Adela E. BICKFORD, Plaintiff,
v.
DENMARK TECHNICAL COLLEGE, Defendant.
Civil Action No. 5:05-CV-1457-MBS.
United States District Court, D. South Carolina, Orangeburg Division.
March 28, 2007.*552 *553 *554 James Lewis Cromer, Columbia, SC, for Plaintiff.
Andrea E. White, Duff Turner White and Boykin, Columbia, so, for Defendant.
ORDER & OPINION
SEYMOUR, District Judge.
Plaintiff Adela E. Bickford filed this action against her former employer, Defendant Denmark Technical College,[1] on May 19, 2005, alleging that Defendant discriminated against her because of her national origin in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000(e)-2(a), and her age in violation of the Age Discrimination in Employment Act ("ADEA"), see 29 U.S.C. § 623. Complaint, 1-4 (Entry 1). Plaintiff also raised retaliation claims under both statutes. Id. at 4-5. Defendant moved for summary judgment on April 17, 2006. Motion for Summary Judgment (Entry 19). After having been granted an extension of time to respond, Plaintiff filed a response in opposition to Defendant's motion for summary judgment on May 30, 2006. Plaintiff's Memorandum in Opposition (Entry 24). Defendant filed a reply memorandum on June 6, 2006. Reply to Plaintiffs Memorandum in Opposition (Entry 25).
In accordance with 28 U.S.C § 636(b) and Local Rule 73.02, D.S.C., this' matter was referred to United States Magistrate Judge Joseph R. McCrorey for pretrial handling. On November 29, 2006, the Magistrate Judge filed a Report and Recommendation in which he recommended that Defendant's motion for summary judgment be granted in part and denied in part. Report and Recommendation, 17 (Entry 26). Plaintiff filed no objections to the Report. Defendant filed objections on December 13, 2006. Objections to Report and Recommendation (Entry 27). Plaintiff filed a response to Defendant's objections on December 21, 2006. Reply to Objections (Entry 28).
The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, The responsibility for making a final determination remains with this court. Mathews v. Weber, 423 U.S. 261, 270, 96 S. Ct. 549, 46 L. Ed. 2d 483 (1976). The court is charged with making a de novo determination of any portions of the Report and Recommendation to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
I. FACTS
The facts are presented in the Magistrate Judge's report. Report and Recommendation, 3-6. In short, Plaintiff is a sixty-three year old Hispanic woman *555 whom Defendant hired in September 1997. Plaintiffs Deposition, 7 (Entry 24-2). Plaintiff's primary role was to provide administrative support to the President of Denmark Technical College, Dr. Joann Boyd-Scotland, at the main campus in Denmark, South Carolina. Plaintiffs Deposition, 8-9 (Entry 24-2). Plaintiff states that, during her employment with Defendant, Boyd-Scotland made derogatory remarks toward Plaintiff concerning her national origin and age;[2] required Plaintiff to work despite Plaintiff's suffering from back pains, id. at 28; and acted in a physically aggressive manner toward Plaintiff, id. at 22-23, 35. Plaintiff also alleges that, on February 10, 2004, Boyd-Scotland reprimanded her for allegedly giving out confidential information, told Plaintiff to "get out," and instructed Plaintiff to use ten days of her accumulated "comp time" before returning to work. Id. at 35. According to Plaintiff, Boyd-Scotland did not answer Plaintiffs questions about whether she was still employed by Defendant and on two later occasions instructed Plaintiff to not come into work. Id. at 37-38.
On Friday, February 27, 2004, Boyd-Scotland informed Plaintiff via telephone that she had been transferred to the Barnwell campus, which is located in Barnwell; South Carolina. Id. The Barnwell site is used to hold evening classes for students living in the surrounding area. Id. at 39. Aside from Plaintiff, the only other employee working at that site was the maintenance person, who worked during the afternoon. Id. Plaintiff reported to the Barnwell site on February 27; however, due to her being hospitalized with chest pains, she was unable to work from March 1 until March 3. Id. at 41-42.
On March 2, 2004, Plaintiff's attorney wrote Boyd-Scotland a letter stating that, "unless you supercede [sic] the changes you have implemented in her job immediately, we will consider that she has been constructively discharged." March 2, 2004 Letter from J. Lewis. Cromer, 1-2 (Entry 19-2). No resolution was reached, and Plaintiffs attorney informed Defendant's attorney that Plaintiff "considers herself to have been constructively discharged." March 8, 2004 Letter from J. Lewis Cromer to Charles Boykin (Entry 19-3). Plaintiff states that she applied for unemployment compensation on March 10, but that Defendant paid her as though she were still employed on March 15, 2004. Plaintiff s Deposition, 43. Boyd-Scotland wrote Plaintiff a letter on March 25, 2004 asking Plaintiff to advise Boyd-Scotland by March 31, 2004 of her intent to change her status of employment with Defendant. Id. Plaintiff did not respond. On April 15, 2004, Boyd-Scotland wrote Plaintiff again, informing her that. Defendant considered Plaintiff as having abandoned her employment. Id.
