Opinion
1:02CV00366
November 7, 2002
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on the motion for summary judgment filed by Defendants City of Greensboro, Edward Kitchen and Wesley Sharpe. (Pleading No. 2.) Plaintiff Barbara Bennett has responded in opposition to Defendants' motion, and Defendants have filed a reply. The motion is ready for a ruling.
I. Procedural History
Plaintiff Bennett, along with another plaintiff formerly involved in this suit, Bryan Johnson, filed a Complaint in this Court on July 13, 2001, alleging race discrimination, retaliation, wrongful discharge, and negligent and intentional infliction of emotional distress by Defendants in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"); 42 U.S.C. § 1981 and 1983; the North Carolina Equal Employment Practices Act, N.C. Gen. Stat. § 143-422.1, et seq. ("EEPA"); and the common law of North Carolina. In her Complaint, Plaintiff seeks declaratory and injunctive relief, compensatory and punitive damages, back pay, and attorney's fees and costs. On August 8, 2001, Defendants filed an Answer denying the material allegations in Plaintiffs Complaint and asserting various affirmative defenses.
On March 12, 2002, Defendants moved to sever Bryan Johnson's case from that of Plaintiff Bennett due to Johnson's inability to timely complete his deposition on March 5, 2002 and the factual differences involved in the two cases. On May 8, 2002, this Court granted Defendants' motion. Bryan Johnson's case has proceeded under the original civil action number, 1:01CV00688, and Plaintiff Bennett's case proceeds as case number 1:02CV00366. On July 15, 2002, after the close of discovery, Defendants filed the instant motion for summary judgment, along with a supporting memorandum and affidavits.
II. Statement of Facts
Plaintiff Bennett, a black female, began working for the City of Greensboro in 1990 as a Dispatcher in the Solid Waste Management Division. (Compl. ¶ VIII.) Beginning in 1993, Sandra Dey, a white female, became Plaintiffs immediate supervisor. (Pleading No. 5, Dey Aff. ¶ 1.) In her capacity as Plaintiffs supervisor, Dey gave Plaintiff written, annual evaluations from 1993 to 2000. These evaluations reflect that Dey routinely praised Plaintiff for her knowledge of departmental policies and the municipal code as it relates to waste management. (Pleading No. 3, Bennett Dep., Exs. 9-17.) On the other hand, Dey persistently criticized Plaintiff for excessive socializing, time away from her workstation, rudeness to citizens on the telephone, tardiness, excessive absence, refusal to accept criticism and open hostility to her supervisor (Dey). Id.; Dey Aff. ¶ 2. In her deposition, Plaintiff disputed most of the criticized behavior and took the position that Dey was either misinterpreting her behavior or lying. (Bennett Dep. at 26-31, 38, 43, 46, 47, 55, 56, 63, 67, 68, 112).
Beginning in 1993 and continuing until Plaintiffs termination on November 20, 2000, Dey kept a periodic log of Plaintiffs work behaviors. (Pleading No. 6, Pl.'s Mem., Exs. B, C.) The log includes entries regarding absences, tardiness, personal telephone calls, time away from the work station, visitors to the work station, interactions with Dey, complaints from customers and coworkers about Plaintiff, and parking in unauthorized spaces. While there are occasional entries noting positive behavior on Plaintiffs part, the majority of entries document negative behavior.
Dey testified that she kept supervisory notes on all of her subordinates, although she only compiled these notes into chronological logs for Plaintiff and another dispatcher, Leslie Thompson, a white female. (Dey Dep. at 22, 31-32.) Dey explained that she compiled Plaintiffs log at Jeryl Covington's behest after an incident between Plaintiff and Thompson. On February 15, 2000, Plaintiff engaged in a loud verbal altercation in the dispatch office with Thompson. (Dey Dep. at 20-21; Pl.'s Mem., Ex. B at 6.) Following an investigation, Thompson was terminated and Plaintiff was suspended for one day. Id. Ex. D. Dey prepared Thompson's log because Thompson "had so many things that were going on in her work life that warranted supervisor comments." (Dey Dep. at 20, 32). Dey further testified that she often listened to the dispatchers' conversations with the public through a listening device in her office in order to monitor the level of customer service being provided by the dispatchers. Id. at 13-14. Nancy Jimerson, a black supervisor in the Yard Waste and Recycling Department, testified that she also keeps supervisory notes on her subordinates, but that she does not listen in on telephone calls. (Jimerson Dep. at 28, 29.)
The notes Dey allegedly kept on other subordinates and the log for Thompson have not been made a part of the record before the Court. Dey testified that she did not know if a copy of the Thompson log still existed and that it was possible that the log was destroyed after Thompson was terminated. (Pl.'s Mem., Ex. I, Dey Dep. at 32-35.)
