Heather Rome v. Development Alternatives, Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1935
HEATHER ROME,
Plaintiff – Appellant,
v.
DEVELOPMENT ALTERNATIVES, INC.,
Defendant – Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:11-cv-02965-RWT)
Argued: September 17, 2014 Decided: October 8, 2014
Before WILKINSON, SHEDD, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Donald James Walsh, OFFIT KURMAN, P.A., Owings Mills,
Maryland, for Appellant. Kathleen Mae Williams, EPSTEIN BECKER
& GREEN, P.C., Washington, D.C., for Appellee. ON BRIEF:
Stephen H. Kaufman, OFFIT KURMAN, P.A., Owings Mills, Maryland,
for Appellant. Frank C. Morris, Jr., EPSTEIN BECKER & GREEN,
P.C., Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Heather Rome contends in this Title VII action that her
former employer, Development Alternatives, Inc. (“DAI”),
involuntarily transferred and constructively discharged her
because she complained to DAI management about the alleged
misogynistic conduct of another DAI employee. The district court
entered summary judgment in DAI’s favor, concluding that Rome
failed to present sufficient evidence to establish a prima facie
case of retaliation. 1 For the reasons that follow, we affirm.
I
Under Rule 56(a) of the Federal Rules of Civil Procedure,
the 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.” In
making that determination, the district court must view the
evidence in the light most favorable to the non-moving party.
Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014). We review the
grant of summary judgment de novo, using the same standard.
Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.) (en banc), cert.
denied, 132 S.Ct. 781 (2011).
1
Rome brought several other claims against DAI. The
district court also entered summary judgment for DAI on those
claims, but Rome has limited this appeal to her retaliation
claim.
2
The pertinent portion of Title VII, 42 U.S.C. § 2000e–3(a),
prohibits “employer retaliation on account of an employee’s
having opposed, complained of, or sought remedies for, unlawful
workplace discrimination.” Univ. of Tex. S.W. Med. Ctr. v.
Nassar, 133 S.Ct. 2517, 2522 (2013). Because Rome did not
present direct evidence of retaliation, the district court
analyzed her retaliation claim under the familiar burden-
shifting framework established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).
Under this framework, the employee must first establish a
prima facie case of retaliation. To do so, the employee must
show that (1) she engaged in a protected activity; (2) her
employer acted adversely against her; and (3) the protected
activity was causally connected to the adverse action. Hoyle v.
Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011). If the
employee makes this showing, the burden shifts to the employer
to present a legitimate non-retaliatory reason for the alleged
adverse action. Id. This is “a burden of production, not
persuasion.” Holland v. Washington Homes, Inc., 487 F.3d 208,
214 (4th Cir. 2007). If the employer meets this burden, the
employee must show that the proffered reason is pretextual –
i.e., “unworthy of credence.” Id. Throughout this process, the
employee bears the ultimate burden of establishing that her
3
protected activity “was a but—for cause” of the alleged adverse
action. Nassar, 133 S.Ct. at 2534.
An employer that deliberately makes the working conditions
intolerable in an effort to induce an employee to quit can be
considered to have constructively discharged the employee. See
Freeman v. Dal-Tile Corp., 750 F.3d 413, 425 (4th Cir. 2014). To
succeed on a constructive discharge claim, the employee must
prove two elements: (1) the deliberateness of the employer’s
actions, motivated by unlawful bias, and (2) the objective
intolerability of the working conditions. Id. We have explained
that because the claim of constructive discharge “is so open to
abuse by those who leave employment of their own accord,” it
must be “carefully cabined,” and “dissatisfaction with work
assignments, a feeling of being unfairly criticized, or
difficult or unpleasant working conditions are not so
intolerable as to compel a reasonable person to resign,” Honor
v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 187 (4th Cir.
2004) (citations omitted and punctuation altered).
II
Generally, the evidence in this case establishes that DAI
is a government contractor that works with different nations to
achieve various humanitarian and economic changes. Beginning in
2002, DAI was awarded a contract which was aimed at promoting
democracy in Venezuela. In 2005, Rome took a position supporting
4
this contract in DAI’s Venezuelan office. One of Rome’s co-
employees in the Venezuela office was Eduardo Fernandez. Rome
and Fernandez were supervised by Mike Godfrey in DAI’s Bethesda,
Maryland, office; Godfrey reported to Bruce Spake.
In early January 2008, while she was in the United States,
Rome met with Spake and complained about Fernandez’s conduct. In
response, DAI management summoned Fernandez to its home office
and issued him a warning. Rome’s complaint was referred to Human
Resources, which in turn investigated and worked to resolve the
issues. 2 Following an investigation by DAI management, which
included a visit to Venezuela by Godfrey, DAI sponsored team-
building exercises and provided a mentor to work with the
Venezuela staff. Despite DAI’s efforts, Rome’s relationship with
Fernandez did not improve, and they were unable to work together
productively.
In March 2008, shortly after the mentoring program
concluded, Rome began an approved personal leave to travel to
China. Upon her return from China, Rome advised DAI of medical
issues and her need for surgery, which was scheduled in the
United States. Rome extended her leave several times, initially
2
Rome makes much of the fact that a member of DAI’s human
resources department initially opined that Fernandez should be
removed from his position in the Venezuela office. That
employee’s opinion, however, was made before DAI had fully
investigated Rome’s complaints, and it was not shared by other
human resources personnel.
