Cleary v. Nationwide Mutual Insurance

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TERRI CLEARY, 
Plaintiff-Appellant,
v.
 No. 00-1461
NATIONWIDE MUTUAL INSURANCE
COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CA-98-918-19BD-3)
Argued: January 26, 2001
Decided: May 31, 2001
Before WILKINS, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: J. Dennis Bolt, LAW OFFICES OF J. DENNIS BOLT,
Columbia, South Carolina, for Appellant. Cara Yates Crotty, CON-
STANGY, BROOKS & SMITH, L.L.C., Columbia, South Carolina,
for Appellee. ON BRIEF: Henry S. Knight, Jr., CONSTANGY,
BROOKS & SMITH, L.L.C., Columbia, South Carolina, for Appel-
lee.
2 CLEARY v. NATIONWIDE MUTUAL INSURANCE CO.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Terri Cleary appeals from the district court’s order granting sum-
mary judgment in favor of her former employer, Nationwide Mutual
Insurance Company, on her claim of retaliation under section 704 of
Title VII, 42 U.S.C. § 2000e-3(a). Cleary asserts that Nationwide
retaliated against her for making a sexual harassment charge to the
company against her supervisor. We affirm the district court’s deci-
sion.
I.
A.
1.
Cleary began working for Nationwide in December 1992 as the
administrative assistant to Robert Herlong, a legislative affairs repre-
sentative who was responsible for the company’s lobbying functions
in South Carolina and Georgia. Cleary and Herlong worked alone
together in a two-person office in Columbia, South Carolina (the
"Lobbying Office"), at some distance from Nationwide’s Gateway
office ("Gateway"), the company’s state headquarters in northeast
Columbia. During the course of this arrangement, Cleary alerted
Nationwide that Herlong had been subjecting her to sexual harass-
ment, including unwanted touching and explicit comments. Cleary
reported this harassment in July 1996 to Marcia Blakewood, a human
resource representative for Nationwide. While the ensuing investiga-
tion was underway, Herlong was permitted to continue working,
while Cleary was placed on paid administrative leave.
At the conclusion of the investigation, on September 10, 1996,
Nationwide contacted Cleary’s attorney to report that at least some of
CLEARY v. NATIONWIDE MUTUAL INSURANCE CO. 3
Cleary’s allegations had been substantiated, and that Herlong’s
employment with the company was being terminated because of his
behavior. Nationwide also informed Cleary’s attorney that, in con-
junction with Herlong’s departure, the company planned to close the
Lobbying Office and relocate that territory’s legislative affairs repre-
sentative to Atlanta, Georgia.
After Herlong’s departure, Nationwide publicly maintained that he
had left voluntarily, and the company internally advised its employees
of the harassment investigation only on a "need-to-know" basis. In a
statement disseminated on September 30, 1996, Nationwide
announced that Herlong had resigned to "seek other opportunities"
and that his position might be moved to Atlanta. Though this reloca-
tion plan was not officially approved until late 1996, the Lobbying
Office had already been shut down, i.e., it was not restaffed following
Herlong’s departure, and its phones were disconnected. Moreover,
Nationwide terminated Herlong’s South Carolina lobbying registra-
tion that October. His replacement was not hired until March 16,
1997, when the position was filled in Atlanta.
Because of the closure of the Lobbying Office, Nationwide offered
to transfer Cleary to a secretarial position in its claims division at
Gateway. The parties agree that no administrative assistant positions
were open in the Columbia area at that time. According to Nation-
wide, the company chose the available job for Cleary that most
closely replicated her previous position. Dissatisfied with this offer,
Cleary’s attorney protested in a September 12, 1996 letter to Nation-
wide that "[i]t seems to me that [Cleary] is being punished as a result
of making her complaint of sexual harassment." J.A. 255.1 Nation-
wide, however, responded in a September 16, 1996 letter:
1
The record indicates that Cleary perceived the change in office loca-
tion and hours as "punishment" because, for example, she would now
have a longer commute, and she would no longer be able to visit her
child at a daycare center during her lunch break. Cleary also preferred
lobbying work over claims work. As her attorney wrote in the September
12, 1996 letter to Nationwide: "The message she is receiving is: ‘Okay,
we have investigated your complaint, and because of you we have fired
Mr. Herlong, and now you don’t have the job and work schedule that you
like.’" J.A. 256.
