PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1038
ROBIN L. WALKER,
Plaintiff - Appellant,
v.
MOD-U-KRAF HOMES, LLC,
Defendant - Appellee.
-----------------------------------
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Amicus Supporting Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, Chief
District Judge. (7:12-cv-00470-GEC)
Argued: October 28, 2014 Decided: December 23, 2014
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published
opinion. Judge Agee wrote the opinion, in which Judge Niemeyer
and Judge Duncan concurred.
ARGUED: Terry Neill Grimes, TERRY N. GRIMES, ESQ., P.C.,
Roanoke, Virginia, for Appellant. James J. O'Keeffe, IV,
GENTRY, LOCKE, RAKES & MOORE, Roanoke, Virginia, for Appellee.
Elizabeth Ellen Theran, U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Amicus Supporting Appellant.
ON BRIEF: P. David Lopez, General Counsel, Carolyn L. Wheeler,
Acting Associate General Counsel, Lorraine C. Davis, Assistant
General Counsel, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Washington, D.C., for Amicus Supporting Appellant.
2
AGEE, Circuit Judge:
Robin Lynn Walker appeals the district court’s grant of
summary judgment to her former employer, Mod-U-Kraf Homes, LLC
(“Mod-U-Kraf Homes”), on her claims of a sexually hostile work
environment and retaliation. For the reasons set forth below,
we vacate the judgment of the district court on the hostile work
environment claim and remand for further proceedings as to it.
We affirm the grant of summary judgment on the retaliation
claim.
I.
Based in Rocky Mount, Virginia, Mod-U-Kraf Homes
manufactures pre-fabricated houses. 1 Walker worked there during
two time periods: from 2007 to 2009 and again from May 2010 to
July 22, 2011. Walker worked several positions in the final
finishing department, though she primarily “caulk[ed] and
paint[ed] trim inside each house or ‘box’ as it neared the end
of the production line.” Walker v. Mod-U-Kraf Homes, Inc., 988
F. Supp. 2d 589 (W.D. Va. 2013). Because of changes to her
specific assignments during each term of her employment,
1
Consistent with the governing standard at the summary
judgment stage, the facts are recounted in the light most
favorable to Walker even where there are disputed events that
Walker may not ultimately be able to prove. See FDIC v.
Cashion, 720 F.3d 169, 173 (4th Cir. 2013).
3
Walker’s allegations primarily arise from the second term (after
May 2010).
Walker claims that one of her co-workers, David Mullins,
made inappropriate sex-based comments to her and other co-
workers on a near-daily basis. When Walker first started
working at Mod-U-Kraf Homes, Mullins referred to her as “fresh
meat.” (J.A. 415.) Two or three times a week, Mullins would
grab his crotch and say, “these nuts are looking for you.”
(J.A. 447-48.) With the same frequency, he would call out,
“[t]here she goes, there it is.” (J.A. 240.) Mullins would
stick his tongue out at Walker and other female employees and
“snicker.” (J.A. 417-18.) Other times, he would grab his
crotch and exclaim, “oh, oh, oh” or say, “I bet you could holler
real loud, couldn’t you.” (J.A. 559, 117.) After Walker began
dating a co-worker, Ray Cassidy, in March 2011, Mullins also
made comments to him within Walker’s hearing about Walker
performing oral sex. For example, one day when Walker went into
a box to work, Mullins suggested to Cassidy that if he “want[ed]
a blow job” he should go join her. (J.A. 507.)
Mullins was not alone in his conduct. Walker claims that
in the spring of 2011 another co-worker, James Young, also began
grabbing his crotch and saying, “these nuts are looking for you”
almost every day. (J.A. 453-57, 609.)
4
Other co-workers frequently witnessed these incidents and
were, in turn, subject to similar statements. (E.g., 453, 507,
602, 609.) And on at least two occasions, Mullins approached a
co-worker (once Cassidy, once a female co-worker), grabbed his
crotch, looked down to where the co-worker was working, and
said, “[w]hile you’re down there why don’t you just . . . .”
(J.A. 601-03.)