In July 1999, Jeryl Covington, a black female, became the Acting Manager of the Solid Waste Management Division, and in August 1999, she became the Acting Director of the Environmental Services Department. (Pleading No. 4, Covington Aff. ¶ 1.) Beginning in July 1999, Covington became Dey's direct supervisor.
Plaintiff alleges that throughout her employment she complained to Dey, Covington, Mona Edwards (black female, Assistant City Manager), Dale James (white male, former Solid Waste Department Manager), Don Smith (race unknown, Personnel Director), Pat Boswell (white female, Personnel), Mike Oluokun (black male, Personnel Supervisor), and William Harrell (black male, Assistant City Manager), about racism, harassment and disparate treatment. (Bennett Dep. at 71-83.) Plaintiff alleges that she applied for various positions with the City of Greensboro but was rejected each time. Id. at 106, 108-10, 113-16. In addition, Plaintiff contends that white garbage truck operators were paid a bonus for test driving new trucks whereas black operators were not. Id. at 107, 120-24. Plaintiff alleges that whites were hired into jobs at higher rates of pay than blacks, id. at 114, 125-27, and that white dispatchers were permitted to have visitors in the dispatch office, while blacks were not. Id. at 64, 93-94, 107, 124-25.
In mid-March, 2000, Plaintiff, Jimerson and Ricky Smith, a garbage truck operator, were conversing in a hallway when Smith's supervisor, Defendant Wesley Sharpe, a white male, approached. Id. at 13. Plaintiff remarked that Smith would not be able to ride on the back of the garbage truck because his ankle was in a cast. Sharpe allegedly replied, "That's all right. We can chain him to the back of the truck and drag him along." This comment was interpreted by many black employees to be a racist comment which referred to the incident in 1998 in Jasper, Texas in which a black man was dragged to his death behind a truck driven by three white supremacists. On March 24, 2000, Plaintiff signed a petition requesting Sharpe's termination. Id. at 12, Ex. 2. The petition was later presented by three black employees, Bryan Johnson, Shawn Tolbert, and Donald Chretien, to Assistant City Manager Mona Edwards, a black female. Id. at 14. Around this same time, Covington was made aware of Sharpe's remark and the subsequent petition. (Covington Aff. ¶ 7.) Dey averred that although she was aware of Sharpe's comment and the petition, she had not seen the petition and did not become aware that Plaintiff had signed it until after this lawsuit was filed. (Dey Aff. ¶ 8.)
On April 13, 2000, Covington wrote a letter to the employees who signed the petition indicating that she had discussed the incident with Sharpe and that she would not tolerate a racist environment. (Bennett Dep., Ex. 3.) On May 17, 2000, Edwards wrote a letter to Johnson, Tolbert and Chretien indicating that Sharpe would be required to openly apologize to the employees in a group setting. Id., Ex. 4. In addition, Edwards ordered an action plan which included a review of department policies and practices to ensure fairness and consistency and diversity training for all members of management. Although not disclosed in the letters due to privacy concerns, Sharpe was stripped of his supervisory duties, transferred to the landfill, and forced to retire at the earliest possible date. (Covington Aff. ¶ 7.)
At an unspecified time during Plaintiffs employment, Don Smith allegedly informed Plaintiff that a photographic display of white managers (including Dey) arranged in a wheel shape on the dispatch office wall was a symbol of the Ku Klux Klan ("KKK"). (Bennett Dep. at 130-31.) Plaintiff testified that she did some research on the internet and determined that a wheel is a symbol of KKK unity. Id. at 131. Although management denied that the photographs were intended as a KKK symbol, Covington removed the pictures from the wall. Id. at 131-32.
On March 16, 2000, around the same approximate time that the incident involving Sharpe occurred, Plaintiff visited her family physician, Dr. Veita Bland, with complaints of insomnia, headaches and anxiety. (Pl.'s Mem., Ex. I, Bland Dep. at 9.) Dr. Bland's assistant examined Plaintiff and did not note the alleged cause of the anxiety and other symptoms in the treatment record. There is evidence in the record that during this time, Plaintiff was having trouble with her son, who had been expelled from school. (Pl.'s Mem., Ex. B at 6.) (March 14, 2000 — Plaintiff met with son's principal; March 16, 2000 — met with son's bus driver; March 17, 2000 — took the day off due to stress from son's expulsion). Plaintiff was given a prescription for Xanax, an anti-anxiety medication. (Bland Dep. at 9.)
There is also evidence in the record that Plaintiff was treated for anxiety in 1996 due to stress related to her son. (Bland Dep. at 7-8.)