4 CLEARY v. NATIONWIDE MUTUAL INSURANCE CO.
At this time, having the legislative affairs office operate out
of Atlanta seems the best manner. This step follows what we
have done in other circumstances where a lobbyist position
has been vacated.2 While Nationwide understands and
appreciates that [Cleary] would prefer to remain in the legis-
lative affairs office, there is not any work for her there. The
decision to close the office was not based upon the com-
plaints of [Cleary]. Rather, it was based upon sound busi-
ness reason. Should the decision change and we decide to
maintain that office, [Cleary] could continue there.
J.A. 258. Nationwide also assured Cleary that her change of positions
"has not affected [her] job title, job code, salary, benefits and opportu-
nities for advancement." Id. at 259. Cleary notified Nationwide the
following day that she was filing a complaint with the Equal Employ-
ment Opportunity Commission ("EEOC") based on elimination of her
previous position. She also accepted the transfer to Gateway. There,
Cleary was under the supervision of Vicki Betts, who had just one
week’s notice of the reassignment. Upon arrival, Cleary did not have
a desk, chair, or computer, but she was soon able to obtain this equip-
ment from the Lobbying Office.
2.
At Nationwide, positions are assigned pay bands, designated A
through I, and salary ranges are specified within each pay band. Clea-
ry’s starting salary as an administrative assistant at Nationwide in
1992 was $23,500, and her position was classified as pay band C. At
that time, the salary range for pay band C was $18,800 to $28,200.
Despite Nationwide’s assurances to the contrary, sometime after
Cleary transferred to Gateway in September 1996, she was inexplica-
bly reclassified as a technical secretary and her pay band was down-
graded from C to B. However, Cleary experienced no decrease in
salary or benefits. Indeed, she received pay raises following her trans-
fer from the Lobbying Office, in 1996 and 1998, albeit raises com-
2
For example, upon the resignation of the company’s legislative affairs
representative in Nashville, Tennessee, that office had been moved to
Raleigh, North Carolina.
CLEARY v. NATIONWIDE MUTUAL INSURANCE CO. 5
prising a lower percentage of her total salary than two out of three of
those she had received prior to reassignment.3 By 1998, Cleary’s sal-
ary of $30,200 was higher than the average for employees both in pay
band B, at $26,880, and in pay band C, at $29,402. Though eligible
for a lower maximum salary — $33,000 in pay band B as compared
to $42,000 in pay band C — she had not yet reached this cap.
3.
In autumn 1996, Nationwide underwent a reorganization of Gate-
way and its nearby office in Lexington, South Carolina ("Lexington")
that left Gateway with two technical secretaries and Lexington with
none. Cleary was selected for transfer to Lexington, where she asserts
that she was saddled with work formerly handled by two people.
On December 16, 1997, Cleary began a maternity leave that lasted
nearly five months, through May 4, 1998. During this leave, she used
six weeks and one day of paid sick leave, six weeks of paid maternity
leave, three paid personal days, nine days of paid vacation earned in
1997, two weeks of unearned paid vacation advanced against her
1998 entitlement, and thirteen days of unpaid leave pursuant to the
Family and Medical Leave Act, 29 U.S.C. §§ 2601-2654 ("FMLA").4
Under company policy, Nationwide employees were entitled to up to
five months’ leave if it were mutually agreed to be "in the best inter-
ests of all concerned[,]" with factors such as "the company’s ability
to operate satisfactorily without [the employee’s] efforts, and the
length of the requested leave" taken into consideration. J.A. 228.
