Mason v. Wyeth, Inc.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-1145

RONALD L. MASON,

Plaintiff - Appellant,

versus

WYETH, INCORPORATED, d/b/a Wyeth Consumer
Healthcare,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CA-04-410-3)

Argued: January 31, 2006 Decided: May 31, 2006

Before WILKINS, Chief Judge, and MICHAEL and TRAXLER, Circuit
Judges.

Affirmed by unpublished opinion. Judge Traxler wrote the majority
opinion, in which Chief Judge Wilkins joined. Judge Michael wrote
an opinion dissenting in part and concurring in part.

ARGUED: Harris Dewey Butler, III, BUTLER, WILLIAMS & SKILLING,
P.C., Richmond, Virginia, for Appellant. Daryl Eugene Webb, Jr.,
TROUTMAN & SANDERS, L.L.P., Richmond, Virginia, for Appellee. ON
BRIEF: Laura G. Fox, Warrenton, Virginia; Tim Schulte, BUTLER,
WILLIAMS & SKILLING, P.C., Richmond, Virginia, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

2
TRAXLER, Circuit Judge:

Ronald L. Mason appeals the district court’s order granting

summary judgment to his employer, Wyeth, Inc., on his claims of

discrimination and retaliation under the Americans with

Disabilities Act (“ADA”), 42 U.S.C.A. § 12101 et. seq. (West 2005)

(“ADA”), and for intentional infliction of emotional distress under

Virginia law. We affirm.

I.

Mason has been hearing impaired since early childhood, with

a total hearing loss of approximately 80 percent. With hearing

aids, his ability to hear is improved between 80 and 90 percent,

and he can participate in normal conversations. However, in areas

where there is substantial background noise, Mason does not wear

his hearing aids because the noise causes him to experience

dizziness and headaches.

In November 1989, Mason was hired by Wyeth’s predecessor in

Richmond, Virginia, as an Offset Operator B in the Print Services

Department (the “Department”). Wayne Samford was manager of the

Department for the entire duration of Mason’s nearly fifteen years

of employment with Wyeth. In 1991, Mason received a promotion to

Offset Operator A and, by all accounts, was a successful employee

and highly skilled press operator who consistently received good

performance evaluations.

3
 Throughout Mason’s employment, the employees in the Department

got along very well on a personal level, and there was little

turnover. When Mason was hired, there were seven employees in the

Department – Mason, Samford, Nick Paravatti (supervisor), Otis

Martin, Bill Branch, Allen Blankenship, and Rogers Jones. In the

early to mid-1990s, Paravatti resigned, Martin was promoted to

supervisor, and Ray Slaughter was transferred into the Department

to operate the photocopiers. In January 2003, the employees in the

Department consisted of six of the seven original employees (Mason,

Samford, Martin, Branch, Blankenship, and Jones), plus Slaughter,

who had been there for several years by that time. According to

Mason, he considered these men to be his primary support network,

he felt well-liked by his coworkers, and he felt that they always

treated him as a person with normal hearing.

In approximately 1998 or 1999, the employees, and particularly

Samford, began playing pranks on one another. One such prank

involved Samford sneaking up behind the other employees to startle

them, either by pinching or poking them, making hissing or loud

noises, or blowing air on their hands with an air hose. Another

involved Samford placing a toy rat in places where the employees

would encounter it. It is undisputed that the pranks and tricks

were not limited to those played by Samford on Mason. On the

contrary, Samford played the same or similar pranks on nearly every

employee in the Department. Mason also admits participating in the

4
prank-playing environment. For example, Mason admitted that he

made everybody laugh by “mooning” traffic on Interstate 95 from the

Wyeth parking lot on one occasion. He admitted placing a dead bug

on top of a candy bar on Jones’s desk to startle him, and he

admitted startling Jones on another occasion by putting a rubber

snake in his breakfast bag. According to Mason, Samford witnessed

the latter incident, got the snake from Mason, and put it in

Jones’s sandwich box to startle him again. On yet another

occasion, Mason attempted to pry open the door of a bathroom stall

occupied by Jones. Mason testified that he was unsuccessful, but

Jones realized that it was “me . . . trying to tease him,” “caught

me laughing and got me [the] next day.” J.A. 63.

Mason also has a history of mental health problems that

preceded his employment with Wyeth. In the 1980s, Mason was

diagnosed with severe depression and was hospitalized for

depression and suicidal thoughts. He has been treated by a

psychiatrist for a Schizoaffective Disorder since 1997. In

December 2002, Mason told one of his coworkers that he was

considering suicide. When Samford learned about this statement, he

discussed the matter with Mason, and relayed his concern to Betty

Allen, Samford’s immediate supervisor. Mason was placed in contact

with Wyeth’s employee health department, and referred to the

Employee Assistance Plan (“EAP”). Pursuant to the EAP, Mason was

referred to a clinical psychologist, Nancy MacConnachie. At no

5
time during this process did Mason attribute his depression and

suicidal thoughts to his employment with Wyeth, or to the prank-

playing environment in the Department.