On March 30, 2000, Plaintiff informed Dey that she was taking "stress pills." (Pl.'s Mem., Ex. B at 6, Ex. C at 1.) Shortly after this statement, Dey overheard Plaintiff speaking to a member of the public over the telephone and making fun of his name. Dey also noted that Plaintiff started answering calls in a loud, high-pitched voice and was leaning back in her chair and stomping her feet. Dey became concerned that the medication was affecting Plaintiffs work performance. Dey visited the Medical Services Department and informed the on-duty nurse, Linda Chilton, that Plaintiff was taking "stress pills" and behaving unusually. Chilton informed Dey that she would handle it. Later that day, Plaintiff was asked to report to Chilton's office, although the record is unclear as to what, if anything, transpired between Chilton and Plaintiff. Id.
On May 4, 2000, Plaintiff presented Dey with a note from the Bland Clinic, stating that the primary side effect of her mediation was drowsiness. (Pl.'s Mem., Ex. B at 8, Ex. C at 8.) Dey questioned the authenticity of the note because it was not on a preprinted letterhead and contained misspellings. Dey informed Covington about her concern regarding the letter's authenticity. Covington told Dey to allow Plaintiff one week to obtain another letter on a proper letterhead. (Pl.'s Mem., Ex. B at 8.) Instead of speaking with Plaintiff, Dey and Jimerson visited Dr. Bland's office the next day in order to verify that the letter was genuine. Dey spoke with a nurse who confirmed that the letter had in fact originated from Dr. Bland's office. Id.
Shortly before November 2000, Dey and Covington met to discuss Plaintiffs performance problems and determined that Plaintiff should be placed on a final warning for her continuing poor work performance. (Covington Aff. ¶ 2; Dey Aff. ¶ 3.) On November 6, 2000, Dey gave Plaintiff her annual performance review. (Dey Aff. ¶ 3, Ex. A.) The review outlined many of Plaintiffs performance problems and inappropriate work behaviors and discussed immediate corrective action. The evaluation further stated that it was a "final" warning and that any further inappropriate behavior would lead to termination. Covington met with Dey and Plaintiff to discuss the review to be sure Plaintiff understood that her termination was imminent if her behavior did not improve. (Covington Aff ¶ 2; Dey Aff. ¶ 3.)
Following her review, Plaintiff engaged in several acts perceived by Dey to constitute insubordination. (Dey Aff. ¶ 4.) First, Plaintiff posted a sign at her work station which read as follows:
I Am In Time Out! Please excuse me for not speaking, and please do not speak to me. I have been accused of creating a hostile work environment in the workplace, and socializing too much with my fellow employees. Please help me stay out of trouble for the next three months Thanks Barbara Bennett
(Dey Aff., Ex. B.) Second, Plaintiff informed her co-workers that she was on "probation" for three months, a term which does not appear on her November 6, 2000 review. (Dey Aff., Exs. A, B.) Third, Plaintiff allegedly told Craig Dobert, a Route Supervisor, that she would not do anything for Dey, after Dobert asked Plaintiff to tell Dey that he had left some raffle tickets for her in the dispatch office. (Dey Aff., Ex. B.)
On November 17, 2000, Dey discussed these incidents with Plaintiff, and Plaintiff admitted to all three incidents, although she did not admit that her behavior was insubordinate. (Dey Aff. ¶ 4, Ex. B.) Dey discussed the incidents with Covington and decided to terminate Plaintiffs employment. (Dey Aff. ¶ 4.) Dey wrote Plaintiff a letter dated November 20, 2000 announcing the termination and outlining the reasons therefor. (Dey Aff. ¶ 4, Ex. B.)
The same day, Plaintiff gave Dey a letter which began, "Let this stand as my written grievance for the procedures that are taking place in reference to my employment with the City of Greensboro." (Dey Aff. ¶ 5, Ex. C.) Dey and Covington interpreted this document as an appeal of her termination and scheduled a hearing for December 11, 2000, giving notice to Plaintiff by certified mail. (Covington Aff. ¶ 4, Ex. D; Dey Aff. ¶ 5.) Plaintiff testified that although she received notice of the hearing, she intentionally did not attend. (Bennett Dep. 69-71.) At the hearing, Dey was the only witness, and Covington upheld Plaintiffs termination. (Covington Aff. ¶ 4.) Plaintiff received a copy of Covington's decision and did not appeal to the City Manager, although she had a right to do so. (Covington Aff. ¶ 4, Ex. E.)
Approximately six months after her termination, Plaintiff sought treatment with the Guilford County Mental Health Department with complaints of decreased sleep, appetite and interest, and depressed mood. (Pl.'s Mem., Ex. I at 32.) Plaintiff mentioned the loss of her job as a dispatcher as one of the reasons she sought treatment. Dr. Stephen C. Hoffman diagnosed Plaintiff with adjustment disorder with depressed mood and prescribed antidepressant medication. Id. at 33-34, 37, 40. The record reveals that Plaintiff continued to be seen at the Mental Health Department approximately once per month through at least February 12, 2002. Id. at 38, 44-58.