Cleary requested, but was denied, additional leave through June 12,
1998. Upon return, Cleary was assigned again to Gateway, rather than
3
While assigned to the Lobbying Office, Cleary received raises of
4.08% in 1993, 5.9% in 1994, and then 8.08% in 1995. Following the
sexual harassment charge against Herlong, she received raises of 4.29%
in 1996 and 3.42% in 1998. She did not receive any raise in 1997.
4
Under the FMLA, certain employees are entitled to take up to twelve
weeks of unpaid leave in any twelve-month period for qualifying medical
or family reasons, including the birth of a child. See 29 U.S.C.
§ 2612(a)(1). An employee may be required to exhaust accrued sick, per-
sonal, and vacation time as part of the twelve-week leave. See id.§ 2612(d)(2)(A).
6 CLEARY v. NATIONWIDE MUTUAL INSURANCE CO.
Lexington, where, she asserts, she was continually monitored by Betts
in an effort to gather evidence against her for this lawsuit.
A secretarial position later became available at Lexington, but,
contrary to Nationwide policy, the opening was not advertised inter-
nally. Despite this, Cleary learned about the vacancy and asked to be
reassigned to that office. The request was made to Betts. She, in turn,
consulted Blakewood, the human resources representative who had
handled the Herlong harassment investigation, about whether Cleary’s
request had to be granted. It was decided that Cleary need not be
accommodated, and the position at Lexington was subsequently filled
by someone else.
According to Cleary, during the period when discovery was under-
way in this matter, Betts was about to leave Nationwide and called a
meeting with Cleary to tell her she had "done a great job[.]" J.A. 321.
Cleary also asserts that Betts told her, "I know you probably think that
I’ve been a real bitch to you and very mean to you, but I’ve received
a lot of pressure from Nationwide." Id. Cleary later resigned from
Nationwide, in a February 1, 1999 letter, citing "the constant intimi-
dation and persecution that Nationwide has subjected me to[.]" J.A.
311.
B.
Following issuance of a right to sue letter by the EEOC, and while
still employed at Nationwide, Cleary filed this action on April 2,
1998, in the District of South Carolina, asserting her claim under Title
VII for retaliation, 42 U.S.C. § 2000e-3(a).5 The district court pos-
sessed jurisdiction over this case pursuant to 42 U.S.C. § 2000e-5(f).
5
Though Cleary starkly asserted in her Complaint that "her employ-
ment status with [Nationwide] was unlawfully affected by her sexual
identity[,]" J.A. 9, she failed to plead the elements of a sex discrimina-
tion claim under 42 U.S.C. § 2000e-2(a), and she apparently did not pur-
sue such a cause of action below. Therefore, we address only the
retaliation claim. While Cleary focuses on her theory that Nationwide
retaliated against her for making a sexual harassment charge against Her-
long, she also intermittently asserts that the company retaliated against
her for filing the EEOC claim and this action.
CLEARY v. NATIONWIDE MUTUAL INSURANCE CO. 7
This matter was automatically referred to a magistrate judge for all
pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1)(A)-(B) and
District of South Carolina Local Rule 73.02(B)(2)(g). Following dis-
covery, Nationwide moved for summary judgment. The magistrate
judge, in his Report and Recommendation of February 7, 2000
("Magistrate Report"), advocated the denial of summary judgment.
Contrary to the magistrate’s exhortation, the district court granted
summary judgment in its Order of March 20, 2000 ("District Court
Order"). We possess jurisdiction over this appeal of the District Court
Order pursuant to 28 U.S.C. § 1291.
II.
"We review an award of summary judgment de novo, viewing the
facts and the inferences to be drawn therefrom in the light most favor-
able to the nonmovant." Riddick v. Sch. Bd., 238 F.3d 518, 522 (4th
Cir. 2000) (citation omitted). "Summary judgment is appropriate only
‘if the pleadings, depositions, answers to interrogatories, and admis-
sions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is enti-
tled to judgment as a matter of law.’" Id. (quoting Fed. R. Civ. P.
56(c)).
III.
A.