Plaintiff avers that her working conditions at the Denmark campus and the involuntary transfer to the Barnwell campus constitute constructive discharge due to her national origin and age, Complaint, 1-4; that Boyd-Scotland's conduct created a hostile work environment, id. at 3; and that Defendant denied Plaintiff opportunities for advancement and retaliated against her for complaining about the discriminatory manner in which Defendant treated Plaintiff, Response in Opposition, *556 17-18 (Entry 24). The Magistrate Judge recommended that the court grant summary judgment as to Plaintiffs claims for retaliation and denial of opportunities for advancement, finding that Plaintiff had failed to provide sufficient evidence that she had engaged in any protected activity or that Defendant prevented her from advancing her career.[3] Report and Recommendation, 15, 17. The Magistrate Judge also recommended that the court deny summary judgment with respect to Plaintiffs claims for constructive discharge and hostile work environment, finding that Plaintiff had established a prima facie case for national origin and age discrimination under Title VII and the ADEA, respectively. Id. at 6-14.
II. DISCUSSION
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be rendered when a moving party has shown "[that] the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The court must determine whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Nonetheless, in deciding a motion for summary judgment, "the judge's function is not [herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249, 106 S. Ct. 2505. Summary judgment should only be granted in those cases where it is perfectly clear that there remains no genuine dispute as to material fact and inquiry into the facts is unnecessary to clarify the application of the law. McKinney v. Bd. of Trustees of Mayland Community College, 955 F.2d 924, 928 (4th Cir.1992).
A. Prima Facie Case of Discrimination under Title VII and the ADEA
Plaintiff alleges national origin and age discrimination under Title VII and the ADEA. The prima facie case of discrimination under both statutes consists of the same analytical framework:
To demonstrate the prima facie case of [national origin] or race discrimination under the pretext framework, the plaintiff must show that (1) she is a member of a protected class; (2) she suffered adverse employment action; (3) she was performing her job duties at a level that met her employers' legitimate expectations at the time of the adverse employment action; and (4) the position remained open or was filled by similarly qualified applicants outside 'Vie protected class. If a prima facie case is presented, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Assuming the employer meets this burden of production . . .' the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the employer's *557 stated reasons `were not its true reasons but were a pretext for discrimination.'
Hill v. Lockheed Martin Logistics Mgt., Inc., 354 F.3d 277, 285 (4th Cir.2004) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000)). There is no dispute that Plaintiff is a member of a protected class.
1. Adverse Employment Action
Defendant first objects to the Magistrate Judge's finding that Plaintiff satisfactorily alleged an adverse employment action under Title VII and the ADEA. Objections to Report and Recommendation, 1-5. Specifically, Defendant argues that Plaintiffs transfer to the Barnwell site does not constitute an adverse employment action because "[Defendant] made no changes to [Plaintiff's] status, pay, benefits, or grade level," id. at 2, and Plaintiff was given "greater autonomy in the performance of her job responsibilities," id. at 3. Defendant asserts that "there is no evidence in the record that [Plaintiff's] tasks at the College's main campus were any more meaningful, or required any more special skills and education, than did her temporary reassignment to the College's Barnwell campus." Id. at 4.
"An adverse employment action is a discriminatory act which adversely affects the terms, conditions, or benefits of the plaintiff's employment." James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir.2004). "A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998). Generally, a lateral transfer does not constitute an adverse employment action within the meaning of Title VII; however, reassignment can form the basis of a valid Title VII case "if the plaintiff can show that the reassignment had some significant detrimental effect on her." Boone v. Goldin, 178 F.3d 253, 256 (4th Cir.1999).
Plaintiff has sufficiently alleged an adverse employment action under Title VII and the ADEA. Plaintiffs administrative duties at the Denmark campus included handling mail, maintaining Boyd-Scotland's calendar, composing letters on behalf of Boyd-Scotland, and maintaining Defendant's policy and procedure manual. Plaintiffs Deposition, 11, 12-13, 21, 24. Plaintiff was also responsible for organizing, attending, and taking minutes at weekly executive council meetings and meetings of the Board of Directors. Id. at 10, 14. Conversely, Plaintiffs duties at the Barnwell site consisted only of compiling files for students and monitoring maintenance problems.[4]Id. at 39. Boyd-Scotland also told Plaintiff that she was not allowed to return to the Denmark campus, id. at 39-40; thus, Plaintiff was no longer responsible for many of the extensive administrative duties she performed at the Denmark campus.
The court finds that Plaintiffs transfer to the Barnwell site is an adverse employment action. For purposes of summary judgment, such a significant reduction in job responsibilities, particularly when coupled with the involuntary reassignment, can constitute an adverse action by an employer.[5]See Boone, 178 F.3d at 256-57 *558 ("Absent any decrease in compensation, job title, level of responsibility, or opportunity for promotion, reassignment to a new position commensurate with one's salary level does not constitute an adverse employment action."); Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 134 (7th Cir.1993) (stating that indicia of an adverse employment include a "less distinguished title" and "significantly diminished material responsibilities"); Williams v. City of Fayetteville, No. 99-449, 2002 U.S. Dist. LEXIS 26221, at *59 (D.S.C. May 13, 2002) (finding that plaintiffs involuntary transfer to another department constituted an adverse employment action because it entailed the loss of plaintiffs clothing allowance and investigator incentive and made plaintiff ineligible for certain promotions), rev'd on other grounds by 326 F.3d 569 (4th Cir.2003). As the Magistrate Judge found, when the facts are taken "[i]n the light most favorable to [Plaintiff], her responsibilities were significantly reduced." Report and Recommendation, 11. Accordingly, the Magistrate Judge did not err in finding that Plaintiffs transfer constituted an adverse employment action under Title VII and the ADEA sufficient to survive summary judgment. Defendant's objection is without merit.
