Dorothy Buchhagen v. ICF International, Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1303
DOROTHY L. BUCHHAGEN, Ph.D.,
Plaintiff - Appellant,
v.
ICF INTERNATIONAL, INC.; ICF Z-TECH, INC.,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. J. Frederick Motz, Senior District
Judge. (8:12-cv-02470-JFM)
Submitted: July 12, 2013 Decided: November 4, 2013
Before TRAXLER, Chief Judge, and AGEE and THACKER, Circuit
Judges.
Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.
Alan Banov, ALAN BANOV & ASSOCIATES, Silver Spring, Maryland,
for Appellant. Jeremy W. Dutra, Merrell B. Renaud, Rebecca A.
Worthington, SQUIRE SANDERS (US) LLP, Washington, D.C., for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In June 2009, respondents ICF International, Inc., and ICF
Z-Tech, Inc. (together, “ICF”) were awarded the “Cancer
Information Analysis and Tracking” contract (the “CIAT
contract”) by the National Cancer Institute (“NCI”). In
September 2009, appellant Dorothy Buchhagen began working for
ICF on the CIAT contract; her principal responsibility was
researching and writing content for the “Dictionary of Cancer
Terms” section of NCI’s website. After she was fired in July
2010, Buchhagen brought this action against ICF asserting
hostile environment, wrongful termination, and retaliation
claims under the Age Discrimination in Employment Act, 29 U.S.C.
§§ 621-34 (“ADEA”). The district court dismissed the action,
see Fed. R. Civ. P. 12(b)(6), concluding that Buchhagen’s claim
failed to allege facts plausibly entitling her to relief.
Buchhagen appeals. We affirm in part, reverse in part, and
remand.
I.
We review the district court’s dismissal of Buchhagen’s
claim de novo, “accepting as true the facts alleged in the
complaint.” See Wag More Dogs, LLC v. Cozart, 680 F.3d 359,
364–65 (4th Cir. 2012). “To survive a Rule 12(b)(6) motion to
dismiss, a complaint must establish ‘facial plausibility’ by
pleading ‘factual content that allows the court to draw the
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reasonable inference that the defendant is liable for the
misconduct alleged.’” Clatterbuck v. City of Charlottesville,
708 F.3d 549, 554 (4th Cir. 2013) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). “At bottom, a plaintiff must nudge
[her] claims across the line from conceivable to plausible’ to
resist dismissal.” Wag More Dogs, 680 F.3d at 365 (internal
quotation marks and alterations omitted).
II.
To state a hostile work environment claim, Buchhagen must
allege facts plausibly demonstrating that: “(1) she experienced
unwelcome harassment; (2) the harassment was based on her . . .
age; (3) the harassment was sufficiently severe or pervasive to
alter the conditions of employment and create an abusive
atmosphere; and (4) there is some basis for imposing liability
on the employer.” Bass v. E.I. DuPont de Nemours & Co., 324
F.3d 761, 765 (4th Cir. 2003).
Buchhagen alleges that that Dr. Beebe, her supervisor,
created a hostile environment over the course of nine months by,
inter alia, “mockingly” yelling at Buchhagen in one meeting,
J.A. 22; yelling and pounding her hands on her desk during
another meeting; “repeatedly harp[ing]” on a mistake made by
Buchhagen in October 2009, J.A. 22; making “snide comments” to
Buchhagen, J.A. 28; playing favorites with employees and pitting
employees against each other; and unfairly scrutinizing and
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criticizing Buchhagen’s use of leave and compliance with Beebe’s
directives. Many of these allegations are conclusory and lack
sufficient factual support to make them plausible. In any
event, the conduct alleged falls far short of being severe or
pervasive enough to establish an abusive environment, and the
district court therefore properly dismissed Buchhagen’s hostile
environment claim. See Bonds v. Leavitt, 629 F.3d 369, 385 (4th
Cir.) (“Bond’s allegations, which largely include the actions
taken against her in response to the concerns regarding her
performance, fall well short of alleging an abusive working
environment.”), cert. denied, 132 S. Ct. 398 (2011); EEOC v.
Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir 2008)
(“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.”).
III.
The ADEA forbids an employer from taking an adverse
employment action against an employee “because of” the
employee’s age. 29 U.S.C. § 623(a)(1); Hill v. Lockheed Martin
Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th Cir. 2004) (en
banc). Age must be the “but-for” cause of the employer’s action
for the action to violate the ADEA. Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 177–78 (2009).
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Although it is a close question, we believe Buchhagen’s
complaint sufficiently alleges unlawful age discrimination.