Under section 704 of Title VII, "[i]t shall be an unlawful employ-
ment practice for an employer to discriminate against any of his
employees . . . because [the employee] has made a charge . . . under
this subchapter." 42 U.S.C. § 2000e-3(a). In analyzing retaliation
claims under Title VII, where there is no direct evidence of discrimi-
nation, we apply the burden-shifting scheme set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Smith v.
First Union Nat’l Bank, 202 F.3d 234, 248 (4th Cir. 2000). Initially,
to establish a prima facie case, the employee 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) (citing
8 CLEARY v. NATIONWIDE MUTUAL INSURANCE CO.
Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir. 1997)). Once the
employee establishes a prima facie case of retaliation, the burden
shifts to the employer to produce a legitimate, nondiscriminatory rea-
son for the adverse action. See Smith, 202 F.3d at 248 (citing Beall,
130 F.3d at 619).
Finally, the burden shifts back to the employee to prove that the
employer’s purported reason for the action was mere pretext for retal-
iation. See id. The employee accomplishes this by showing "‘both that
the reason was false, and that discrimination was the real reason’ for
the challenged conduct." Jiminez v. Mary Washington College, 57
F.3d 369, 378 (4th Cir. 1995) (quoting St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 515 (1993)) (emphasis in original). While it is
"permissible for the trier of fact to infer the ultimate fact of discrimi-
nation from the falsity of the employer’s explanation[,]" Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097,
2108 (2000) (emphasis in original), the claim of the employee "should
not be submitted to a jury if there is evidence that precludes a finding
of discrimination, that is if ‘no rational factfinder could conclude that
the action was discriminatory[,]’" Rowe v. Marley Co., 233 F.3d 825,
830 (4th Cir. 2000) (quoting Reeves, 120 S. Ct. at 2109).
B.
Cleary asserts that Nationwide took a series of retaliatory actions
against her: (1) closing the Lobbying Office; (2) transferring her to
Gateway; (3) changing her job title and pay band; (4) transferring her
to Lexington; (5) denying her additional maternity leave; (6) con-
stantly monitoring her upon her return to Gateway; and (7) denying
her request to transfer back to Lexington. On the one hand, the magis-
trate judge determined that Cleary established a prima facie case of
retaliation, and that she advanced sufficient evidence on which it
could be concluded that Nationwide’s proffered reasons for its actions
were pretext for discrimination. On the other hand, the district court
assumed, without deciding, that Cleary proved a prima facie case, but
ruled that she failed to adduce evidence that Nationwide’s explana-
tions were pretextual.
Like the district court, we assume that Cleary established a prima
CLEARY v. NATIONWIDE MUTUAL INSURANCE CO. 9
6
facie case of retaliation. We address each of the adverse actions
asserted by Cleary, and Nationwide’s explanations for them, in turn.
1. Closure of Lobbying Office
Cleary contends that the Lobbying Office was shut down to con-
ceal the fact of and circumstances surrounding Herlong’s termination,
and to simultaneously punish her for reporting the harassment.
Nationwide depicts the closing of the office as a justifiable business
decision. According to Nationwide, Alan Smith, the company’s vice
president of governmental affairs, had been advocating this closure
since 1987, and Herlong’s termination presented the opportunity to
act on Smith’s plan. Smith recommended moving the office to Atlanta
for several reasons, including, inter alia, a desire to add Alabama to
the legislative affairs representative’s territory (South Carolina and
Georgia) and, accordingly, locate the office in a central location
among the three states; a need to account for the larger proportion of
Nationwide business in Georgia and Alabama than in South Carolina;
and a belief that "a new lobbyist, unfettered by longstanding South
6
While it is undisputed that Cleary engaged in protected activity when
she reported Herlong’s harassment to Nationwide, it is questionable
whether Cleary sufficiently established that the purported retaliatory
actions taken against her were adverse and whether a causal connection
existed between those employment actions and her protected activity.