Following the procedure she had been advised to use, Walker
complained about and reported these incidents to her “lead” co-
worker, Sandra Burnopp. 2 Even though Walker complained “every
week,” Burnopp’s response was always the same. (J.A. 449.) She
told Walker to “just ignore it,” that if she ignored it they
might stop, and that “[h]e does that to everybody” and “always
acts like that.” (J.A. 416, 419, 449, 459, 509.) Burnopp never
spoke to Mullins or Young about their behavior, nor did she
report Walker’s complaints to a supervisor. Frustrated by
Burnopp’s response, Walker began complaining to her supervisor,
Wayne Craiger, every week as well. When Craiger spoke to
Mullins, Mullins reduced the frequency of his comments for a
while, though this had negligible long-term impact.
2
The “lead” was the “lead person of the employees on that
end of the [production] line.” (J.A. 417.) It is unclear from
the record what level of supervisory authority, if any, is held
by a “lead.”
5
Walker claims that she was under such stress as a result of
this work environment that she sought and received a
prescription for Xanax from her doctor. She also began to work
slower in order to “stay[] behind,” and actively tried to avoid
Mullins and Young. (J.A. 522-23.)
On July 20, 2011, employees were breaking for lunch when
Mullins turned toward Walker and Cassidy and “kept saying,
[w]iener in the mouth, wiener in the mouth.” (J.A. 472.)
Walker and Cassidy broke away from the group to eat, and decided
to telephone Burnopp to arrange to meet with her and Craiger
after lunch “because this stuff with David Mullins is going to
stop today.” (J.A. 476.) Walker and Cassidy encountered
Mullins shortly thereafter, observing him looking at them and
laughing. They confronted him immediately. Though Walker
denies touching Mullins, numerous employees described her as
“poking” or “punching” her fingers into Mullins’ chest.
Cassidy, meanwhile, stood behind Walker holding a hammer in a
threatening manner that raised concern amongst witnesses.
Burnopp and Craiger arrived on scene and broke up the
altercation. (For simplicity, this incident will be referred to
as the July 20 “altercation.”)
Craiger and plant manager Ricky Adkins began questioning
the participants and witnesses to determine what had occurred.
Cassidy informed them that if he was going to be fired, they
6
should do so then, at which point Walker indicated that if
Cassidy was being fired, then she was quitting. Adkins
suspended Cassidy for three days pending further investigation,
and told Walker to return to work.
Craiger and Adkins interviewed or obtained statements from
at least ten employees. Although the accounts varied in some
particulars, the witnesses (except for Walker and Cassidy)
uniformly described Walker and Cassidy as the initiators and
aggressors in the July 20 altercation.
Walker’s written statement regarding the altercation
focused on Mullins’ past behavior. She accused Mullins of
“say[ing] stuff like ‘[t]here she goes, there it is’ – 2 or 3
times a week,” and of having said on one occasion, “if you want
a blow job go up in that Box [with Walker.]” (J.A. 240.) She
said that shortly before the altercation, Mullins “kept saying,
‘weener [sic] in the mouth’ over and over, laughing,” and that
she told Cassidy she was “tired of [Mullins’] mouth.” (J.A.
240.) Walker’s only comment about the altercation itself was
that an “[a]rgument insued [sic].” (J.A. 240.)
On July 21, Adkins spoke with human resources
representative Kathryn McDaniel and together they concluded that
Walker had also participated in the altercation and laid hands
on Mullins. They determined that both Cassidy and Walker should
be terminated as a result of the altercation and notified
7
Cassidy of the decision that day. Adkins intended to inform
Walker of her termination of employment in person, but he was
delayed until the following Monday, July 25, because Walker
called in sick for several days.
In subsequent weeks Walker called the telephone numbers
listed in Mod-U-Kraf Homes’ employee handbook for reporting
harassment to the managerial or corporate level. She told them
of Mullins’ harassment and complained that she had been fired
for the “wrong reasons.” (J.A. 444.) In mid-August, Mod-U-Kraf
Homes issued a written disciplinary report to Mullins, stating
that “complaints were made against [him] during an investigation
and [were] not reported until later.” (J.A. 356.) Mullins was
instructed “not to make any comments to other employees,” citing
the company’s “anti-harassment policy.” (J.A. 356.)
