McNeal v. Montgomery County MD , 307 F. App'x 766 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1323
ARTHUR B. MCNEAL, SR.,
Plaintiff - Appellant,
v.
MONTGOMERY COUNTY, MARYLAND; BEATRICE P. TIGNOR; JANET
WORMACK,
Defendants – Appellees,
and
MONTGOMERY COUNTY OFFICE OF PROCUREMENT; MONTGOMERY COUNTY
OFFICE OF HUMAN RESOURCES,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District
Judge. (1:04-cv-02984-MJG)
Argued: October 31, 2008 Decided: January 20, 2009
Before NIEMEYER and AGEE, Circuit Judges, and Liam O’GRADY,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Ronald Richard Hogg, Ellicott City, Maryland, for
Appellant. Edward Barry Lattner, COUNTY ATTORNEY’S OFFICE,
Rockville, Maryland, for Appellees. ON BRIEF: McEvan H. Baum,
Ellicott City, Maryland, for Appellant. Leon Rodriguez, County
Attorney, Marc P. Hansen, Deputy County Attorney, Patricia P.
Via, Chief, Division of Litigation, Sharon V. Burrell, Associate
County Attorney, COUNTY ATTORNEY’S OFFICE, Rockville, Maryland,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Arthur B. McNeal, Sr. (“McNeal”) appeals from the judgment
of the United States District Court for the District of
Maryland, in favor of Montgomery County, Maryland (“the
County”), the Montgomery County Office of Procurement (“Office
of Procurement”), the Montgomery County Office of Human
Resources (“Office of Human Resources”), Beatrice Tignor
(“Tignor”), and Janet Wormack (“Wormack”) (collectively “the
Defendants”). The district court dismissed all claims against
the Office of Human Resources and the Office of Procurement.
Granting summary judgment in favor of the remaining Defendants,
the district court held that McNeal had not proven his claims of
employment discrimination, retaliation, or a hostile work
environment under Title VII, 42 U.S.C. § 2000(e) et seq. (2008),
age discrimination under the Age Discrimination Employment Act
(“ADEA”), 29 U.S.C. § 621 (2008); constructive discharge;
tortious interference with contract; conspiracy; intentional
infliction of emotional distress; and respondeat superior under
Maryland state law. McNeal has appealed the judgment of the
district court as to his claims for employment discrimination,
retaliation, hostile work environment, age discrimination,
constructive discharge, tortious interference with contract, and
intentional infliction of emotional distress. For the following
reasons, we affirm the judgment of the district court.
3
I.
McNeal, an African-American male over the age of forty, had
been employed by the Office of Procurement since 1990 in the
position of Program Manager I. His position later became
Program Manager II. Since 1995, McNeal has been supervised by
Tignor, an African-American female over the age of forty, who is
the Director of the Office of Procurement. As his supervisor,
Tignor assigned work to McNeal and approved work forwarded to
him by other agencies.
A.
In April 1998, McNeal was assigned additional duties beyond
his original responsibilities as Program Manager. Specifically,
McNeal represented the Office of Procurement on a negotiation
team for an 800 MHz Public Safety Radio System for the County.
Tignor contends that the team “simply met twice weekly for
meetings of about three hours.” McNeal claims that “he was one
of the three lead negotiators for the public service radio
contract, that he wrote the contract, and that some weeks he
spent up to thirty hours on the task.” A lead contract
negotiator reported that “McNeal was a lead negotiator who
easily spend 20 hours or more per week on the project during
peak negotiation periods and wrote both contracts.”
4
On August 11, 1999, McNeal submitted a request to the
Office of Procurement for a temporary promotion as a means of
compensation for these additional responsibilities (“temporary
promotion”). Tignor informed McNeal that his request had been
denied because there were no positions available to which McNeal
could be promoted. Tignor had approved a request that McNeal’s
current position be reclassified so that he could receive a pay
increase. Ultimately, the pay raise request approved by Tignor
was rejected by the Office of Human Resources in August 2000.
On November 29, 1999, McNeal applied for a promotion within
the Office of Procurement to “the position of Manager II,
Professional Services/Construction” (“permanent promotion”).
McNeal contends that, upon informing Tignor of his intention to
apply for the permanent promotion, she responded “Art, aren’t
you ready to retire?”