III. Summary Judgment Standard of Review
The summary judgment standard of review under Rule 56 is well established. A party is entitled to judgment as a matter of law upon a showing that "there is no genuine issue of material fact." Fed.R.Civ.P. 56(c). The material facts are those identified by controlling law as essential elements of claims asserted by the parties. A genuine issue as to such facts exists if the evidence forecast is sufficient for a reasonable trier of fact to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuine issue of material fact exists if the nonmoving party fails to make a sufficient showing on an essential element of its case as to which it would have the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In evaluating a forecast of evidence on summary judgment review, the court must view the facts and inferences reasonably to be drawn from them in the light most favorable to the nonmoving party.
When the moving party has carried its burden, the nonmoving party must come forward with evidence showing more than some "metaphysical doubt" that genuine and material factual issues exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), cert. denied, 481 U.S. 1029 (1987). A mere scintilla of evidence is insufficient to circumvent summary judgment. Anderson, 477 U.S. at 252. Instead, the nonmoving party must convince the court that, upon the record taken as a whole, a rational trier of fact could find for the nonmoving party. Id. at 248-49. Trial is unnecessary if "the facts are undisputed, or if disputed, the dispute is of no consequence to the dispositive question." Mitchell v. Data General Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993).
IV. Discussion
A. Title VII. 42 U.S.C. § 1981 and 1983. and EEPA Claims
1. Discriminatory Discharge
In her Complaint, Plaintiff alleges that Defendant City of Greensboro terminated her because of her race in violation of Title VII, 42 U.S.C. § 1981 and 1983, and the North Carolina EEPA. In her brief, Plaintiff appears to suggest that she has proffered direct evidence of discrimination, although she fails to point this Court to any specific evidence in support of that assertion. (Pl.'s Mem. at 7.) To the contrary, the Court's review of the record does not reveal any direct evidence of discrimination or retaliation. The only evidence that could possibly be construed as direct evidence of discrimination is Wesley Sharpe's comment in March 2000 regarding chaining a black employee to the back of a garbage truck. While the comment is certainly highly offensive, and did in fact offend Plaintiff and other black employees of the City of Greensboro, it does not constitute direct evidence of discrimination under the facts of this case. The Fourth Circuit has defined direct evidence as "evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision." Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995); see also EEOC v. Clay Printing Co., 955 F.2d 936, 941-42 (4th Cir. 1992); Smith v. Firestone Tire Rubber Co., 875 F.2d 1325, 1330 (7th Cir. 1989) (stray remarks unrelated to decisional process are insufficient to demonstrate that the employer relied on illegitimate criteria). Here, there is no evidence that Sharpe had any supervisory authority over Plaintiff or that he had anything to do with her termination eight months later. Indeed, it is clear beyond doubt that he did not. As there is no nexus between Sharpe's comment and Plaintiffs termination, the comment cannot constitute direct evidence to support Plaintiffs discriminatory discharge claims.
Accordingly, the Court will proceed to analyze Plaintiff's discrimination claims under the well-established indirect method of proof prescribed by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and its progeny, which applies not only to Plaintiffs Title VII claim, but also to her claims under 42 U.S.C. § § 1981 and 1983 and EEPA. Patterson v. McLean Credit Union, 491 U.S. 164, 181-82 (1989); Gairola v. Virginia Dep't of Gen. Serv., 753 F.2d 1281, 1285-86 (4th Cir. 1985); North Carolina Dep't of Corr. v. Gibson, 308 N.C. 131, 141, 301 S.E.2d 78, 85 (1983).
Pursuant to the McDonnell Douglas proof scheme, Plaintiff must first establish a prima facie case of discrimination by a preponderance of the evidence. McDonnell Douglas, 411 U.S. at 802. If Plaintiff succeeds, the burden of production shifts to Defendants to articulate a legitimate, nondiscriminatory reason for Plaintiffs termination. Id. If Defendants carry this burden, Plaintiff must prove by a preponderance of the evidence that the legitimate, nondiscriminatory reason offered by Defendants is not the true reason, but is a pretext for race discrimination. Id.; see also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). Although the second step of the process shifts the burden of production to Defendants, the burden of persuasion remains at all times on Plaintiff to prove that Defendants were unlawfully motivated by Plaintiffs race. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993).
In order to establish a prima facie case of race discrimination, Plaintiff must demonstrate that (1) she is a member of a protected class; (2) she was qualified for the position and performing to her employer's satisfaction; (3) she suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances which create an inference of unlawful discrimination. Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994). Defendants argue that Plaintiff has not established a prima facie case, because she cannot demonstrate that she was performing her job at a level that met the expectations of the City of Greensboro. Defendants assert that Plaintiff was unable to satisfy her supervisor's expectations and was insubordinate even after she was placed on a final warning.
