Opinion
Civil Action No. DKC 2003-0087.
January 14, 2005
MEMORANDUM OPINION
Presently pending and ready for resolution in this employment discrimination case is the motion of Defendant Giant Food, Inc. (Giant) for summary judgment. The issues have been fully briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion for summary judgment will be granted.
I. Background
A. Factual Background
The following facts are uncontroverted or taken in the light most favorable to Plaintiff unless otherwise indicated. Plaintiff Laverne Morse, an African-American, was employed by Defendant Giant as a cashier at store number 216 in Greenbelt, Maryland beginning on April 21, 1986. On March 26, 2002, Plaintiff worked the shift that started at 8 a.m. and ended at 2 p.m. Plaintiff ended her shift at approximately 2:10 p.m., removed her uniform, and then proceeded to purchase a few grocery items from Defendant. As Plaintiff was exiting the store with her purchases, a security guard in plain clothes approached her from behind and said, "Your store manager said. . . .," to which Plaintiff responded, "You tell the store manager. . . ." According to Plaintiff, nothing else was said, and Plaintiff continued out the exit of the store and left. See Paper 56, Ex. 1 ("Morse Dep.") at 73-81. She did not show the security guard her receipt for the items she purchased, nor did she open her bags to permit him to inspect them. Id. at 80-81.
During Plaintiff's employment with Giant, it had in place a policy requiring all employees "to present any personal parcels for inspection before leaving the store." Paper 55, Ex. 3 ("Reed Decl.") ¶ 3; Ex. 3(A). In addition, the policy instructs staffers to "show the front office or security officer all shopping bags, boxes, gym bags, etc." prior to exiting the store. Id. This policy was posted in the breakroom at Store 216 during the period that Plaintiff was employed there. Id. Moreover, Plaintiff testified in her deposition that she was aware of this policy on March 26, 2002, having learned of it when she was hired in 1986. Morse Dep. at 44, 47-48.
The day following the incident, March 27, 2002, Tom Altvater (Altvater), the store detective, and Wanda Reed (Reed), the store manager, met with Plaintiff to discuss her refusal to permit the security guard to inspect her packages or to present a receipt to verify her purchases. See Morse Dep. at 85-88; Reed Decl. ¶ 4; Paper 55, Ex. 4 ("Altvater Decl.") ¶ 3. Plaintiff admitted to Altvater and Reed that she did not show the security guard a receipt for her purchases, nor did she permit him to inspect her bags. Morse Dep. at 85-87; Reed Decl. ¶ 5; Altvater Decl. ¶ 4. At the meeting, Plaintiff was suspended for three days for what Defendant contends was a violation of Giant's employee shopping policy. Morse Dep. at 87; Reed Decl. ¶ 5; Altvater Decl. ¶ 5; Ex. 3(C).
The following day, on March 28, 2002, Plaintiff sent a "personal statement" in the form of a letter to her district manager, at that time, Tom Ames, about the circumstances surrounding her suspension. Morse Dep. at 90-96; Paper 56, Morse Dep. Ex. 6 ("March 28 letter"). In this letter, she indicated that she "felt insulted" by the security guard's remarks, that the guard "could have approached [her] in a different manner," and that she "had no idea the repercussion for [her] actions would be so severe." Id.
Upon returning to work after her suspension, Plaintiff alleges that she was subjected to harassment and retaliatory treatment by her co-workers and Defendant, which Defendant vigorously disputes. Specifically, Plaintiff alleges that while working, she was subjected to "dirty looks" from her co-workers, that they repeatedly yelled at her, and occasionally would "bump" her as she switched registers. See Morse Dep. at 148-69. In May 2002, Plaintiff contacted Steve Neal (Neal), Giant's Vice President of Regional Food Store Operations, to request a transfer to another store, although she admits she did not inform Neal of the reasons she desired a transfer. See Morse Dep. at 113-15. On or about that same day, she contacted Mike Conley (Conley), the new district manager in charge of Plaintiff's district, to inform him that she desired a transfer. Id. at 115-19. Again, Plaintiff admits she did not inform Conley of her reasons for seeking a transfer. Id. On May 28, 2002, Plaintiff sent identical letters to Neal and Conley in which she stated she "had a[n] unpleasant experience with loss prevention/security," that she had been "disrespected by management and security/loss prevention since March 26, 2002," and that she had applied for several positions located at Giant's Landover, Maryland Headquarters with the hope that she would be "transferred to an environment which is more peaceful and respectful." Paper 56, Morse Dep. Ex. 8 ("May 28 letter"); Morse Dep. at 123. Plaintiff, however, did not raise any concerns in the May 28, 2002 letter regarding discrimination or harassment, and provided no details about how she was being "disrespected." Id.