5
with a return date of May 7, then early June, and then June 25.
Finally, as of August 25, Rome notified DAI that she remained
unable to work.
On June 12, Spake, with whom Rome acknowledges a long-
standing good relationship, telephoned Rome to discuss staffing
in the Venezuela office. Rome advised Spake that she was unable
to return to work at that time. Spake stated that it was
necessary to fill Rome’s position in Venezuela and that he would
personally assist Rome in obtaining any job in the company in
which she was interested when she was able to return to work.
Rome voiced no objection to this plan, and in her deposition
stated that she always intended to return to DAI. However, she
never notified DAI that she was able to return to work, she did
not respond to messages from DAI, and she never inquired about
any DAI job openings. Rome remained employed by DAI with full
benefits until January 2009, when DAI concluded that she had
abandoned her employment.
DAI moved for summary judgment on Rome’s retaliation claim,
arguing that she could not establish any of the elements of a
prima facie case of retaliation, could not establish pretext,
and could not establish that she was constructively discharged.
In granting summary judgment for DAI, the district court
concluded that Rome engaged in protected activity when she
complained to DAI management about Fernandez’s conduct, but she
6
failed to establish that she suffered an adverse action
(including a constructive discharge) and failed to demonstrate a
causal connection between her protected conduct and the alleged
adverse actions.
Explaining its conclusion regarding the adverse action
element, the district court noted that Rome admitted in her
deposition “that she was told that she could choose to work
anywhere [in DAI] upon her return [from medical leave] and she
never advised [DAI] when she planned to return and never
requested a specific transfer position.” J.A. 1312-13. In light
of this record, the court stated that “it’s quite difficult, if
not impossible . . . to determine whether a transfer is a
constructive discharge when no transfer position was tendered,
nor rejected by [Rome].” J.A. 1313. For this reason, the court
found that it had insufficient facts to “conclude reasonably
that a proposed transfer was intolerable because there is no
information regarding the potential transfer location, job
duties or salary.” Id.Explaining its conclusion regarding the causal connection
element, the district court noted that there was not an
especially strong temporal connection between Rome’s complaint
about Fernandez and the alleged adverse action. The court
further stated that based on the circumstances presented – i.e.,
Rome took an extended leave of absence, she was offered the
7
opportunity to return but did not do so, and her job was deemed
abandoned – “there simply is an inadequate basis to find the
causal connection.” J.A. 1314.
Based on these conclusions, the district court held that
Rome failed to establish a prima facie retaliation case and,
accordingly, DAI was entitled to summary judgment on the
retaliation claim. Given the dispositive nature of that holding,
the court did not address DAI’s pretext argument.
III
On appeal, Rome challenges the district court’s conclusion
that she failed to establish a prima facie retaliation case. In
response, DAI contends that the court’s conclusion is, with one
exception, correct. 3 Additionally, DAI reiterates its argument
that even if Rome could establish a prima facie case, she has
failed to present sufficient evidence to establish that its
stated reasons for transferring her from Venezuela and
terminating her employment are pretextual.
Having carefully considered the record, the briefs, and the
oral arguments, we conclude that the district court properly
determined that Rome failed to establish a prima facie
3
Although DAI agrees with the district court that Rome
failed to establish a prima facie retaliation case, it cursorily
argues that the court incorrectly concluded that Rome engaged in
protected activity under Title VII. See Brief of Appellee, at 23
n.12. For purposes of our decision, we need not resolve this
issue.
8
retaliation case. Without deciding all of the issues before us,
we specifically hold that the court correctly concluded that
Rome failed to establish: (1) that she was constructively
discharged and (2) the existence of a causal connection between
her complaint about Fernandez and DAI’s decision to transfer
(and ultimately to terminate) her.
Apart from Rome’s failure to establish a prima facie case,
we also hold that she has failed to present sufficient evidence
of pretext. See Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220,
222 (4th Cir. 2002) (court of appeals may affirm on any basis
fairly supported by the record). DAI has presented evidence
tending to establish that Spake decided to remove Rome from the
Venezuelan office for a variety of reasons, including her
inability to return to work from her leave of absence, his
awareness that she had been previously applying for other DAI
jobs, his perception (and advice from other employees) that Rome
was unhappy in Venezuela, and the fact that everyone was
satisfied with Rome’s temporary replacement in Venezuela. 4
Moreover, DAI has posited that it ultimately terminated Rome’s
employment because she abandoned it. Rome’s failure to establish
that these reasons are unworthy of credence (or are otherwise
4
While Rome was on leave, Erin Upton-Cosulich filled in for
her in the Venezuela office. Upton-Cosulich eventually replaced
Rome.
9
pretextual) is an additional ground supporting the summary
judgment. 5
IV
Based on the foregoing, we affirm the summary judgment
entered in DAI’s favor on Rome’s Title VII retaliation claim.
AFFIRMED
5
We note that Rome states in her appellate brief that DAI
removed her from Venezuela “because of its economic concerns for
keeping its customer happy and winning the [Venezuela] contract
on recompete.” Brief of Appellant, at 20; see also id. at 32
(“DAI elected to remove Ms. Rome out of concern for client
interests and concern over winning the recompete of the
[Venezuela] contract”). These business reasons, if true, do not
tend to establish that DAI transferred Rome because she
complained about Fernandez.
10