectful. The relief shift supervisors, in her view,
avoided interaction with her and refused to perform tasks she
assigned. They also complained to her superiors about her
leadership.
Fox contends that Chief Grimes treated her differently from
her male counterparts. For example, she was not provided access
to the lieutenant’s computer for approximately one month
following her promotion, was required to complete tasks not
required of male lieutenants, and was not permitted to give her
subordinate firefighters their performance evaluations, unlike
other lieutenants.
In June 2010, approximately one year after her promotion to
lieutenant, Fox received a negative performance evaluation, as a
result of which she was placed on a ninety-day probationary
period. The evaluation noted that she had failed to meet four
training goals identified in her 2009 evaluation, missed several
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staff meetings, and was ineffective in communicating with
members of her shift.
In December 2010, Chief Grimes met with Fox to discuss
continuing reports from firefighters on her shift concerning her
leadership and performance. Chief Grimes remarked that her
subordinates were “throwing [her] under the bus” and that she
“must feel like [she] was in a hostile working environment.”
(J.A. at 709 (alterations in original).) During the meeting,
Chief Grimes offered suggestions about how she could improve her
effectiveness as a leader and assured her that she was not being
considered for termination. Contrary to this representation,
Chief Grimes and his wife, who was a member of the board of
directors of the Department, represented, after this lawsuit was
initiated, that they were privately considering Fox’s
termination around the time of this December meeting.
Fox did not mention to Chief Grimes at the December 2010
meeting the harassing and discourteous behavior she was
experiencing from her subordinates and peers. In the month
following that meeting, she submitted three formal
discrimination complaints to Chief Grimes. All three were
unanswered. At that point, Fox engaged an attorney to file a
formal complaint of gender discrimination with the Equal
Employment Opportunity Commission (“EEOC”).
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On January 2, 2011, Fox disclosed to a female co-worker
that she had consulted with an attorney about filing an EEOC
complaint. That same day, the co-worker notified Chief Grimes
of her conversation with Fox, including hiring of legal counsel.
Chief Grimes promptly recommended to the board of directors that
Fox be terminated. Two days later, on January 5, 2011, Fox was
terminated for her purported poor work performance,
insubordination, and unwillingness to accept management’s
suggestions for improvement.
By Memorandum Opinion and accompanying Order entered
March 10, 2015, the district court granted Defendants’ motion
for summary judgment as to all counts. 1 The district court found
Fox’s evidence of a sexually-hostile work environment inadequate
to demonstrate that it was both objectively and subjectively
offensive. (J.A. at 729−31.) The court acknowledged that while
objective hostility is “quintessentially a question of fact, in
certain circumstances summary judgment is appropriate to avoid
creat[ing] a ‘general civility code’ in the workplace.” (J.A.
at 729 (alteration in original) (internal citations omitted)
1Defendants contend that the district court lacked subject
matter jurisdiction to entertain Plaintiff’s Title VII claim
because it was not included in her original EEOC complaint. The
district court concluded that it was a “close call,” and the
original allegations were sufficient to encompass the Title VII
claim. (J.A. at 727.) We find no reason to question the
district court’s conclusion.
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(quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
81 (1998); Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 335
(4th Cir. 2010)).) The district court concluded that the
offensive conduct alleged by Fox was insufficient to alter the
conditions of her employment as required by Oncale. (J.A. at
729.) 2
With respect to Fox’s retaliation claims, the district
court found the evidence insufficient to show that Defendants’
true motive in terminating her was retaliation. (J.A. at 731.)
A grant of summary judgment is reviewed de novo by this
Court. Desmond v. PNGI Charles Town Gaming, L.L.C., 630 F.3d
351, 354 (4th Cir. 2011). We are required to view the facts and
all justifiable inferences arising therefrom in the light most
favorable to the non-moving party in order to determine whether
“there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Woollard v.
Gallagher, 712 F.3d 865, 873 (4th Cir. 2013) (quoting Fed. R.
Civ. P. 56(a)). A dispute is genuine if “a reasonable jury
2
In noting the scant evidence of sexual hostility, the
district court identified only two relevant events -- the fact
that a firefighter referred to a coworker as a “hooker” and a
comment by a relief supervisor that Fox was only promoted
because of her gender. Relying on Faragher v. City of Boca
Raton, 524 U.S. 775 (1998), the district court found these
comments to be neither severe nor pervasive enough to warrant
relief. (J.A. at 730−31.) We agree.
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could return a verdict for the nonmoving party.” Dulaney v.
Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012). A
fact is material if it “might affect the outcome of the suit
under the governing law.” Henry v. Purnell, 652 F.3d 524, 548
(4th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)).
Turning first to Fox’s gender-based claims, we find no
evidence in the record to support her contention that she
suffered from a discriminatorily hostile or abusive work
environment, in violation of Title VII. Her subordinates’
conduct was discourteous, insubordinate, and perhaps at times
boorish, but not demonstrative of sexual animus. As Judge
Wilkinson noted in EEOC v. Sunbelt Rentals, Inc.:
Workplaces are not always harmonious locales, and even
incidents that would objectively give rise to bruised
or wounded feelings will not on that account satisfy
the severe or pervasive standard. Some rolling with
the punches is a fact of workplace life. Thus,
complaints premised on nothing more than “rude
treatment by [coworkers],” . . . are not actionable
under Title VII.