On June 19, 2002, Plaintiff sent another letter to Neal and Conley which reiterated her interest in working in the Landover Headquarters. See Paper 56, Morse Dep. Ex 9 ("June 19 letter"). Again, Plaintiff did not raise any specific issues regarding harassment or discrimination, but vaguely asserted that she felt her "performance and health" were being "attacked." Id. Plaintiff also indicated that if a position in the Landover Headquarters was not available, she would like to be transferred to another Giant store. Id. On or about July 7, 2002, pursuant to Plaintiff's request, she was transferred to store 215. Morse Dep. at 28, 243-44. Plaintiff does not contend that Giant failed to transfer her in a timely manner or that it discriminated against her in connection with her transfer. Morse Dep. at 243-44.
Plaintiff alleges, and Giant disputes, that she continued to be harassed after her transfer to store 215. Specifically, Plaintiff claims that while at store 215, several of the "white coworkers" harassed her by giving her "dirty looks," "yell[ing] out things," and "slamming their [cashier] drawers." Morse Dep. at 213-15. On September 26, 2002, Plaintiff had a brief meeting with Fran Agurs (Agurs), the manager of store 215, during which Plaintiff told Agurs that she felt she was "treated unfairly at store 216." Morse Dep. at 239-41. She also told Agurs that the "same thing was happening [at store 215]," but admits she did not describe to Agurs what "things" she alleged were happening, nor did she give Agurs an opportunity to respond. Id. at 241-42. After this meeting, Plaintiff immediately left and did not return to work at Giant. On October 5, 2002, she submitted her formal resignation. Id. at 286-89; Morse Dep. Ex. 10 ("October 5 letter").
B. Procedural Background
On October 8, 2002, Plaintiff filed a formal discrimination claim against Defendant with the Maryland Commission on Human Relations (CHR). Plaintiff was issued a right to sue letter on October 15, 2002 and has exhausted all of her administrative remedies.
Plaintiff filed the present action on January 10, 2003, alleging race discrimination in violation of Maryland's Fair Employment Practices Act (count I), retaliation in violation of Maryland's Anti-Discrimination Laws (count II), race discrimination in violation of Title VII of the Civil Rights Act of 1964 (count III), and retaliation in violation of Title VII (count IV).
On February 10, 2003, Defendant moved to dismiss Plaintiff's claims pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. On April 15, 2003, this court granted in part Defendant's motion and dismissed Plaintiff's claims in counts I and II. See Papers 9, 10 (Memorandum Opinion and Order). However, the court denied Defendant's motion with respect to the federal race discrimination (count III) and retaliation (count IV) claims. After several extensions of the discovery and dispositive motions deadlines, Defendant filed a motion for summary judgment on the remaining Title VII claims.
II. Standards of Review
A. Summary Judgment
It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, if there clearly exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment is inappropriate. Anderson, 477 U.S. at 250; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir. 1987). The moving party bears the burden of showing that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Catawba Indian Tribe of South Carolina v. State of S.C., 978 F.2d 1334, 1339 (4th Cir. 1992), cert. denied, 507 U.S. 972 (1993).