Dr. MacConnachie first saw Mason on January 13, 2003. By

letter dated January 22, 2003, Dr. MacConnachie advised Shirley

Hess (Wyeth’s senior manager in Human Resources) that Mason was

suffering from depression and post-traumatic stress disorder which

Dr. MacConnachie attributed to the pranks that had been played by

Samford on Mason. Dr. MacConnachie advised that “[b]ecause of his

hearing impairment, Mr. Mason’s startle response has a low

threshold and causes him great distress, breaking his concentration

on his work” and suggested that “Mason’s coworkers would benefit

from education regarding the impact of a hearing impairment on the

startle response.” J.A. 9-10. This was the first time that Mason

or anyone on his behalf requested that the prank-playing be stopped

because of the alleged effect it was having on his emotional

condition. It was also the first notice anyone at Wyeth received

of Mason’s current claim that he considered Samford’s prank-playing

(when directed at him) to be discriminatory conduct based upon his

hearing disability and that Samford’s prank-playing was the cause

of his escalating mental health problems.1

1
Mason testified that several years earlier, when the prank-
playing behavior was getting started, he told Samford to stop
because it was “getting on [his] nerves,” and told Martin that
Samford should stop the pranks. J.A. 50. However, he testified
that Samford “thought I was kidding” and “didn’t think what I was

6
 Upon receiving Dr. MacConnachie’s letter, Hess, Allen, and Ned

Netherwood (Senior Director of Administrative Operations in Wyeth’s

Consumer Healthcare Division in Richmond), met with Mason and

assured him that the prank-playing would stop. They then met with

Samford and Martin, separately, regarding the matter. Both men

readily admitted that the Department employees, including Mason,

joked and played pranks on one another frequently. However, they

stated that they were not aware of any negative or unusual impact

the prank-playing was having on Mason, and they denied that the

pranks were in any way directed at Mason because of his hearing

disability. Both men stated that they had no idea that Mason was

upset about the pranks, that Mason was, in fact, a participant in

the play, and that they never intended to upset him or otherwise

cause him harm. According to Allen, Samford appeared “very

surprised” that Mason was claiming that the activity had this

effect on him “since it was a situation where they all had

participated in that type of activity,” Mason “had not said

anything to them that it was bothering him,” and “he too,

participated in some of the activity.” J.A. 176. Allen testified

that she did not view the prank-playing “as singling Mr. Mason out

saying to him was serious.” J.A. 50. Mason apparently took no
further steps to stop the behavior or extricate himself from the
prank-playing environment, and makes no claim that he ever informed
management or his coworkers or supervisors that he believed the
pranks were directed at him because of his hearing disability or
that they were causing a deterioration of his mental health
condition until after he was referred to Dr. MacConnachie.

7
particularly at that point,” J.A. 178, but instructed Samford to

stop the activity in the Department.

It is undisputed that Samford played no further pranks on

Mason after that meeting. In September 2003, however, nearly seven

months later, Mason told Hess that he was having a nervous

breakdown. Although Samford had admittedly played no further

pranks on Mason, Mason claimed that Samford had continued to tease

other employees which upset him. He also claimed that Martin had

startled him on one occasion.2 Soon thereafter, Mason left

employment on short-term disability and checked into a hospital for

treatment. He never returned to active employment with Wyeth.

Prior to these events, Wyeth had begun the task of analyzing

cost-saving strategies, including ways to reduce expenses in its

Print Services Departments located throughout the company. Wyeth

hired an outside consultant firm, the McKinsey Group, to analyze

how costs could be reduced through outsourcing of various print

service functions. By early January 2003, Jim Pohlman, the

Executive Vice President located in Wyeth’s corporate headquarters

in Madison, New Jersey, informed Netherwood that offset printing

would likely be discontinued because it could be done cheaper

outside of the company. Netherwood immediately informed Samford

2
Although Mason testified that he felt like Martin made a
noise on purpose, he admitted that he did not see Martin do
anything to cause the noise and did not know if it was done
intentionally or not.

8
and Martin of the likelihood that a reduction-in-force (“RIF”)

would take place in the Department and they, in turn, informed all

employees in the Department, including Mason, of the likely RIF.

Mason testified that, although he was informed at this time of the

proposed closure, he was not worried about it. On February 14,

2003, Netherwood presented to Pohlman the options available in

Richmond under the McKinsey study and his recommendation that the

company eliminate all offset press work, equipment and associated

personnel.

A final decision to discontinue operation of the offset print

presses in Richmond, Virginia and Madison, New Jersey, was made

later that year, with the formal announcement occurring on

September 23, 2003. The offset presses were removed from the

Richmond location shortly thereafter. Because their primary job

function was to operate the now-defunct offset presses, Mason and

Blankenship were included in the RIF. The three remaining

employees in the Department (Jones, Slaughter, and Branch) were

transferred to a newly-created Copy and Mail Center, where they

continued to perform the same job functions. Because this left

only three non-management employees, the need for a manager and

supervisor of the Department was also eliminated, resulting in the

termination of Samford and Martin, effective November 30, 2003.3

3
A simultaneous RIF in the Richmond RxPO department resulted
in the termination of ten additional employees. The parties have
not indicated the number of employees terminated as a result of the

9
On September 24, 2003, Mason was informed that his position was

being eliminated. However, because Mason would turn 55 years old

in March 2004, Netherwood and Wyeth’s Assistant Vice President of

Human Resources recommended that Wyeth postpone the effective date

of Mason’s termination for six months, until April 1, 2004, so that

he would be eligible to retire and receive enhanced retirement

benefits if he returned to active employment before that date.

Mason and the others were also offered a separation program, which

included severance, outplacement, educational assistance and

benefit continuation. Mason never returned to work and continues

to receive disability benefits.

Mason filed a charge of discrimination with the Equal

Employment Opportunity Commission (“EEOC”), alleging discrimination

and retaliation under the ADA. He then filed this action,

asserting claims for hostile work environment and retaliation under

the ADA, and for intentional infliction of emotional distress under

Virginia state law. Wyeth moved for summary judgment, which was

granted by the district court, and this appeal followed.

II.

We begin with Mason’s claim that the district court erred in

granting summary judgment on his hostile work environment claim and

reorganization at the Madison, New Jersey location.