521 F.3d 306, 315–16 (4th Cir. 2008) (first alteration in
original) (internal citations omitted).
A similar analysis supports the conclusion that Fox failed
to show an actionable claim for a violation of the Equal
Protection Clause of the Fourteenth Amendment, which is also
enforced through 42 U.S.C. § 1983.
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With respect to Fox’s claim that she was discharged in
retaliation for her complaints to Chief Grimes of rude and
insubordinate behavior by her subordinates, these claims largely
depend on circumstantial evidence. Therefore, the district
court conducted its analysis under the burden-shifting framework
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973).
Under this three-tiered analytical framework, a plaintiff
must initially demonstrate a prima facie case of retaliation.
This requires proof (1) that she engaged in protected activity;
(2) that her employer took an adverse employment action; and (3)
that a but-for causal connection existed between the protected
activity and the asserted adverse action. See Univ. of Tex. Sw.
Med. Ctr. v. Nassar, ___ U.S. ___, 133 S. Ct. 2517, 2532–33
(2013); Foster v. Univ. of Md.−E. Shore, 787 F.3d 243, 250 (4th
Cir. 2015). If a plaintiff succeeds in this threshold showing,
the defendant is afforded an opportunity to produce evidence of
“a legitimate, nondiscriminatory reason for the adverse
employment action.” Hill v. Lockheed Martin Logistics Mgmt.,
Inc., 354 F.3d 277, 285 (4th Cir. 2014) (en banc). If the
employer makes this showing, plaintiff may rebut such evidence
by demonstrating that the employer’s purported non-retaliatory
reasons “were not its true reasons, but were a pretext for
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discrimination.” Id. (quoting Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143 (2000)).
In the immediate case, the district court assumed,
arguendo, that Fox could establish a prima facie case, but
concluded that Fox’s “retaliation claim fails because she cannot
demonstrate that her termination was truly motivated by
retaliation.” (J.A. at 732.) Viewing the evidence in the light
most favorable to Fox, we cannot agree that there is no genuine
dispute of material fact with respect to the motivation for
Fox’s termination. The record reveals conflicting evidence as
to the timing of Chief Grimes’ decision to terminate Fox in
close proximity to learning of her complaint to the EEOC. The
evidence of Fox’s alleged insubordination during her December 1,
2010 meeting with Chief Grimes is also less than clear. When
questioned in their depositions about the December 1 meeting,
both Chief Grimes and the assistant chief declined to
characterize her deportment as insubordinate.
As this Court noted in EEOC v. Sears Roebuck & Co., a
different explanation for termination, provided at different
times, is “in and of itself, probative of pretext.” 243 F.3d
846, 852–53 (4th Cir. 2001). This inference can be drawn not
only when an employer provides different explanations at
different times, but also when the explanations appear
inconsistent. Thurman v. Yellow Freight Sys., Inc., 90 F.3d
111160, 1167 (6th Cir. 1996). This Court will therefore vacate
the district court’s award of summary judgment on Fox’s claim
for retaliation under Title VII, 42 U.S.C. § 2000e, et seq, and
remand for further proceedings on this claim.
A related strand of Fox’s retaliation claim is Fox’s
contention that her unlawful discharge also violated her First
Amendment right as a public employee to speak on a matter of
public concern. This claim was summarily rejected by the
district court without substantive explanation. First Amendment
retaliation claims brought under 42 U.S.C. § 1983 are reviewed
under a different analytical framework than those prosecuted
under Title VII. Campbell v. Galloway, 483 F.3d 258, 270 (4th
Cir. 2007).
A public employee’s speech is constitutionally protected
only when it addresses a matter of public concern, as opposed to
a matter of personal interest. Kirby v. City of Elizabeth City,
388 F.3d 440, 448 (4th Cir. 2004). “Speech involves a matter of
public concern when it involves an issue of social, political,
or other interest to a community.” Id. at 446; see also,
Connick v. Myers, 461 U.S. 138, 146 (1983). Whether speech
addresses a matter of public concern is a question of law for
the court. Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir.
2000).
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It is well-established in this circuit that “we may affirm
[a] dismissal by the district court upon the basis of any ground
supported by the record even if it is not the basis relied upon
by the district court.” Ostrzenski v. Seigel, 177 F.3d 245, 253
(4th Cir. 1999); see also, Hutto v. S.C. Ret. Sys., 773 F.3d
536, 549–50 (4th Cir. 2014).
We are not convinced that Fox’s discussions with Chief
Grimes concerning personal employment issues rise to the level
of a matter of public concern. The district court properly
granted summary judgment on Fox’s First Amendment retaliation
claim.
This Court will therefore affirm the district court’s
dismissal of the hostile work environment claim under Title VII,
her Equal Protection claim and First Amendment claim brought
under 42 U.S.C. § 1983, and vacate the lower court’s dismissal
of the Title VII retaliation claim and remand that claim for
further proceedings.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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