However, we need not decide these issues, because we conclude that
Cleary failed to show that there is a genuine issue of material fact as to
whether Nationwide’s proffered reasons for its actions were mere pretext
for retaliation.
Though we are following the district court’s course in assuming, with-
out deciding, that Cleary established a prima facie case of retaliation, we
disagree with the court’s statement regarding her burden of proof once
Nationwide proffered legitimate reasons for its actions. According to the
court, Cleary "bears the burden of producing at this stage evidence which
would be sufficient to convince a reasonable juror that [Nationwide’s]
stated reasons for all of these actions are unworthy of belief and that
[Nationwide] actually made the decisions in order to retaliate against
her." District Court Order, at 6 (emphasis added). Cleary need only
establish, for any one of the various adverse actions alleged, that a "ratio-
nal factfinder could conclude that the action was discriminatory," Reeves,
120 S. Ct. at 2109.
10 CLEARY v. NATIONWIDE MUTUAL INSURANCE CO.
Carolina connections, would fare better in cosmopolitan Atlanta."
Appellee’s Br., at 22.
Cleary, however, maintains that moving the Lobbying Office
was done to protect Herlong, it was done to avoid any suspi-
cion of sexual harassment by a high ranking Nationwide
executive, and the effect was to radically and permanently
alter [Cleary’s] employment status with Nationwide.
Nationwide decided to coddle Herlong, lie about his depar-
ture, and [Cleary] would have to pay the price for blowing
the whistle.
Appellant’s Br., at 14. Her first contention, that Nationwide relocated
the office to conceal the harassment investigation and Herlong’s ter-
mination, is supported, at least in part, by the record. In a December
3, 1996 interoffice memorandum outlining various reasons to relocate
Herlong’s former position to Atlanta, Smith wrote that "there are bad
vibrations about Nationwide in South Carolina for lifting Bob off the
case with no public explanation. We are perceived in some quarters
as having picked on somebody who was part of the fraternity. Moving
the job to a new location mitigates the speculation." J.A. 272. The
problem for Cleary, however, is that any intention to hide Herlong’s
harassment of her does not equate to an intention to retaliate against
her for reporting his abuse.
On the contrary, it might be relevant to Cleary’s case if, as she also
asserts, Nationwide closed the Lobbying Office with the intention of
penalizing her. To prove this contention, Cleary attempts to discredit
Nationwide’s proffered business reasons for the closure with evidence
that, while she was told that the office was closing in September
1996, the official decision to relocate it to Atlanta was not made until
months later. This evidence, too, is unhelpful to Cleary because,
despite the lack of official action on Smith’s recommendation, the
Lobbying Office was virtually abandoned upon Herlong’s termina-
tion.
Finally, Cleary attempts to bolster her theory with evidence that
she was placed on paid administrative leave during the investigation,
while Herlong remained on the job, and that, following her transfer
CLEARY v. NATIONWIDE MUTUAL INSURANCE CO. 11
to Gateway, she was initially allowed to continue helping with lobby-
ing work until it was abruptly reassigned to someone else. Nationwide
provides legitimate reasons for these occurrences. Cleary was placed
on leave during the investigation — by mutual agreement with
Nationwide — to separate her from her then-alleged harasser; in the
meantime, Herlong necessarily continued working to prevent the Lob-
bying Office from ceasing to function. Moreover, following her trans-
fer to Gateway, Cleary was asked to help with lobbying functions that
were being handled on only an interim basis by existing Nationwide
employees until the hiring of a new legislative affairs representative
in Atlanta. Cleary was thanked for her assistance, but those duties
were readily reassigned so that they would not interfere with her new
position in claims. Cleary offers no evidence to refute these explana-
tions.
In summary, there is nothing to suggest that Cleary was anything
more than a coincidental victim of the decision to close the Lobbying
Office. As the district court cogently explained:
To be sure, the elimination of plaintiff’s job occurred as a
result — albeit indirect — of her complaint against Herlong.
However, plaintiff has presented no evidence that the elimi-
nation occurred because of her complaint. This is not a mere
semantical distinction. Instead it is a distinction on which
liability under Title VII hinges.