10
in determining that Mason had failed to plead a separate

“reasonable accommodation” claim under the ADA.

A.

“The ADA prohibits discrimination only against a ‘qualified

individual with a disability,’ and defines such a person as ‘an

individual with a disability who, with or without reasonable

accommodation, can perform the essential functions’ of his job.”

Fox v. General Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001)

(internal citations omitted) (quoting 42 U.S.C.A. § 12112(a) and

§ 12111(8)).

In his amended complaint, Mason set forth three specifically

enumerated counts: Count One, labeled “Americans with Disabilities

Act (Hostile Work Environment)”; Count Two, labeled “Americans with

Disabilities Act (Retaliation)”; and Count Three, labeled

“Intentional Infliction of Emotional Distress.” J.A. 134-136.

Wyeth moved for summary judgment as to all three counts.

During the summary judgment proceedings before the district

court, a controversy arose regarding whether Mason had stated a

“reasonable accommodation” claim under § 12112(a), separate and

apart from his claim of a “hostile work environment.”

Specifically, Mason argued that he had and, in particular, claimed

that Wyeth had violated the ADA by failing to provide him with a

TTY-adapted telephone and by failing to provide either sign

11
language interpreters or written summaries of semi-annual meetings

to ensure that he was aware of new information. The district court

ruled that Mason had failed to plead a separate “reasonable

accommodation” claim in his amended complaint, and granted summary

judgment as to Mason’s “hostile work environment” claim. We agree.

As an initial premise, we note that Mason clearly failed to

set forth a separately stated count for an alleged failure to

provide reasonable accommodations for his hearing disability. He

does not claim otherwise on appeal. Rather, he asserts that he

should be allowed to pursue such a claim because it was

sufficiently stated in the paragraphs leading up to the enumerated

counts, which, in turn, were incorporated by reference into his

first count for hostile work environment. In these paragraphs,

Mason set forth factual allegations regarding the prank-playing

environment, followed by allegations that “[o]ther acts . . .

contributed to the hostile environment/harassment,” J.A. 130,

including Wyeth’s failure to provide “reasonable accommodation in

the form of an interpreter” or “written summaries of the department

meetings, so he could learn what topics had been discussed,” J.A.

131. Mason also alleged that Wyeth had “further discriminated

against Mason when it gave him a lower performance evaluation

because of his difficulties in answering the telephone at work.

The telephone at the printing department was not a TTY-adapted

12
telephone, and Defendant continuously ignored Mason’s requests for

accommodation in this and other regards.” J.A. 131.

We disagree with Mason’s view that these background

allegations were sufficient to state a separate count for

reasonable accommodation. Mason structured his amended complaint

to allege, via clearly delineated headings, three specific,

enumerated counts. At best, a fair reading of the amended

complaint should have placed Wyeth on notice that Mason considered

these supposed failures to be a part of his claim that the work

environment was hostile to him because of his hearing disability,

and therefore something to be considered in conjunction with

Samford’s prank-playing. But it did not fairly place Wyeth on

notice that Mason was claiming that such accommodations would have

allowed him to “perform the essential functions” of his job,” 42

U.S.C.A. § 12111(8), and that he intended to pursue a separate

count for failure to accommodate.

Even if the amended complaint had sufficiently placed Wyeth on

notice of a reasonable accommodation claim, however, it would not

affect Wyeth’s entitlement to summary judgment on the ADA count.

Prior to the filing of the motion for summary judgment, the parties

conducted discovery and Mason was given ample opportunity to

produce evidence in support of any such claim. Yet, Mason has

failed to support his allegations that he requested and was denied

the specified accommodations with sufficient evidence, and has

13
failed to demonstrate that he was unable to perform the essential

functions of his job without them.

With regard to Mason’s alleged request for a sign-language

interpreter, Mason testified that, within a year or two of coming

to work, he realized that he was having trouble hearing in the

semi-annual meetings and he “hint[ed] . . . to Otis and Wayne” that

he needed an interpreter. J.A. 92. According to Mason, he was

encouraged to sit in the front of the meetings and turn his hearing

aids up. Mason testified that he heeded this advice, but still

encountered too much background noise to hear well. Mason admits

that he only “hinted” of the need for an interpreter on this one

occasion, and he apparently told no one that the suggested

resolution was unsatisfactory. Rather, Mason testified that he did

not believe he needed to say anything else, that Wyeth should have

“immediately” provided an interpreter in response to his hint, and

that he “just gave up.” J.A. 94.4 Such evidence is plainly

insufficient to support a finding that Wyeth failed to make a

reasonable accommodation under the ADA.

Mason’s testimony regarding his difficulties with the

telephone and its alleged impact on his job is a similarly

insufficient basis upon which to ground a reasonable accommodation

4
There is no admissible evidence that Mason ever requested
written summaries of the meetings, as alleged in his complaint.
He did not claim that he did in his testimony, and the only mention
of the alleged request in the record is a hearsay statement
recorded by Dr. MacConnachie in her letter to Wyeth.

14
claim. Mason testified that Samford informed him on one occasion

that Mason was not taking telephone messages accurately, prompting

him to request “something like a sound booster” for the telephone.

J.A. 96.5 Mason testified that the only accommodation he requested

was this “volume enhancer or amplifier on the telephone” and

admitted that this “was done and that [it] helped” him. J.A. 97.

He later testified, without elaboration, that he also “asked [Betty

Allen] about TTY, and they never provided it.” J.A. 98. However,

because Mason has also failed to come forward with any evidence

that a TTY-adapted telephone was required for him to perform his

essential job functions, we need not resolve any conflict in

Mason’s testimony in this regard. To the extent any evidence on

the matter was produced, it indicates that Mason was performing his

job duties, including answering the telephone, satisfactorily with

the accommodation provided.

