Nye v. Roberts ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-1683
CHERYL NYE,
Plaintiff - Appellant,
versus
CARL ROBERTS; BOARD OF EDUCATION OF CECIL
COUNTY, MARYLAND,
Defendants - Appellees,
and
NANCY S. GRASMICK, State Superintendent of
Schools; NELSON BOLENDER,
Defendants.
---------------------------------------------
THE METROPOLITAN WASHINGTON EMPLOYMENT LAWYERS
ASSOCIATION,
Amicus Supporting Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (CA-
99-1797-JFM)
Argued: May 25, 2005 Decided: August 5, 2005
Before WILLIAMS, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.
ARGUED: Nancy G. Black, Laredo, Texas, for Appellant. Laurence
Samuel Kaye, Rockville, Maryland, for Amicus Supporting Appellant.
Leslie Robert Stellman, HODES, ULMAN, PESSIN & KATZ, P.A., Towson,
Maryland, for Appellees. ON BRIEF: Neil L. Henrichsen, Joanna R.
Onorato, Eric L. Siegel, HENRICHSEN SIEGEL, P.L.L.C., Washington,
D.C., for Amicus Supporting Appellant. Eric W. Gunderson, HODES,
ULMAN, PESSIN & KATZ, P.A., Towson, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Cheryl Nye appeals the district court's order granting summary
judgment in favor of her former employer, the Superintendent and
Board of Education of Cecil County (the "Board"), on her claims of
sexual harassment, retaliation, and constructive discharge in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seq. We affirm the order granting summary judgment on
the sexual harassment and constructive discharge claims. However,
we reverse the award of summary judgment as to the retaliation
claim and remand for proceedings consistent with this opinion.
I.
In 1981, the Board hired Nye as a school psychologist. Every
year, she worked with students at five or six schools within the
Cecil County Public School System. At all times relevant to these
proceedings, Nye was supervised by Dr. R. Wayne Carmean, the
Assistant Superintendent for Student Services and Special Programs.
Dr. Carmean determined the schools that Nye would serve during the
school year, and Nye typically worked at each school for two days
per month.
During the 1993-1994 school year, and again in 1996, Nye
alleges that she was sexually harassed by Robert Harris, the
principal of Leeds Elementary School ("Leeds"). In August 1996,
Nye complained of the harassment to Dr. Carmean and Henry Shaffer,
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the Director of Human Resources. The Board commenced an
investigation and, from August 1996 through February 1997,
questioned Nye, Harris, and other school personnel concerning Nye's
allegations of sexual harassment. Ultimately, the Board concluded
that the allegations could neither be proven nor disproven.
Nevertheless, the Board transferred Nye away from Leeds at her
request and directed that Harris undergo training on sexual
harassment.
On May 20, 1997, Nye filed a complaint with the Office of
Civil Rights of the United States Department of Education ("OCR"),
regarding her claims of sexual harassment. The OCR referred Nye's
complaint to the Equal Employment Opportunity Commission ("EEOC")
and also notified the Board of her charge. Subsequently, on
October 15, 1997, Nye filed a formal charge of sex discrimination
with the EEOC.
According to Nye, the Board took a number of retaliatory
actions against her in the sixteen months following her first
complaint of sexual harassment. First, Dr. Carmean required Nye to
account for her time and whereabouts, something she had never
previously been asked to do as an employee of the school system.
Second, Dr. Barbara Wheeler, the Associate Superintendent, reacted
critically to a presentation Nye made to the Assistant Principals
Committee. Third, Nye alleges that she was removed from various
committees and special assignments, including the Crisis
4
Intervention Team and the Assistant Principals Committee. Fourth,
Dr. Carmean refused to consider Nye for a promotion to the position
of psychologist coordinator. Fifth, Dr. Carmean required Nye to
defend her decision to release a student from special education
services. Nye's remaining allegations of discriminatory
retaliation involve this placement decision.
On April 8, 1998, Dr. Carmean scheduled a meeting to question
Nye and other colleagues about the student's release. Nye asserts
that, because she had received no agenda for the meeting and
because she was generally confused about it, she attempted to
obtain clarification from Dr. Carmean. When Dr. Carmean was
unavailable, Nye sought out another colleague, Melissa Weyl, for
information about the meeting. According to Dr. Carmean, Nye
approached Weyl in a rude and confrontational manner, which
resulted in a disruption to the workplace. On April 15, 1998, on
account of this incident, Dr. Carmean issued Nye a formal letter of
reprimand.
Significantly, the letter reprimanded Nye for two separate
incidents: (1) for inappropriately confronting Melissa Weyl
regarding the placement decision, and (2) for notifying the EEOC
that another colleague, Leslie Rink, was allegedly sexually
harassed by a school principal. Dr. Carmean wrote that:
In our conference of April 9, 1998 I spoke with you
about two issues. The first issue involved your
confrontation with Melissa Weyl at Elkton Middle School.
It was inappropriate for you to seek out and threaten Ms.
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Weyl at her work site. Your contact was upsetting to Ms.
Weyl and this must not occur again. Any contact with Ms.
Weyl must be held at a professional level.