In October 2012, Walker filed a complaint, subsequently
amended, in the Western District of Virginia against Mod-U-Kraf
Homes. She alleged that she was subjected to a hostile work
environment in the form of sexual harassment. Following
discovery, Mod-U-Kraf Homes moved for summary judgment, which
the district court granted.
The court held that Walker’s evidence of objectively severe
or pervasive conduct was “insufficient, as a matter of law, to
meet the high bar required to survive summary judgment on a
hostile work environment claim.” 988 F. Supp. 2d at 597.
8
Although Walker’s complaint did not formally plead a claim of
retaliation, by the time Mod-U-Kraf Homes moved for summary
judgment, the parties briefed the issue as if she had. The
district court granted summary judgment as to this claim,
concluding Walker’s evidence failed to create a genuine issue of
material fact that the “legitimate, nonretaliatory reason for
terminating her employment, namely, her involvement in the fight
with David Mullins,” was pretext for retaliation. Id. at 596
n.2, 601.
Walker noted a timely appeal, and we have jurisdiction
pursuant to 28 U.S.C. § 1291.
II.
We review the district court’s grant of summary judgment de
novo, applying the same standard as the district court.
Cashion, 720 F.3d at 173. Summary judgment is appropriate if
“there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). In addition to construing the evidence in the
light most favorable to Walker, the non-movant, we also draw all
reasonable inferences in her favor. Cashion, 720 F.3d at 173.
9
A.
Title VII of the Civil Rights Act of 1964 prohibits
employers from discriminating against individuals “[w]ith
respect to . . . terms, conditions, or privileges of employment,
because of such individual’s . . . sex[.]” 42 U.S.C. § 2000e-2.
“Since an employee’s work environment is a term or condition of
employment, Title VII creates a hostile working environment
cause of action.” EEOC v. R&R Ventures, 244 F.3d 334, 338 (4th
Cir. 2001). A hostile work environment is one “permeated with
discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations
and internal quotation marks omitted). However, Title VII does
not “attempt to purge the workplace of vulgarity” and “[n]ot all
sexual harassment that is directed at an individual because of
his or her sex is actionable.” Hopkins v. Balt. Gas & Elec.
Co., 77 F.3d 745, 753 (4th Cir. 1996) (citation and internal
quotation marks omitted).
Walker’s complaint alleged that Mod-U-Kraf Homes violated
Title VII by “failing to take action reasonably calculated to
prevent sexual harassment and by permitting a work environment
to exist that was sexually charged and hostile and offensive to”
Walker and other workers. (J.A. 9.) To survive summary
10
judgment, Walker was required to produce evidence sufficient for
a reasonable juror to conclude that the offending behavior was
(1) unwelcome, (2) based on her gender, (3) “sufficiently severe
or pervasive to alter the conditions of her employment and
create an abusive atmosphere,” and (4) imputable to Mod-U-Kraf
Homes. EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167, 175 (4th
Cir. 2009) (citing EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306,
313-14 (4th Cir. 2008)). Mod-U-Kraf Homes argued summary
judgment should be granted in its favor because the conduct
Walker complained of did not satisfy the second or third
components of a hostile work environment claim. The district
court only analyzed whether Walker satisfied the third component
and concluded she had failed to do so. 988 F. Supp. 2d at 597
n.3.
This third prong of a hostile work environment claim has
“both subjective and objective components.” Cent. Wholesalers,
Inc., 573 F.3d at 175. A plaintiff like Walker was required to
show that she perceived—and that a reasonable person would
perceive—the environment to be abusive or hostile. See id. The
district court accepted that Walker subjectively perceived her
workplace to be offensive, but concluded that she had failed to
produce evidence to satisfy the objective component of her
claim. “‘[T]he objective severity of harassment should be
judged from the perspective of a reasonable person in the
11
plaintiff’s position, considering all the circumstances.’”
