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Mann v. Winston-Salem State University

United States District Court, M.D. North Carolina

July 21, 2017

MELISSA J. MANN, Plaintiff,
WINSTON-SALEM STATE UNIVERSITY, an Agent of the State of North Carolina, and JANICE SMITH, individually, Defendants.


          OSTEEN, JR., District Judge.

         Presently before this court is a Motion for Summary Judgment and a Substitute Motion for Summary Judgment filed by Defendant Winston-Salem State University (“WSSU” or the “University”) (Docs. 59, 91). Plaintiff Melissa J. Mann (“Mann”) has responded, (Docs. 75, 97), and Defendant WSSU has replied, (Docs. 87, 100). Although Defendant Janice Smith (“Smith”) filed a motion for summary judgment, (Doc. 57), following a settlement conference on March 24, 2017, [1] Plaintiff dismissed her claims against Smith, (Doc. 120), leaving only her claim against WSSU, (Doc. 35). That claim alleges Retaliation under Title VII. (Id.) As such, WSSU's motion is ripe for the court's consideration. For the reasons herein, WSSU's motion will be granted.

         I. BACKGROUND

         WSSU hired Plaintiff, a Caucasian female, on August 16, 2010, as an “instructor” of Management within the Department of Management and Marketing. (Pl.'s Resp. to Def. Smith's Mot. for Summ. J., Ex. 1, Deposition of Melissa J. Mann (“Mann Dep.”) (Doc. 75-1) at 60-61); Pl.'s Resp. to Def. WSSU's Mot. for Summ. J., Ex. 22, Affidavit of Melissa Mann (“Pl.'s Aff.”) (Doc. 73-9) ¶¶ 3, 4.) Plaintiff became an “assistant professor” when the University was able to confirm the completion of her doctorate degree. (See Pl.'s Aff. (Doc. 73-9) ¶ 3.) Plaintiff alleges that “[i]mmediately upon being hired [she] began to suffer a pattern of discriminatory actions by Janice Smith.” (Id. ¶ 5.) On May 5, 2015, Plaintiff resigned her position by letter to Dr. Moula Cherikh, who served as department chair at the time. (Doc. 94-17.)

         Defendant Smith is African American and is a “tenured full professor [as well as] a member of the Reappointment and Tenure Committees for the Department of Management and Marketing” with the University. (Def. Smith's Answer (Doc. 39) ¶ 20.)

         Plaintiff generally alleges that “[u]pon starting [her] employment at WSSU, it became immediately apparent to [her] that [she] was not welcome as a professor in the [d]epartment due to the fact that [she] was white and not African-American.” (Pl.'s Aff. (Doc. 73-9) ¶ 7.) Between 2010 and 2014, Plaintiff alleges a number of instances of Smith's purportedly race-fueled bullying and harassment including verbal confrontations, abusive emails to Plaintiff, gossip concerning Plaintiff spread to other WSSU employees and general attempts by Smith to hinder Plaintiff's career success at WSSU. (Id. ¶¶ 11-20, 24-51.) Plaintiff alleges that “nothing was done to discipline Dr. Smith or prevent her from continuing to harass me.” (Id. ¶ 28.) It is not disputed that hostilities existed between Dr. Smith and Plaintiff, although there is some dispute as to the degree to which these hostilities from Dr. Smith were based on race. The employees of WSSU contend that any hostility Plaintiff experienced was the result of “long-standing tensions and conflicts within the Department regarding the leadership of the Department, hiring practices, the curriculum, and the amount of autonomy afforded junior faculty members.” (Def. WSSU's Substitute Mem. of Law in Supp. of Mot. for Summ. J. (“WSSU's Sub. Mem.”) (Doc. 98) at 4-5[2] (citing Docs. 92-5 - 92-13; Affidavit of Brenda Allen (“Allen Aff.”) (Doc. 95-8) ¶¶ 8-9); Affidavit of Moula Cherikh (“Cherikh Aff.”) (Doc. 95-9) ¶ 11).) For purposes of Defendant's motion for summary judgment, it appears to this court, based upon evidence presented by Plaintiff, that there is an issue of fact as to whether Dr. Smith's actions toward Plaintiff were improperly motivated by race. However, the claim against WSSU is one of retaliation, and the relevance of this factual issue will be addressed further in this opinion where necessary.