As part of the application process, the Office of Human
Resources reviewed McNeal’s application and resume and rated his
qualifications on a standard form. The form had five categories
with possible ratings in each category of “below average,”
“average,” or “above average.” The rating process was conducted
by Wormack and Deborah Goodwin (“Goodwin”), the Assistant Chief
Administrative Officer, both of whom were selected by Tignor as
raters. Wormack was chosen because she had recently vacated the
position for which McNeal was applying and Goodwin was chosen
5
because she had “significant experience” in rating candidates.
On December 28, 1999, McNeal was informed by letter that “his
overall ranking for the position was ‘qualified,’ as opposed to
‘below average’ or ‘well qualified.’” McNeal’s lowest ranking
was for the category entitled “experience in managing a diverse
workforce,” for which he received the rating “below average.”
McNeal claims that “Wormack did not credit his experience
supervising diverse workforces because his experience went ‘way,
way back’” and he had no supervisory responsibility during the
last nine years. Because he received a rating of “qualified,”
and not “well qualified,” McNeal was not interviewed for the
position. Instead, the Office of Procurement interviewed a
thirty-eight year old male of Asian descent named John Lee
(“Lee”), a Senior Procurement Specialist with the Office of
Procurement. Lee was rated equally to McNeal in every category,
except he received “above average” in the “supervising a diverse
workforce” category. Lee was rated as “well qualified” overall
and was ultimately hired for the position.
McNeal protested his rating to a Human Resources
Specialist. The Specialist “reviewed the ratings, concluded a
mistake had been made in McNeal’s ratings and contacted Tignor
to suggest that the [Office of Human Resources] reconvene the
raters to reconsider McNeal’s ratings.” Tignor refused.
6
B.
McNeal contends that his work environment was made
unbearable by several ongoing conflicts with Tignor. McNeal
claims that Tignor repeatedly accused him of theft of office
property. Tignor “allegedly accused McNeal of stealing such
property as a spoon, punch ladle, a table, a red hand truck, and
an ergonomic keyboard.” Tignor denies accusing McNeal of
stealing anything, although she admits that perhaps she did
question him about the whereabouts of several objects.
McNeal also claims that Tignor made several racist and
harassing comments about him. These statements were not made
directly to McNeal, but instead were allegedly made to other
employees.
C.
McNeal filed a discrimination complaint with the Office of
Human Rights on June 14, 2000, alleging discrimination based on
race and on sex. He later amended the complaint to include a
claim for age discrimination. The Office of Human Rights issued
a Determination Report which concluded that Tignor had provided
a “rational and non-discriminatory explanation for denying
[McNeal’s] request for a temporary promotion” because McNeal was
“not actually filling a higher level position when he was
assigned as [the Office of Procurement’s] representative on the
7
public service radio contract negotiation team.” However, the
Determination Report also concluded that Tignor “harassed
[McNeal] with unfounded accusations of theft” and “discriminated
against [him] based on age by entirely discounting all his
supervisory experience” (in the rating for the permanent
promotion application), and “discriminated against [McNeal] on
the basis of race and age by irrationally refusing to allow
correction of unfairness against him in the rating process.”
The Office of Human Rights further stated that “there were
“reasonable grounds to believe the [Office of Procurement]
discriminated against [McNeal] on the bases of race, sex and
age” and that the Office of Human Resources “discriminated
against [McNeal] on the basis of age.”
McNeal contends that after Tignor became aware of his
complaint her harassment of him intensified, and that this
treatment ultimately led to his decision to retire from
employment with the County in January 2001. McNeal claims that
Tignor “began to evaluate [his] job performance with
unprecedented scrutiny and she engaged in conduct to render his
position expendable.” McNeal avers that these actions included
evaluating his performance in the presence of a subordinate and
that “Tignor’s constant scrutiny of [his] whereabouts was so
pervasive and conspicuous that fellow . . . team members would
jokingly ask him if he had a hall pass or permission slip to
8
attend their meetings.” McNeal also claims that Tignor
scrutinized his sick leave and placed him on restriction for
abuse of sick leave, “despite the fact that he had a remaining
sick leave balance of 49 hours and an annual leave balance of
288 hours.” Tignor responds that “no other employee under her
direct supervision had excessively misused sick leave as
[McNeal],” and that, even so, she had taken similar actions with
other employees.