When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. See U.S. v. Diebold, 369 U.S. 654, 655 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir. 1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. "[A] complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 323. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence in order to show the existence of a genuine issue for trial. See Anderson, 477 U.S. at 256; Celotex Corp., 477 U.S. at 324. However, "[a] mere scintilla of evidence in support of the nonmovant's position will not defeat a motion for summary judgment." Detrick v. Panalpina, Inc., 108 F.3d 529, 536 (4th Cir.), cert. denied sub nom., Gold v. Panalpina, Inc., 522 U.S. 810 (1997). There must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
B. Title VII
There are two methods for proving intentional discrimination in employment: (1) through direct or indirect evidence of intentional discrimination, or (2) through circumstantial evidence under the three-step, burden-shifting scheme set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). For the first method, an employee may utilize "ordinary principles of proof using any direct or indirect evidence relevant to and sufficiently probative of the issue." Brinkley v. Harbour Recreation Club, 180 F.3d 598, 606-07 (4th Cir. 1999) (quoting Tuck v. Henkel Corp., 973 F.2d 371, 374 (4th Cir. 1992)). In order to overcome a summary judgment motion based upon this method of proof, the plaintiff "`must produce direct evidence of a stated purpose to discriminate and/or [indirect] evidence of sufficient probative force to reflect a genuine issue of material fact.'" Brinkley, 180 F.3d at 607 (quoting Goldberg v. B. Green Co., Inc., 836 F.2d 845, 848 (4th Cir. 1988)). More specifically, the plaintiff must provide "`evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.'" Brinkley, 180 F.3d at 607 (quoting Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995)). If such evidence is lacking, the plaintiff nevertheless may proceed under McDonnell Douglas. See Tuck, 973 F.2d at 374.
Under the McDonnell Douglas framework, the plaintiff first must establish a prima facie case of discrimination. See McDonnell Douglas Corp., 411 U.S. at 802. Once a plaintiff establishes a prima facie case of discrimination, the burden of production shifts to the defendant to present a legitimate, nondiscriminatory reason for the adverse employment action alleged. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000) (citing Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). If the defendant succeeds in doing so, that will rebut the presumption of discrimination raised by the plaintiff's prima facie case. See Stokes v. Westinghouse Savannah River Co., 206 F.3d 420, 429 (4th Cir. 2000) (citing Burdine, 450 U.S. at 255 n. 10). The plaintiff then must "prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Burdine, 450 U.S. at 253. In the end, "[t]he plaintiff always bears the ultimate burden of proving that the employer intentionally discriminated against her." Evans v. Tech. Applications Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996) (citing Burdine, 450 U.S. at 253).
III. AnalysisA. Discrimination
Plaintiff contends that she was subjected to a harsher penalty, i.e., a three-day suspension, for the March 26, 2002 incident because of her race. See Paper 61 at 6. Because Plaintiff has put forth no direct or indirect evidence of intentional discrimination surrounding her suspension, she must proceed under the McDonnell Douglas burden-shifting framework.
Plaintiff originally alleged that other employees who were white were also shopping on March 26, 2002 but that she was the only employee stopped by the security guard, implying that the security guard's actions were racially motivated. See Paper 1, ¶ 7. However, Plaintiff has seemingly abandoned that line of argument and for good reason. Plaintiff admitted in her sworn deposition that she did not notice any other employees shopping on March 26, 2002, and that she personally did not "check out" any employees on that day. See Morse Dep. at 82. She has produced no evidence to substantiate the allegation in her complaint that white employees were shopping that day but were not stopped by the security guard. Moreover, she has produced no evidence to suggest that any security guard, much less this particular one, ever treated African-American employees who were shopping differently from non-African-Americans. In light of this fact, Plaintiff could not, even if she did continue to advance it, establish that the security guard's actions were racially motivated.