Ziskie v. Mineta, 547 F.3d 220, 227 (4th Cir. 2008) (alteration
in original) (quoting Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 81 (1998)).
Throughout its decision, the district court emphasized that
it did not condone the “boorish,” “moronic,” “inappropriate,”
“immature,” and “unprofessional” conduct Walker alleged had
occurred. E.g., 988 F. Supp. 2d at 599, 601. Nonetheless, the
court held that although “some of the comments made by Young and
Mullins were clearly inappropriate, [Walker’s] coworkers’
behavior was simply not of the same magnitude as that which the
Fourth Circuit has found sufficiently severe or pervasive to
constitute actionable sexual harassment.” Id. at 597. On this
record, however, we conclude that the district court erred in
stating that Mullins and Young’s conduct could not constitute
actionable “severe or pervasive” harassment as a matter of law.
For that reason, we are constrained to vacate the judgment of
the district court and remand for further proceedings on the
hostile work environment claim.
Two overarching principles lead us to this conclusion.
First, at the summary judgment stage, we must view the record in
the light most favorable to Walker, who was the non-moving
party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). Second, “whether ‘harassment was sufficiently severe or
12
pervasive is quintessentially a question of fact.’” Hartsell v.
Duplex Prods., Inc., 123 F.3d 766, 773 (4th Cir. 1997) (quoting
Paroline v. Unisys Corp., 879 F.2d 100, 105 (4th Cir. 1985)).
Thus, while summary judgment is appropriate in cases where the
facts are clearly insufficient to satisfy the standard, when
there is a close question and “‘reasonable minds could differ’”
when weighing all the facts against the law, then summary
judgment is inappropriate. Paroline, 879 F.2d at 105 (quoting
Anderson, 477 U.S. at 250).
The totality of the record before us creates too close a
question as to whether Mullins and Young’s behavior created an
objectively hostile or abusive work environment to be decided on
summary judgment. See Oncale, 523 U.S. at 81 (“[T]he objective
severity of harassment should be judged from the perspective of
a reasonable person in the plaintiff’s position, considering all
the circumstances.” (citation and internal quotation marks
omitted)). As recounted above, that alleged environment
consisted of comments of varying degrees of offensiveness being
made to Walker several times a week for well over a year.
Similar comments were made with the same frequency to other co-
workers. See Hoyle v. Freightliner, LLC, 650 F.3d 321, 333 (4th
Cir. 2011) (“[T]he totality of the circumstances includes
conduct directed not at the plaintiff.”). When Walker or her
co-workers complained to their leads and immediate supervisors,
13
limited action was taken to stop the offending behavior.
Whether this environment is sufficient to satisfy the
objectively unreasonable “severe or pervasive” prong is not
answered by a “mathematically precise test,” but rests on a
variety of factors, including “the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.” Harris, 510 U.S. at 22-23; see also Jennings v.
Univ. of N.C., 482 F.3d 686, 696 (4th Cir. 2007) (“Whether
gender-oriented harassment amounts to actionable (severe or
pervasive) discrimination ‘depends on a constellation of
surrounding circumstances, expectations, and relationships.’
All the circumstances are examined, including the positions and
ages of the harasser and victim, whether the harassment was
frequent, severe, humiliating, or physically threatening[.]”
(citation omitted)).
To be sure, on this record, some factors pull toward a
finding that the offensive behavior was actionable, while other
factors pull in the opposite direction. But neither we nor the
district court are called upon to weigh that evidence at this
stage. Instead, the court’s task is simply to examine whether
the record contains proof from which a reasonable trier of fact
could conclude “that the environment was pervaded with
14
discriminatory conduct aimed to humiliate, ridicule, or
intimidate, thereby creating an abusive atmosphere.” Cent.
Wholesalers, Inc., 573 F.3d at 176 (citation and internal
quotation marks omitted). We recognize that some of the above
incidents and individuals’ motives are disputed, but such
factual details and credibility determinations are also not
issues to be resolved at the summary judgment stage. For our
purposes, it is sufficient that Walker’s proffered evidence
creates a genuine issue of fact as to whether her environment
was sufficiently “severe or pervasive to alter the conditions of
her employment.” Cf. Id. at 175.