2. Legitimate, Non-Discriminatory Reason
Defendant contends that the Magistrate Judge erred in concluding that Defendant failed to prove that its "actions towards [Plaintiff] were at all times based on legitimate, non-discriminatory and non-pre-textual reasons." Objections to Report and Recommendation, 5. Defendant argues that it "temporarily transferred" Plaintiff to the Barnwell site "to better serve that campus' students and to prepare that site for its upcoming accreditation visit." Id. Defendant states that "the Magistrate [Judge] fails to recognize this in his Report." Id.
The court disagrees. To begin with, Defendant mischaracterizes the Report and Recommendation by asserting that the Magistrate Judge did not "recognize" its purported non-discriminatory reason for transferring Plaintiff. The Magistrate Judge specifically cites to Defendant's motion for summary judgment and states: "[Defendant] states that it transferred [Plaintiff] to the Barnwell site because of her administrative ability and its need to prepare the Barnwell site for a visit by the Southern Association of Colleges and Schools (`SACS') with respect to accreditation." Report and Recommendation, 11. The Magistrate Judge did not fail to recognize Defendant's stated reason for Plaintiffs transfer; rather, after acknowledging it, he found that "a jury could reasonably find that [Defendant's] proffered reason is untrue and a pretext for discrimination." Id.
The court concurs in the Magistrate Judge's conclusion. Once an employer proffers a nondiscriminatory explanation for its decision, the plaintiff must be afforded the "opportunity to 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." Reeves, 530 *559 U.S. at 143, 120 S. Ct. 2097 (quoting Texas Dep't Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981) (internal quotations omitted)). A plaintiff may show pretext by either: (1) persuading the court that a discriminatory reason more likely motivated the employer, or (2) showing that the employer's proffered explanation is unworthy of credence. Id, at 147. "In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." Id.
Plaintiff offers various arguments as to why Defendant's purported reason for her transfer is pretextual, including that: (1) although Defendant claims that the purpose of the reassignment was to prepare the Barnwell campus for the SACS visit, her only duties there were to fill out maintenance work orders and file documents; (2) only one person was necessary to fill out the maintenance work orders, and the maintenance person at the Barnwell site was given that task; (3) Plaintiff was not told of the reassignment until the morning of her transfer; and (4) the events of February 2004 which immediately preceded the transfer "strongly" show that Plaintiff was "continually subjected to harassment and remarks about her age and national origin." Plaintiffs Memorandum in Opposition, 22-23. Based on the evidence before the court, the Magistrate Judge properly concluded that "[a] jury could easily conclude that in this situation, the transfer to the Barnwell site was not because of the alleged upcoming accreditation by SACS." Report and Recommendation, 12. The court finds that there remains a genuine issue of material fact as to whether Defendant's proffered reasons for transferring Plaintiff were pretextual. Defendant's objection is without merit.
B. Constructive Discharge
Next, Defendant argues that the Magistrate Judge "failed to apply [the elements of a constructive discharge claim] to the facts of this case, instead inferring into the record facts that do not exist." Objections to Report and Recommendation, 8. Defendant states that "[w]ithout any evidence of [Plaintiffs] actual experience at her new assignment, there can be no basis for the Magistrate Judge's conclusion that a reasonable jury could find that the Barnwell site was `intolerable.'" Id. at 10. Again, the court disagrees.
To recover under a theory of constructive discharge, a plaintiff employee must show that her employer created intolerable working conditions in a deliberate effort to force the employee to resign. Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1353-54 (4th Cir.1995). Deliberateness exists when the actions of the employer were "intended by the employer as an effort to force the employee to quit," Burns v. AAF-McQuay, Inc., 96 F.3d 728 (4th Cir.1996), and a constructive discharge occurs when a "reasonable person in the employee's position would have felt compelled to resign" or that she "had no choice but to resign," Blistein v. St. John's College, 74 F.3d 1459, 1468 (4th Cir.1996) (quoting Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir.1985) (internal citations and quotations omitted)). If the employee meets this burden, she then must show that the conduct about which she complains was motivated by discrimination based on the employee's race. Taylor v. Virginia Union Univ., 193 F.3d 219, 238 (4th Cir.1999).
Plaintiff has sufficiently alleged intolerable conditions giving rise to a constructive discharge claim. Plaintiff has asserted that Boyd-Scotland deliberately made Plaintiffs job at the Denmark campus intolerable and that such acts were *560 motivated primarily by Plaintiffs national origin. See, e.g., Complaint, 3 ("Plaintiffs constructive discharge was preceded by . . . Boyd-Scotland personally insulting the plaintiff at every opportunity, often in the presence of other employees and strangers, calling her `stupid,' `incompetent' `blind,' and `incapable of following instructions."'); id. ("Boyd-Scotland . . . complained of plaintiffs work saying `we don't do things like your people do' which can only be referring to plaintiffs national origin in a derogatory manner."); Plaintiffs Memorandum in Opposition, 11-13 (various allegations of incidents in which Boyd-Scotland made derogatory comments about Plaintiffs age and national origin, the "purpose [of which] was to force the plaintiff to quit her job").