To establish a prima facie case of racial discrimination in the enforcement of employee disciplinary measures, Plaintiff must show: (1) that she is a member of a class protected by Title VII; (2) that the prohibited conduct in which she engaged was comparable in seriousness to misconduct of employees outside the protected class; and (3) that the disciplinary measures enforced against her were more severe than those enforced against those other employees. See Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993). Failure to demonstrate one of the required elements is fatal to a plaintiff's ability to establish a prima facie case. As stated above, if Plaintiff succeeds in proving a prima facie case, the burden of going forward shifts to Giant, who must articulate a non-discriminatory reason for the difference in disciplinary enforcement. Should Giant articulate such a non-discriminatory reason, the burden shifts back to Plaintiff to demonstrate that Giant's reasons are not true but instead serve as a pretext for discrimination. Plaintiff, however, always bears the ultimate burden of proving that Giant intentionally discriminated against her. Id. (citing Burdine, 450 U.S. at 252-53). For the following reasons, Plaintiff has failed to establish a prima facie case of discriminatory discipline against Giant.
Plaintiff, an African-American, has offered no evidence whatsoever to establish that similarly situated employees not in her protected class were not similarly disciplined for violating the policy. See Erskine v. Bd. of Educ., 197 F.Supp.2d 399, 406 (D.Md. 2002) ("In order to make out a prima facie case under Cook, [the plaintiff] must establish that he was disciplined for certain conduct while similarly situated employees who are not in his protected class were not similarly disciplined for like conduct."). In fact, Plaintiff has set forth no evidence that anyone, whether in her protected class or not, was not similarly disciplined for violating Giant's policy. Indeed, Giant has produced undisputed evidence that Plaintiff was treated more favorably than other employees who engaged in similar violations. Attached to its motion are copies of several Loss Prevention Incident Reports, attested to by the manager of Giant's Fair Employment Office ("FEO"), of employees who were initially suspended, and ultimately terminated, for violating Giant's employee shopping policy. See Paper 55, Ex. 2 ("Garrett Decl."); Exs. 2(B)-(G). In light of the fact that Plaintiff has produced no evidence that the disciplinary measures against her were more severe than those enforced against similarly situated employees not in her protected class, and the undisputed evidence produced by Giant that the disciplinary action against her was less severe, Plaintiff has failed to establish a prima facie case of discriminatory discipline. Accordingly, Giant is entitled to summary judgment on Plaintiff's discriminatory discipline claim. See Martin v. Montgomery County Public Schools, 223 F.Supp.2d 742, 744 (D.Md. 2002) (granting summary judgment where "plaintiff . . . presented no objective evidence that a similarly situated white person, i.e., one having substantial performance difficulties, was treated any differently than he"); Washington v. Summers, 193 F.Supp.2d 853, 858 (D.Md. 2002) (granting summary judgment where the plaintiff offered "no evidence to show that [the d]efendant treated her differently than other similarly situated workers").
Even assuming Plaintiff could establish a prima facie case, Giant has articulated a legitimate, non-discriminatory reason for her three-day suspension which Plaintiff has not demonstrated was a pretext for racial discrimination. The undisputed evidence demonstrates that Giant had a policy requiring employees to verify their purchases prior to exiting the store, that Plaintiff was aware of this policy, and that she failed to comply with it. See Reed Decl. ¶ 3; Morse Dep. 44, 47-48, 72-75, 80-81. Giant asserts that Plaintiff was suspended for violating this policy, and Plaintiff has offered nothing to demonstrate that Giant's stated reason is a pretext. See Reed Decl. ¶ 5; Paper 56, Ex. 3(C) (Morse's Disciplinary Notice); Altvater Decl. ¶ 5. Accordingly, even if Plaintiff had established a prima facie case for discriminatory discipline, Giant is still entitled to summary judgment. B. Retaliation
Plaintiff's assertion that she did not stop for the security guard as she exited the store in part because she did not know that the person who spoke to was a security guard is irrelevant to the issue of whether her suspension, or length thereof, was racially motivated. Nor, even if true, does it demonstrate that the reason Giant articulates, i.e., because she violated its employee shopping policy, is a pretext for discrimination. Although Plaintiff may have had a good excuse for not stopping, "it is not [the court's] province to decide whether the [stated] reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for [Plaintiff's suspension]." Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (quoting DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998)). Plaintiff offers nothing to suggest that Giant's stated reason was not the real reason for her suspension.