The Court considers that Defendants may very well be correct that Plaintiff cannot establish a prima facie case. However, even assuming arguendo that Plaintiff's proof establishes a prima facie case, it is clear that her discriminatory discharge claims cannot survive Defendants' motion for summary judgment. Defendants have proffered substantial evidence of a legitimate, nondiscriminatory reason for Plaintiff's discharge, and Plaintiff has failed to produce sufficient evidence that Defendants' proffered reason is a pretext for discrimination. Defendants' evidence demonstrates that Plaintiff had persistent and well-documented performance problems throughout her employment with the City of Greensboro which culminated in the issuance of a final warning on November 6, 2000. (Bennett Dep., Exs. 9-17.) Despite this final warning, Plaintiff engaged in several acts of insubordination just days after receiving the warning. Id., Ex. 18. Plaintiffs act of displaying in the workplace a sign that read, "I am in Time Out" is, by itself, an act of defiance and insubordination that created abundant good cause for her termination. The record reflects that Plaintiff essentially admitted to committing these acts of insubordination in a written response to the allegations provided to Dey, although she attempted to justify her actions.
In the face of this solid showing by Defendants, Plaintiff has not proffered any evidence tending to discredit Defendants' reason for her termination. Although in her deposition Plaintiff denied many of the inappropriate work behaviors described by Dey (Bennett Dep. at 26-31, 38, 43, 46, 47, 55, 56, 63, 67, 68, 112), she has produced no independent evidence to corroborate her assertion that she did not engage in the behavior, e.g., affidavits from co-workers regarding her behavior at work, attendance records to demonstrate her punctuality or regular attendance, telephone records to demonstrate the infrequency of personal telephone calls, or affidavits from customers who were satisfied with her level of customer service. Plaintiff has offered no evidence tending to show that Dey or Covington did not honestly believe that Plaintiff had engaged in the behavior of which she was accused. See Holder v. City of Raleigh, 867 F.2d 823 (4th Cir. 1989) ("[a] reason honestly described but poorly founded is not a pretext . . .") (citation omitted); Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980) (it is not the plaintiffs perceptions which are dispositive; rather, "[i]t is the perception of the decision maker which is relevant.") In such circumstances, Plaintiff's mere denial of the conduct does not, in and of itself, create a sufficient issue of fact as to the legitimacy of Defendants' reason for her termination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (". . . an employer would be entitled to judgment as a matter of law . . . if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.")
Further, Plaintiff has not offered any evidence tending to show that her race was the true reason for her termination. Plaintiff admits that Covington, a black female, was the ultimate decision-maker in her termination, and that Covington was not motivated by Plaintiff's race. (Bennett Dep. at 85-88, 105, 120.) Furthermore, Plaintiff has produced no evidence that Dey or Covington ever directed racially derogatory language towards her or any other employee. In fact, the evidence shows that when presented with complaints that Sharpe had made a racist comment, Covington acted promptly to address the issue with the affected employees and strongly disciplined Sharpe. (Covington Aff. ¶ 7, Ex. G.) In addition, Plaintiff testified that Covington removed photographs of management from the dispatch office wall after Plaintiff complained that they were arranged in a wheel resembling a KKK symbol. (Bennett Dep. 130-34.)
Plaintiff places substantial reliance on Dey's close monitoring of her daily work behaviors and inquiries about her anxiety medication as evidence that Dey was motivated by race in terminating her. However, these behaviors, while perhaps poor business practices if carried to an extreme, are simply not probative of racial animus. Dey testified that she kept supervisory notes on all of her employees, both white and nonwhite. (Dey Dep. at 22, 31.) In addition, Dey stated that she compiled a chronological log even longer than Plaintiff's on a white dispatcher, Leslie Thompson. Id. at 32. In fact, the evidence shows that Dey terminated Thompson for a verbal altercation with Plaintiff, while Plaintiff received only a one-day suspension. Id. at 20-21; Pl.'s Mem., Ex. B at 6, Ex. D.
The courts have long recognized that the race of a terminated employee's replacement is probative evidence in a discrimination claim. See, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). Here, the record reflects that following Plaintiff's termination, Plaintiff's job duties were initially divided among the three remaining dispatchers and the administrative assistant, all of whom were black. (Pl.'s Mem., Ex. F at 6-7.) Approximately ten months after her termination, Plaintiff's job was offered to a black female, who accepted the position but later had to withdraw her acceptance because of a serious health condition. Id. at 7. Only at this point in time was Plaintiff's job offered to the next applicant on the list, a white male. No inference of race discrimination arises from these facts.
