United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr., United States District Judge
MATTER comes before the Court on Defendant's
Motion for Summary Judgment, (Doc. No. 26); its Memorandum in
Support, (Doc. No. 27-1); Plaintiff's Response in
Opposition, (Doc. No. 28); and Defendant's Reply, (Doc.
No. 29). Defendant's Motion is ripe and ready for
adjudication. For the reasons set forth below, the Court
GRANTS in part and DENIES in part
Defendant's Motion for Summary Judgment.
August 31, 2015, Plaintiff Carlita “Jackie” Ramos
(“Plaintiff”) was fired from Carolina Motor Club,
Inc., also known as AAA Carolinas (“Defendant”).
On October 19, 2015, Plaintiff filed a charge of
discrimination with the EEOC, which thereafter issued a
“right to sue” letter on December 19, 2016. (Doc.
No. 2-1 ¶25). This case was removed from Mecklenburg
County Superior Court to the Western District of North
Carolina on April 19, 2017. (Doc. No. 1). On March 30, 2018,
Defendant Carolina Motor Club moved for summary judgment.
Oral argument regarding Defendant's Motion for Summary
Judgment was heard on May 3, 2018.
alleges that Defendant terminated her employment in
discriminatory fashion. Defendant is a North Carolina
non-profit known for its emergency roadside assistance and
travel planning materials. (Doc. No. 27 at 2). A woman of
Dominican descent, Plaintiff began working for Defendant in
2008 as a janitor. (Doc. No. 1-2 ¶11). In October of
2013, Plaintiff was promoted to her first managerial role as
“Manager, Auto Touring and Production and Lobby.”
(Id. ¶12). In this role, Plaintiff managed a
team of Production Specialists preparing various travel
materials requested by AAA members. (Id.). In May of
2015, Plaintiff received another promotion, this time
managing AAA's new warehouse, which was set to open at
the end of that year. (Id. ¶13).
the time of her second managerial promotion, Plaintiff
alleges that she was subjected to discriminatory comments.
First, Defendant's IT Operations Manager, Rich Sheehan,
called Plaintiff's accent ugly and nasty. He stated that
he could not understand Plaintiff because she sounded like
Sofia Vergara. (Id.). But Plaintiff's claim for
discrimination revolves primarily on similar comments from
Project Manager Janet Watts, who was charged with overseeing
the setup of the new warehouse. (Doc. No. 1-2 ¶14).
Watts would ask, “[c]an you do something about your
accent, ” or “[c]an you speak English?”
(Id. at 59, 63). Watts' actions escalated to
screaming at Plaintiff in front of other employees.
(Id.). In its most severe form, Watts' actions
appeared physically threatening to Plaintiff when Watts came
within 12 inches of Plaintiff's face and she wagged her
finger. (Id. ¶15). Plaintiff states that two
others overheard the comments Watts made regarding Plaintiff:
Alven Blue, an African-American employee who also reported to
Watts, and Sereatha Harris, the Human Resources Generalist.
(Doc. No. 28 at 4). Plaintiff claims that this treatment
occurred in every interaction with Watts. (Doc. No. 27-1 at
of commenting on Plaintiff's accent, Watts told Plaintiff
two general derogatory remarks regarding other minorities. On
one occasion, Watts told Plaintiff that Hispanic people made
bad employees. (Doc. No. 27-1 at 68-69). On another, Watts
told Plaintiff that she would not interview a man because he
was an ex-veteran and black. (Doc. No. 28-1 at 32). Watts
purportedly told Plaintiff that they did not know what would
be on his mind. (Id.) Plaintiff attempted to
communicate to Watts and Sheehan that their behavior toward
Plaintiff was disrespectful and discriminatory, but the
pair's behavior continued. (Doc. No. 1-2 ¶15). So,
Plaintiff turned to Harris in Human Resources. (Doc. No. 28
at 4). Despite believing Plaintiff that a hostile work
environment existed, Harris did nothing regarding
Plaintiff's concerns. (Id.). Plaintiff
thereafter reported the discriminatory conduct to Human
Resources Manager Frank Tatum, on July 9th, who in turn
stated that she should talk to Sarah Henshall, the Vice
President of Travel. (Doc. Nos. 1-2 ¶16; 28 at 4).
