United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
N. CARLTON TILLEY, Jr., Senior District Judge.
This matter is before the Court on Plaintiff's Motion for Leave to Amend the Complaint (Doc. #39), Defendants' Motion for Summary Judgment (Doc. #49), Plaintiff's Motion for Leave to File Surreply to Defendants' Motion for Summary Judgment (Doc. #65), and Plaintiff's Motion for Partial Summary Judgment (Doc. #51). The motions have been fully briefed and are ripe for review. For the reasons explained below, the Court denies Plaintiff's Motion for Leave to Amend the Complaint, grants in part and denies in part Defendants' Motion for Summary Judgment, denies Plaintiff's Motion for Leave to File Surreply to Defendants' Motion for Summary Judgment, and denies Plaintiff's Motion for Partial Summary Judgment.
Plaintiff, Charlene Raiford, an African-American female who was forty years of age when she was terminated on September 15, 2011, began her employment with North Carolina Central University ("NCCU") in 2005 as an Evening Reference Librarian in the Law Library of the NCCU School of Law. (Pl. Dep. 9:2-13 Doc. #57 Ex. A; Pl. Aff. ¶ 2 Doc. #57 Ex. B.) In 2008, she accepted an offer of appointment as a Reference Librarian. (Doc. #49 Ex. 2.) In the spring of 2010, while she was working as a Reference Librarian, her working title changed to Student Services Librarian; she gained additional responsibilities and received a raise. (Doc. #49 Exs. 3-7.) In July 2010, Ms. Raiford's duties changed and her working title became Head of Reference Services,  a position she held until March 2011 when "all management responsibilities for the reference department... revert[ed] back to Nichelle Perry[, ]" the Assistant Director of the Law Library and Plaintiff's immediate supervisor. (Doc. #49 Ex. 27.) Thereafter, Ms. Raiford continued working as a Reference Librarian until her termination on September 15, 2011. (Doc. #49 Exs. 27, 33, 53.)
During the last nine months of her employment, Ms. Raiford filed three charges with the EEOC alleging discrimination, all of which were amended at least once. On January 31, 2011, she filed a charge with the EEOC alleging age discrimination on January 24, 2011 ("Charge No. 2011-01171"). (Doc. #49 Ex. 65.) On March 30, 2011, she filed a charge alleging race discrimination and retaliation for actions taking place between January 31, 2011 and March 30, 2011 ("Charge No. 2011-01764"). (Doc. #9 Ex. C.) On August 2, 2011, she filed a charge alleging retaliation from April 8, 2011 to July 12, 2011 for having filed Charge Nos. 2011-01171 and 2011-01764 ("Charge No. 2011-02993"). (Doc. #9 Ex. D.) Then, on November 29, 2011, after her termination, she filed a charge alleging retaliation from September 10, 2011 to September 15, 2011 for having filed Charge Nos. 2011-01171, 2011-01764, and 2011-02993 ("Charge No. 2012-00313"). (Doc. #9 Ex. E.) The EEOC issued a Notice of Rights for each of the aforementioned charges. (Doc. #6 Att. 1 Exs. 1, 2; Doc. #9 Exs. F, G.)
On May 31, 2012, Ms. Raiford filed her Complaint in the instant action; she amended it on September 21, 2012. (Docs. #1, 9.) In her Amended Complaint, she alleges race discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), retaliation in violation of Title VII, age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), retaliation in violation of the ADEA, and a violation of 42 U.S.C. § 1983, specifically "Equal Protection Pursuant to the Fourteenth Amendment and Section 1981[, ]" based on race,  in Counts I-V, respectively. (Doc. #9.)
In its December 20, 2012, Memorandum Order, this Court dismissed Counts I and III in full as untimely and Count V in part as against NCCU. (Doc. #26.) Therefore, what remains before the Court are Counts II and IV alleging retaliation in violation of Title VII, 42 U.S.C. § 2000e, et seq., and the ADEA, 29 U.S.C. §§ 621-634, respectively, and Count V against the individual defendants alleging a violation of the Equal Protection Clause pursuant to 42 U.S.C. §§ 1981, 1983 on the basis of Ms. Raiford's race.