After his retirement, McNeal was scheduled to begin work as
Baltimore City’s Purchasing Chief on February 5, 2001. McNeal
claims that “when, through a casual encounter, Tignor learned of
Baltimore City’s intention to hire him she told a Baltimore
procurement supervisor that McNeal had ‘problems in his
employment history [and] was difficult to work with.’”
Subsequent to this conversation, McNeal contends his employment
date was delayed by two weeks, although McNeal ultimately did
begin work with Baltimore City.
D.
McNeal claims that, because of Tignor’s conduct and his
experience at the Office of Procurement, he was “forced to seek
medical treatment for severe stomach pain, a bleeding lesion in
his stomach wall, abdominal pains, an irritable colon, an upset
stomach, and nausea.” He claims he has also “experienced
9
anxiety, chest pain, shortness of breath, sweating, a recurring
rash due to nervous scratching, and additional physical symptoms
attributable to . . . severe emotional distress.”
II.
McNeal raises four primary issues on appeal. First, McNeal
asserts that his Maryland state law claims of constructive
discharge, tortious interference with contract, and intentional
infliction of emotional distress (collectively the “state law
claims”) are not barred by Maryland’s Statute of Limitations,
nor barred by the notice requirement under the Maryland Tort
Claims Act, Md. Code Ann., Cts. & Jud. Proc. § 5-304(a) (2008).
Further, McNeal contends that the district court erred in
granting summary judgment on his intentional infliction of
emotional distress claim for substantive reasons. McNeal also
asserts that the district court erred in granting summary
judgment on his discrimination, retaliation, and hostile work
environment claims. Finally, McNeal argues that Wormack and
Tignor, as individuals, are not barred from liability under the
ADEA, 29 U.S.C. § 613(a) (2008), and the district court erred in
granting summary judgment as to these claims.
On appeal from the district court, we review de novo the
court’s conclusions of law. Dean v. Pilgrim’s Pride Corp., 395
F.3d 471, 474 (4th Cir. 2005). In reviewing an order granting
10
summary judgment, an appellate court applies the same standard
used by the district court. Summary judgment is appropriate
only where “there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of
law.” Ballinger v. N.C. Agric. Extension Serv., 815 F.2d 1001,
1004 (4th Cir. 1987). However, summary disposition of Title VII
cases is “not favored.” Logan v. Gen. Fireproofing Co., 521 F.2d
881, 883 (4th Cir. 1971).
A. State Law Claims
Maryland law governs the state law claims in this case, all
of which are barred by the applicable Maryland Statute of
Limitations as well as the Maryland Tort Claims Act.
1. Maryland Statute of Limitations
The applicable Maryland Statute of Limitations requires
that “a civil action at law shall be filed within three years
from the date it accrues unless another provision of the Code
provides a different period of time within which the action
shall be commenced.” Md. Code Ann., Cts. & Jud. Proc. § 5-101(2008); see also Levin v. Friedman, 317 A.2d 831, 833 (Md.
1974). McNeal filed his lawsuit on September 17, 2004. The
last possible tortious act occurred no later than January 2001,
when he retired from his employment with the County.
11
McNeal does not contest that the three year period is
applicable, but argues that the Statute of Limitations for the
state law claims should be equitably tolled during the time in
which he was exhausting administrative procedures as to his
Title VII claims, which arose from the same set of
circumstances. This Court in Shofer v. Hack Co., 970 F.2d 1316(4th Cir. 1992) held that “[t]he rule in Maryland concerning
equitable tolling of statutes of limitations ‘can be fairly
termed one of strict construction.’” Id. at 1320 (quoting Walko
Corp. v. Burger Chef Sys., Inc., 378 A.2d 1100, 1101 (Md.
1977)). The district court correctly held that the filing of
McNeal’s claim with the Office of Human Rights “does not toll
the statute of limitations for claims that ‘although related,
and although directed to most of the same ends, are separate,
distinct, and independent.’” McNeal v. Montgomery County, No.