         It also appears generally undisputed that during much of Plaintiff's employment at WSSU, administration within the Department of Management and Marketing (“the Department”) had a number of difficulties in terms of processes and procedures. For example, Defendant acknowledges that review of Plaintiff for promotion and tenure “was not in accordance with University policy and resulted from confusion within the Department regarding the University's tenure and promotion policies.” (WSSU's Sub. Mem. (Doc. 98) at 6 n.1 (citing Doc. 92-4; Allen Aff. (Doc. 95-8) ¶ 16).) Defendant WSSU further acknowledges that “[t]here was fundamental disagreement within the Department regarding the strategic direction of the HR program and its curriculum.” (Id. at 5.) These administrative issues make it difficult to determine who made various decisions about Plaintiff's employment, including: what actions may be attributed to WSSU and what actions were the result of an individual conflict between two employees. While Plaintiff bears the burden of proving retaliation by Defendant, this court is required to resolve any material factual disputes in the light most favorable to Plaintiff.

         Plaintiff alleges she was retaliated against by Defendant for filing two charges of racial discrimination. The first charge was filed with the University on August 27, 2013, when Plaintiff “submitted a formal complaint to [WSSU's Equal Employment Opportunity office] against Drs. Smith and [Mak] Khojasteh, alleging harassment, discrimination, and retaliation on the basis of race and color.” (Affidavit of Silvia Ramos (“Ramos Aff.”) (Doc. 95-4) ¶ 13 (citation omitted).) “After reviewing [all of] the materials and documents brought by Dr. Mann and interviewing the parties involved, [Silvia Ramos, WSSU's Chief Diversity Officer, Title IX Coordinator, and Equal Employment Opportunity and Affirmative Action Officer] was unable to determine whether the evidence supported Dr. Mann's allegations of harassment, retaliation, and racial discrimination.” (Id. ¶ 18 (citations omitted).) Dr. Allen advised Plaintiff of these findings by letter dated November 1, 2013. (Doc. 93-17.) Dr. Suresh Gopalan, Dr. Moula Cherikh, and Ms. Ramos were copied on that letter. (Id.)

         The second charge of discrimination was filed on May 15, 2014, when Plaintiff filed a “Notice of Charge of Discrimination” with the Equal Employment Opportunity Commission [“EEOC”] alleging “[she] was subjected to a racially hostile work environment and disparate treatment in regard to the terms and conditions of [her] employment as compared to other similarly situated employees not of [her] same race, which led [her] to file a complaint regarding the treatment with [her] employer.” (Notice of Charge of Discrimination (“EEOC Charge”) (Doc. 12-1) at 3.)

         During the time period beginning August 27, 2013, the date of the filing of the charge with WSSU, administration at WSSU and in the Department specifically consisted of the following individuals. Dr. Brenda Allen was Provost and Vice Chancellor for Academic Affairs and had been since December 15, 2008. (Allen Aff. (Doc. 95-8) ¶ 2.) Dr. Moula Cherikh was Chair of the Department and had been since August 2013. (Cherikh Aff. (Doc. 95-9) ¶ 5.) Silvia Ramos was the “Chief Diversity Officer, Title IX Coordinator, and Equal Employment Opportunity and Affirmative Action Officer” at WSSU. (Ramos Aff. (Doc. 95-4) ¶ 2.) Dr. Derick Virgil was “Associate Dean over Academic Services and Assessment” at WSSU. (Affidavit of Derick Virgil (“Virgil Aff.”) (Doc. 95-10) ¶ 3.)

         Plaintiff contends that four specific actions by WSSU constitute retaliation in violation of Title VII. Those retaliatory actions include Defendant Smith forcing “unfavorable class assignments on Plaintiff in the fall of 2014”; having “the Human Resources concentration cancelled in the summer of 2014”; being denied a pay raise; and having her students “punished by being denied access to school writing lab resources.” (Pl.'s Substitute Br. in Resp. to WSSU's Mot. for Summ. J. (“Pl.'s Sub. Resp.”) (Doc. 97) at 7-8.)

         Additional relevant facts will be addressed in the analysis as necessary.

         Plaintiff's sole claim as to WSSU is a Title VII “retaliation” claim brought against WSSU under 42 U.S.C. § 2000e-3(a). (Amended Complaint (“Am. Compl.”) (Doc. 35) ¶¶ 82-92.) Plaintiff alleges that, “[b]y reason of the conduct of Defendant WSSU, Plaintiff has suffered emotional damage and injury and tremendous mental anguish and humiliation, and has lost the pay and benefits associated with the status of a tenured faculty member at WSSU.” (Id. ¶ 88.) Plaintiff requests compensatory damages, punitive damages, reasonable attorney's fees and costs. (Id. ¶¶ 90-92.)