First, the Court will address Ms. Raiford's "Motion for Leave to Amend the Complaint." (Doc. #39). The Court entered a Scheduling Order on January 4, 2013, setting January 15, 2013 as the deadline for motions to amend and to add parties. (Doc. #27.) On April 30, 2013, Ms. Raiford filed her motion for leave to amend her Amended Complaint, citing Federal Rule of Civil Procedure 15. (Docs. #39, 40.) However, because she is actually seeking to modify the Scheduling Order, she must first present good cause for doing so. See Fed.R.Civ.P. 16(b)(4).
In her motion, Ms. Raiford neither recognizes her obligation under Rule 16 nor argues "good cause" in support of her motion. Instead, she focuses her argument entirely on Rule 15's parameters for amendment - no undue delay, no prejudice, no bad faith, and no futility. Nevertheless, Ms. Raiford's argument, the terms of the Scheduling Order, and the chronology of events support a finding of good cause to amend the Scheduling Order as to the portion of her motion seeking to add Tammi Jackson, then-Associate Dean of NCCU School of Law, as a party. And, although Defendants have shown no undue delay, bad faith, or prejudice in either the filing of the motion on April 30, 2013 (as compared to immediately after receiving Defendants' February 25, 2013 discovery responses) or in adding Jackson to the Amended Complaint, amending the Amended Complaint to add Jackson as a party would be futile for the reasons discussed in Section III.B.
Furthermore, Ms. Raiford has not shown good cause for any of the other amendments she seeks - to add claims against Defendants Pierce, Collins, or Perry in their official capacities, "to more clearly identify the relief sought by Plaintiff, " and "to reflect compliance with this Court's Orders dismissing certain counts in whole and one count in part." (Doc. #40 at 2.) Therefore, Ms. Raiford's Motion for Leave to Amend the Complaint is denied.
Defendants have moved for summary judgment on each of Ms. Raiford's remaining claims - retaliation in violation of Title VII and the ADEA (Counts II and IV, respectively) and a violation of § 1983 and the Equal Protection Clause on the basis of race (Count V).
Summary judgment is appropriate "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." Fed.R.Civ.P. 56(a). "The party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of his pleading, but must come forward with specific facts showing that there is a genuine issue for trial.'" Emmett v. Johnson, 532 F3.d 291, 297 (4th Cir. 2008) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Where the non-moving party has the burden of proof, as is the case here, the moving party is entitled to summary judgment if the non-moving party's evidence is insufficient to establish an essential element of her claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 325 (1986) (explaining that the moving party may "point out to the district court" an absence of evidence to support the nonmoving party's case).
When evaluating a motion for summary judgment, the court "may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). Instead, "[t]he court must consider the evidence in the light most favorable to the non-moving party and draw all reasonable inferences from the facts in the non-movant's favor." Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 266 (4th Cir. 2001).
Title VII prohibits an employer from discriminating against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge... under this subchapter." 42 U.S.C. § 2000e-3(a). The ADEA provides nearly verbatim protection from an employer's discrimination that arises "because [an] individual... has opposed any practice made unlawful by this section, or because [an] individual... made a charge... under this chapter." 29 U.S.C. § 623(d).
To establish a prima facie claim of retaliation under Title VII or the ADEA,  Ms. Raiford must show that (1) she engaged in protected activity, (2) her employer, Defendant NCCU, took an adverse employment action against her, and (3) a causal connection exists between her protected activity and the adverse employment action. See, e.g., Coleman v. Md. Ct. App., 626 F.3d 187, 190 (4th Cir. 2010) (Title VII); Laber v. Harvey, 438 F.3d 404, 432 (4th Cir. 2006) (ADEA).