MJG-04-2984, slip op. at 10 (D. Md. Mar. 15, 2008) (unpublished)
(quoting Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 461
(1975)). McNeal’s claims for constructive discharge, tortious
interference with contract and intentional infliction of
emotional distress, although arising from the same set of
circumstances, are completely independent from his Title VII
claims. Thus the time for filing a lawsuit as to these causes
of action was not tolled while McNeal pursued his Title VII
12
administrative remedies. McNeal was required to file suit
within three years of January 2001, which he failed to do.
2. Notice
The district court was also correct in granting summary
judgment as to the state law claims because McNeal failed to
give proper notice under the Maryland Tort Claims Act, Md. Code
Ann., Cts. & Jud. Proc. § 5-304 (2008). The Act requires that
“an action for unliquidated damages may not be brought against a
local government or its employees unless the notice of the claim
required by this section is given within 180 days after the
injury.” Id. Proper notice requires that, within 180 days of
injury, the Plaintiff give written notice in person or by
certified mail to the County Executive. Id. McNeal gave
written notice of his claims to the Office of Human Rights, but
failed to give notice, as required by statute, to the County
Executive. This omission is fatal to McNeal’s state law claims.
The Office of Human Rights is an independent agency that
investigates allegations of discrimination against employers in
the County, and not allegations against the County itself, and
is clearly not the County Executive, the notice recipient
13
required by the statute. 1 The Act also requires that compliance
with the provision should be alleged by the plaintiff in the
complaint as an element of the cause of action. Madore v.
Baltimore County, 367 A.2d 54, 56 (Md. Ct. Spec. App. 1976).
McNeal failed both to comply with the statutory notice provision
and to allege compliance in his complaint. 2
1
McNeal argues that he has substantially complied with the
notice requirement. However, the decision to waive notice is
entirely within the discretion of the trial court upon showing
of good cause by the Plaintiff. Moore v. Norouzi, 807 A.2d 632,
641 (Md. 2002). Appellate courts will not disturb the trial
court’s determination of whether there is good cause, absent an
abuse of discretion, and we find none here. See, e.g., White v.
Prince George’s County, 877 A.2d 1129, 1141 (Md. Ct. Spec. App.
2005).
2
Even if McNeal’s claim for intentional infliction of
emotional distress were not barred by the Statute of Limitations
and the Maryland Tort Claims Act, he failed to prove the
elements of that claim. To prove intentional infliction of
emotional distress, a plaintiff must show that (1) the conduct
was intentional or reckless; (2) extreme and outrageous; (3)
there is a causal connection between the wrongful conduct and
the emotional distress; and (4) the emotional distress was
severe. Harris v. Jones, 380 A.2d 611, 614 (Md. 1977).
Assuming, but not deciding, that McNeal could prove Tignor’s
conduct toward him was intentional and was the cause of his
alleged emotional distress, he failed to prove either that the
conduct was extreme and outrageous or that his emotional
distress was severe.
To qualify as “extreme and outrageous,” the conduct must
rise above “mere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities.” Harris, 380 A.2d at
614. It is clear in this case that the alleged conduct,
including insults, scrutinizing McNeal’s work and sick leave,
relieving him of certain uncompensated responsibilities, and
accusations of theft, even taken as true, does not rise to the
required standard of extreme and outrageous conduct.
(Continued)
14
The district court did not err in granting summary judgment
on the state law claims based on McNeal’s failure to meet the
Statute of Limitations and the notice provision.
B. Discrimination Claims Under Title VII and the ADEA
McNeal argues that the district court erred when it granted
summary judgment to the Defendants on his claim for
discrimination under Title VII, 42 U.S.C. § 2000(e) et seq.
(2008), and the ADEA, 29 U.S.C. § 621 (2008). McNeal asserts
that he has been discriminated against in violation of Title VII
and the ADEA, on the bases of age, race and gender. He first
argues that he was discriminated against in violation of Title
VII when he was denied a temporary promotion in August 1999.
McNeal then contends he was the victim of age, race, and gender
discrimination when he was denied the permanent promotion in
December 1999.
To prove that the alleged emotional distress was severe, a
plaintiff must show that the distress “inflicted is so severe
that no reasonable man could be expected to endure it.” Harris,
380 A.2d at 616. Although McNeal claims that he suffered from
anxiety and other physical symptoms like nervous scratching and
an upset stomach, such allegations fall far short of
establishing the recognized element of severe emotional
distress.