August of 2015, Plaintiff reached Henshall directly. (Doc.
No. 1-2 ¶19). Plaintiff conveyed to her Watts'
behavior and the fact that Watts did not treat Caucasians in
a similar manner. (Id.). Plaintiff claims that
Henshall immediately denied the allegations against Watts and
told Plaintiff that Watts was a difficult person to work
Defendant's Anti-Discrimination and Harassment Complaint
Policy required an investigation into Watts' alleged
discriminatory behavior, Plaintiff states that Henshall and
Tatum did just the opposite; the company began investigating
Plaintiff instead. (Doc. No. 1-2 ¶20). This
investigation, Plaintiff alleges, was a conspiracy to fire
her. (Id.). Tatum interviewed approximately four
people on Plaintiff's team, telling her that he merely
wanted to check in with the employees since the process of
setting up and moving the warehouse was a stressful one.
Plaintiff then attempted to set up a meeting between herself,
Henshall, and Watts to discern the discrimination issues and
resolve the investigation Tatum was conducting. (Id.
¶21). Henshall scheduled Plaintiff's requested
meeting only to cancel it and schedule a new meeting on
August 31, 2015, between herself, Plaintiff, and Tatum. In
this new meeting, Henshall informed Plaintiff that she was no
longer a manager because she could not get along with Watts.
(Id. ¶22). Henshall then told Plaintiff to
interview for a position as a commissioned saleswoman. This
new position was not salaried and required weekend shifts,
and there was no guarantee that Plaintiff, who had worked for
Defendant for approximately seven years, would even get it.
(Id.); see also (Doc. No. 27-3 at 20)
(“You didn't actually offer this job to Jackie, did
you? You set up an interview for her … correct?
filed a claim with the EEOC after her termination and now
brings an action stating that her termination was a result of
discrimination and constituted an act of retaliation for
registering her complaints against Watts. (Id.
¶¶23, 24). Plaintiff claims that her position was
later filled by Sheryl Fontaine, a Caucasian whose
performance scores were lower than Plaintiff's. (Doc. No.
28 at 2, 10). Over a year after Fontaine assumed
Plaintiff's former role, AAA promoted Kelly Lancaster-
also Caucasian-to take part in the responsibilities that
Plaintiff held. (Id.).
Motion for Summary Judgment, Defendant claims that this case
boils down to “an employee who could not handle new
managerial responsibilities but, instead, became fixated on
the authority and ‘respect' that she thought should
accompany her ‘Manager' title.” (Doc. No. 27
at 1). While Defendant admits that Plaintiff enjoyed positive
reviews while performing her first managerial role, it was
after her second managerial promotion that the company noted
problems with Plaintiff's performance. (Id. at
2, 3). Defendant states that from the start of her new
duties, Plaintiff failed to prepare her team for the move
into the warehouse. (Id. at 3). Defendant required
its “Auto Touring” department to prepare for the
move by first completing a thorough inventory.
(Id.). However, due to Plaintiff's struggles in
leading the effort, the resulting inventory was inaccurate
and contained outdated materials. (Id. at 4). Once
the date of the move to the new warehouse arrived, the Auto
Touring department was not done packing. (Id.).
the move, Defendant states that the problems with Plaintiff
continued. Plaintiff failed to master the new inventory
system despite receiving several training sessions.
(Id.). The result, Defendant states, was
embarrassing as it had to issue “out of stock”
notices to its members. (Id.). Defendant claims a
second reason for Plaintiff's termination: her behavior.
Plaintiff's performance issues created friction between
Plaintiff and Watts. While Watts focused her attention on
critical issues, Plaintiff focused on miniscule tasks, such
as hanging pictures or stocking hand sanitizer.
(Id.). Plaintiff would then become frustrated with
Watts when these miniscule problems were not directly
addressed due to more pressing concerns on Watts' plate.
(Id.). Plaintiff began complaining to other
employees despite Henshall's instructions that all
complaints go through Watts first. (Id. at 5-6).
in the wake of the botched warehouse transition that
Plaintiff approached HR. (Id.). Defendant states
that Plaintiff complained of Watts' disrespect of her
role as a manager-not necessarily that she was discriminated
against. (Id.). Tatum referred Plaintiff to Henshall
since both Plaintiff and Watts were supervisors. Tatum also
arranged for another HR partner to provide coaching to Watts.