If Ms. Raiford establishes a prima face case of retaliation, the burden of production shifts to NCCU to articulate a legitimate, non-discriminatory reason for the adverse employment actions at issue. Holland v. Wash. Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007) (applying burden-shifting to analyze claim for retaliation in violation of Title VII); Mereish v. Walker, 359 F.3d 330, 334 (4th Cir. 2004) (applying burden-shifting for allegations of discrimination in violation of the ADEA). If NCCU offers a legitimate, non-discriminatory reason for the adverse employment actions, Ms. Raiford then must show that NCCU's proffered reason is pretextual. Holland, 487 F.3d at 218; Mereish, 359 F.3d at 334. The plaintiff "bears the ultimate burden of establishing that her protected activity was a but-for cause' of the alleged adverse action." Rome v. Dev. Alts., Inc., 587 F.Appx. 38, 40 (4th Cir. Oct. 8, 2014) (unpublished) (Title VII case) (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2534 (2013)); see also Mereish, 359 F.3d at 334; Tuttle v. McHugh, 457 F.Appx. 234, 237 (4th Cir. Dec. 9, 2011) (unpublished) (stating, in the ADEA context, "[t]he plaintiff's burden to establish pretext merges with his ultimate burden of persuasion, which remains with the plaintiff throughout the McDonnell Douglas framework"). In other words, Ms. Raiford must show "that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." Nassar, 133 S.Ct. at 2533.
Protected activity is described as oppositional or participatory. Compare 42 U.S.C. § 2000e-3(a) ("... has opposed any practice made unlawful...") and 29 U.S.C. § 623(d) ("... has opposed any practice made unlawful...") with 42 U.S.C. § 2000e-3(a) ("... has made a charge... under this subchapter") and 29 U.S.C. § 623(d) ("... has made a charge... under this chapter"); see Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998). "Opposition activity encompasses utilizing informal grievance procedures as well as staging informal protests and voicing one's opinions in order to bring attention to an employer's discriminatory activities." Laughlin, 149 F.3d at 259. To be considered protected activity, opposition activity must respond to "employment actions actually unlawful under Title VII" or "employment actions an employee reasonably believes to be unlawful." EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005). In addition, the court must "balance the purpose of the [Civil Rights] Act to protect persons engaging reasonably in activities opposing... discrimination, against Congress' equally manifest desire not to tie the hands of employers in the objective selection and control of personnel." Laughlin, 149 F.3d at 259.
On the other hand, and contrary to Defendants' argument (Doc. #50 at 9-10), there is no requirement that an employee's belief be reasonable when she takes part in participatory activity. See Glover v. S.C. Law Enforcement Div., 170 F.3d 411, 414-15 (4th Cir. 1999) (stating that "[r]eading a reasonableness test into section 704(a)'s participation clause would do violence to the text of that provision and would undermine the objectives of Title VII). Relevant to this case, participatory activity includes making a charge under Title VII and the ADEA. 42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d).
Here, it is undisputed that Ms. Raiford filed charges with the EEOC in January, March, and August 2011, thereby engaging in participatory protected activity. (See Doc. #9 Exs. C, D & Doc. #49 Ex. 65.) She also alleges that she opposed discrimination in informal ways (see, e.g., Pl.'s Suppl. Answer No. 1 to Defs.' First Interrogs. Doc. #58 Ex. M), the protection of which would require a determination as to the reasonableness of such activity. However, because Ms. Raiford engaged in participatory protected activity, she has met the first prong of her prima facie case, even without considering her alleged oppositional activity.
Ms. Raiford must next show that NCCU took adverse employment action against her, which she alleges took place from April 8 to July 12, 2011 and September 10 to September 15, 2011 (see Doc. #9 Exs. D, E). In a case alleging retaliation, the adverse actions need not affect the terms or conditions of employment. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64, 126 S.Ct. 2405, 2412-13 (2006). However, the employer's actions must be "materially adverse" to the employee, which "means that the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination." Id. at 57, 126 S.Ct. at 2409. Material adverse actions do not include "trivial harms[, ]" "petty slights[, ] or minor annoyances that often take place at work and that all employees experience." Id. at 68, 126 S.Ct. at 2415 (citing 1B. Lindemann & P. Grossman, Employment Discrimination Law 669 (3d ed. 1993) for its notation that "courts have held that personality conflicts at work that generate antipathy' and snubbing by supervisors and co-workers' are not actionable under § 704(a)"). Instead, the anti-retaliation provision of Title VII "seeks to prevent employer interference with unfettered access to Title VII's remedial mechanisms." Id., 126 S.Ct. at 2415 (internal quotation omitted). Nonetheless, "the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters." Id. at 69, 126 S.Ct. at 2415. An employer's action that "may make little difference to many workers, but may matter enormously" to a plaintiff may be materially adverse action in such context. Id., 126 S.Ct. at 2415-16 (noting that "an act that would be immaterial in some situations is material in others'") (citing Washington v. Ill. Dep't of Rev., 420 F.3d 658, 661, 662 (7th Cir. 2005) & 2 EEOC 1998 Manual § 8, p. 8-14).