Moreover, the Magistrate Judge correctly found that a jury could reasonably find that the conditions of Plaintiffs new assignment at the Barnwell campus to be intolerable. Report and Recommendation, 13. Not only has Plaintiff averred that her duties at the Barnwell campus were greatly diminished from those at the Denmark campus, but she has also repeatedly alleged that the Barnwell campus was isolated, unsafe, and infested with mice. See, e.g., Plaintiffs Memorandum in Opposition, 14-15; Reply to Objections, 4. At this stage, Plaintiff has alleged facts sufficient for a reasonable jury to find constructive discharge due to national origin and/or discrimination.
C. Hostile Work Environment
Finally, Defendant asserts that plaintiff failed to produce any facts supporting a claim of hostile work environment. Objection to Report and Recommendation, 10. Defendant does not raise any specific objection to the Magistrate Judge's findings; rather, Defendant simply states that "contrary to the Magistrate Judge's conclusion otherwise, there is no evidence that [Plaintiff] was subjected to a hostile work environment due to her race and/or age." Id. Even if the court construed this statement as an objection to the Report, at most, it would constitute the type of general and conclusory objection that does not warrant the court's response. See Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir.1982) (when a party makes only general and conclusory objections that do not direct the court to a specific error in the Magistrate Judge's proposed finding and recommendations, the court need not conduct a de novo review).
III. CONCLUSION
The court adopts the Report and Recommendation of the Magistrate Judge and incorporates it by reference. For the reasons stated herein and in the Report and Recommendation, Defendant's motion for summary judgment is granted in part and denied in part.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
McCROREY, United States Magistrate Judge.
Plaintiff, Adela E. Bickford ("Bickford"), filed this case on May 19, 2005. She alleges that her former employer, Denmark Technical College ("DTC"), discriminated against her because of her national origin in violation of Title VII and her age in violation of the Age Discrimination in Employment Act ("AEDA"). She further alleges retaliation under both statutes.[1] DTC filed a motion for summary judgment *561 on April 17, 2006. Bickford filed a memorandum in opposition on May 30, 2006. DTC filed its reply on June 6, 2006. Pretrial matters were automatically referred to the undersigned pursuant to Local Rule 73.02(B)(2)(g).
Standard for Summary Judgment
When no genuine issue of any material fact exists, summary judgment is appropriate. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir.1991). The facts and inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving party. Id. Courts take special care when considering summary judgment in employment discrimination cases because states-of mind and motives are often crucial issues. Ballinger v. North Carolina Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir.), cert. denied, 484 U.S. 897, 108 S. Ct. 232, 98 L. Ed. 2d 191 (1987). This does not mean that summary judgment is never appropriate in these cases. To the contrary, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). "Genuineness means that the evidence must create fair doubt; wholly speculative assertions will not suffice." Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985).
In this case, defendant "bears the initial burden of pointing to the absence of a genuine issue of material fact." Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir.1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). If defendant carries this burden, "the burden then shifts to the non-moving party to come forward with facts sufficient to create a triable issue of fact." Id. at 718-19 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).
Moreover, "once the moving party has met his burden, the nonmoving party must come forward with some evidence beyond the mere allegations contained in the pleadings to show there is a genuine issue for trial." Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir.1992). The non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Id. and Doyle v. Sentry Ins., 877 F. Supp. 1002, 1005 (E.D.Va.1995). Rather, the non-moving party is required to submit evidence of specific facts by way of affidavits [see Fed.R.Civ.P. 56(e)], depositions, interrogatories, or admissions to demonstrate the existence of a genuine and material factual issue for trial. Baber, citing Celotex Corp., supra. Moreover, the non-movant's proof must meet "the substantive evidentiary standard of proof that would apply at a trial on the merits." Mitchell v. Data General Corporation, 12 F.3d 1310, 1316 (4th Cir.1993) and DeLeon v. St. Joseph Hospital, Inc., 871 F.2d 1229, 1233, n. 7 (4th Cir.1989). Unsupported hearsay evidence is insufficient to overcome a motion for summary judgment. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547 (5th Cir.1987) and Evans v. Technologies Applications & Services Co., 875 F. Supp. 1115 (D.Md.1995).
Facts
The following facts are either undisputed or are stated in the light most favorable to Bickford:
1. Bickford is of Hispanic descent. (Pl. Dep.6).
2. Bickford was born June 28, 1943 (Id.).
*562 3. Boyd-Scotland is President of DTC.
4. Bickford was hired as secretary to Boyd-Scotland on September 2, 1997. (Id. at 24).
5. At that time, Valerie Turner ("Turner") was an administrative assistant to Boyd-Scotland. (Id. at 28).
6. Turner left in March of 1998 and Bickford became Boyd-Scotland's administrative assistant and secretary. (Id. at 43).
7. In January of 1999, Secil Jackson was hired as Boyd-Scotland's secretary and Bickford remained as administrative assistant (Pl. Dep. 52, Jackson Aff., ¶ 1).
8. In April of 2001, Bickford prepared a letter for Boyd-Scotland in response to an invitation. Boyd-Scotland complained to Bickford that the draft was not "wordy enough." During their conversation, Boyd-Scotland told Bickford, "we don't do things like your people do." (Pl. Dep.100).
9. Jackson left in January of 2002, and Cindy Jordan ("Jordan") replaced her as Boyd-Scotland's secretary. (Jackson Aff., ¶ 1 and Jordan Aff, ¶ 1).