15
1. Temporary Promotion
McNeal contends that he was discriminated against on the
basis of race when his request for the temporary promotion was
denied. The prima facie case for discrimination, set forth by
the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), requires that a plaintiff show “(i) that he belongs
to a racial minority; (ii) that he applied and was qualified for
a job for which the employer was seeking applicants; (iii) that,
despite his qualifications, he was rejected; and (iv) that,
after his rejection, the position remained open and the employer
continued to seek applicants from persons of complainant’s
qualifications.” Id. at 802. The district court correctly held
that McNeal did not make out a prima facie case of
discrimination as to the temporary promotion because McNeal
applied for a position that did not exist. 3 Although McNeal
belongs to a racial minority, the position he sought was not one
for which the “employer was seeking applicants,” since there was
no such position. Nor did the “position remain[] open and the
3
McNeal argues that there is a genuine dispute as to
whether the Montgomery County Personnel Regulations allowed for
the creation of a new position for the purposes of a temporary
promotion. Even if this is true, the dispute is not material.
It is irrelevant for the purposes of the prima facie case
whether a position could have been created. It is only relevant
whether there existed an open position, for which the employer
was seeking applicants. Clearly, there was no such position in
this case.
16
employer continue[] to seek applicants from persons of
complainant’s qualifications.” McDonnell Douglas, 411 U.S. at
802, as the County never sought applicants for a nonexistent
position.
The district court did not err in granting summary judgment
as to McNeal’s temporary promotion claim.
2. Permanent Promotion
McNeal also pled that he was discriminated against on the
basis of age, race, and gender in violation of Title VII and the
ADEA when he was not chosen for the permanent promotion to
Manager II in November 1999. McNeal argues that the Defendants’
proffered nondiscriminatory reason for not interviewing or
promoting McNeal was merely pretext 4 for a discriminatory motive.
The Defendants responded that the rating system, upon which
the employment decision was made, was based on a multitude of
neutral factors, and that McNeal’s rating was accurate based on
his previous work experience. Lee was the better-qualified
candidate and was appropriately chosen for the position on a
4
If a prima facie case under McDonnell Douglas is made by
the plaintiff, the burden then shifts to the employer to offer a
legitimate, nondiscriminatory reason for the adverse employment
action. If the employer does so, the burden then shifts back to
the plaintiff to prove that the proffered reason is merely a
pretext for discrimination. McDonnell Douglas, 411 U.S. at 802-
03.
17
nondiscriminatory basis. Specifically, the Defendants argue
that Lee’s application “demonstrated the ability to manage a
diverse workforce and cited specifically his management
philosophy for cultivating working relationships” while McNeal’s
resume “indicated no supervisory responsibility and [instead]
indicated knowledge of contract administration processes” for at
least the previous nine years. McNeal argues that his rating of
“qualified” as opposed to “well-qualified” was nonetheless based
on discriminatory motives, and that his previous supervisory
work experience was ignored or not given the correct weight.
Even taking all of McNeal’s factual claims as true, he
fails to provide any evidence that a discriminatory motive
underlied the raters’ decisions. In arguing that he was
discriminated against on the basis of race, McNeal claims that
Tignor made comments about his race and looks. Even if true,
McNeal has failed to temporally connect these comments with any
employment decision. “[T]o prove discriminatory animus, the
derogatory remark cannot be stray or isolated and [u]nless the
remarks upon which plaintiff relies were related to the
employment decision in question, they cannot be evidence of
[discrimination].” Brinkley v. Harbour Recreation Club, 180
F.3d 598, 608 (4th Cir. 1999) (internal quotation marks omitted)
(abrogated on other grounds by Desert Palace, Inc. v. Costa, 539
U.S. 90 (2003)) (quoting McCarthy v. Kemper Life Ins. Co., 924
18
F.2d 683, 686 (7th Cir. 1991)). Furthermore, Wormack and
Goodwin, not Tignor, were McNeal’s raters and he provides no
evidence of racial animus as to either of them. 5
McNeal failed, as a matter of law, to meet his burden of
proof that the rating process was pretext. In effect he has
done no more than argue that he disagrees with the raters’
conclusions. It was not illogical for the raters to have given
more weight to Lee’s recent supervisory experience when McNeal’s
experience was dated. Further, mere speculation by the
plaintiff that the defendant had a discriminatory motive is not
enough to withstand a motion for summary judgment. See Autry v.