Plaintiff asserts that she was retaliated against for reporting to supervisors discriminatory treatment surrounding the March 26, 2002 incident. She contends that the retaliation took the form of harassment by co-workers that became so severe she was forced to quit. Thus, her retaliation claim implicates two distinct types of Title VII violations: hostile workplace and constructive discharge.
In order to establish a prima facie case of retaliation under Title VII, Plaintiff must show: (1) the she engaged in a protected activity; (2) that Giant took an adverse employment action against her; and (3) that a causal connection existed between the protected activity and the adverse action." Munday v. Waste Mgmt. Of North Am., Inc., 126 F.3d 239, 242 (4th Cir. 1997). Plaintiff identifies the severe harassment/hostile workplace and the constructive discharge as the adverse employment actions taken against her. For the following reasons, Plaintiff fails to establish even a prima facie case of retaliation.
Giant first argues that Plaintiff cannot establish that she engaged in a protected activity. "Protected activities fall into two distinct categories: participation or opposition. An employer may not retaliate against an employee for participating in an ongoing investigation or proceeding under Title VII, nor may the employer take adverse employment action against an employee for opposing discriminatory practices in the workplace." Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998) (citing 42 U.S.C. § 2000e-3(a)). Plaintiff does not contend that she was retaliated against for participating in an ongoing investigation, but rather for her "repeated complaints about harassment by co-workers" to her supervisors, primarily the "circumstances surrounding her suspension." See Paper 61 at 2, 9. Under Title VII's opposition category, protected activity includes "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. In other words, one "need not engage in the formal process of adjudicating a discrimination claim" in order to be engaged in a protected activity under Title VII. Id. Based on the undisputed evidence, it is clear that Plaintiff's "complaints" do not constitute protected activity.
Plaintiff testified in her deposition that the only people she complained to about her treatment surrounding the March 26, 2002 incident were her attorney and her union representative. See Morse Dep. at 139. She admits she did not complain to anyone affiliated with Giant about this incident, even though Plaintiff was aware Giant had an established policy against discrimination and harassment in the workplace and that employees were encouraged to report such conduct. See id. at 32, 139; Garrett Decl. ¶¶ 2-4. Furthermore, Plaintiff testified in her deposition that she never complained to anyone at Giant about the alleged co-worker harassment before her brief meeting with Agurs on September 26, 2002. See Morse Dep. at 139-40, 152, 163, 169, 177, 190. Moreover, Plaintiff admits she did not inform Agurs of any specific harassment or discrimination, but merely told her she was being "treated unfairly." See id. at 240-41. Rather, Plaintiff maintains that the letters she sent to Conley and Neal on March 28, May 28, and June 19, 2002, were complaints regarding Giant's discriminatory practices. However, as discussed above, see supra at 3-4, those letters are utterly devoid of any assertion that she was the victim of harassment or discrimination. See Morse Dep. Exs. 6, 8, and 9. Plaintiff's own concessions, coupled with these letters, confirm the declaration given by Theodore Garrett, Manager of Giant's Fair Employment Office, that prior to Plaintiff's October 5, 2002 resignation letter, she had not notified Giant that she believed she was subjected to discrimination or harassment. See Garrett Decl. ¶ 8. These letters fail to raise any allegations of discrimination, harassment, or any other prohibited conduct under Title VII and cannot be read to be "voicing [Plaintiff's] opinions in order to bring attention to [Giant's] discriminatory activities." Laughlin, 149 F.3d at 259; see also Revis v. Dyncorp Tech. Servs. Inc., 292 F.Supp.2d 733, 737 (D.Md. 2003) (holding the plaintiff did not engage in protected activity because he never told anyone at his company that he believed he was being discriminated against and his letter to a manager only expressed his belief that he was "treated unfairly"). For this reason, Plaintiff has failed to establish that she engaged in a protected activity.
