Tempie Bell v. David Shulkin , 709 F. App'x 167 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-1092
TEMPIE ANN BELL,
Plaintiff - Appellant,
v.
DAVID J. SHULKIN, Secretary, Department of Veterans Affairs,
Defendant - Appellee.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., Chief District Judge. (1:14-cv-00188-WO-LPA)
Submitted: August 31, 2017 Decided: September 14, 2017
Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Daniel F. Read, Durham, North Carolina, for Appellant. Sandra J. Hairston, Acting
United States Attorney, Steven N. Baker, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tempie Ann Bell appeals the district court’s order granting summary judgment to
the Secretary of the Department of Veterans Affairs on her claims brought pursuant to the
Rehabilitation Act of 1973 (RA), 29 U.S.C.A. §§ 701 to 7961 (West 2008 & Supp. 2017),
regarding her former employment at the Durham Veteran Affairs Medical Center
(“DVAMC”). 1 Finding no reversible error, we affirm.
We “review[] de novo [a] district court’s order granting summary judgment.”
Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 565 n.1 (4th Cir. 2015). “A
district court ‘shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”
Id. at 568 (quoting Fed. R. Civ. P. 56(a)). “A dispute is genuine if a reasonable jury
could return a verdict for the nonmoving party.” Id. (internal quotation marks omitted).
In determining whether a genuine dispute of material fact exists, “we view the facts and
all justifiable inferences arising therefrom in the light most favorable to . . . the
nonmoving party.” Id. at 565 n.1 (internal quotation marks omitted). However, “the
nonmoving party must rely on more than conclusory allegations, mere speculation, the
building of one inference upon another, or the mere existence of a scintilla of evidence.”
Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013).
1
Bell also contends that the district court erred in applying collateral estoppel to
parts of her claims. We discern no reversible error in the district court’s application of
collateral estoppel.
2
The district court first concluded that Bell failed to adequately allege a failure-to-
accommodate claim. We agree. We have consistently held that plaintiffs are “not
required to use any precise or magical words in their pleading.” Stevenson v. City of Seat
Pleasant, 743 F.3d 411, 418 (4th Cir. 2014) (collecting cases). However, “[i]t is
[equally] well-established that parties cannot amend their complaints through briefing or
oral advocacy.” S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at
Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013). Bell’s amended complaint included
four separate causes of actions, none of which included a failure-to-accommodate claim.
While her complaint contained background allegations that DVAMC failed to
accommodate her disability, because Bell did not designate this claim as part of her four
delineated causes of action, these allegations did not “afford the opposing party fair
notice of the nature and basis or grounds of the claim and a general indication of the type
of litigation involved.” Labram v. Havel, 43 F.3d 918, 920 (4th Cir. 1995) (internal
quotation marks omitted).
Turning to Bell’s disability discrimination claim, the district court determined that
Bell failed to establish that her reassignment was a cognizable adverse employment
action. Adams v. Anne Arundel Cty. Pub. Schs., 789 F.3d 422, 430 (4th Cir. 2015).
Assuming that Bell had established that her reassignment was an adverse action, the
district court further determined that she failed to demonstrate that DVAMC’s legitimate,
nondiscriminatory reason for her reassignment was a pretext for discrimination. See
Jacobs, 780 F.3d at 575-76 (setting forth elements of disability discrimination claim).
Similarly, although the district court questioned whether Bell established a prima facie
3
case of retaliation, it concluded that she could not establish that DVAMC’s legitimate,
nonretaliatory reasons for its employment actions were a pretext for retaliation. See id. at
578 (setting forth elements of retaliation claim). On appeal, Bell does not challenge the
district court’s alternative holding that she failed to establish pretext on her disability and
retaliation claims. The “[f]ailure of a party in its opening brief to challenge an alternate
ground for a district court’s ruling waives that challenge.” Brown v. Nucor Corp., 785
F.3d 895, 918 (4th Cir. 2015) (alteration and internal quotation marks omitted). Thus, we
conclude Bell has waived appellate review of these portions of the district court’s order. 2
Finally, we conclude that the district court did not err in granting summary
judgment to DVAMC on Bell’s harassment claim. To establish a hostile work
environment claim, a plaintiff must demonstrate that the conduct about which she
complains: “(1) was unwelcome; (2) resulted because of her . . . disability, or prior
protected activity; (3) was sufficiently severe or pervasive to alter the conditions of her
employment; and (4) was imputable to her employer.” Pueschel v. Peters, 577 F.3d 558,
564-65 (4th Cir. 2009) (internal quotation marks omitted). Harassment is considered to
meet the third, sufficiently severe or pervasive, element if “the workplace is permeated
with discriminatory intimidation, ridicule, and insult.” Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993) (internal quotation marks omitted). The standard for proving an
abusive work environment is intended to be a high one because it is designed to “filter
2
In any event, we conclude that the district court did not err in its disposition of
these claims.
4
out complaints attacking the ordinary tribulations of the workplace.” Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998) (internal quotation marks omitted). Thus, the
plaintiff must show not only that she subjectively believed her workplace environment
was hostile, but also that a reasonable person could perceive it to be objectively hostile.
Fox v. Gen. Motors Corp., 247 F.3d 169, 178 (4th Cir. 2001). “Such proof depends upon
the totality of the circumstances, including the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance.”
Bonds v. Leavitt, 629 F.3d 369, 385 (4th Cir. 2011).
Although Bell complains that DVAMC’s disciplinary actions constitute
harassment, an employer does not engage in harassment because it takes reasonable
disciplinary measures. Id. While Bell contends that some coworkers and patients made
rude comments to her about her inability to perform certain tasks because of her
disability, these comments are the type of “simple teasing, offhand comments, and
isolated incidents (unless extremely serious) [that do] not amount to discriminatory
changes in the terms and conditions of employment.” Faragher, 524 U.S. at 788 (citation
and internal quotation marks omitted). Additionally, Bell failed to offer specific evidence
that her supervisor stalked her, as she alleged, instead relying on mere conclusory
assertions insufficient to survive summary judgment.
5
Accordingly, we affirm the district court’s order. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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