5
In his amended complaint, and in arguments before us, Mason
characterizes this comment on Samford’s part as a lower performance
appraisal which resulted from Wyeth’s failure to provide a
reasonable accommodation. Mason alleged that he “disagreed with
the lower performance evaluation and initially refused to sign it,”
that he “was told by Samford that if he did not sign the evaluation
he would not get a pay raise,” and that he “asked for a copy of the
evaluation, [but] his request was denied.” J.A. 131. Mason has
produced no evidence in support of these additional allegations and
his own testimony does not support them. Indeed, there is no
evidence of a written evaluation regarding Mason’s telephone
abilities at all, and the only written evidence regarding Mason’s
performance evaluations is overwhelmingly positive. To the extent
we could view Samford’s comment as a lower performance appraisal,
however, it obviously did not result from Wyeth’s failure to
provide a TTY telephone, as it preceded Mason’s request for the
voice amplifier that was provided.

15
 In sum, we agree that Mason’s amended complaint failed to

allege a separate claim for “failure to accommodate” under the ADA

and, therefore, affirm the district court’s ruling. We also hold

that, even if Mason had sufficiently stated such a claim, Wyeth

remained entitled to summary judgment because Mason’s evidence is

plainly insufficient to support his claim that the accommodations

were requested and denied, or that they were necessary for him to

perform his essential job functions.

B.

We next turn to Mason’s claim that Samford’s prank-playing

amounted to a hostile work environment in violation of the ADA.

The ADA prohibits employers from “discriminat[ing] against a

qualified individual with a disability because of the disability of

such individual in regard to [the] terms, conditions, and

privileges of employment.” 42 U.S.C.A. § 12112(a) (emphasis

added). In order to establish such a claim for discrimination

based upon a work environment that is hostile to one’s disability,

the plaintiff must prove that “(1) he is a qualified individual

with a disability; (2) he was subjected to unwelcome harassment;

(3) the harassment was based on his disability; (4) the harassment

was sufficiently severe or pervasive to alter a term, condition, or

privilege of employment; and (5) some factual basis exists to

16
impute liability for the harassment to the employer.” Fox, 247

F.3d at 177.

We agree with the district court’s determination that Mason

failed to create a genuine issue of material fact which could

satisfy the third element, i.e., that Samford discriminated against

Mason “because of” Mason’s hearing disability.6

The critical issue for consideration in the “because of”

inquiry is whether a disabled plaintiff has been “exposed to

disadvantageous terms or conditions of employment to which [non-

disabled employees] are not exposed.” Ocheltree v. Scollon

Productions, Inc., 335 F.3d 325, 331 (4th Cir. 2003) (en banc)

(internal quotation marks omitted) (addressing the “because of”

inquiry in the context of a Title VII sex discrimination case).

Here, it is undisputed that the employees in the Department had

worked together for a long period of time and were close friends as

well as coworkers. While Samford may have led the pack in the

prank-playing shenanigans that developed among the men, it is

undisputed that Samford was not the only participant, nor was Mason

his sole target. Samford played these exact pranks on most, if not

all, of Mason’s coworkers, and all of the employees participated in

6
We express no opinion as to whether the prank-playing could
be viewed as sufficiently severe or pervasive to alter a term,
condition, or privilege of employment. Because Mason failed to
demonstrate that any alleged discrimination occurred “because of”
his hearing disability, it is unnecessary for us to reach the
alternative holding of the district court on the fourth element.

17
the prank-playing in some fashion and degree. Mason admits this

and, while he attempts to downplay the extent and degree of his

involvement, he admits that he engaged in similar horseplay. And,

like Samford, Mason viewed his antics as innocent and, for the most

part, welcomed by his targets. In short, the work environment in

the Department was permeated with the perhaps sophomoric and

juvenile behavior of its employees.

Unable to show that Samford singled him out from his coworkers

for the pranks, Mason instead claims that it was sufficient to

produce evidence that he was the primary target of Samford’s prank-

playing antics. According to Mason, he felt like he was Samford’s

primary target, and he believes this is because he was easy to

sneak up on and has a low-threshold startle response. Because

these characteristics resulted from his hearing impairment, Mason

asserts that one may infer that Samford’s prank-playing, when

directed at him, amounted to discrimination against him because of

the hearing disability in violation of the ADA.

We are unpersuaded. First, Mason has produced insufficient

admissible evidence from which one could conclude that he was even

the “primary” target of Samford’s prank-playing, as opposed to only

one of several “favorites” in the Department.7 Second, while Mason

7
Mason testified that he believed he was the primary target,
that Slaughter was second, and that Blankenship was third.
Slaughter testified that he felt like he was Samford’s primary
target, and that Samford played more pranks on him than on Mason.
The testimony of the employees in the Department supports both

18
presented lay testimony regarding his supposed “exaggerated” or

“low threshold” startle response, he has not designated and

produced expert testimony to support a causal connection between

the degree of his startle response and his hearing disability, or

evidence that his startle response was really all that different

from that of Samford’s other primary targets.