The second matter related to your letter in which
you alleged that Ms. Leslie Rink, School Psychologist,
was subjected to sexual harassment. By Ms. Rink's
affidavit she indicated her anger with you for your
letter involving her in allegations against a co-worker
which Ms. Rink denies ever occurred. Ms. Rink was upset
by this incident. You are directed to conduct yourself
with Ms. Rink in a professional way.
J.A. 232.
Shortly thereafter, on June 15, 1998, Dr. Carmean completed
Nye's annual performance evaluation. Every year, Nye was evaluated
in four areas: leadership skills, management skills, professional
growth, and interpersonal relationships. Her performance was rated
on a scale of 4 ("exemplary"), 3 ("effective"), 2 ("needs
improvement"), or 1 ("unsatisfactory"). In this particular
evaluation, Nye received several "unsatisfactory" ratings in the
area of interpersonal relationships. However, since 1995, she had
never received a rating lower than "effective."
Nye asserts that, on account of these alleged retaliatory
actions, she felt vulnerable to termination and, as a result,
suffered from severe emotional distress. Accordingly, on August
28, 1998, Nye resigned her employment with the school system. She
subsequently filed suit, alleging that the Board perpetuated a
hostile work environment, retaliated against her for complaining of
sexual harassment, and constructively discharged her in violation
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of Title VII.1 After the district court awarded summary judgment
to the Board on all of her claims, Nye timely filed the instant
appeal.
II.
We review the district court's order granting summary judgment
de novo. Summary judgment is proper when no issue of material fact
exists and the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). In particular, the relevant inquiry is "whether
the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 (1986).
Nye first contends that the district court erred in dismissing
her hostile work environment claim against the Board. To establish
a prima facie case of sexual harassment on a hostile work
environment theory, a plaintiff must prove that: (1) she was
1
We agree with the district court's conclusion that, with
respect to her constructive discharge claim, Nye presented no
evidence that her working conditions were objectively intolerable
and thus failed to establish a prima facie claim of constructive
discharge. See Williams v. Giant Food, Inc., 370 F.3d 423, 434
(4th Cir. 2004) (dismissing constructive discharge claim where
employee failed to demonstrate that working conditions were
objectively intolerable). The evidence reveals that Nye submitted
her letter of resignation two years after the last act of alleged
harassment and three months after the last act of alleged
retaliation occurred. By her own account, Nye resigned her
employment only after she was able to secure employment elsewhere.
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harassed because of her sex; (2) the harassment was unwelcome; (3)
the harassment was sufficiently severe or pervasive to create an
abusive working environment; and (4) some reasonable basis exists
for imputing liability to the employer. Causey v. Balog, 162 F.3d
795, 801 (4th Cir. 1998) (establishing four-prong test for hostile
work environment claims). In this case, the district court granted
summary judgment to the Board on the grounds that no basis existed
to impute liability to the Board for the alleged harassment
committed by Principal Harris.
We have previously observed that "an employer is subject to
vicarious liability to a victimized employee for an actionable
hostile environment created by a supervisor with immediate . . .
authority over the employee." Mikels v. City of Durham, 183 F.3d
323, 331 (4th Cir. 1999) (internal quotes omitted). Of key
importance in determining whether the illegal acts of an employee
should be imputed to the employer is whether the misconduct was
"aided by the agency relation." Id. at 331-32. In Mikels, we
explained that:
Two bright line rules define the boundaries of the root
principle. Any harassing conduct that culminates in a
"tangible employment action"2 against the victim is
necessarily conduct "aided by the agency relation," since
it can only be taken by supervisory employees empowered
by their employers to take such action. In that
2
"A tangible employment action constitutes 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." Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998).
8
circumstance, vicarious liability is absolute, without
regard to whether the employer knew, or should have
known, or approved of the act, or sought to prevent or
stop it. At the other end . . ., harassment by a fellow-
employee having no authority of any kind over the victim
never can be found "aided by the agency relation"; as to
such employees, the agency relation provides no "aid" for
their conduct but workplace proximity, and that does not
suffice for the purpose.
Id. at 332 (citations omitted) (footnote supplied). Ultimately,
"[t]he determinant is whether as a practical matter [the]
employment relationship to the victim was such as to constitute a
continuing threat to her employment conditions that made her
vulnerable to and defenseless against the particular conduct in
ways that comparable conduct by a mere co-worker would not." Id.
at 333.
Nye contends that Harris possessed sufficient authority to
justify imputing liability to the Board since principals generally
provide some measure of input into the evaluation of school
psychologists. In support of her contention, Nye proffered
evidence that Tony Ligatti, another principal of a school in which
she worked, supplied Dr. Carmean with information about his working
relationship with Nye, information that subsequently became a part
of her performance evaluation. While we are unwilling to conclude
that principals cannot be considered supervisory employees of
school psychologists as a general rule, we agree with the district
court that a jury could not reasonably find that Harris possessed
sufficient authority over Nye to justify imputing liability to the
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Board in this case. The evidence before us is insufficient to
support a finding that Harris, as principal of just one school that
Nye visited for two days a month, possessed significant authority
over her. By Nye's own account school psychologists reported to
representatives of the Board, not principals, and Nye identified
Dr. Carmean, not Harris, as her supervisor. Nye fails to present
evidence that Harris evaluated her, directed her daily assignments,
or otherwise exerted authority over her sufficient to impute
liability to the Board. Accordingly, the district court did not
err in its conclusion in this regard.