In reaching its decision, the district court quite
appropriately examined our prior case law concerning what types
of events survived summary judgment because they did—or at least
could—constitute actionable sexual harassment. E.g., Ziskie,
547 F.3d at 228 (stating that in order to survive summary
judgment, alleged claims “must still be objectively as severe as
that in cases that we have allowed to go to a jury”). For
example, the Court distinguished Walker’s work environment from
cases where the harasser touched the victim, propositioned or
threatened her, or engaged in demonstrations of sexual acts.
Walker, 988 F. Supp. 2d at 599. But, while our case law has
noted instances where certain conduct would satisfy a
plaintiff’s burden on the “severe or pervasive” element, we have
15
not limited the applicable analysis only to instances where
those precise behaviors are alleged to have occurred.
Indeed, we have previously recognized that harassment need
not involve touching or be “physically threatening” in order to
be actionable “e.g., where it is humiliating and demeaning.”
Hoyle, 650 F.3d at 334-35; see also Ocheltree v. Scollon Prods.,
Inc., 335 F.3d 325, 331 (4th Cir. 2003) (en banc) (stating that
a plaintiff “may prove sex-based discrimination in the workplace
even though she is not subjected to sexual advances or
propositions”). And in this case, a reasonable jury could
rationally find that the consistent and repeated comments made
by Mullins and Young “painted women in a sexually subservient
and demeaning light [that is] sufficiently severe or pervasive
to alter the conditions of [Walker’s] employment and to create
an abusive work environment.” Ocheltree, 335 F.3d at 333. That
there are also arguments that suggest that this conduct may not
be sufficiently severe or pervasive does not mean that a
reasonable jury could not conclude otherwise. At bottom, the
facts presented in the record are simply too close to that line
for summary judgment to be appropriate.
We caution that just because Walker has prevailed at this
stage of the proceedings does not mean that she will ultimately
prevail on her claim or even that her case will proceed to
trial. In ruling on the summary judgment motion, the district
16
court only reviewed the third prong of Walker’s claim. We
expressly decline Mod-U-Kraf Homes’ invitation to consider the
“because of gender” factor in this appeal. That task is more
appropriately performed in the first instance by the district
court. And in reversing the district court’s decision, we have—
as we must—viewed the evidence in the light most favorable to
Walker; what she may ultimately prove, and whether that evidence
is ultimately persuasive to a trier of fact, is another matter.
All we hold is that the evidence creates a genuine dispute of
material fact, which does not permit the granting of summary
judgment to Mod-U-Kraf Homes with respect to the third component
of Walker’s hostile work environment claim.
B.
Walker sought to establish her retaliation claim under the
burden-shifting framework established in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). To establish a prima facie case,
Walker had to show (1) that she engaged in a protected activity;
(2) that Mod-U-Kraf Homes acted adversely against her; and (3)
that the protected activity was a “but-for” cause of her
termination and not simply a “motivating factor.” See Hill v.
Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th
Cir. 2004) (en banc). If Walker established her prima facie
case, the burden would shift to Mod-U-Kraf Homes to provide a
17
legitimate, non-retaliatory explanation for its decision to
terminate Walker. See id. Upon such a proffer, the burden
would return to Walker to show that the proffered reason was
pretext for retaliation. See id.
The district court stated that even if it were assumed that
Walker could establish a prima facie case, Mod-U-Kraf Homes had
met its burden of putting forth “a legitimate, nonretaliatory
reason for terminating her employment, namely, her involvement
in the fight with David Mullins.” Walker, 988 F. Supp. 2d at
601. The court explained that Walker’s arguments attempting to
establish pretext fell short of creating a genuine issue of
material fact with respect to that issue. Id. at 601-03.
Accordingly, it granted summary judgment.