Buchhagen alleges that she is a member of a protected class (she
was 67 when she was fired); that she suffered an adverse
employment action (termination); and that she was replaced by a
substantially younger employee. See J.A. 57. As to the
requirement that her age was the cause of her termination,
Buchhagen alleges that Beebe mentored younger employees and sent
them to management training courses, but declined to do so for
Buchhagen, see J.A. 13; that Beebe played favorites with younger
employees, see J.A. 28; that Beebe “move[d] responsibilities
away from [Buchhagen] to her younger (and less experienced)
colleagues,” J.A. 41; and that Buchhagen was put on a
performance-improvement plan after the October 2009 incident,
but younger employees making similar mistakes were not put on
such plans, see J.A. 24, 36. The complaint also alleges pretext
by alleging specific facts that, if proven, could cast doubt on
the credibility of the reasons given by ICF for her termination,
see J.A. 50, ¶¶ 353-56; J.A. 52-53, ¶¶ 370-80. These
allegations of disparate treatment and pretext, taken together,
state a claim of age discrimination that is plausible, not
merely speculative.
We recognize that there are allegations in Buchhagen’s
complaint that cut against her claim to relief. For example,
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Buchhagen alleges that Beebe discriminated against her because
of her age, yet the complaint establishes that Beebe hired
Buchhagen to work for Lockheed-Martin (the company that
previously held the CIAT contract) when Buchhagen was 64 years
old. See J.A. 7. The complaint also establishes that ICF hired
Buchhagen when she was 67 years old and, after offering her a
salary of $39.12 per hour (the same salary she received at
Lockheed-Martin), agreed to Buchhagen’s counteroffer of $60 per
hour. See J.A. 16-17. These facts provide some support for
ICF’s claim that it did not discriminate against Buchhagen
because of her age. Cf. Proud v. Stone, 945 F.2d 796, 797 (4th
Cir. 1991) (explaining that a strong inference against
discriminatory animus arises when the individual who hires an
employee is the same person who discharges him only a few months
later). Moreover, some of Buchhagen’s behavior as described in
the complaint could be construed as problematic or even
insubordinate. See, e.g., J.A. 19, ¶ 120; J.A. 21, ¶ 132; J.A.
32, ¶ 226. The allegations described above may not be wholly
supportive of Buchhagen’s discrimination claim, but they do not
foreclose her claim to relief at this stage of the proceedings,
where we are obliged to accept Buchhagen’s factual allegations
as true and to draw reasonable inferences in her favor. The
district court therefore erred by dismissing Buchhagen’s age
discrimination claim.
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IV.
The district court likewise erred by dismissing Buchhagen’s
retaliatory discharge claim. See 29 U.S.C. § 623(d) (stating
that it is “unlawful for an employer to discriminate against any
of his employees . . . because such individual . . . has opposed
any practice made unlawful” under the ADEA). To establish a
prima facie case of retaliation, a plaintiff must demonstrate
that: “(1) he engaged in protected activity; (2) an adverse
employment action was taken against him; and (3) there was a
causal link between the protected activity and the adverse
action.” Laber v. Harvey, 438 F.3d 404, 432 (4th Cir. 2006) (en
banc).
As she alleges in her complaint, Buchhagen complained about
Beebe’s harassment in a March 2010 meeting with Beebe’s
supervisor, see J.A. 28, and in emails to an ICF human-resources
employee and to that employee’s supervisor in June 2010, see
J.A. 42, 44. Buchhagen complained about Beebe again on July 20,
2010, in a meeting with ICF’s Director of Human Resources, this
time specifically contending that Beebe’s actions were based on
Buchhagen’s age, see J.A. 54-55. Buchhagen was fired six days
later, on July 26, 2010.
Buchhagen clearly suffered an adverse employment action
(termination), and the allegations set out above sufficiently
establish that she engaged in protected oppositional activity.
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See EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 406 (4th Cir.
2005) (“[P]rotected oppositional activities may include staging
informal protests and voicing one’s own opinions in order to
bring attention to an employer’s discriminatory activities, as
well as complaints about suspected violations.” (internal
quotation marks and alterations omitted)). Even if ICF’s
actions ultimately do not amount to unlawful age discrimination,
the allegations that we found sufficient to support Buchhagen’s
wrongful discharge claim also suffice to establish that
Buchhagen had a reasonable belief that ICF violated the ADEA.
See id. (Title VII’s anti-retaliation provision “protects
activity in opposition not only to employment actions actually
unlawful under Title VII but also employment actions an employee
reasonably believes to be unlawful.” (emphasis added)).
As to the requirement of a causal link between the
protected activity and her termination, the timing of
Buchhagen’s discharge – six days after she made it clear that
she was complaining of age discrimination – is sufficient to
establish causation at this stage of the proceedings. See Hoyle
v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (“While
evidence as to the closeness in time [between the protected
activity and adverse employment action] far from conclusively
establishes the requisite causal connection, it certainly
satisfies the less onerous burden of making a prima facie case
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of causality.” (internal quotation marks omitted)). The
district court therefore erred by dismissing Buchhagen’s
retaliation claim.
V.
For the foregoing reasons, we affirm the district court’s
dismissal of Buchhagen’s hostile environment claim, we reverse
the dismissal of her wrongful discharge and retaliation claims,
and we remand for further proceedings on those claims. 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 IN PART,
REVERSED IN PART,
AND REMANDED
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