N.C. Dep’t of Human Res., 820 F.2d 1384, 1386 (4th Cir. 1987).
“In other words, [he] would have to show that [he] was not
promoted because of [his] race, not that [he] was a member of [a
protected group] and was not promoted.” Id. (emphasis in
original).
Nor has McNeal provided evidence sufficient to withstand a
motion for summary judgment on his age discrimination claim. 6
5
Tignor’s refusal to reconvene the raters after they made
logical conclusions in the ratings process does not provide
circumstantial evidence of discrimination. Tignor stated that
she believed reconvening the raters would “taint[] the
objectivity of the disclosure forms and that it would be very
difficult in the future . . . to get individuals who would feel
comfortable about rating people.” (JA 236). Tignor’s rationale
is a valid nondiscriminatory reason for her decision, and McNeal
failed to show the rationale was not genuine.
19
McNeal contends Tignor’s statement to him, “Art, aren’t you
ready to retire?” when he informed her of his intention to apply
for the permanent promotion, and the fact that the raters
discounted certain of his past experience, as sufficient
evidence of age discrimination. We disagree. Even taking
Tignor’s alleged statement as true, this is the only scintilla
of evidence of age discrimination offered by McNeal.
Under Hill v. Lockheed Martin Logistics Mgmt., Inc., 354
F.3d 277 (4th Cir. 2004) (en banc), a plaintiff must “‘present
sufficient evidence,’ direct or circumstantial, ‘for a
reasonable jury to conclude, by a preponderance of the evidence,
6
McNeal includes individual Defendants, Tignor and Wormack,
in his claim under the ADEA. However, only an employer, and not
an individual employee, may be held liable under the ADEA. In
Birkbeck v. Marvel Lighting Corp., 30 F.3d 507 (4th Cir. 1994),
this Court held that individual defendants cannot be held liable
under the ADEA for “personnel decisions of a plainly delegable
character.” Id. at 510 n.1. A decision is “plainly delegable”
if the “employer could delegate authority to a supervisor to act
as its agent” including decisions to promote, terminate, and
“other normal personnel actions.” Cortes v. McDonald’s Corp.,
955 F. Supp. 531, 537 (E.D.N.C. 1996). In this case, the issue
is his rating and the decision not to promote him. This is a
clearly delegable personnel decision, and thus Tignor cannot be
held individually liable.
This Court has expanded this theory to Title VII cases as
well, holding that individuals are also not liable for violation
of Title VII as a logical extension of Birkbeck. Therefore, the
district court’s grant of summary judgment as to all individual
federal claims against Defendants Tignor and Wormack was
correct.
20
that race, color, religion, sex, or national origin was a
motivating factor for any employment practice.’” Id. at 285
(quoting Desert Palace, 539 U.S. at 2155).
McNeal has given no direct or circumstantial evidence of
discrimination that satisfies the Hill test. Other than the
belief that his rating should have been higher, McNeal has
offered no proof of pretext, and has not proven that he was
better qualified than Lee for the permanent promotion. He has
given no reason to impugn the objectivity of the two raters.
Furthermore, both McNeal and Tignor were born in 1939. Courts
have held that the fact that the relevant party is the same age
or older than the plaintiff is circumstantial evidence against
age discrimination. See Richter v. Hook-SupeRx, Inc., 142 F.3d
1024, 1032 (7th Cir. 1998). Even assuming that McNeal put forth
a prima facie case of discrimination, and taking as true that
Tignor made the comments of which she is accused, he has not met
his burden of proving that the employer’s proffered
nondiscriminatory reason was pretextual. 7
7
As far as his claim that he was discriminated against on
the basis of gender, McNeal made no effort to provide the Court
with any evidence of gender discrimination and we do not
consider this claim. See Rosenberger v. Rector and Visitors of
the University of Virginia, 18 F.3d 269, 276 (4th Cir. 1994),
rev'd on other grounds, 515 U.S. 819 (1995).