District Court Order, at 4-5 (emphasis in original).
2. Transfer to Gateway
Nationwide attests that Cleary was transferred to Gateway as the
best available option once the Lobbying Office closed. Although her
arrival at Gateway was marked by some confusion — little notice of
her impending arrival to her supervisor, lack of a computer, desk, and
chair for Cleary to use — by all accounts, Cleary readily settled into
her new position. Moreover, Cleary concedes that there were no
administrative assistant positions open at the time of her reassign-
ment. Further, there is no evidence that supervisor Betts knew of the
harassment investigation until Cleary herself told Betts about it.
12 CLEARY v. NATIONWIDE MUTUAL INSURANCE CO.
Although, according to Cleary, Betts made the statement to her that
"I know you probably think that I’ve been a real bitch to you and very
mean to you, but I’ve received a lot of pressure from Nationwide[,]"
J.A. 321, Cleary offers no other evidence elaborating on this com-
ment. That is, Cleary interprets the statement to mean that Nationwide
pressured Betts to mistreat Cleary, without acknowledging that it
could have many other meanings. There is no evidence of who within
Nationwide applied the "pressure" or of its aim. Therefore, this
ambiguous statement is insufficient evidence on which a reasonable
factfinder could rely to find pretext for discrimination.
3. Change in Job Title and Pay Band
Nationwide concedes that it was unable to determine the circum-
stances surrounding the changes in Cleary’s job title, from administra-
tive assistant to technical secretary, and pay band, from C to B;
however, the company believes that these changes were the result of
"an administrative action taken by someone who was not aware of the
assurances given to Cleary . . . done so that Cleary’s personnel
records would accurately reflect the position she was in fact occupy-
ing at the time." Appellee’s Br., at 26. Cleary points to no evidence
that anyone with knowledge of the harassment complaint was
involved in the change. Indeed, despite these changes, Cleary experi-
enced no decrease in salary or benefits, and, since she had not yet
reached the salary cap in pay band B, she was not affected by the dif-
ference in ceilings between pay bands B and C.
Moreover, Cleary does not contend that her assignment to pay band
B otherwise affected her salary, such as by qualifying her for lower
raises than she would have been entitled to under pay band C. Though
Cleary’s raises following transfer were of a lower percentage of her
salary than most of the raises she received while assigned to the Lob-
bying Office, Nationwide insists that this was because of a slight
downgrade in performance ratings, from "superior" to "meets expec-
tations," while handling new responsibilities under a new supervisor.
Cleary does not purport that she was treated differently than other
employees, and she offers nothing more than her own opinion that the
decline in raises was a retaliatory gesture.
CLEARY v. NATIONWIDE MUTUAL INSURANCE CO. 13
4. Transfer to Lexington
According to Nationwide, Cleary was transferred to Lexington, in
autumn 1996, as a result of a reorganization of Gateway and Lexing-
ton that left Gateway with two technical secretaries and Lexington
with none. After her request to hire a secretary for Lexington was
denied due to a hiring freeze, Betts selected Cleary for transfer there
over the other technical secretary, Sandra Gadson, because Gadson
had been hired specifically for Gateway, and because Cleary’s home
was closer to Lexington than Gadson’s home. Cleary offers no evi-
dence that Nationwide’s explanation is untrue. Moreover, while
Cleary asserts that she was encumbered with an inordinate workload
at Lexington, she bases this contention solely on her own opinion and
fails to show that other employees were not similarly burdened.