(Id. at 6-7). While Plaintiff met with Henshall,
Tatum conducted interviews with Plaintiff's direct
reports. Tatum, Defendant states, relayed unanimous results
from the interview: “the Auto Touring employees
complained of stress relating to Plaintiff's performance
inadequacies and were fed up with hearing Plaintiff complain
about Ms. Watts and trivial building issues.”
(Id. at 7). In the wake of Tatum's review,
Henshall met again with Plaintiff on August 19, 2015.
meeting, Henshall counseled Plaintiff to focus less on
trivial matters and to not instigate concerns with
the meetings and reviews between Plaintiff, HR, and Henshall,
another employee, Alvin Blue, came to Henshall stating that
Plaintiff continued to create friction with her direct
reports and Watts. (Id. at 8). It was at that point,
“in light of Plaintiff's performance deficiencies,
her inability to work cohesively with her coworkers, and her
failure to follow Ms. Henshall's directives on all of
these matters, the Company relieved Plaintiff of her position
as manager of Auto Touring, effective August 31, 2015.”
(Id.). After this decision, Henshall and Tatum
arranged for Plaintiff to interview for a travel agent
position in a location that was close to Plaintiff's
judgment shall be granted “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). A factual dispute is genuine “if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is
material only if it might affect the outcome of the suit
under governing law. Id. The movant has the
“initial responsibility of informing the district court
of the basis for its motion, and identifying those portions
of the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986) (internal citations omitted).
“The burden on the moving party may be discharged by
‘showing' . . . an absence of evidence to support
the nonmoving party's case.” Id. at 325.
this initial burden is met, the burden shifts to the
nonmoving party. The nonmoving party “must set forth
specific facts showing that there is a genuine issue for
trial.” Id. at 322 n.3. The nonmoving party
may not rely upon mere allegations or denials of allegations
in his pleadings to defeat a motion for summary judgment.
Id. at 324. The nonmoving party must present
sufficient evidence from which “a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248; accord Sylvia Dev.
Corp. v. Calvert Cty., Md., 48 F.3d 810, 818 (4th Cir.
ruling on a summary judgment motion, a court must view the
evidence and any inferences from the evidence in the light
most favorable to the nonmoving party. Anderson, 477
U.S. at 255. “Where the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial.” Ricci
v. DeStefano, 557 U.S. 557, 586 (2009) (internal
citations omitted). The mere argued existence of a factual
dispute does not defeat an otherwise properly supported
motion. Anderson, 477 U.S. at 248. If the evidence
is merely colorable, or is not significantly probative,
summary judgment is appropriate. Id. at 249-50.
claims include violations of Title VII for hostile work
environment, discrimination, and retaliation; violations of
Section 1981 of the Civil Rights Act; and wrongful discharge
in violation of public policy pursuant to North
Carolina's the Equal Employment Practices Act, N.C. Gen.
Stat. § 143-422.1, et seq., and the Occupational Safety
and Health Act, N.C. Gen Stat. § 95-151. (Doc. No. 1-2).
Plaintiff's Hostile Work Environment Claim
protections of Title VII extend to situations where employees
are required to work in a discriminatorily or abusively
hostile environment. Harris v. Forklift Sys., 510
U.S. 17, 21 (1993). To succeed on a hostile work environment
claim, a plaintiff must show: “(1) [she] experienced
unwelcome harassment; (2) the harassment was based on [her]
race, color, religion, national origin, or age; (3) the
harassment was sufficiently severe or pervasive to alter the
conditions of [her] employment and to create an abusive
atmosphere; and (4) there is some basis for imposing
liability on the employer.” Baqir v. Principi,
434 F.3d 733, 745-46 (4th Cir. 2006); see also,
Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264,
277 (4th Cir. 2015). Defendant attacks Plaintiff's
ability to establish the third and fourth elements.
Severity and pervasiveness
Fourth Circuit has long held that evaluating the severity and
pervasiveness of harassment is “quintessentially a
question of fact.” Guessous v. Fairview Prop.