Walker argues that in so doing, the district court
overstepped its role and usurped that of the jury by weighing
Mod-U-Kraf Homes’ motives for terminating Walker. She contends
that she demonstrated a triable issue regarding pretext for
retaliation based on the following evidence: (1) the individuals
who terminated her employment did so on the day after they
learned she was being sexually harassed; (2) Mod-U-Kraf Homes
failed to terminate Mullins, thus treating similarly situated
individuals differently; (3) Mod-U-Kraf Homes listed Walker as
being eligible for re-hire despite purporting to terminate her
for cause; and (4) Mod-U-Kraf Homes failed to follow its sexual
18
harassment policies when Walker first reported she was being
harassed.
We agree with the district court that Walker failed to
satisfy her burden of producing evidence from which a reasonable
jury could conclude that Mod-U-Kraf Homes’ explanation was
“unworthy of credence” or was a cover-up for unlawful
discrimination. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 256 (1981). As an initial matter, Walker has offered
no direct evidence that she was terminated because she reported
sexual harassment in the workplace. Nor has she offered
circumstantial evidence that would call into question Mod-U-Kraf
Homes’ explanation for her termination of employment.
Walker’s argument as to the timing of her termination
discounts that the decision to do so was made the day after the
altercation that Mod-U-Kraf Homes says was the basis for her
termination. The record reflects that Adkins and McDaniel
learned of some of Walker’s complaints about Mullins during the
course of the investigation into the July 20 altercation. But
proof that Walker complained about harassment as part of the
investigation is insufficient to suggest pretext. E.g.,
Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989)
(“[M]ere knowledge on the part of an employer that an employee
it is about to fire has filed a discrimination charge is not
sufficient evidence of retaliation to counter substantial
19
evidence of legitimate reasons for discharging that employee.”),
abrogated on other grounds by Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2534 (2013). And while Walker asserts
Mod-U-Kraf Homes’ investigation into the altercation was
insufficient and its conclusion that she placed hands on Mullins
was incorrect, neither argument provides evidence of pretext.
We have repeatedly observed that “[i]t is not [a court’s]
province to decide whether [an employer’s] reason [for
terminating an employee] was wise, fair, or even correct,
ultimately, so long as it truly was the reason for [the
employee’s] termination.” DeJarnette v. Corning, Inc., 133 F.3d
293, 299 (4th Cir. 1998) (citation and internal quotation marks
omitted). Simply put, the circumstances and timing of Walker’s
termination do not support a reasonable inference of pretext in
this case. 3
Walker also suggests that a jury could find pretext based
on Mod-U-Kraf Homes “treat[ing] Mullins and Walker, similarly-
situated employees with respect to the incident, in a disparate
manner[.]” (Opening Br. 55.) To be sure, evidence that an
3
We acknowledge, of course, that timing can constitute
evidence of pretext in an appropriate case. E.g., Dotson v.
Pfizer, Inc., 558 F.3d 284, 297 (4th Cir. 2009) (discussing one
such circumstance). But timing is unlikely to defeat a
nonretaliatory explanation on its own, see Roberson v. Alltel
Info. Servs., 373 F.3d 647, 656 (5th Cir. 2004), and it does not
do so here.
20
employer treated similarly situated individuals differently can
be evidence of pretext. E.g., Laing v. Fed. Express Corp., 703
F.3d 713, 721 (4th Cir. 2013) (stating that such comparator
evidence “would be ‘especially relevant’ to a showing of
pretext”). But when Mod-U-Kraf Homes decided to terminate
Walker and not Mullins, it did not view Walker and Mullins as
“similarly situated,” nor is there evidence that their roles in
the altercation were equal. Numerous witnesses stated that
Walker physically assaulted Mullins, not the other way around.
The undisputed record shows that Adkins and McDaniel decided
Walker should be fired as a result of Walker’s physical assault
on a co-worker. Although Walker accused Mullins of
inappropriate comments as part of her statement, none of the
evidence indicated that Mullins had “laid hands on” Walker or
another employee during the altercation. See King v. Rumsfeld,
328 F.3d 145, 151-52 (4th Cir. 2003) (rejecting plaintiff’s
attempt to demonstrate pretext based on employer’s conduct
toward another individual where plaintiff failed to produce
evidence that the employer believed the two individuals were
“similarly situated” or evidence from which that conclusion
could be inferred). Moreover, Walker’s argument ignores that
Mod-U-Kraf Homes did treat the two individuals it had determined
to be culpable for the altercation the same: it terminated both
Walker and Cassidy for their physically aggressive roles in the
21
altercation. Walker’s reliance on Mod-U-Kraf Homes’ treatment
of “similarly situated” employees does not demonstrate pretext.