Plaintiff's resignation letter states:
To Whom it may concern, Effective October 5, 2002[,] I Laverne Morse [am] resigning from Giant Food Inc. due to discrimination and being hasrassed [sic] while at store #216 and #215. Sincerely, Laverne Morse
Although this letter clearly makes allegations of discrimination and harassment, and, thus, its submission is a protected activity, it cannot serve as the basis of Plaintiff's retaliation claim because it was sent after September 26, 2002, Plaintiff's last day working at Giant and the last day she had any communication with any employee of Giant. See Morse Dep. at 289. Naturally, the harassment and discrimination alleged in this letter could not have been in retaliation for the complaints contained within the letter.
Moreover, even if Plaintiff could demonstrate that she engaged in a protected activity, Giant argues that she is unable to establish the second element of a prima facie case of retaliation, i.e., that she suffered an adverse employment action. Plaintiff, however, contends that the retaliatory coworker harassment was so severe that it constitutes an adverse employment action. In addition, she argues that the harassment became so severe that she was forced to resign. Construing the facts alleged in the light most favorable to Plaintiff, it is clear that Plaintiff did not suffer an adverse employment action, either in the form of retaliatory harassment, or a constructive discharge.
"Retaliatory harassment can constitute adverse employment action, . . . if the alleged conduct was so severe or pervasive that it altered the term[s], conditions, or benefits of employment." Jeffers v. Thompson, 264 F.Supp.2d 314, 330 (D.Md. 2003) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). Furthermore, Plaintiff must show that the workplace was both subjectively and objectively hostile. Jeffers, 264 F.Supp.2d at 330 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Thus, assuming that Plaintiff honestly and subjectively believed her workplace was hostile and abusive, she must also demonstrate that it was objectively hostile.
"To determine whether the workplace was objectively hostile, a court must look at all the circumstances, including: the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or merely offensive; and the degree to which it unreasonably interfered with the employee's work performance." Jeffers, 264 F.Supp.2d at 330-31 (citing Harris, 510 U.S. at 23). "The standard for proving a hostile work environment is intended to be very high." Id. at 331.
Here, Plaintiff has identified several specific incidents which she considers to be harassment. These include an occasion where a white co-worker named "Barbara" yelled out "there she go" to other white co-workers, two occasions where a co-worker named "Sue" bumped into Plaintiff as they were changing registers, and one occasion where a co-worker named "Pat" bumped her as they changed registers. See Morse Dep. at 156-69. Plaintiff also alleges that other unidentified white co-workers gave her "dirty looks," that they often "yelled out things," although she doesn't specify what, and that they "walked by [her]" and would stop in front of her register and stare at her. See id. at 143-44, 148-54. Even construing these vague and utterly unsupported allegations in the light most favorable to Plaintiff, these incidents simply do not rise to the "very high" level required for establishing, as a matter of law, a hostile work environment that was so severe and pervasive that it altered the terms, conditions, or benefits or her employment.
Plaintiff does recount a disturbing incident where a Giant employee allegedly "beat a box cutter on the conveyor belt" behind her as she was standing in line. See Morse Dep. at 170. As she testified, she was shopping on a day off at another Giant store, one in which she did not, and had not, worked, when an unidentified employee got in line behind her and "banged [the box cutter] on the belt." See id. at 173. Plaintiff admits that the employee did not speak to her, that she had never seen him before, nor since, that day, and that she has no evidence to suggest that he knew any employees of store 216, or any other way he could have known of the March 26, 2002 incident. Id. at 170-75. In sum, nothing suggests that this incident, to which Plaintiff has produced no witnesses, is connected in any way to her retaliatory harassment claim.
