UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-2160
MARY ANN SINGLETON,
Plaintiff - Appellant,
versus
DEPARTMENT OF CORRECTIONAL EDUCATION;
COMMONWEALTH OF VIRGINIA,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District Judge.
(CA-03-4-1)
Argued: June 3, 2004 Decided: November 17, 2004
Before WILKINS, Chief Judge, WILLIAMS, Circuit Judge, and David R.
HANSEN, Senior Circuit Judge of the United States Court of Appeals
for the Eighth Circuit, sitting by designation.
Affirmed by unpublished opinion. Senior Judge Hansen wrote the
opinion, in which Chief Judge Wilkins and Judge Williams joined.
ARGUED: Daniel Robert Bieger, COPELAND & BIEGER, P.C., Abingdon,
Virginia, for Appellant. Sydney E. Rab, Senior Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellees. ON BRIEF: Hilary K. Johnson, Abingdon,
Virginia, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
HANSEN, Senior Circuit Judge:
Mary Ann Singleton brought this action against her employer,
the Virginia Department of Correctional Education (“DCE”), alleging
sexual harassment and retaliation in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (2000). Mrs.
Singleton now appeals the district court's grant of the defendant’s
motion for summary judgment. For the reasons set forth below, we
affirm.
I.
We state the facts in the light most favorable to Mrs.
Singleton. Anderson v. G.D.C., Inc., 281 F.3d 452, 455 (4th Cir.
2002). In July 2000, Mrs. Singleton began employment as the
librarian at the DCE library facility, located at the Keen Mountain
Correctional Center, a maximum security prison located in Tazewell
County, Virginia, and operated by the Virginia Department of
Corrections (“DOC”). As librarian, Mrs. Singleton was employed by
the DCE, which is a department organizationally separate from the
DOC. Both the DOC and the DCE are within Virginia's Executive
Branch and are responsible to the Secretary of Public Safety. Her
responsibilities included the maintenance, purchase, and processing
of library materials, and training inmate workers. She had a
personal office located within the DCE library, which was within
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the prison. She was not responsible for the prison's law library.
(J.A. at 40-41, 169.)
Mrs. Singleton alleges that almost immediately after she began
employment, Elmer E. "Gene" Shinault (“Shinault”), assistant warden
for operations and an employee of the DOC, began sexually harassing
her. Because assistant warden Shinault worked for the DOC, not the
DCE, he was not Mrs. Singleton’s supervisor, and Mrs. Singleton
felt that most of her interactions with Shinault were unnecessary.
The offending conduct complained about occurred approximately four
times a week from July 2000 until about October 2001. Mrs.
Singleton complained that Shinault: engaged in a conversation with
Mrs. Singleton’s DCE supervisor in which Shinault stated that Mrs.
Singleton should be “spanked” every day;1 insistently complimented
Mrs. Singleton; stared at her breasts when he spoke to her; on one
occasion, he measured the length of her skirt to judge its
compliance with the prison's dress code and told her that it looked
“real good”; constantly told her how attractive he found her; made
references to his physical fitness, considering his advanced age;
asked Mrs. Singleton if he made her nervous (she answered “yes”);
and repeatedly remarked to Mrs. Singleton that if he had a wife as
attractive as Mrs. Singleton, he would not permit her to work in a
1
Gene Shinault allegedly said to DCE Principal George Erps, in
Mrs. Singleton's presence, "Look at her. I bet you have to spank
her every day." Erps then laughed and said, "No. I probably
should, but I don't." Shinault replied, "Well, I know I would."
(J.A. at 29.)
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prison facility around so many inmates.
At some point, Shinault was permitted to act as Mrs.
Singleton’s supervisor, even though he worked for the DOC, not the
DCE.2 Shinault improperly requested access to Mrs. Singleton’s
leave records. He also had a security camera installed in her
office in a way that permitted him to observe her as she worked,
supposedly for safety reasons, but which did not permit him to
observe the prison library or any interactions with inmates that
she might have had while she was not sitting at her desk. (J.A. at
30.) The record suggests this was the only security camera
installed in the DCE library. (J.A. at 153.)