10. Bickford maintained a personal calendar on which she noted things which occurred at work. In October of 2002, Bickford returned to work after being out several days due to a back injury. Bickford made a claim due to this injury. Boyd-Scotland was angry over the claim. Boyd-Scotland "snatched" Bickford's 2002 calendar from Bickford as she was making a notation on it and has never returned it. (Pl.Dep.88-89, 104).
11. On July 2, 2003, Boyd-Scotland sent Bickford into the rain to obtain a transcript. Bickford fell injuring her knees and hands. Boyd-Scotland told Bickford that she was getting old and must need glasses. Bickford was not allowed to seek medical attention until after Boyd-Scotland returned from lunch. (Id. at 110-12).
12. In January, of 2003, Boyd-Scotland required Bickford to work on a Saturday due to DTC's homecoming despite the fact that Bickford was suffering from back pain. Bickford continued to take Motrin for her back pain which led to a hospital admission for renal failure. (Id. at 113-14).
13. In December of 2003, Bickford applied for a job as DTC's bookstore manager. The position was not filled. (Id. at 126-27).
14. In January of 2004, Boyd-Scotland asked Bickford for a document that Boyd-Scotland thought she had given to her. Bickford told Boyd-Scotland that she did not give her the document. Boyd-Scotland insisted otherwise and told Bickford that she "must be getting old because [Bickford] couldn't remember nothing." (Id. at 120).
15. At the end of the work day on February 10, 2004, Boyd-Scotland screamed at Bickford for allegedly giving out personal and confidential information about a DTC employee over the telephone. Boyd-Scotland told Bickford that when she was not around, Bickford "wasn't capable of doing what [Bickford] was supposed to be doing." (Id. at 143). Boyd-Scotland reached across Bickford's chest, touching her, while pointing to Bickford's purse and told Bickford to "get *563 out." Bickford left. (Id. at 144-48).
16. On the night of February 10, 2004, Boyd-Scotland telephoned Bickford and instructed her to take 10 days of accumulated "comp time" before returning to work. Boyd-Scotland hung up on Bickford without responding when Bickford asked Boyd-Scotland if she still had a job. (Id. at 151-52).
17. Bickford was scheduled to return to work on February 25, 2004. On the night of February 24, Boyd-Scotland telephoned Bickford and told her not to come to work. Again, Boyd-Scotland refused to answer when Bickford asked if she still had a job.
18. Boyd-Scotland telephoned Bickford at 6:00 a.m. on February 26 and told her to take the day off. (Id. at 154).
19. At 6:30 a.m. on Friday, February 27, Boyd-Scotland telephoned Bickford and told Bickford to meet her at DTC's Barnwell site. The Barnwell site was open for classes only in the evenings to accommodate students from that area. When they met, Boyd-Scotland gave Bickford a letter telling her that she had, been transferred to the Barnwell site. The letter advised that Bickford's new job responsibilities would be given to her at a later time. (Id. at 154-59).
20. Bickford was allowed to return to her old office to retrieve personal belongings and supplies after 4:30 p.m. on February 27 (Id. at 160).
21. On the Sunday prior to her return to work at the Barnwell site, Bickford was hospitalized with chest pains. She was released on Monday, March 1, 2004, and, obtained a doctor's statement that she should not work on March 2 and 3. (Id. at 168-69).
22. Bickford telefaxed the doctor's note to Boyd-Scotland and telephoned her on March 1 after release from the hospital. (Id. at 170).
23. On March 2, 2004, Bickford's attorney wrote Boyd-Scotland and informed her that "we will consider that [Bickford] has been constructively discharged." (Def.Mem., Ex. 1).
24. Bickford did not report to work on March 4, 2004 as scheduled. (Pl. Dep.171).
25. Bickford applied for unemployment compensation' on March 10, 2004. (Id. at 172).
26. DTC paid Bickford as though she were employed on March 15, 2004. (Id. at 174).
27. On March 25, 2004, Boyd-Scotland wrote Bickford and instructed that "(i)f you have resigned or intend to resign or otherwise change your status of employment with the College, please advise in writing by Wednesday, March 31, 2004." (Def.Mem., Ex. 3). Bickford did not respond. (Id. at 175).
28. On April 15, 2004, Boyd-Scotland wrote Bickford and informed her that DTC considered that she had abandoned her employment. (Def.Mem., Ex. 4).
Discussion
A. Disparate Treatment
Bickford alleges that she was involuntarily transferred to the Barnwell site and constructively discharged due to her national origin' and age. In a disparate treatment case, such as this, Bickford must *564 prove that "but for" her national origin an age, she would not have been subjected to an adverse employment action. Holmes v. Bevilacqua, 794 F.2d 142 (4th Cir.1986). She can prove DTC's motive to discriminate in one of two ways. First, Bickford "may meet this burden under the ordinary standards of proof by direct and indirect evidence relevant to and sufficiently probative of the issue. In the alternative, a plaintiff may resort to the judicially created scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)." EEOC v. Clay Printing Co., 955 F.2d 936 (4th Cir.1992).
1. Direct Evidence
Bickford asserts that she has produced sufficient direct and circumstantial evidence of national origin discrimination to avoid summary judgment. (Pl.Mem., 18-20). The undersigned disagrees.