Furthermore, Plaintiff has provided no evidence suggesting that, even if the alleged harassment was sufficiently severe to constitute an adverse employment action, the co-workers' harassment should be imputed to Giant so that it would be liable under Title VII. See Ocheltree v. Scollon Productions, Inc., 335 F.3d 325, 334 (4th Cir. 2003) (holding an employer may be liable under Title VII for co-worker harassment "if it knew or should have known about the harassment and failed to take effective action to stop it"); Mikels v. City of Durham, NC, 183 F.3d 323, 332 (4th Cir. 1999). As mentioned above, Plaintiff admits never complaining to any management-level employee, or, indeed, to any employee at Giant, about the alleged harassment before she sent her resignation letter on October 5, 2002. See Morse Dep. at 152, 163, 169, 177, 190. Even in the short meeting she had with Agurs on September 26, 2002, her last day at Giant, Plaintiff admits she did not inform Agurs of any harassment or discrimination, but merely told her she was being "treated unfairly." See id. at 240-41. In sum, Plaintiff has offered no evidence that Giant supervisors knew about the harassment, or, construing the factual allegations in favor of Plaintiff, that the harassment was so severe and pervasive that a supervisor or manager should have known about the harassment. See Ocheltree, 335 F.3d at 334-35. Accordingly, Plaintiff has failed to establish a prima facie case for co-worker retaliatory harassment.
As discussed supra, the letters Plaintiff sent to Conley and Neal never made any reference to harassment, retaliation, or discrimination. See supra at 3-4, 15-16.
Just as fatal to Plaintiff's prima facie case, however, is her inability to establish any connection between her "complaints" regarding the March 26, 2002 incident and the alleged retaliatory harassment. See Munday, 126 F.3d at 242 (stating a prima facie case of retaliation requires a plaintiff to show that "a causal connection existed between the protected activity and the adverse action"). Plaintiff concedes that none of the "harassing" co-workers ever indicated that their conduct was done in retaliation for the circumstances surrounding the March 26, 2002 incident, that no evidence exists to suggest that these co-workers even knew about the incident, and that none were aware of the existence or contents of the letters Plaintiff sent to her supervisors. See Morse Dep. at 178-80. Thus, she has produced no evidence demonstrating a causal connection between what she believes was "protected activity" and the alleged harassment. Plaintiff, however, does make the unsupported allegation that the co-worker harassment was in response to the suspension of Reed, the manager of store 216, after the March 26, 2002 incident. See Paper 61 at 2. Plaintiff admits, however, that she does not know for a fact if Reed was suspended, but that she "believes" she was suspended. Id. Plaintiff also vaguely asserts that some of her co-workers were suspended for harassing her. Id. at 128. However, the record clearly demonstrates that neither Reed, nor any employee of Giant, were suspended for alleged mistreatment of Plaintiff. See Garrett Decl. ¶ 8; Reed Decl. ¶ 7. Plaintiff offers nothing to substantiate her allegations or to contradict Giant's supporting affidavits.
Finally, Plaintiff contends that the harassment was so severe that her October 2002 resignation was a "constructive discharge." Because the court has already found that Plaintiff's working conditions, even when viewed in the light most favorable to Plaintiff, were not so severe as to constitute a hostile work environment, her constructive discharge claim must necessarily fail as well. As the Supreme Court has recently stated:
For an atmosphere of . . . harassment or hostility to be actionable, we reiterate, the offending behavior "must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." A hostileenvironment constructive discharge claim entails something more: A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign.Pennsylvania State Police v. Suders, 124 S.Ct. 2342, 2354 (2004) (internal citations omitted) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). Nothing about the "bumps," "stares," and isolated incidents of co-worker yelling made Plaintiff's working conditions "so intolerable that a reasonable person would have felt compelled to resign." Moreover, Plaintiff does not contend, nor could she based on the record, that her resignation was a "reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation. . . ." Suders, 124 S.Ct. at 2347; see also Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 272 (4th Cir. 2001) ("To establish constructive discharge, [plaintiff] must show that [the defendant] deliberately made her working conditions `intolerable in an effort to induce [her] to quit.'") (quoting Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1354 (4th Cir. 1995)). As mentioned above, there is no evidence indicating that the co-workers' actions can be imputed to Giant, nor any evidence that Giant in any way sanctioned the conduct or deliberately made her working conditions intolerable in an effort to force her to quit. Indeed, the uncontroverted evidence demonstrates otherwise. Thus, Plaintiff has failed to establish a prima facie case of retaliation, and, accordingly, Defendant's motion for summary judgment on this claim will be granted.
IV. Conclusion
For the reasons stated above, Defendant's motion for summary judgment will be granted. A separate Order will follow.