Soon after it began happening, Mrs. Singleton reported the
harassment to her immediate DCE supervisor, George Erps, whose
office was also located at the prison. Mrs. Singleton wanted it to
be made clear to Shinault that if Shinault had any problems with
Mrs. Singleton, Shinault should go to Erps. Erps did nothing to
stop the harassment. On one occasion, he responded, “Boys will be
boys.” With respect to the spanking conversation, he seemed to
participate in the offensive conduct. Several other DCE employees3
2
On January 11, 2001, the prison warden circulated a memo
that stated that DCE was thereafter under the direct supervision of
Shinault,(J.A. at 156-B), even though Shinault was a DOC employee,
and the DOC, in reality, could not “supervise” a DCE employee.
3
The other employees were Constance Sparks, Erps’s secretary;
Jimmy Yates, a custodial maintenance teacher; Tina Spradling, an
Academic Instructor; and Mike Spradling, assistant warden of
4
witnessed either Shinault's offensive behavior or Mrs. Singleton’s
complaints to Erps. Mrs. Singleton did not make a formal
allegation of sexual harassment, and she did not report the conduct
to anyone else. She was under the mistaken impression that she was
not permitted to make a formal complaint because she was a
probationary employee for the first year of employment.
On October 15, 2001, Mrs. Singleton sent a memorandum to Erps
and carbon-copied the memo to Wallace Sterling, DCE deputy
superintendent in Richmond. (J.A. at 27.) In the memo, she reminded
Erps of the problems she was having with Shinault. When she met
with Erps after sending the memo, Erps seemed upset that she had
also sent the memo to Sterling. At a meeting with Mrs. Singleton
and other DCE teachers later that day, Erps told the employees
that, in the future, they should not contact the DCE in Richmond
without advising him first.
In November 2001, Seward McGhee, of the Office of the Director
of Internal Affairs and Audit for the DCE, began an investigation.
His report concluded that Shinault had harassed Mrs. Singleton,
that Erps was aware of the harassment, that Erps had placed DCE in
jeopardy by not taking any action to remedy it, and that Erps had
interfered with the investigation by telling employees not to talk
with officials investigating the allegations. (J.A. at 61-80.) The
programs.
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report also concluded that the harassment was common knowledge
among employees.4
In January 2003, Mrs. Singleton filed suit in the United
States District Court for the Western District of Virginia.5 In
her complaint, she alleged hostile environment sexual harassment
and retaliation. On August 21, 2003, the district court granted the
DCE’s motion for summary judgment on both claims. Mrs. Singleton
now appeals the district court’s adverse grant of summary judgment
on the sexual harassment claim.
II.
We review a district court’s grant of summary judgment de
novo, and we view the facts in the light most favorable to the non-
moving party, Mrs. Singleton. Bass v. E.I. Dupont de Nemours &
Co., 324 F.3d 761, 766 (4th Cir), cert. denied, 124 S. Ct. 301
(2003).
“Title VII of the Civil Rights Act of 1964 makes it unlawful
4
Erps was ultimately issued a written reprimand and moved to
another facility. The Office of the Inspector General for the DOC
found that most of the allegations against Shinault could not be
verified, with the exception of the “spanking” incident. Shinault
“[was] counseled and advised to refrain from making comments that
are inappropriate in the workplace” and asked to behave in a
businesslike and professional manner. (J.A. at 132.)
5
Mrs. Singleton filed administratively with the Equal
Employment Opportunity Commission (“EEOC”) on April 30, 2002, and
received her right to sue letter on October 21, 2002.
6
for an employer to discriminate against any individual with respect
to [her] compensation, terms, conditions, or privileges of
employment, because of such individual's ... sex.” Ocheltree v.
Scollon Prod., Inc., 335 F.3d 325, 331 (4th Cir. 2003)(en
banc)(internal marks and citation omitted)(alterations in
original), cert. denied, 124 S. Ct. 1406, 1411 (2004). An employer
violates Title VII "[w]hen the workplace is permeated with
discriminatory [sex-based] intimidation, ridicule, and insult that
is sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment."
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations
and internal quotation marks omitted).
In order to establish that she has an actionable claim for
sexual harassment in the workplace under Title VII, Mrs. Singleton
was required to demonstrate that the offensive conduct “(1) was
unwelcome, (2) was based on her sex, (3) was sufficiently severe or
pervasive to alter the conditions of her employment and create an
abusive work environment, and (4) was imputable to her employer.”