         Summary judgment is appropriate where an examination of the pleadings, affidavits, and other proper discovery materials before the court demonstrates that no genuine issue of material facts exists, thus entitling the moving party to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the burden of initially demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

         If the moving party has met that burden, then the nonmoving party must persuade the court that a genuine issue remains for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). However, this requires “more than simply show[ing] that there is some metaphysical doubt as to the material facts”; the “nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.'” Id. at 586-87 (citations and footnote omitted) (quoting Fed.R.Civ.P. 56)(e)). In considering a motion for summary judgment, the court is not to weigh the evidence, but rather must determine whether there is a genuine dispute as to a material issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

         Nonetheless, the court must ensure that the facts it considers can be “presented in a form that would be admissible in evidence” and that any affidavits or evidence used to support or oppose a motion are “made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” See Fed.R.Civ.P. 56(c)(2), (4).

         The court must view the facts in the light most favorable to the nonmoving party, drawing inferences favorable to that party if such inferences are reasonable. Anderson, 477 U.S. at 255. However, there must be more than a factual dispute, the fact in question must be material, and the dispute must be genuine. Id. at 248; Fed.R.Civ.P. 56(c). A dispute is only “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.


         “To establish a prima facie case of retaliation in contravention of Title VII, a plaintiff must prove (1) that she engaged in a protected activity, as well as (2) that her employer took an adverse employment action against her, and (3) that there was a causal link between the two events.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (quoting E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d 397, 405-06 (4th Cir. 2005) (internal quotation marks omitted).

“Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.” University of Tx. Sw. Med. Ctr. v. Nassar, U.S., 133 S.Ct. 2517, 2528 (2013) (emphasis added); see Foster v. University of Maryland-Eastern Shore, 787 F.3d 243, 246, 252 (4th Cir. 2015) (“Nassar . . . held that a successful retaliation plaintiff must prove that retaliatory animus was a but-for cause of the challenged adverse employment action.”). Because Title VII prohibits discrimination only when it results from particular, enumerated motivations, “when an employer articulates a reason for discharging the plaintiff” that the statute does not proscribe, “it is not our province to decide whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination.” DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) (internal quotation marks omitted); see also Id. (explaining that it is not our role to sit “as a kind of super-personnel department weighing the prudence of employment decisions”) (internal quotation marks omitted).

Villa v. Cavamezze Grill, LLC, 858 F.3d 896, 900-01 (4th Cir. 2017).

         The parties do not dispute whether Plaintiff engaged in protected activity. The protected activity was Plaintiff submitting a formal complaint to WSSU's EEO office on August 27, 2013, as well as filing an actual charge with the EEOC on May 15, 2014. (Ramos Aff. (Doc. 95-4) ¶¶ 13, 22); (EEOC Charge (Doc. 12-1) at 3.)

         WSSU argues summary judgment should be granted because “(1) Plaintiff failed to exhaust her administrative remedies regarding [the retaliation] claim; (2) she failed to establish a prima facie case of retaliation; and (3) the University had legitimate, non-retaliatory reasons for its actions.” (WSSU's Sub. Mem. (Doc. 98) at 15.)

         Plaintiff responds that “all of the four complained of retaliatory acts by Defendant WSSU against Plaintiff are reasonably related to the original complaint and/or were developed by the reasonable investigation of the claim itself, ” which would not require Plaintiff “to file a separate charge of retaliation after the first for fear of further retaliation.” (Pl.'s Sub. Resp. (Doc. 97) at 9 (citing Jones v. Calvert Group, Ltd., 551 F.3d 297, 302 (4th Cir. 2009)). Plaintiff also argues that “she has met her burden of showing direct evidence of retaliatory animus through the prolonged and systematic actions of Dr. Smith, which she complained about to Defendant WSSU and the EEOC, and for which she was retaliated against by Defendant WSSU through meaningful negative employment consequences.” (Id. at 12.) Plaintiff argues that “[i]n the alternative, Plaintiff is still able to meet the McDonnell Douglas shifting burden standard, specifically, there are legitimate issues of fact that need to be determined by a jury as to whether Defendant WSSU's actions were for a legitimate business purpose or pretextual.” (Id.) Finally, Plaintiff argues that “[t]he University's asserted non-retaliatory reasons for its actions are mere pretext for discrimination.” (Id. at 22.)