Essentially, Plaintiff has based her claim of discrimination heavily on her belief that "there had to be something within management that kept [her] from advancing within the city" although she could not cite anything "concrete." (Bennett Dep. at 115.) Plaintiffs unsubstantiated "hunch" that she has been the victim of discrimination is insufficient as a matter of law. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985) ("[u]nsupported allegations as to motive do not confer talismanic immunity from Rule 56."); Evans v. Technologies Applications Serv. Co., 80 F.3d 954 (4th Cir. 1996) (unsupported speculation is insufficient); Cramer v. Perdue Farms, Inc., 900 F. Supp. 795, 800-01 (M.D.N.C. 1994) (where inference to be drawn from plaintiffs evidence is based upon surmise and conjecture, that issue should not be submitted to the jury for consideration).
While not argued in Plaintiff's brief, Plaintiff's deposition contains numerous allegations regarding promotions Plaintiff was denied, bonuses paid to whites but not blacks, and policies allowing only white dispatchers to have visitors. (Bennett Dep. at 64, 93-94, 106, 107, 108-10, 113-16, 120-27.) The Court notes that none of these allegations were argued in Plaintiff's brief or corroborated by competent evidence. Furthermore, Plaintiff was unable to identify when any of these incidents occurred.
As Plaintiff has not presented sufficient evidence that Defendants' legitimate, nondiscriminatory reason for her termination is a pretext for race discrimination, IT IS RECOMMENDED that Defendants' motion for summary judgment be granted on these claims.
2. Retaliation
In her Complaint, Plaintiff alleges that she was retaliated against because of her participation in the petition calling for Sharpe's termination, for complaining to members of management about discrimination, and for complaining to the EEOC. In order to establish a prima facie case of retaliation, Plaintiff must establish that (1) she engaged in protected activity; (2) she suffered an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action. Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir. 1997).
The Court will assume, arguendo, that all of the above-listed actions constitute "protected activity," as that term is defined by federal case law. In addition, neither party disputes that Plaintiff's termination constitutes an "adverse employment action." However, Plaintiff's evidence fails to create a triable issue of fact as to the third element, a causal link between her "protected activity" and her termination.
Regarding the petition, approximately eight months elapsed between Plaintiff's signature on the petition on March 24, 2000 and her termination on November 20, 2000. It is well-settled that a "plaintiff fails to make out a case of retaliatory action where there is no close temporal connection between the [protected activity] and the alleged retaliatory act." Johnson v. Trustees of Durham Tech. Comm. College, 139 N.C. App. 676, 682 (2000); see also Wiley v. UPS, 102 F. Supp.2d 643, 651 (M.D.N.C. 1999). In the Wiley case, this Court found that the five-month period between the plaintiffs workers' compensation claim and his termination was legally insufficient to create an inference of causal connection in a case alleging workers' compensation retaliation. 102 F. Supp.2d at 651; see also Greene v. Dialysis Clinic, Inc., 159 F. Supp.2d 228, 239 (W.D.N.C. 2001) (six-month period "not sufficiently close to satisfy plaintiffs burden of proof"); Shaffner v. Westinghouse Elec. Corp., 101 N.C. App. 213, 216 (1990) (approximately two and a half months not close enough for causal connection). Here, eight months is simply too long a period of time to support an inference of causation. In addition, the only evidence is that Dey, the key decision-maker, did not even know Plaintiff had participated in the petition at the time she terminated Plaintiff. (Dey Aff. ¶ 8.) Moreover, Plaintiff admitted that the other decision-maker involved in Plaintiff's termination, Covington, a black female, did not discriminate on the basis of race. (Bennett Dep. at 85.) Plaintiffs evidence is insufficient as a matter of law to support a claim of retaliation.
Regarding the EEOC charge, while the alleged filing date of the charge (November 9, 2000) and the date of Plaintiff's termination (November 20, 2000) are close enough in time to potentially raise an inference of causation, there is no evidence in the record before the Court that any decision-maker knew of Plaintiff's EEOC charge at time of her termination. In fact, Plaintiff's EEOC charge has not even been made a part of the record. The only evidence indicating the date on which the charge was filed is Plaintiff's statement in her unverified Complaint that she filed the charge "[b]eginning on or about November 9, 2000." (Compl. ¶ 1.5.) At the outset, the Court notes that this statement does not affirmatively state that the charge was filed on November 9, 2000, leaving some room for doubt as to the actual date of filing. Moreover, an unverified complaint is not admissible evidence for purposes of a summary judgment adjudication. See Fed.R.Civ.P. 56(c); Lopez v. Smith, 203 F.3d 1122, 1132 n. 14 (9th Cir. 2000) ("A plaintiffs verified complaint maybe considered as an affidavit in opposition to summary judgment if it is based on personal knowledge and sets forth specific facts admissible in evidence."); Parkinson v. California Co., 233 F.2d 432, 438 (10th Cir. 1956) (a plaintiff cannot rely on an unverified complaint in opposing summary judgment); Berry v. Atlantic Coast Line R.R. Co., 273 F.2d 572, 582 (4th Cir. 1960) (same). The best evidence of the date the charge was filed would be the charge itself, and Plaintiff has not made any showing why the charge was not made a part of the record. There is insufficient evidence in the record to support Plaintiff's claim of retaliation due to her EEOC charge.