It is undisputed that NCCU terminated Ms. Raiford's employment on September 15, 2011 (e.g., Doc. #9 Ex. E), an action that she claims was in retaliation for her earlier filing of charges of discrimination (id.). Discharging an employee could undoubtedly dissuade a reasonable worker from making a charge of discrimination.
Not only is Ms. Raiford's termination sufficient to meet the second prong of her prima facie case, but so, too, are other actions, viewed in the light most favorable to her, that Defendants allegedly took against her in July and September 2011 (see id. & Doc. #9 Ex. D). The annual Performance Review Form applicable to Ms. Raiford in 2011 instructs that University policy requires that each applicable employee receives a written annual performance evaluation "covering the immediately preceding July 1[, 2010] through June 30[, 2011]." (Doc. #58 Ex. Q.) In Ms. Raiford's case, that time period would include her positions as Student Services Reference Librarian which she held prior to the filing of any EEOC charges, Head of Reference Services from which she was removed in March 2011, and General Reference Librarian which she held until her termination. (Doc. #58 Ex. Q; Doc. #57 Ex. B ¶ 149; Doc. #49 Ex. 27.)
However, on June 30, 2011, Perry completed Ms. Raiford's evaluation covering the period August 15, 2010 to July 30, 2011 and only noted Ms. Raiford's role as Head of Reference Services. (Doc. #49 Ex. 32.) As part of this annual performance review, Ms. Raiford received an "Unsatisfactory" rating for her communication skills, collaboration and teamwork, supervision, and leadership. (Doc. #49 Ex. 32.) She also received a rating of "Needs Improvement" for organization and task management. (Id.) Her overall rating was "Unsatisfactory." (Id.) Because this initial performance review only reviewed Ms. Raiford's role as Head of Reference, she requested that the review be revised to reflect her additional roles as Student Services/Reference Librarian and General Reference Librarian during the year. (Doc. #49 Ex. 34.) Perry revised the performance review as requested and, as a result, added narrative comments for each category. (Doc. #49 Exs. 36-37; Doc. #58 Ex. Q.) Ms. Raiford's categorical ratings, though, did not change. (Compare Doc. #49 Ex. 32 with Doc. #58 Ex. Q.)
As a result of Ms. Raiford's unsatisfactory ratings, she also received a Performance Improvement Plan, identifying her management deficiencies, providing the corrective action of suspending her management duties and assigning her new duties to coordinate reference desk services, and scheduling a follow-up discussion. (Doc. #58 Ex. Q.) A condition of the Performance Improvement Plan was regular review of her progress, which led to a September 8, 2011 evaluation review noting, in part, that Ms. Raiford was subject to termination if her "failure to collaborate... negatively impacts instruction[.]" (Doc. #49 Ex. 52.)
Receipt of a negative performance review that necessitated a Performance Improvement Plan subjecting Ms. Raiford to regular progress reviews and potential termination could dissuade a reasonable employee from filing a charge of discrimination. See James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 377 (4th Cir. 2004) (noting, in the race discrimination context, that "a poor performance evaluation is actionable only where the employer subsequently uses the evaluation as a basis to detrimentally alter the terms or conditions of the recipient's employment") (internal citation omitted). Cf. McNeill v. Bd. of Govs. of the Univ. of N.C. , 837 F.Supp.2d 540, 544 (M.D. N.C. 2011) (after citing James for the proposition that "a negative performance evaluation alone was not sufficient to establish a material adverse action, " states that "Burlington clearly changed the standard against which evidence is to be evaluated.... Now, ...