Without a basis to impute liability to the employer, the Board
is potentially liable only for any negligence in taking action to
stop the alleged harassment. Id. at 332. As the district court
observed, however, Nye has presented no evidence that the Board was
negligent in addressing her complaints of sexual harassment. The
evidence of record suggests that the Board conducted an immediate
and thorough investigation into Nye's allegations of harassment.
It then took prompt, corrective action, transferring Nye as she
requested, and directing Harris to undergo training. Thus, the
district court did not err in granting summary judgment to the
Board on Nye's hostile work environment claim.
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III.
Nye also contends that the district court erred in dismissing
her claim that the Board retaliated against her for complaining of
sexual harassment in violation of Title VII. To establish a prima
facie case of discriminatory retaliation, a plaintiff must show
that: "(1) she engaged in a protected activity; (2) the employer
took an adverse employment action against her; and (3) a causal
connection existed between the protected activity and the asserted
adverse action." Von Gunten v. Maryland, 243 F.3d 858, 863 (4th
Cir. 2001). An "adverse employment action" is an action that
negatively effects "the terms, conditions, or benefits" of
employment. Munday v. Waste Mgm't. of North America, Inc., 126
F.3d 239, 243 (4th Cir. 1997). The district court awarded summary
judgment to the Board on Nye's retaliation claim on the grounds
that each alleged act of retaliation was either (1) not an adverse
employment action, or (2) not causally connected to her complaints
of sexual harassment.
Although we agree with the district court that the majority of
Nye's allegations do not establish a prima facie case of
retaliation, we disagree with this conclusion with respect to Dr.
Carmean's reprimand letter and Nye's subsequent performance
evaluation. For the following reasons, we believe that the
district court erred in granting summary judgment to the Board.
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The district court reasoned that a reprimand or downgraded
performance evaluation is not an adverse employment action absent
some evidence that it was accompanied by some form of "practical
consequence[]" concerning the plaintiff's employment. J.A. 334
(citing Von Gunten, 243 F.3d at 868). See also Spears v. Missouri
Dep't of Corr. & Human Res., 210 F.3d 850, 854 (8th Cir. 2000) ("A
poor performance rating does not in itself constitute an adverse
employment action because it has no tangible effect upon the
recipient's employment . . . .").
In this case, however, the evidence is such that a reasonable
jury could find that, in the context of the Board's system of
progressive discipline, the reprimand and performance evaluation
resulted in a material change in Nye's employment status. Dr.
Carmean described the Board's progressive discipline program as
follows:
Usually, there is a discussion. Usually there is an
asking, account for, getting the information and, based
on the information, you might take appropriate
disciplinary action which could be a verbal reprimand,
which could be a written reprimand or it could very well
be, you know, a recommendation for suspension or it could
very well be a recommendation to the superintendent for
dismissal.
J.A. 188. Thus, under the Board's system of progressive
discipline, Dr. Carmean's formal letter of reprimand and Nye's
downgraded performance evaluation thrust Nye further along the
discipline track and closer to termination. As Dr. Carmean himself
explained:
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I had talked to her. I put it in writing earlier. That
didn't seem to make a difference. So I thought a
stronger evaluation would make a difference.
. . . .
If there had been no change in the behavior of the
employee and it continued to progress the way it was
progressing, it could ultimate[ly] lead to dismissal.
J.A. 191-93. On this evidence, a jury could reasonably conclude
that the reprimand and performance evaluation amounted to a
tangible, adverse consequence with respect to Nye's status as an
employee of the school system.
Significantly, too, the fact that Dr. Carmean's letter of
reprimand expressly chastised Nye for filing a complaint of sexual
discrimination is evidence upon which a reasonable jury could find
that the Board was retaliating against Nye for engaging in
protected activity under Title VII. Indeed, as the district court
seemed to observe, the reprimand letter could reasonably be viewed
as direct evidence of a retaliatory animus. Specifically, the
district court reasoned that:
With regard to the [letter of reprimand] one could argue
that Nye has presented direct evidence of retaliation.
The reprimand letter states that Nye was being
reprimanded for her "letter in which [she] alleged that
Ms. Leslie Rink, School Psychologist, was subjected to
sexual harassment." The defendants argue, however, that
Nye was not disciplined for communicating with the EEOC,
but rather for doing so without Rink's permission and,
indeed, without even her awareness that Nye had overheard
her mention the harassment.
J.A. 332 n.6. The resolution of a factual issue such as the true
motivation behind the reprimand letter was a jury function, and a
jury could have reasonably inferred from Dr. Carmean's letter that
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the Board's proffered explanation was a pretext for discriminatory
retaliation. Accordingly, we hold that, with respect to the
reprimand letter and the performance evaluation, evidence of
retaliation was sufficiently in material dispute to preclude the
award of summary judgment.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
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