21
3. Retaliation
To establish a prima facie case of retaliation under Title
VII, 42 U.S.C. § 2000(e)(3) (2008), a Plaintiff must show that
“(1) [he] [had] engaged in protected activity; (2) the employer
took adverse employment action against [him]; and (3) a causal
connection existed between the protected activity and the
asserted adverse action.” Lettieri v. Equant, Inc., 478 F.3d
640, 650 (4th Cir. 2007) (quoting von Gunten v. Maryland, 243
F.3d 858, 863 (4th Cir. 2001)). Here, McNeal filed a race and
gender discrimination complaint on June 14, 2000, which is a
protected action under Title VII. McNeal contends that the
adverse employment action in this case was a “reduction in [his]
job responsibilities . . . and [Tignor’s] efforts to abolish his
position and scrutiny of his whereabouts and sick leave.”
Additionally, McNeal asserts that Tignor threatened to fire
anyone who went “to the union or [sought] outside assistance,”
which was corroborated by at least one other employee. He
argues that these actions “compelled [him] to retire.”
However, McNeal failed to prove two elements of the prima
facie case: that there was an adverse employment action taken
and that, if there were, there existed any causal connection
between the protected action and the adverse action. “An
adverse employment action is a discriminatory act that
‘adversely affect[s] the terms, conditions, or benefits of the
22
plaintiff’s employment.” Holland v. Washington Homes, Inc., 487
F.3d 208, 219 (4th Cir. 2007) (quoting James v. Booz Allen &
Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004)); see e.g.,
Darveau v. Detecon, Inc., 515 F.3d 334, 343 (4th Cir. 2008)
(filing a lawsuit not based in fact or law constitutes an
adverse action); Lettieri, 478 F.3d at 645 (terminating an
employee constitutes adverse action). In this case, McNeal
chose to retire; he was not fired or demoted by Tignor.
Further, even if McNeal had proven that an adverse employment
action had been taken, he offered no proof of causation: that
the action would have been taken in retaliation, or in
connection with, his protected action.
C. Hostile Work Environment
Finally, McNeal raised a hostile work environment claim.
In order to survive summary judgment on a hostile work
environment claim under Title VII, 42 U.S.C. § 2000(e) et seq.,
a plaintiff must show that “a reasonable jury could find [the]
harassment (1) unwelcome; (2) based on race; and (3)
sufficiently severe or pervasive to alter the conditions of
employment and create an abusive atmosphere.” Spriggs v.
Diamond Auto Glass, 242 F.3d 179, 183-84 (4th Cir. 2001). This
determination may be made by looking at “all the circumstances”
surrounding the alleged hostile environment, including the
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“frequency” and “severity” of the harassing conduct, “whether
[the conduct] is physically threatening or humiliating . . . and
whether it unreasonably interferes with an employee's work
performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23
(1993). However, "Title VII does not provide a remedy for every
instance of verbal or physical harassment in the workplace."
Lissau v. S. Food Serv., Inc., 159 F.3d 177, 183 (4th Cir.
1998). “Coworkers may be ‘unpleasant and sometimes cruel,’” but
“[n]ot every such instance renders the workplace objectively
hostile.” Shaver v. Dixie Trucking Co., 181 F.3d 90, 3 (table)
(4th Cir. 1999) (unpublished) (quoting Hartsell v. Duplex
Prods., Inc., 123 F.3d 766, 772 (4th Cir. 1997)).
McNeal argues that Tignor’s comments about his race and
appearance, combined with her scrutiny of his sick leave and
accusations of theft, resulted in a hostile work environment.
However, these several instances, even if true, are not
sufficient proof of a hostile work environment to withstand
summary judgment. First, it is not clear whether Tignor’s
comments, if she said them, were directed to McNeal or whether
he had knowledge of them at the time. Second, the five
accusations of theft and Tignor’s requirement that McNeal bring
in doctor’s notes and provide for more detail about his sick
leave hardly rise to the level of “hostile or abusive”
treatment. Based on the factors put forth by the Supreme Court
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in Harris, Tignor’s alleged behavior does not meet the level of
frequency, severity, physical threat, or interference with work
performance required to meet the standard of “hostile or
abusive.”
The district court thus did not err in awarding summary
judgment on McNeal’s Title VII and ADEA claims.
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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