Direct evidence is evidence that the employer "announced, admitted, or otherwise indicated that [the forbidden consideration] was a determining factor. . . ." Cline v. Roadway Express, Inc., 689 F.2d 481, 485 (4th Cir.1982) (citing Spagnuolo v. Whirlpool Corp., 641 F.2d 1109, 1113 (4th Cir.), cert. denied, 454 U.S. 860, 102 S. Ct. 316, 70 L. Ed. 2d 158 (1981)). In other words, direct evidence is "evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision." Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir.1995), abrogated on other grounds, Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003) (evidentiary standard for mixed motive analysis).
The only direct evidence that Bickford cites is Boyd-Scotland's 2001 comment that "we don't do things like you people do" in discussing a letter Bickford had prepared for Boyd-Scotland. The statement is subject to several interpretations. Bickford argues that Boyd-Scotland was referring to her Hispanic heritage. Even if this argument is accepted, the comment was made almost three years prior to Bickford's transfer to the Barnwell site and has no direct bearing on that decision.[2]
Bickford cites certain instances which she argues are sufficient circumstantial evidence to establish national origin discrimination. She argues that Boyd-Scotland treated her differently than non-Hispanic employees because Boyd-Scotland screamed at her, criticized her punctuality, denied or delayed leave requests, and enforced DTC's dress code unequally. This evidence is not sufficient probative value to establish discriminatory animus based upon Bickford's national origin.
2. Prima Facie Case
In Hill v. Lockheed Martin Logistics Mgt, Inc., 354 F.3d 277, 285 (4th Cir.2004), the Fourth Circuit noted that establishing a prima facie case of discrimination under Title VII and the ADEA relies on the same analytical framework. "To demonstrate the prima facie case of [national origin] or age discrimination under the pretext framework, the plaintiff must show that (1) she is a member of a protected class; (2) she suffered adverse employment action; (3) she was performing her job duties at a level that met her employers' *565 legitimate expectations at the time of the adverse employment action; and (4) the position remained open or was filled by similarly qualified applicants outside the protected class." Id. The parties appear to agree that the only issue is whether or not Bickford's involuntary transfer to the Barnwell campus was an adverse employment action. DTC argues that it wag not. Bickford asserts that the transfer was not only an adverse employment action, but also resulted in her constructive discharge.
In Webster v. Rumsfield, 156 Fed.Appx. 571, 2005 WL 3229753, *7 (4th Cir.2005), Judge Traxler summarized precedent on this issue:
"An adverse employment action is a discriminatory act which adversely affects the terms, conditions, or benefits of the plaintiffs employment. Conduct short of ultimate employment decisions can constitute adverse employment action." James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375-76 (4th Cir.2004). "A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Indust., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998). (Emphasis added).
Thus, a reassignment can "form the basis of a valid Title VII claim if the plaintiff can show that the reassignment had some significant detrimental effect." Boone v. Goldin, 178 F.3d 253, 256 (4th Cir.1999). However, a mere change in an employee's job assignment, even if "less appealing to the employee, . . . does not constitute adverse employment action." Booz-Allen, 368 F.3d at 376. "Absent any decrease in compensation, job title, level of responsibility, or opportunity for promotion, reassignment to a new position commensurate with one's salary level does not constitute an adverse employment action even if the new job does cause some modest stress not present in the old position." Id. (emphasis added).
The, undersigned concludes that in the light most favorable to Bickford, the involuntary transfer to the Barnwell site was an adverse employment action because it resulted in significantly different and lowered responsibilities than she had been performing as administrative assistant to Boyd-Scotland. The record on this issue, however, is not fully developed. No job description for either position is a part of the record. At one point Bickford prepared a written description of her duties as Administrative Assistant to Boyd-Scotland and it was admitted as an exhibit to Bickford's deposition (Pl.Dep.78). However, no exhibits are attached to the copies of the deposition filed with the parties' memoranda. The letter given to Bickford by Boyd-Scotland on February 27, 2004, advising her of the transfer[3] stated that "a revised position questionnaire will be communicated . . . later." (Pl.Dep.158). However, this was not done as Bickford did not return to work. Boyd-Scotland did not describe Bickford's new duties during her deposition.
Bickford described her duties prior to the transfer during her deposition. These duties varied as Bickford was administrative assistant and at times doubled as secretary when that position was vacant. Generally, Bickford performed duties assigned to her by Boyd-Scotland (Pl. Dep.39). Basic duties included opening, recording and distribution of mail (Id. at 44); maintaining Boyd-Scotland's calendar on her desk (Id. at 80-81); and advising *566 Boyd-Scotland of deadlines (Id. at 44). Bickford was privy to confidential paperwork (Id.) and composed letters for Boyd-Scotland's signature (Id. at 99). As of 2001, Bickford was responsible for maintaining DTC's policies and procedure manual. (Id. at 48-50). Bickford attended weekly meetings of DTC's executive counsel and prepared minutes. (Id. at 55). Bickford gathered paperwdrk from DTC's administrators and prepared "commission books" for each commissioner. (Id. at 134). Additionally, Bickford was responsible for preparing for meetings of the DTC Board of Directors (Id. at 37), attending the meetings and preparing the minutes. (Id. at 44).
By contrast, the only duties Boyd-Scotland ever assigned to Bickford at the Barnwell site were compiling files for students and listing maintenance problems. (Id. at 159). Vivian Grubbs is now "temporary assistant at Denmark Technical College's Barnwell Site." (Grubbs' Aff. ¶ 2). The only duty she describes is that she is "responsible for opening the Site's building." (Grubbs' Aff. ¶ 3). Citing the depositions of Bickford (Pl.Dep.159) and Boyd-Scotland (Boyd-Scotland Dep. 213-215), DTC argues that "Bickford's job duties at the Barnwell site were scheduled to be similar to her duties at the College's main campus. . . ." (Def.Mem., p. 3). However, review of the depositions does not support this board's assertion. Thus, the record does contain some description of Bickford's duties prior to the transfer, but none thereafter except opening the building, filing, and listing maintenance problems. In the light most favorable to Bickford, her responsibilities were significantly reduced.