In the end, however, we hold that Mason cannot prevail on his

hostile work environment claim under the ADA based upon such a

multi-layer approach of imputing a discriminatory motive to

Samford. In order to establish a claim under the ADA, Mason was

required to present evidence upon which a jury could rest a

determination that Samford discriminated against Mason because of

his hearing disability. That is what the ADA and other such anti-

discrimination laws are intended to prevent -- discrimination

against an employee because of the protected trait at issue. They

viewpoints, as well as the possibility that Blankenship was at
least Samford’s third favorite target. Of course, all such
rankings are too subjective and generalized to be of much
assistance to Mason. They are necessarily based upon the
subjective impressions of the employees and the frequency with
which they were in position to observe the behavior. The
employees, including Mason, do agree on one thing; Samford played
the most pranks on Slaughter, Blankenship, and Mason because they
were accessible and had “funnier” reactions, in contrast to Branch,
Jones and Martin, who, either because they were not as accessible
in their work stations or had little or no reaction to the pranks,
had fewer pranks played upon them. We find Mason’s subjective and
self-serving declaration that he was “first” simply too thin a reed
upon which to rest the claim that he was “singled out” from the
others and subjected to “disadvantageous terms or conditions of
employment to which” his nondisabled coworkers were not exposed.
Ocheltree, 335 F.3d at 331 (internal quotation marks omitted).

19
do not intended to guarantee “refinement and sophistication in the

workplace.” Cf. Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 773

(4th Cir. 1997). Nor are they intended to subject an employer to

liability because the mutual prank-playing of friends and coworkers

in the workplace gets out of hand and inadvertently offends or

harms one who happens to a disability.

In this case, there is no evidence that Samford was ever

motivated to discriminate against Mason because Mason was hearing

impaired. Mason does not claim that he alone was singled out. He

readily acknowledged that Samford “d[id] it all the time. I’m not

the only person . . . . He does it to all the others.” J.A. 49.

He also admitted that Samford never said anything that caused him

to believe that he was being teased “because [he was] hearing

impaired,” J.A. 69, and testified that Samford “never made fun of

[his] hearing,” J.A. 70. He, and the others in the Department,

viewed Samford’s pranks as “just . . . a joke.” J.A. 47, 50. When

specifically asked to identify the people at work who he believed

were motivated to tease him or play tricks on him because of his

hearing impairment, Mason denied that he was teased because of his

hearing impairment. Rather, he believed that he was teased because

he was a “good all around role model and offset pressman.” J.A.

66. According to Mason, “[t]hey just like[d] to pick on me”

because “I was [a] swell of a guy.” J.A. 66.

20
 Indeed, Mason testified that he did not consider the prank-

playing to be harassment based upon his hearing disability until

his medical providers told him otherwise. Mason testified that he

“didn’t look at it that way because of [his] hearing disability,

but [his] doctor look[ed] at it that way and told [him].” J.A. 55.

He was also told in “the group meetings when [he] was in the

hospital . . . that [it] is harassment, that [he] didn’t know. And

[he] just held it as a joke, and no one told me it was

harassment. . . . J.A. 47. As a result, Mason came to believe that

Samford’s pranks were “harassment,” not because he believed Samford

held any discriminatory animus towards him or his disability, but

because his medical providers told him that Samford was so

motivated.8

In sum, Mason makes no claim that Samford was directly

motivated by a discriminatory animus towards him. Samford denies

any such animus or motivation, and there is no other testimony or

evidence that would allow such an inference. Mason cannot prevail

because he failed to present sufficient evidence to establish that

8
Even if the opinions of the medical providers had been
offered as expert testimony, an opinion that Samford’s pranks were
discriminatory in nature would not be the proper subject of a
medical opinion. We note, however, that the medical providers
appear to have been under the incorrect impression that the only
harassing conduct taking place was that of Samford playing “sneaky”
tricks on Mason. Mason does not make that claim, and it is not
supported by the evidence.

21
Samford subjected him to a discriminatory, hostile work environment

because of his hearing disability.

C. Retaliation

Mason’s next claim is that he was terminated by Wyeth in

retaliation for his complaints about Samford’s prank-playing, also

in violation of the ADA. See 42 U.S.C.A. § 12203 (providing that

“[n]o person shall discriminate against any individual because such

individual has opposed any act or practice made unlawful by this

chapter or because such individual made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing under this chapter”).

To establish a prima facie case of retaliation, Mason was

required to present evidence that (1) he “engaged in conduct

protected by the ADA;” (2) he “suffered an adverse action

subsequent to engaging in the protected conduct;” and (3) “there

was a causal link between the protected activity and the adverse

action.” Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205,

216 (4th Cir. 2002). Although Mason was not required to establish

that the opposed conduct was actually an ADA violation, he must at

a minimum establish a reasonable, good faith belief that the

opposed conduct violated the ADA. See id.

Mason cannot prevail on his retaliation claim because he

failed to create a genuine issue of material fact that he was

22
terminated as a result of his complaints, rather than as part of

the scheduled RIF. As noted earlier, Wyeth began studying ways to

reduce expenses in its Print Services Departments in early 2002

and, by early January 2003, its consultant had completed its study

in this regard. The Richmond and Madison print departments were

targeted for closure, and a RIF and reorganization were formally

announced in September. The offset presses were removed and, Mason

and Blankenship, whose primary job functions were to operate those

offset presses, were terminated, along with a number of additional

employees.

In light of this undisputed evidence, the district court held

that Mason had failed to create a genuine issue of material fact

that Wyeth’s stated reason for terminating Mason was pretextual, or

that the termination was otherwise imposed as retaliation for

Mason’s complaints of Samford’s prank-playing antics. We agree,

and affirm the district court’s grant of summary judgment on this

claim for the same reason.

III.

Lastly, we turn to Mason’s claim that he presented sufficient

evidence that Samford’s pranks amounted to intentional infliction

of emotional distress under Virginia law. We disagree.