         In its reply, in addition to disputing the above arguments, WSSU highlights that “[i]n her Response, Plaintiff, for the very first time, adds a fourth distinct act: ‘that WSSU removed her as head of the human resources concentration and . . . allowed Dr. Smith to set an unfavorable schedule for her in the fall of 2014.'” (Def. WSSU's Substitute Reply in Supp. of Mot. for Summ. J. (“WSSU's Sub. Reply”) (Doc. 100) at 3.) WSSU also argues that “WSSU cannot be held liable for any alleged retaliatory acts committed by Smith” because “Plaintiff has failed to demonstrate a basis for attributing Smith's alleged misconduct to WSSU.” (Id. at 3-4.)

         A. Failure to Exhaust Administrative Remedies

         Defendant initially argues that Plaintiff failed to exhaust administrative remedies with the EEOC as to the retaliation in response to filing an EEOC complaint. (WSSU's Sub. Mem. (Doc. 98) at 15-17.) The parties' dispute is directed only to the question of whether the alleged retaliation should have been submitted to the EEOC in a separate complaint. (See Id. at 16-17.)

         “[A] failure by the plaintiff to exhaust administrative remedies concerning a Title VII claim deprives the federal courts of subject matter jurisdiction over the claim.” Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009). However, a plaintiff alleging a claim for retaliation does not have to provide a separate right-to-sue letter. See Id. at 301-02 (holding that plaintiffs are allowed to raise retaliation claims for the first time in federal court, without previously exhausting administrative remedies). Nevertheless, a plaintiff's complaint must still contain sufficient allegations to state a claim for retaliation. See Davis v. N.C. Dep't of Corr., 48 F.3d 134, 140 (4th Cir. 1995) (holding “that receipt of, or at least entitlement to, a right-to-sue letter [from the EEOC] is a jurisdictional prerequisite that must be alleged in a plaintiff's complaint”).

         The EEOC complaint has been filed with this court. (EEOC Charge (Doc. 12-1).) The Amended Complaint sets forth a retaliation claim in violation of 42 U.S.C. § 2000e-3(a) as to those actions occurring after the filing of the May 2014 EEOC complaint. (Am. Compl. (Doc. 35) ¶¶ 82-92.) The EEOC complaint alleges discrimination and retaliation by WSSU in response to reporting and opposing discrimination, (see EEOC Charge (Doc. 12-1) at 3), but does not include a description of any alleged retaliation following the EEOC complaint. This court finds the alleged retaliation in response to an EEOC complaint as set forth in the Amended Complaint does not require another EEOC filing. See Calvert, 551 F.3d at 301-02. In light of the record presented to this court, Defendant's motion for summary judgment for failing to exhaust administrative remedies will be denied.

         B. Direct Evidence of Retaliatory Animus

         “A plaintiff may prove discrimination under Title VII, 42 U.S.C. § 1981, or the ADEA either through direct and indirect evidence of [discriminatory] animus, or through the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792');">411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668] (1973).” Jones v. Constellation Energy Projects & Servs. Grp., Inc., 629 F. App'x 466, 468 (4th Cir. 2015) (quoting Foster, 787 F.3d at 249) (internal quotation marks omitted); Castonguay v. Long Term Care Mgmt. Servs., LLC, No. 1:11CV682, 2014 WL 1757308, at *5 (M.D. N.C. Apr. 30, 2014).

         Plaintiff argues that “she has met her burden of showing direct evidence of retaliatory animus.” (Pl.'s Sub. Resp. (Doc. 97) at 12.) First, Plaintiff argues that “[t]he evidence, viewed in a light most favorable to Plaintiff, reveals that Dr. Smith, from nearly Plaintiff's first day of work, intended to cause great and permanent harm to Plaintiff's vocational status at WSSU because of Plaintiff's race.” (Id. at 13.) Plaintiff alleges that, after Smith found out about Plaintiff's internal EEOC complaint, and

[o]nce Dr. Smith had [control over Plaintiff's class schedule in the Spring and Fall of 2014], she reset Plaintiff's teaching schedule, refusing to honor Plaintiff's requested dates for classes, adding additional new “preps” for new classes, and increasing Plaintiff's teaching load despite knowing that this was the year before Plaintiff came up for tenure and Plaintiff needed to research and “publish or perish.”