Plaintiff testified that she completed a questionnaire detailing some of her complaints of discrimination which she submitted to Edwards. (Bennett Dep. at 116-20.) Plaintiff further testified that it was shortly after this questionnaire was submitted that Dey and Covington "began" to terminate her. Id. at 120. However, Plaintiff did not identify a time period when this questionnaire was completed, nor has the questionnaire been made a part of the record before the Court. Without a time period or the document in question, the Court cannot find sufficient evidence to support an inference of causation.
As Plaintiff has failed to present sufficient evidence to show a causal link between her "protected activity" and her termination, IT IS RECOMMENDED that Plaintiff's retaliation claims be dismissed.
3. Harassment
In her Complaint, Plaintiff alleges that Defendants subjected her to a racially hostile work environment in violation of Title VII, 42 U.S.C. § 1981 and 1983 and EEPA. In order to establish a prima facie case of race harassment, Plaintiff must demonstrate that (1) she was harassed on the basis of race; (2) the harassment was unwelcome; (3) the harassment was sufficiently severe or pervasive to alter her conditions of employment and to create an abusive work environment; and (4) some basis exists to impute liability to the employer. Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 772 (4th Cir. 1997). Plaintiff alleges that Dey's constant monitoring and close supervision amounted to "severe" or "pervasive" racial harassment. Defendants argue that Plaintiff has failed to establish any alleged acts of harassment that are sufficiently "severe" or "pervasive" to survive summary judgment.
Defendants are correct in their argument. While Dey's constant monitoring of Plaintiff's work activities and inquiries regarding Plaintiff's anxiety medication may have been stressful or unpleasant for Plaintiff, they are not, in and of themselves, indicative of racial animus. This case is similar to Trujillo v. University of Colorado Health Sciences Ctr., 157 F.3d 1211 (10th Cir. 1998). In Trujillo, the Hispanic plaintiff complained that his black supervisor created a hostile work environment by documenting improprieties in his job performance, criticizing and checking on his work, and sending him memoranda regarding his frequent absences. Id. at 1213. The Tenth Circuit held that such allegations do not make a showing of severe or pervasive racial harassment:
The hostile work environment that Plaintiff portrays is simply a work environment that exhibits the monitoring and job stress typical of life in the real world. Normal job stress does not constitute a hostile or abusive work environment. As the Seventh Circuit explained, federal law "does not guarantee a utopian workplace, or even a pleasant one . . . [P]ersonality conflicts between employees are not the business of the federal courts." [ Vore v. Indiana Bell Tel. Co., 32 F.3d 1161, 1162 (7th Cir. 1994).] We cannot vilify every supervisor that implements a policy with which an employee disagrees or that monitors her employees' conduct. Plaintiff has not cited any cases that have found similar employer conduct to constitute a racially hostile work environment, and we decline to extend the contours of a "hostile work environment" to include Plaintiff's alleged job situation.Id. at 1214. Furthermore, the Court notes that Jimerson, a black supervisor, accompanied Dey to Dr. Bland's office to inquire about Plaintiff's medication and admitted that she also keeps notes on the job performance of all her subordinates. (Pl.'s Mem., Ex. B at 8; Jimerson Dep. at 29.) In addition, Dey kept supervisory notes on all her employees, both white and black, and testified that she maintained a detailed log on a white dispatcher allegedly even longer than Plaintiff's log. (Dey Dep. at 22, 31-32.)
Plaintiffs evidence regarding Sharpe's offensive comment similarly falls short of the "severe" or "pervasive" standard. A single, isolated remark by a non decision-maker does not constitute "severe" or "pervasive" harassment, as those terms have been interpreted by the courts. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) ("[a] recurring point in [opinions addressing harassment] is that `simple teasing,' offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the `terms and conditions of employment.'") (citation omitted). In fact, significantly more offensive conduct has been found by the courts not to constitute "severe" or "pervasive" harassment. In Wilson v. Dana Corp., 210 F. Supp.2d 867 (W.D. Ky. 2002), one of the plaintiffs alleged that white co-workers had used terms such as "Buckwheat," "nigger," and "nigger berry." Id. at 873-74. In addition, the plaintiff saw a white co-worker pulling another white co-worker with a rope and believed that they were referring to the same hate crime in Jasper, Texas at issue in this case. Id. at 874. The court held that each of the events at issue was isolated and did not rise to the level of "severe" or "pervasive" harassment. Id. at 879-80; see also Carter, 33 F.3d at 459-61 (publicly reprimanding the black plaintiff while privately reprimanding a white employee and displaying a gorilla poster not "severe" or "pervasive").