The tort of intentional infliction of emotional distress

requires that the plaintiff prove (1) that “the wrongdoer’s conduct

23
was intentional or reckless;” (2) that “the conduct was outrageous

and intolerable;” (3) that “there was a causal connection between

the wrongdoer’s conduct and the emotional distress;” and (4) that

“the emotional distress was severe.” See Harris v. Kreutzer, 624

S.E.2d 24, 33 (Va. 2006). “Because of the risks inherent in torts

where injury to the mind or emotions is claimed, . . . such torts

[are] not favored in the law.” Ruth v. Fletcher, 377 S.E.2d 412,

415 (Va. 1989) (internal quotation marks omitted). Indeed, in

establishing the requisite “outrageousness” of the conduct, it is

not enough to show that the defendant “acted with an intent which

is tortious or even criminal.” Harris, 624 S.E.2d at 33 (internal

quotation marks omitted). Rather, liability may be “found only

where the conduct has been 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.” Id. (internal quotation marks omitted).

Mason claims that Samford’s pranks rose to this level, in

large part because he was an especially susceptible and vulnerable

target. Like the district court, we are unpersuaded. Viewing the

evidence in the light most favorable to Mason, the conduct at

issue, while perhaps inappropriate for the work environment,

amounted to little more than sophomoric pranks between good friends

and coworkers. As such, it falls far short of the requisite

outrageous and atrocious behavior necessary to pursue a claim for

24
intentional infliction of emotional distress. Accordingly, we

affirm the district court’s grant of summary judgment as to this

count as well.

IV.

For the foregoing reasons, we affirm the district court’s

grant of summary judgment in its entirety.

AFFIRMED

25
MICHAEL, Circuit Judge, dissenting in part and concurring in
part:

I respectfully dissent from the majority’s decision in

part II.B to affirm summary judgment for Wyeth, Inc. on Ronald

Mason’s hostile work environment claim under the Americans with

Disabilities Act (ADA). The majority erroneously concludes that

Mason’s claim fails because Wyeth’s manager Wayne Samford did not

harass Mason because of his deafness. When the facts are taken,

as they must be, in the light most favorable to Mason, they

reveal that Samford relentlessly took advantage of Mason’s

deafness in playing pranks on him to provoke his extreme “startle

reaction.” Far from being mere horseplay, these incessant pranks

ultimately led to a deterioration in Mason’s mental health and

made his work environment a hostile one.

I.

In 1989 Ronald Mason began working as an offset printer

operator in the print services department of A.H. Robins Company,

Inc., a Richmond, Virginia, concern that later became part of

Wyeth. Samford and Otis Martin were Mason’s supervisors during

most of Mason’s employment, including the period relevant to this

case. Mason, who is deaf, was a highly skilled employee. He did

not usually wear hearing aids at work because using them in the

noisy work environment caused dizziness and headaches.

26
 Although Mason’s coworkers liked him and treated him

like a “normal hearing person” in many ways, they were generally

clueless about and indifferent to his disability. J.A. 42. As

Mason put it, “They don’t understand about my hearing

disability.” Id. Mason’s managers likewise were indifferent to

his deafness. For example, Mason requested a sign language

interpreter early in his employment so that he could follow the

discussion and participate in group meetings, but Samford and

Martin never provided one. Mason explained to Samford and Martin

that he “[could not] understand a word” at the meetings. J.A.

92. Mason specifically said to them, “I need [an] interpreter,”

and asked, “Can someone see . . . about getting an interpreter?”

J.A. 92, 94. Samford and Martin just responded, “Turn your

hearing aid up. Get up in front.” J.A. 92. As a result of this

indifference, Mason did not have access to the same workplace

information that his hearing coworkers did. Whenever Mason wore

his hearing aids at work, Samford would expect Mason to function

at all times as “a hearing person,” but Mason obviously could

not. J.A. 44. For instance, even when wearing his hearing aids,

Mason could not understand voices on the telephone because his

hearing aids distorted the sound. Disregarding this problem,

Samford criticized Mason for not taking phone messages correctly.

At times Mason’s coworkers would speak to Mason in a belittling

way about his disability, saying, “You hear what you want to

27
hear.” J.A. 42. This accusation, Mason insisted, was not true.

In addition, one coworker, Ray Slaughter, mocked Mason’s impaired

speech.

In 1998 or 1999 Samford began playing pranks on Mason

that were both cruel-hearted and discriminatory because they

exploited Mason’s deafness. As often as two or three times a

week, Samford would sneak up behind and pinch Mason while making

a hissing noise or blowing air from an air hose onto Mason’s

hand. As Mason described the incidents:

I hear the sound, psst, and he touch me like a
snakebite, yes, but I didn’t hear him approach me,
behind me. I can’t hear him . . . . My job is focus
on work. If I hear, I will turn around. I would
prevent it. The advantage is I can’t hear him, and
it’s so easy for him — I was so target, easy to be
attacked, because I jump. I jump my legs. And he
laughed, think it’s funny, because I overreacted.

J.A. 49-50. In addition, Samford would often hide a rubber rat

in the work area to shock Mason. Mason estimates that Samford

scared him with the rat at least twenty-five times in one year.

Samford used the rat on occasion to scare other print shop

employees, but Mason was his most frequent prey.

Although Samford played pranks on other employees,

Mason was Samford’s “number one target” because Mason’s

disability made it easy for Samford to sneak up behind him and

provoke a severe startle reaction. J.A. 55. Mason explained,

“[M]y nerve is very jumpy. And anybody touch me, I jump . . .