(Id. at 15-16 (citing Mann Dep. (Doc. 75-1) at 266-69).) Plaintiff's other “direct evidence” is the timing of WSSU's cancellation of the Human Resources concentration and the fact that various staff members of WSSU attributed the cancellation, at least in part, to Plaintiff's inability to get along with Smith. (See id.) WSSU replies that “Smith did not have control over Plaintiff's class schedule.” (WSSU's Sub. Reply (Doc. 100) at 6.)

         “Direct evidence encompasses ‘conduct or statements' that both (1) ‘reflect directly the alleged discriminatory attitude, ' and (2) ‘bear directly on the contested employment decision.'” Laing v. Fed. Exp. Corp., 703 F.3d 713, 717 (4th Cir. 2013) (quoting Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006)). “Evidence is too speculative if the factfinder cannot rationally choose between mere ‘possibilities' of meanings.” Johnson v. Toys “R” US-Delaware, Inc., 95 F. App'x 1, 7 (4th Cir. 2004) (citing DeJarnette, 133 F.3d at 298; Abady v. Hanover Fire Ins. Co., 266 F.2d 362, 364 (4th Cir. 1959)). “Direct evidence is evidence from which no inference is required, such as a decisionmaker's statement that she retaliated because of the plaintiff's gender.” Castonguay, 2014 WL 1757308, at *5 (citing Holley v. N.C. Dep't of Admin., 846 F.Supp.2d 416, 427 (E.D. N.C. 2012)).

         This court disagrees with Plaintiff and finds that Plaintiff has not presented direct evidence of retaliation by WSSU. While Plaintiff's evidence as to Dr. Smith's discriminatory comments and actions may be sufficient to create a material issue of fact as to Dr. Smith's improper racial animus, there is no direct evidence that the decisionmakers of Plaintiff's schedule were motivated by a retaliatory animus. In terms of cancellation of the Human Resources concentration, Plaintiff's direct evidence is insufficient to establish a but-for causal connection as required by Nassar, 133 S.Ct. at 2528.

         While Dr. Smith may have played a role in Plaintiff's employment circumstances, Plaintiff has not presented evidence sufficient to establish that Smith was the decisionmaker with respect to the modification of Plaintiff's curriculum and schedule. The Fourth Circuit has held that “the person allegedly acting pursuant to discriminatory animus need not be the ‘ formal decisionmaker' to impose liability upon an employer for an adverse employment action, so long as the plaintiff presents sufficient evidence to establish that the subordinate was the one ‘principally responsible' for, or the ‘actual decisionmaker' behind, the action.” Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 288-289 (4th Cir. 2004) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151-52, 120 S.Ct. 2097, 2111 (2000)).

         The Fourth Circuit further explained the agency issue as it relates to retaliation in Balas v. Huntington Ingalls Industries, Inc.:

Title VII does not “limit the discrimination inquiry to the actions or statements of formal decisionmakers for the employer.” Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 290 (4th Cir. 2004). However, [the Fourth Circuit has] refused to endorse a construction of Title VII that would treat a “subordinate who has no supervisory or disciplinary authority and who does not make the final or formal employment decision [as] a decisionmaker simply because he had a substantial influence on the ultimate decision or because he has played a role, even a significant one, in the adverse employment decision.” Id. at 291. For Balas's retaliatory termination claim to succeed, she must demonstrate that Price “possessed such authority as to be viewed as the one principally responsible for the decision.” Id. It is fatal to her claim that she presents no evidence to that effect.

711 F.3d 401, 410-11 (4th Cir. 2013). Similarly, here, Plaintiff has failed to present evidence that Smith was sufficiently responsible for Plaintiff's circumstances evidencing retaliation such that Smith's animus constitutes direct evidence of retaliation by WSSU. With respect to the schedule change, it is at most speculative that Smith had final authority over Plaintiff's schedule and curriculum. While Plaintiff testified that Smith controlled schedules for the fall of 2014, (Pl.'s Sub. Resp. (Doc. 97) at 4 (citing Mann Dep. (Doc. 75-1) at 266-69)), Plaintiff offers no specific support for that position. This court finds Plaintiff's general allegation is insufficient to create a material issue of fact that Smith had ...

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