Invs., LLC, 828 F.3d 208, 227 (4th Cir. 2016). However,
at the summary judgment stage, the Fourth Circuit interprets
the severe/pervasive element as a high bar for plaintiffs to
meet. Not just any offensive conduct will suffice since Title
VII is not a “general civility code.”
Faragher v. City of Boca Raton, 524 U.S. 775, 788
‘severe or pervasive' element of a hostile work
environment claim has both subjective and objective
components.” EEOC v. Sunbelt Rentals, Inc.,
521 F.3d 306, 315 (4th Cir.2008) (internal quotations and
citations omitted). “First, the plaintiff must show
that [s]he subjectively perceived the environment to be
abusive. Next, the plaintiff must demonstrate that the
conduct was such that a reasonable person in the
plaintiff's position would have found the environment
objectively hostile or abusive.” Id. When
assessing the reasonable person standard, plaintiffs must
identify “instances where the environment was pervaded
with discriminatory conduct aimed to humiliate, ridicule, or
intimidate, thereby creating an abusive atmosphere.”
Sunbelt Rentals, Inc., 521 F.3d at 316 (internal
quotations omitted). Defendant claims that Plaintiff admitted
three times in her deposition that she received only four
comments about her accent-one comment made by Sheehan and
three comments made by Watts. (Doc. No. 27-1 at 44, 69, 82,
88). However, other portions of the Plaintiff's
deposition allude to more pervasive behavior. In that same
deposition, Plaintiff testified that, “anytime
[she would] have to deal with [Watts], she made a racist
comment …, like, ‘Speak-speak English. Can you
speak English?'” (Doc. No. 27-1 at 45) (emphasis
added). Plaintiff also testified that, “every
time that [Plaintiff and Watts were by themselves],
[Watts] always mention[s] [Plaintiff's]
accent.” (Id. at 63) (emphasis added).
of conflicting testimony is not, on a summary judgment
motion, an issue to be decided by the trial judge.”
Summerlin v. Edgar, 809 F.2d 1034, 1039 (4th Cir.
1987). Rather, “[t]he [Court's] job in deciding a
motion for summary judgment under Rule 56(c) is not to decide
issues of fact, but to determine whether there is any genuine
issue of material fact to be decided.” Id. The
Court cannot turn a blind eye to the contradictions in
Plaintiff's deposition. These inconsistencies, and the
concomitant credibility issues they raise, are for the jury
must also look to the severity of comments. “[T]he
required showing of severity … of the harassing
conduct varies inversely with the pervasiveness … of
the conduct.” Glorioso v. Aireco Supply Inc.,
1995 U.S. Dist. LEXIS 7071, 1995 WL 442203, *3 (D. Md. 1995)
(quoting Ellison v. Brady, 924 F.2d 872, 878 (9th
Cir. 1991)). Therefore, “an isolated incident[ ] of
harassment can amount to discriminatory changes in the terms
and conditions of employment, if that incident is extremely
serious.” Fontainebleau, 786 F.3d at 277
(internal quotation marks omitted).
Defendant points to Plaintiff's admission that Watts
yelled at her on two of the three times she commented on
Plaintiff's accent. (Doc. No. 27-1 at 68-69). On one of
those instances, Watts came within inches of Plaintiff's
face. (Id. at 67, 80). Plaintiff maintains that all
of these incidents were humiliating, one of which was
physically threatening. (Doc. No. 28 at 17).
have found sufficiently severe comments when defendants used
particularly derogatory terms or made threats toward the
plaintiff. See, e.g. Fontainebleau, 786 F.3d at
279-80 (finding a manager's use of the term “damn
porch monkey” to an employee and his multiple threats
“to get her” or “make her sorry” was
properly considered extremely serious for a harassment
claim); see also Hoyle v. Freightliner, LLC, 650
F.3d 321, 334 (4th Cir. 2011) (finding physically threatening
conduct probative, but not determinative, of the
severe/pervasive element); Spriggs v. Diamond Auto
Glass, 242 F.3d 179, 185 (4th Cir. 2001) (finding that
repeated insults using derogatory terms sufficiently severe
and pervasive). Courts also have looked to the status of the
harasser. Fontainebleau, 786 ...