28
because the deaf people, if you tap behind deaf people, what

happen? It causes deaf people to startle. Deaf people prefer

people come around in front where they can see, see you. I’m the

same way.” J.A. 68-69. Samford tormented Mason because he

(Samford) was amused by Mason’s reactions; Samford admits they

made him laugh. Mason’s reactions also made Mason’s coworkers

laugh. According to Mason, Samford was motivated to scare Mason

primarily because of Mason’s startle reactions.

[A]s being a hearing-impaired person, other than normal
hearing person, you can hear him coming, and you don’t
usually scare as much as they are. When you’re
impaired person, it’s like I’m almost deaf and I’m
working on machine and it’s just — all my mind is
staying on machine. When unexpected startle or — I
mean, I’m telling you, it scared the shit out of me,
because there’s a lot to do with hearing disability.
It just made me — heart pounding, scaring. My face
turned white, and I jump. Nobody jumps like I do. It
scares me to shit. And Wayne [Samford] likes that, my
action of being scared. He thinks it’s funny. . . .
[H]e kept on and on and on and on and on, never
stopped.

J.A. 67-68.

Mason’s coworkers confirmed that Samford targeted Mason

with harassing conduct because of his disability. Mason’s

coworker Judith Kounnas reported that Mason was an easier target

for pranks than other employees because he could not hear.

Mason’s coworkers also confirmed that print shop employees did

not reciprocate with pranks on Samford. See, e.g., J.A. at 251

29
(coworker Roger Jones stating, “You don’t usually play tricks on

the boss.”).

“[M]ore than once, maybe several times,” Mason pleaded

with Samford to stop his “shit,” explaining to Samford that his

pranks were “getting on [Mason’s] nerves.” J.A. 50. Read in

context, Mason’s statement about his frayed nerves conveys more

than mere annoyance: Samford’s pranks were affecting Mason’s

nervous condition. (Samford was aware of Mason’s condition and

knew that Mason took medication to “calm [his] nerves.” J.A.

69.) Samford ignored Mason’s requests, however, forcing Mason to

seek help from another person in management, Otis Martin. Mason

reported Samford’s harassment to Martin two times. He

specifically asked Martin if he “would . . . tell [Samford] to

stop.” J.A. 47. Martin seemed to feel sorry for Mason; he told

Mason that he knew Samford’s conduct was wrong and that he would

“see what he [could] do.” J.A. 79-80. But nothing was done, and

Samford’s harassment persisted.

Samford’s pranks caused Mason to suffer great anxiety

and physical distress. Although Mason took additional medication

to alleviate his anxiety, his job performance began to suffer.

Mason would often lose his concentration and have trouble

focusing and handling his tools. His work slowed. The

harassment even caused Mason to incur minor physical injury at

work. On occasion Samford’s conduct would cause Mason to lose

30
his balance and skin his knuckles. Once Mason fell over and hurt

his back.

In late 2002 Mason’s anxiety became so severe that he

began to contemplate suicide. He was referred to a psychologist,

Dr. Nancy MacConnachie, who diagnosed him with post-traumatic

stress disorder. In January 2003 Dr. MacConnachie wrote a letter

to Shirley Hess in Wyeth’s Human Resources Department. Dr.

MacConnachie cited Samford’s conduct as a source of Mason’s

emotional deterioration and emphasized that it was necessary to

put an immediate stop to the “apparently discriminatory behavior

in [Mason’s] work place.” J.A. 10. Hess responded about three

weeks later by holding separate meetings with Mason, Martin, and

Samford about the harassing conduct. At the meeting with Mason,

held on February 13, 2003, Mason cried and explained why he was

scared and depressed as a result of the pranks. Samford and

Martin confirmed that the incidents had occurred.

II.

To establish a hostile work environment claim under the

ADA, Mason must establish that (1) he is a qualified individual

with a disability; (2) he was subjected to unwelcome harassment;

(3) the harassment was based on (or because of) his disability;

(4) the harassment was sufficiently severe or pervasive to alter

31
a term, condition, or privilege of employment; and (5) some

factual basis exists to impute liability to the employer. Fox v.

General Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001). The

majority errs in concluding that Mason does not proffer

sufficient facts to establish the third element, that he was

harassed because of his disability.

A.

The majority contends that Mason was not harassed on

account of his disability because Samford was not the only person

in the print department who played pranks and because Samford

played many of the same pranks on Mason’s non-disabled coworkers.

This contention suffers from two fatal flaws. First, Mason has

produced sufficient evidence to allow a reasonable jury to

conclude that he was the primary target of Samford’s harassment.

Mason testified that he was subjected to pranks more frequently

than others in the department. Mason also testified that we was

the “number one target” for Samford’s pranks because he was easy

to sneak up on and because his startle reaction was extreme.

Mason’s coworker, Judith Kounnas, corroborated this account.

Even Samford’s testimony, taken as a whole, would allow a jury to

infer that he targeted Mason: Samford surprised Mason with his

pranks more often than any other employee because he found

Mason’s extreme startle reaction amusing. Moreover, the type of

32
pranks Samford played specifically exploited Mason’s inability to

hear and his exaggerated startle reaction. It is true, as the

majority notes, that some of Mason’s coworkers testified that

Samford did not target Mason more frequently than other

employees. This testimony simply reveals the presence of a

genuine issue of material fact as to whether Mason was the

primary target of Samford’s harassment; it does not defeat in

summary judgment proceedings Mason’s evidence that he was the

number one target.