5. Denial of Additional Maternity Leave
While Cleary contends that Nationwide "arbitrarily" denied her
maternity benefits, see Appellant’s Br., at 29, Nationwide contends
that when Cleary took a nearly five-month leave, she "more than
exhausted" her leave entitlement under company policies and the
FMLA, see Appellee’s Br., at 12. Though company policy allowed up
to five months’ leave in certain circumstances, Nationwide maintains
that it required Cleary to return to work after just less than five
months because her absence left the claims division short-handed. To
show pretext, Cleary offers only evidence that an unidentified Nation-
wide official, in a hand-written note included in Cleary’s employee
file, determined that her position would not have to be held open if
her leave exceeded twelve weeks. Since twelve weeks was the
amount of time off Cleary was entitled to under the FMLA, and since
Nationwide, in fact, allowed her a much longer leave, this evidence
is insufficient to support Cleary’s theory that she was denied addi-
tional maternity leave in retaliation for her harassment complaint.
6. Constant Monitoring upon Return to Gateway
Cleary insists that she was reassigned to Gateway following her
maternity leave to punish her for reporting Herlong’s harassment and
to enable Betts to monitor her in an effort to gain evidence for this
lawsuit. According to Nationwide, however, Cleary was brought back
14 CLEARY v. NATIONWIDE MUTUAL INSURANCE CO.
to Gateway so that Betts could supervise her directly, because Betts
had received complaints about Cleary from people she interacted with
at Lexington, including comments that she was inefficient, made too
many personal phone calls, and had a negative attitude.
To show that this reason was a pretext for retaliation, Cleary relies
on evidence that she received good evaluations and complimentary
cards and e-mail messages from Betts and other Nationwide employ-
ees and customers while assigned to Lexington. Cleary does not, how-
ever, point to any evidence calling into question Betts’s testimony
that she reassigned Cleary to Gateway to "confirm or refute the claims
that were made against her and also to help her be more efficient in
her work[,]" J.A. 175, that she discussed the complaints directly with
Cleary rather than including them in her evaluation, and that she was
satisfied that Cleary’s performance had improved upon return to
Gateway.
Although Nationwide denies that Cleary was monitored to gain
evidence in defense of this lawsuit, the company contends that any
monitoring by Betts of Cleary would have been justified because of
Betts’s position as Cleary’s supervisor. Even assuming that Betts did
monitor Cleary, Cleary does not point to any evidence that such moni-
toring was extraordinary.
7. Denial of Transfer to Lexington
Finally, Cleary asserts that Nationwide failed to post an opening at
Lexington, and refused her request to fill the vacancy once she
learned of it anyway, as a retaliatory measure. To bolster her conten-
tion, Cleary relies on evidence that Betts consulted Blakewood about
this request, and that Blakewood was heavily involved in the Herlong
harassment investigation. Nationwide contends that Betts declined to
transfer Cleary back to Lexington because of her previous complaints
about the workload there and because of a perceived improvement in
Cleary’s performance following her reassignment to Gateway. Betts
consulted Blakewood about this decision "in an effort to ensure that
all procedures were properly followed[.]" Appellee’s Br., at 13 (cita-
tion omitted).
Though Nationwide does not explain why the position was not
advertised in accordance with company policy, Cleary offers no evi-
CLEARY v. NATIONWIDE MUTUAL INSURANCE CO. 15
dence to support her theory that this was aimed at depriving her of the
position, or to explain why she would have been entitled to the job
if the posting policy had been followed. Further, Cleary relies on the
mere fact that Betts consulted Blakewood about Cleary’s transfer
request as proof of discrimination, without offering evidence that
Betts was not merely pursuing the normal course for ensuring adher-
ence to the law and company policy.
IV.
In summary, even assuming that Cleary sufficiently established all
of the elements of her prima facie case, see Part III.A, Nationwide
proffered legitimate, non-discriminatory reasons for its actions.
Cleary has failed to point to any evidence that Nationwide’s explana-
tions for these actions — except for its reason for closing the Lobby-
ing Office — are false. Yet even if, as Cleary contends with support
from the record, Nationwide shut down the Lobbying Office to cover
up Herlong’s behavior, no rational factfinder could conclude that this
decision was motivated by an intent to discriminate against Cleary for
reporting his harassment to the company. Therefore, we agree with
the district court that Nationwide is entitled to summary judgment on
Cleary’s retaliation claim.
AFFIRMED