3. Pretext
Concluding that Bickford has established a prima facie case of national origin and age discrimination, the burden shifts to DTC to articulate a, legitimate, nondiscriminatory reason, for transferring her to the Barnwell site. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). Upon such articulation, the burden shifts back to Bickford to show that the reason articulated by DTC was not the true reason, but merely a pretext for discrimination. Id.
DTC states that it transferred Bickford to the Barnwell site because of her administrative ability and its need to prepare the Barnwell site for a visit by the Southern Association of Colleges and School ("SACS") with respect to accreditation. (Def.Mem., Ex. 8).
The undersigned finds that a jury could reasonably find that DTC's proffered reason is untrue and a pretext for discrimination. First, the record is silent as to whether the SACS accreditation team ever visited and the results if it did. Further, there is no evidence as to what efforts were made by Bickford's apparent replacement, Grubbs, at the Barnwell site. In other words, DTC has produced no evidence of the need to transfer Bickford, or anyone else, to the Barnwell site.
Even more troubling are the circumstances under which the transfer took place. The sequence of events is stated in the "Facts" section above. On February 10, 2004, Boyd-Scotland screamed at Bick ford, inferred she was incompetent, struck her while pointing at her pocketbook, and demanded that she leave the office. Bickford thought she had been terminated. Boyd-Scotland called Bickford that night and instructed Bickford to take 10 days of "comp time." Boyd-Scotland refused to answer when Bickford asked if she still had a job. On February 24, 2004, Boyd-Scotland telephoned Bickford and told her not to come in the next day. Again, she *567 did not respond to Bickford's inquiry about her job. Boyd-Scotland telephoned Bickford early in the morning of February 26 and told her to take the day off. Finally on February 27, 2004, Boyd-Scotland telephoned Bickford and told her to meet her at the Barnwell site. Thus for a period of over two weeks, Bickford had been ejected from her place of work and kept in limbo as to whether or not she had been terminated. A jury could easily conclude that in this situation, the transfer to the Barnwell site was not because of the alleged upcoming accreditation by SACS.
B. Constructive Discharge
An employee must show that her employer took "deliberate" action to make the employee's working conditions "intolerable" in an effort to force the employee to resign. Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1353-54 (4th Cir.1995); Amirmokri v. Baltimore Gas and Elec. Co., 60 F.3d 1126, 1132 (4th Cir.1995); Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir.1985), cert. denied, 475 U.S. 1082, 106 S. Ct. 1461, 89 L. Ed. 2d 718 (1986). Deliberateness exists when the actions of the employer were "intended by the employer as an effort to force the employee to quit." Burns v. AAF-McQuay, Inc., 96 F.3d 728 (4th Cir.1996); cert. denied, 520 U.S. 1116, 117 S. Ct. 1247, 137 L. Ed. 2d 329 (1997). Such intent can be inferred from actual or circumstantial evidence. See Holsey v. Armour & Co., 743 F.2d 199, 209 (4th Cir.1984), cert. denied, 470 U.S. 1028, 105 S. Ct. 1395, 84 L. Ed. 2d 784 (1985). Deliberateness is also shown if company personnel know of the untenable conditions, and take no steps to remedy the situation. Id. "Intolerable" working conditions are assessed by the objective standard of whether a "reasonable person" in the employee's position would have felt compelled to resign. Burns, 96 F.3d at 733, EEOC v. Clay Printing Co., 955 F.2d 936, 944 (4th Cir. 1992). If the employee meets this burden, she then must show that the conduct about which she complains was motivated by discrimination based on her age. Taylor v. Virginia Union University, 193 F.3d 219 (4th Cir.1999). Honor, 383 F.3d at 187 (employer's deliberateness must "be motivated by racial bias").
Based on the circumstances discussed above, the evidence is sufficient to conclude that DTC transferred Bickford to the Barnwell site in order to force her to resign. Whether the transfer resulted in a work environment that was objectively intolerable is a more difficult question. Normally, "difficult or unpleasant working conditions" do not constitute intolerable conditions. Carter v. Ball, 33 F.3d 450, 459 (4th Cir.1994). Likewise, a transfer that results in a more stressful work environment has been held not be an adverse employment action. Boone v. Goldin, 178 F.3d at 256. Further, a "slight decrease in pay[4] coupled with some loss of supervisory responsibilities, is insufficient evidence of constructive discharge." James v. Booz-Allen & Hamilton, 368 F.3d at 378 (internal quotation marks and citations omitted) (emphasis added). However, the transfer resulted in a move to a less desirable environment, and Bickford was stripped of all meaningful responsibilities as discussed above. The undersigned concludes that a jury could reasonable find these conditions to be intolerable.
C. Hostile Work Environment
Bickford appears to allege that she was subjected to a hostile work environment due to her national origin and age. DTC argues that she has failed to *568 produce sufficient evidence of a hostile work environment to avoid summary judgment.