To the contrary, the record on this point supports Mod-U-Kraf
Homes’ legitimate, nonretaliatory explanation for its decision.
Walker also contends that a jury could find pretext from
Mod-U-Kraf Homes’ indication on her personnel change notice that
Walker’s performance was “good” and that she was eligible for
rehire. Contrary to Walker’s contention, however, no fatal
contradiction exists between these statements. Walker may have
excelled at her job, and yet still been subject to termination
for cause. And she may have been subject to termination for
cause, yet also still be eligible for rehire pursuant to Mod-U-
Kraf Homes’ policies. 4 Neither designation contradicts Mod-U-
Kraf Homes’ proffered explanation, nor is it particularly
probative of the motives for terminating Walker’s employment.
King, 328 F.3d at 151-52 (rejecting a plaintiff’s allegations of
pretext for these reasons); see also Reeves v. Sanderson
Plumbing, Inc., 530 U.S. 133, 147 (2000) (stating that a
plaintiff can prove pretext by showing that the employer’s
“explanation is unworthy of credence or by offering other forms
of circumstantial evidence sufficiently probative of
4
Adkins stated in his deposition that Walker was terminated
for fighting with Mullins, but that he did not remember if she
was “eligible for rehire,” and he did not dispute the notation
in her paperwork that she was. (J.A. 691.)
22
[retaliation]”); Hux v. City of Newport News, 451 F.3d 311, 315
(4th Cir. 2006) (“[T]he plaintiff cannot seek to expose [an
employer’s] rationale as pretextual by focusing on minor
discrepancies that do not cast doubt on the explanation’s
validity, or by raising points that are wholly irrelevant to
it.”). 5
Lastly, Walker has not created a triable issue as to
pretext based on Mod-U-Kraf Homes’ failure to follow its written
sexual harassment policies after she first reported being
harassed. Walker relies on the alleged failure of the
individuals to whom she reported being harassed to follow Mod-U-
Kraf Homes’ policies about investigating and reporting such
complaints to their supervisors. And she accuses Adkins and
McDaniel of failing to investigate her claims of sexual
harassment once they learned of them. Even accepting, for the
sake of argument, that these individuals violated Mod-U-Kraf
Homes’ policies, that is unrelated to the proffered legitimate
reason to terminate Walker’s employment. In other words,
5
We further note that the termination documentation Walker
relies on also states that her termination was “[i]nvoluntary”
and that she was “terminated for conduct.” (J.A. 347.) While
these statements do not provide a detailed explanation for the
reason Mod-U-Kraf Homes terminated Walker, both are consistent
with Adkins and McDaniel’s statements. Contrast EEOC v. Sears
Roebuck & Co., 243 F.3d 846, 852-53 (4th Cir. 2001) (stating
that an employer’s inconsistent explanations and different
justifications are probative of pretext).
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failure to follow company policy to report or investigate her
complaints does not call into question whether Mod-U-Kraf Homes
terminated Walker’s employment based on its conclusion that she
had physically assaulted another employee. It is not evidence
of pretext.
Accordingly, Walker has failed to produce evidence creating
a triable issue as to whether Mod-U-Kraf Homes’ proffered
explanation for terminating Walker was pretext for retaliation.
Accordingly, the district court did not err in granting summary
judgment on this claim.
III.
For the reasons explained above, we vacate the judgment of
the district court granting summary judgment to Mod-U-Kraf Homes
on Walker’s hostile work environment claim and remand for
further proceedings consistent with this opinion. We affirm the
district court’s judgment granting summary judgment to Mod-U-
Kraf Homes on Walker’s retaliation claim.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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