Court notes that Plaintiff did not mention Sharpe's comment in her argument in brief regarding racial harassment. Although similarly not argued in brief, Plaintiff's allegations regarding the managerial photographs arranged to resemble a KKK wheel are unsubstantiated and wholly speculative. (Bennett Dep. at 130-32.) Plaintiff's allegation that a white employee in the water department kept a Confederate figurine at his work station is similarly unavailing. Id. at 133. Mere possession of a Confederate emblem, when not accompanied by any evidence that the individual made any racial remarks to Plaintiff or anyone else, is simply not probative of racial harassment.
As Plaintiff's evidence fails to create a triable issue of fact as to whether the alleged harassment was sufficiently severe or pervasive to alter her conditions of employment and to create an abusive work environment, IT IS RECOMMENDED that Defendants' motion for summary judgment on Plaintiff's harassment claims be granted.
B. Negligent Infliction of Emotional Distress Claim
Plaintiff alleges that Defendants negligently caused her to suffer severe emotional distress. To establish a claim of negligent infliction, Plaintiff must show that (1) Defendants engaged in negligent conduct; (2) it was reasonably foreseeable that the conduct would cause severe emotional distress to a person of ordinary sensibilities; and (3) the conduct caused such harm. Riley v. Debaer, 144 N.C. App. 357, 361 (2001); Poole v. Copland, Inc., 348 N.C. 260, 264 (1998).
This claim must fail because Plaintiff has not alleged any negligent behavior on the part of Defendants. The discrimination, retaliation and harassment of which she complains are all intentional acts, and thus, cannot form the basis of a claim sounding in negligence. Therefore, IT IS RECOMMENDED that Plaintiff's claim of negligent infliction of emotional distress be dismissed.
C. Intentional Infliction of Emotional Distress Claim
To establish a claim of intentional infliction of emotional distress, Plaintiff's evidence must show "`(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress.'" Hartsell, 123 F.3d at 774 (citation omitted). The Court must make the initial determination of whether the conduct in question can reasonably be regarded as "extreme and outrageous." Lorbacher v. Housing Auth. of Raleigh, 127 N.C. App. 663, 676 (1997); Shillington v. K-Mart Corp., 102 N.C. App. 187, 198 (1991); Briggs v. Rosenthal, 73 N.C. App. 672, 676, rev. denied, 314 N.C. 114 (1985). If the Court concludes as a matter of law that the conduct cannot reasonably be held to be "extreme and outrageous," the action should be dismissed.
Not all conduct that may be offensive is sufficiently outrageous to give rise to liability. For there to be liability, the conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Briggs, 73 N.C. App. at 676; see also Restatement (Second) of Torts § 46, cmt. d (1965). Liability does not attach "to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities . . . [P]laintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind." Id.
In the case at bar, the Court finds as a matter of law that Defendants' alleged actions, even when considered in the light most favorable to Plaintiff, do not rise to the level of "extreme and outrageous" conduct. The conduct Plaintiff alleges, while perhaps stressful and unpleasant for her, simply does not meet this high threshold for liability. See, e.g., Johnson v. Bollinger, 86 N.C. App. 1, 3 (1987) (plaintiff had no claim for intentional infliction after the defendant approached the plaintiff "in an angry, hostile and threatening manner . . ., shook his hand in the plaintiffs face and said in a loud, rude and offensive manner . . ., `You are a stupid son of a bitch,'" and "`You are a liar, ' and . . . `I will get you.'"); Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 490, rev. denied, 317 N.C. 334 (1986) (unsuccessful plaintiff alleged that her supervisor screamed at her, called her names and threw menus at her; other unsuccessful plaintiff alleged that her supervisor directed her to carry heavy objects despite her pregnancy, cursed at her and terminated her employment when she left the workplace because of her labor pains).
As Plaintiff has failed to create a triable issue of fact as to whether Defendants' conduct was "extreme and outrageous" under North Carolina law, IT IS RECOMMENDED that Defendants' motion for summary judgment on Plaintiff's intentional infliction of emotional stress claim be granted.
V. Conclusion
For reasons set forth above, IT IS RECOMMENDED that Defendants' motion for summary judgment (Pleading No. 2) be granted as to all claims and all Defendants, and that this case be dismissed with prejudice.
Further, in view of the recommendations herein, which would have the effect of terminating this action, IT IS ORDERED that this action is removed from the January 6, 2003 trial calendar and the parties shall at this time stand down from trial preparation.