To establish a claim for a hostile work environment, Bickford must prove that: (1) the subject conduct was unwelcome; (2) it was based on her national origin and/or age; (3) it was sufficiently severe or pervasive to alter the conditions of her employment and to create a hostile work environment; and (4) it was imputable to the employer. Baqir v. Principi, 434 F.3d 733, 745-46 (4th Cir.2006).
DTC continues to rely on its argument that Bickford's transfer was not a "discriminatory action" in its argument on Bickford's hostile work environment claim. (Def.Mem., p. 10). Given the conclusion reached above, this argument is without merit. The transfer, coupled with the statements made by Boyd-Scotland are sufficient to defeat DTC's motion for summary judgment on this claim.
D. Retaliation
To establish a prima facie case of retaliation, it must be demonstrated that:
(1) the employee engaged in protected activity;
the employer took some adverse employment action against the employee; and
(2) a causal connection existed between the protected activity and the adverse action.
See Von Gunten v. Maryland, 243 F.3d 858, 863 (4th Cir.2001); Causey v. Balog, 162 F.3d 795, 803 (4th Cir.1998); Carter v. Ball, 33 F.3d 450, 460 (4th Cir.1994). If the plaintiff establishes a prima facie case, the burden shifts to the defendant to produce evidence of a legitimate, non-discriminatory reason for the adverse action. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). If the defendant meets this burden, the plaintiff must show by a preponderance of the evidence that the proffered reason was pretextual, and that his termination was motivated by discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000); see also Duncan v. Commonwealth of Virginia Dep't of Corrections, 9 Fed.Appx. 236, 2001 WL 565672 (4th Cir. May 25, 2001)(unpublished).
A plaintiff need not have filed a formal complaint with the Equal Employment Opportunity Commission or a state deferral agency to engage in a protected activity. Complaints to supervisory or management employees concerning harassment or discriminatory treatment as well as informal complaints, filing of internal grievances, and complaints to an agency are included within the definition of protected activity. Warren v. Halstead Industries, Inc., 802 F.2d 746, cert. denied, 487 U.S. 1218, 108 S. Ct. 2872, 101 L. Ed. 2d 907 (1988). and Mitchell v. Baldrige, 759 F.2d 80 (D.C.Cir.1985).
Bickford has not shown that she engaged in a protected activity. She did not use DTC's grievance procedure to report discrimination. She has not identified any person to whom she reported discrimination based on national origin or age.
E. Opportunity for Advancement
The basis of Bickford's claim in this regard is unclear. Bickford appears to argue that in 1999 Boyd-Scotland would not allow Bickford to take leave to study for an accounting exam which may have prepared her for a position as Comptroller of DTC. (Pl.Dep.85). However, Bickford took the exam several months later. (Id. at 86). However, there is no evidence that Bickford ever applied for this position. The only position that Bickford appears to have applied for is the position in the DTC *569 bookstore. The record shows that this position was never filled.
Conclusion
Based on a review of the record, it is recommended that defendant's motion for summary judgment be granted as to plaintiff s claims for retaliation and interfering with opportunities for advancement and denied in all other respects.
November 29, 2006.
NOTES
[1] Although Plaintiff initially named Joann Boyd-Scotland as a defendant and asserted a pendent state law claim against her for intentional infliction of emotional distress, Complaint 1-7 (Entry 1), the court granted Boyd-Scotland's motion to dismiss by order filed October 26, 2005 (Entry 14).
[2] See, e.g., Plaintiff's Deposition, 24 (Entry 24-2) (Boyd-Scotland disapproved of a letter Plaintiff had written on her behalf, saying "we don't do things like your people do" in April 2001); id. at 27 (Boyd-Scotland told Plaintiff that she "must need new glasses" or was "getting to old . . . to see where [she] was going" after Plaintiff injured herself in July 2003); id. at 29 (Boyd-Scotland told Plaintiff that she "must be getting old because [Plaintiff] couldn't remember nothing [sic]" in January 2004).
[3] Plaintiff did not object to the Magistrate Judge's recommendation that summary judgment be granted as to these claims. In the absence of objections to the Report and Recommendation of the Magistrate Judge, this court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir.1983). The court has thoroughly reviewed the Report and concurs in the Magistrate Judge's finding that summary judgment should be granted with respect to the claims for retaliation and denial of opportunities for advancement.
[4] The only duty described by the new assistant at the Barnwell site, Vivian Grubbs, is opening the site's building. Affidavit of Vivian Grubbs, 1 (Entry 19-8).
[5] The fact that Plaintiff has not provided evidence of a decrease in pay does not change this result. See Collins v. Illinois, 830 F.2d 692, 702 (7th Cir.1987) (explaining that "several courts have found an adverse job action, for purposes of discrimination or retaliation, in a lateral transfer even where the transfer did not result in a reduction of pay or benefits. Title VII does not limit adverse job action to strictly monetary considerations. One does not have to be an employment expert to know that an employer can make an employee's job undesirable or even unbearable without money or benefits ever entering into the picture.").
[1] By order filed October 26, 2005, Joann R.G. Boyd-Scotland ("Boyd-Scotland") was dismissed as a defendant in this action.
[2] Bickford raises no argument that she has produced direct evidence of age discrimination. The same analysis and conclusion would be reached based on Boyd-Scotland's stray comments about Bickford's age.
[3] The letter is also not a part of the record.
[4] Bickford does not contend that the transfer resulted in a decrease in pay.