Ocheltree, 335 F.3d at 331; see also Anderson, 281 F.3d at 458. We
conclude that the district court correctly granted summary judgment
because Mrs. Singleton did not show that the offending conduct “was
sufficiently severe or pervasive to alter the conditions of her
employment.” Ocheltree, 335 F.3d at 331.
Under Title VII, the standard for establishing that the
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offending behavior constituted sexual harassment is rather high.
“Conduct that is not severe or pervasive enough to create an
objectively hostile or abusive work environment – an environment
that a reasonable person would find hostile or abusive – is beyond
Title VII’s purview.” Harris, 510 U.S. at 21. We determine whether
a work environment is sufficiently hostile “by looking at all the
circumstances, including the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee's work performance.”
Faragher v. Boca Raton, 524 U.S. 775, 787-88 (1998)(internal marks
omitted)(quoting Harris, 510 U.S. at 23). It is established that
“simple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the
terms and conditions of employment.” Id. at 788(internal marks and
citation omitted). Title VII is not intended to serve as a
workplace civility code. Id; see also Anderson, 281 F.3d at 459
(noting that Title VII “is not designed to purge the workplace of
vulgarity”)(internal quotation omitted); E.E.O.C. v. R&R Ventures,
244 F.3d 334, 339 (4th Cir. 2001)(“Boorish behavior may exist apart
from any propensity to discriminate.”)
After careful review, we conclude that Mrs. Singleton’s
allegations that Shinault made offensive comments, showed her
unwanted attention that made her uncomfortable, and continuously
8
expressed a sexual interest in her do not meet the high standard set
forth under Title VII. The conduct that she complains of, though
boorish and offensive, is more comparable to the kind of rude
behavior, teasing, and offhand comments that we have held are not
sufficiently severe and pervasive to constitute actionable sexual
harassment. See, e.g.,Hartsell v. Duplex Prod., Inc., 123 F.3d 766,
773 (4th Cir.1997)(holding that comments about a woman’s looks and
comments demeaning to women were not sufficiently severe and
pervasive). Mrs. Singleton does not allege that Shinault ever
requested a sexual act, touched her inappropriately, discussed
sexual subjects, showed her obscene materials, told her vulgar
jokes, or threatened her. Nor does Mrs. Singleton allege that his
behavior interfered with her ability to perform her job. Her
showing is insufficient to meet the “severe and pervasive” standard.
See Bass, 324 F.3d at 765 (holding that alleged conduct was not
sufficiently severe and pervasive where the facts suggested a
workplace dispute and “callous behavior” by supervisors); Hartsell,
123 F.3d at 773 (holding that conduct was not severe and pervasive
where there was no inappropriate touching, defendant never
propositioned plaintiff, and “[n]one of the alleged comments were
even vulgar, much less obscene”); see also Baskerville v. Culligan
Int'l Co., 50 F.3d 428, 431 (7th Cir. 1995)(holding that alleged
conduct was not sufficiently severe and pervasive where the
defendant never touched plaintiff, never invited plaintiff out on
9
a date, never asked to her have sex with the defendant, never
exposed himself, and never showed the plaintiff obscene materials).
While a work environment filled with ridicule, intimidation, and
remarks that maliciously demean the status of women can be hostile
and abusive, even where a woman is not explicitly subject to sexual
advances or propositions, Smith v. First Union Nat’l Bank, 202 F.3d
234, 242 (4th Cir. 2000), the circumstances here, viewed in a light
most favorable to Mrs. Singleton, do not reach this level of
hostility.
III.
Because we conclude that the conduct did not constitute sexual
harassment, summary judgment was appropriate. It is unnecessary to
reach the additional issues raised by the appellees, as those issues
would arise only after a plaintiff has shown that the offensive
behavior was sufficiently severe and pervasive to constitute sexual
harassment. See Lissau v. S. Food Serv., Inc., 159 F.3d 177, 182-83
(4th Cir. 1998)(indicating that it is appropriate to grant summary
judgment to employer without addressing affirmative defenses under
Faragher if district court finds that the conduct was not severe and
pervasive). Mrs. Singleton did not meet this threshold requirement.
AFFIRMED
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