I recognize that some of Mason’s deposition testimony,

when read out of context, may appear to undermine his claim. For

instance, he testified that he knew Samford targeted other

employees with pranks, that he understood Samford’s actions to be

a “joke,” and that his coworkers treated him as a “normal hearing

person.” J.A. 42, 50. Again, these statements are not fatal on

summary judgement, where all reasonable inferences must be drawn

in Mason’s favor. See Laber v. Harvey, 438 F.3d 404, 415 (4th

Cir. 2006) (en banc). To illustrate, Mason’s statement that

Samford’s pranks were a “joke,” when read in context, can be

understood to mean that he did not realize at the time that

Samford’s pranks were unlawful. See J.A. 50 (Mason testifying

that “no one told [him] it was wrong,” and explaining that he

went to Martin for “help” in trying to get Samford to stop his

pranks). Likewise, Mason’s statement that his coworkers treated

33
him as a “normal hearing person,” when read in the context of

Samford’s failure to provide a sign language interpreter and

other employees’ accusations that Mason “hear[s] what [he]

want[s] to hear,” show insensitivity to his disability. These

statements therefore do not negate Mason’s argument that

Samford’s conduct was subjectively and objectively offensive.

The majority, in concluding that Mason was not harassed

because of his disability, relies on evidence that Samford also

played pranks on Mason’s non-disabled coworkers. A disabled

employee, however, can be abused in ways that cannot be explained

without reference to his disability, notwithstanding that non-

disabled employees are exposed to the same treatment. Cf.

Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 332 (4th Cir.

2003) (en banc). Thus, even though other employees took offense

at Samford’s pranks, a jury could reasonably find that Samford

engaged in this conduct largely because he “enjoyed watching and

laughing at the reactions of the only [deaf person] in the

[workplace].” Id. Tellingly, most if not all of Samford’s

pranks specifically exploited Mason’s inability to hear.

Evidence that Mason’s coworkers mocked his impaired speech and

that his supervisors ignored his requests for disability

accommodations demonstrates general workplace hostility to the

presence of a person with a disability. This general hostility

34
supports Mason’s claim that he was harassed because of his

deafness.

The majority attempts to paint Samford’s conduct toward

Mason as mere “prank-playing shenanigans” that permeated the work

environment and that Mason himself even instigated at times.

Ante at 16. To this end, the majority emphasizes the few,

isolated jokes Mason played with his coworkers over his fourteen-

year tenure with Wyeth. On one occasion, Mason placed a fake

snake on Roger Jones’s lunch bag. On another occasion, Mason

placed a dead bug on top of a candy bar on Jones’s desk. (Jones

liked the bug because it kept people from stealing his candy, and

so he left it on his desk for years.) Mason also once tried to

unlock the bathroom door when Jones was using the bathroom, a

joke that Jones reciprocated the next day. Finally, Mason

testified that once, outside of work, he “mooned” traffic on I-

95, although he did not drop his undershorts. Mason’s isolated

pranks differ from Samford’s persistent, abusive conduct in many

ways. Most important, when Jones asked Mason not to scare him

with the fake snake anymore, Mason stopped. Mason was thus

willing to modify his conduct in response to his coworker’s

request. In contrast, Samford persisted with his harassment even

though Mason repeatedly complained to Samford and Martin about

Samford’s conduct. Mason’s pranks also differed from Samford’s

because Mason did not specifically exploit his coworkers’

35
physical disabilities. Additionally, Mason’s pranks were

reciprocal. Mason played a few jokes on Jones (whom he did not

supervise), and in return Jones played a few jokes on him. In

contrast, most print shop employees testified that no one played

jokes on the boss, Samford. As Jones explained, “You don’t

usually play tricks on the boss. . . . I don’t know how [Samford]

would take it.” J.A. 251. The majority simply fails to make the

case that Mason’s conduct can be equated with Samford’s.

In sum, the summary judgment record, viewed in the

light most favorable to Mason, reveals that he was harassed

because of his disability.

B.

The next issue is whether the district court erred in

concluding that Samford’s conduct was not sufficiently severe or

pervasive to constitute an objectively hostile or abusive work

environment. The court did err. Factors relevant to whether the

environment is objectively hostile include “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.” Fox, 247 F.3d at 178. Each of these factors

weighs in favor of a determination that Samford’s conduct helped

36
create an objectively hostile or abusive work environment.

Mason’s account of his experience at work, supported by Dr.

MacConnachie and his treating physician, shows that Samford’s

harassing conduct was constant, physically invasive, humiliating,

and emotionally harmful and that it interfered with Mason’s job

performance.

Mason described in clear detail the feelings of anxiety

and panic that Samford’s pranks made him experience and how these

reactions were specifically connected to his disability. He

explained why it was especially frightening for him, as a deaf

person, to be startled by a pinch or blast of air from a hose

from someone he could not possibly hear approaching from behind.

He also described how the anxiety caused him to make mistakes at

work, incur minor injuries, and generally “slow[] . . . down.”

J.A. 90. Samford’s conduct could perhaps be characterized as

horseplay if directed only at hearing employees, but it is

plainly abusive and offensive when directed at someone who cannot

hear. Samford’s insistence upon continuing the pranks despite

Mason’s repeated requests that he stop (which included an

explanation of how the pranks affected his nervous condition)

makes Samford’s conduct even more abusive and offensive.

III.

37
 There are genuine issues of material fact as to (1)

whether Mason was harassed because of his disability and (2)

whether Samford’s conduct was sufficiently severe or pervasive to

constitute an objectively hostile work environment. Accordingly,

I believe that Mason is entitled to a trial on his hostile work

environment claim. Because I would reverse the district court’s

grant of summary judgment to Wyeth on this claim, I dissent in

part from the majority opinion. However, I concur in the

majority’s determination that Wyeth is entitled to summary

judgment on Mason’s reasonable accommodation, retaliation, and

state tort claims.

38