Munday v. Waste Management of North America, Inc.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DAWN F. MUNDAY,
Plaintiff-Appellee,

v.

WASTE MANAGEMENT OF NORTH
No. 94-2192
AMERICA, INCORPORATED; WASTE
MANAGEMENT OF MARYLAND,
INCORPORATED,
Defendants-Appellants.

DAWN F. MUNDAY,
Plaintiff-Appellant,

v.

WASTE MANAGEMENT OF NORTH
No. 94-2193
AMERICA, INCORPORATED; WASTE
MANAGEMENT OF MARYLAND,
INCORPORATED,
Defendants-Appellees.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Frank A. Kaufman, Senior District Judge.
(CA-92-467-K)

Argued: May 3, 1995

Decided: September 11, 1997

Before WIDENER and WILLIAMS, Circuit Judges, and HEANEY,
Senior Circuit Judge of the United States Court of Appeals
for the Eighth Circuit, sitting by designation.

_________________________________________________________________
No. 94-2192 affirmed in part, reversed in part, and remanded, and No.
94-2193 dismissed as moot by published opinion. Judge Widener
wrote the opinion, in which Judge Williams concurred. Senior Judge
Heaney wrote a concurring and dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Russell Heuer Gardner, PIPER & MARBURY, Balti-
more, Maryland, for Appellants. Harold R. Weisbaum, BLUM &
WEISBAUM, P.A., Baltimore, Maryland, for Appellee. ON BRIEF:
Ann L. Lamdin, PIPER & MARBURY, Baltimore, Maryland, for
Appellants. Charles J. Goetz, III, BLUM & WEISBAUM, P.A., Balti-
more, Maryland, for Appellee.

_________________________________________________________________

OPINION

WIDENER, Circuit Judge:

Defendants Waste Management of North America, Inc. and Waste
Management of Maryland, Inc. (collectively, Waste Management)
appeal from an adverse judgment of the district court, sitting without
a jury, on claims of retaliation under Title VII, 42 U.S.C. § 2000e-
3(a), and breach of contract brought by plaintiff Dawn Munday. Miss
Munday cross-appeals from the district court's conclusions that she
could not recover compensatory or punitive damages for defendants'
conduct occurring prior to the effective date of the Civil Rights Act
of 1991 and that the Title VII remedies awarded in this case preclude
additional recovery for breach of contract under Maryland law. For
the following reasons, we affirm in part, reverse in part, and remand.

The facts of this case are set forth in the opinion of the district
court, Munday v. Waste Management of North America, Inc., 858 F.
Supp. 1364 (D. Md. 1994), and because the parties chose not to tran-
scribe the proceedings below, those facts are undisputed.1 Briefly,
_________________________________________________________________
1 Because both parties have chosen not to provide a transcription of the
record below or to identify factual errors made by the district court, we

2
those facts are as follows. Miss Munday began working for Waste
Management of Maryland in December 1986. Munday , 858 F. Supp.
at 1367. After a transfer to Waste Management of Greater Washing-
ton, Miss Munday resigned and was rehired as a truck driver by
Waste Management of Maryland in August 1988. Munday, 858 F.
Supp. at 1367. She was subjected to a number of instances of sexual
harassment. Munday, 858 F. Supp. at 1367-68. On May 30, 1989,
after Miss Munday walked off the job because of her dissatisfaction
with the truck with which she was provided for the day, she was prop-
erly fired for insubordination. Munday, 858 F. Supp. at 1368.

Miss Munday then filed a claim of sexual harassment and sex dis-
crimination with the Howard County, Maryland Office of Human
Rights, which issued a reasonable-cause letter. Munday, 858 F. Supp.
at 1369. A hearing was commenced, but on April 19, 1991, the parties
settled the dispute. Munday, 858 F. Supp. at 1369, 1375. In the settle-
ment agreement, Waste Management agreed, among other things, to
expunge Miss Munday's termination, to reinstate Miss Munday, and
not to retaliate against her for filing the complaint in the Office of
Human Rights. Munday, 858 F. Supp. at 1369.

Prior to Miss Munday's agreed return to work, Waste Management
of Maryland held a safety meeting at which the employees were told
not to sexually harass Miss Munday. Munday, 858 F. Supp. at 1369.
Robert Bohager, General Manager of the Maryland facility, Munday,
858 F. Supp. at 1367, also told the employees not to socialize with
Munday and to avoid her as much as possible. Munday, 858 F. Supp.
at 1369.

When Miss Munday returned to work, on July 8, 1991, Munday,
858 F. Supp. at 1369, Waste Management had failed to take several
measures necessary to prepare for her return, although these measures
were taken thereafter. Munday, 858 F. Supp. at 1369. Other employ-
_________________________________________________________________
will take all, and only, the facts as stated by the district court as true and
undisputed. See Hicks v. United States, 368 F.2d 626, 630-31 (4th Cir.
1966) ("The determination . . . involves not only the formulation of the
legal standard, but . . . its application to the evidentiary facts as estab-
lished; and since these are uncontested, there is no basis for applying the
`clearly erroneous' rule" of F.R. Civ. P. 52(a)).

3
ees refused to talk with her, and she was told that Bohager and
another manager, Heider, had instructed the employees to ignore her
and to report back to Bohager anything she said to other employees.
Munday, 858 F. Supp. at 1370.

On July 26, 1991, Heider informed Miss Munday that Bohager had
told the employees not to talk to Miss Munday and that Bohager
wanted to get rid of Munday. Munday, 858 F. Supp. at 1370. Later
that day, at a scheduled meeting attended by Munday, Bohager, and
Chad Johnson, Waste Management of Maryland's Operations Man-
ager, to address Miss Munday's complaints, Bohager yelled at Mun-
day because he had heard a rumor that she planned to sue the
company again. Munday, 858 F. Supp. at 1370. Munday denied this
and attempted to address her concerns, but Bohager stated, colorfully,
that he did not care about her problems. Munday , 858 F. Supp. at
1370.

From August 1991 to September 1992, Miss Munday worked inter-
mittently for Waste Management due to several periods of disability
leave. See Munday, 858 F. Supp. at 1370-71. During this time, while
she was working, Miss Munday continued to be ignored by her
coworkers, was assigned a route other than one she requested, and
was subjected to a number of work-related unpleasantries of which
she complained and which were adequately investigated and
addressed by Waste Management. See Munday, 858 F. Supp. at 1370-
71.

On September 29, 1992, Miss Munday was placed on disability
leave following "so-called panic attacks while driving her route."
Munday, 858 F. Supp. at 1371. She began a new job in October 1992
although she did not resign from Waste Management until December
7, 1992. Munday, 858 F. Supp. at 1371.

The district court, sitting without a jury, found that Miss Munday
had not made out a prima facie case of sexual harassment or sex dis-
crimination. Munday, 858 F. Supp. at 1374. 2 The district court found
for Miss Munday, however, on her claim that Waste Management,
_________________________________________________________________

2 Plaintiff does not appeal these conclusions.

4
through Bohager, retaliated against her for filing her claim with the
Office of Human Rights, in violation of Title VII, and breached a pro-
vision of the settlement agreement which provided that Waste Man-
agement, "`agrees that there shall be no discrimination or retaliation
of any kind against any person because of lawful opposition to any
practice declared unlawful under . . . Title VII, or because of the filing
of a charge, giving of testimony or assistance, or participation in any
manner in any investigation, proceeding or hearing under . . . Title
VII.'" Munday, 858 F. Supp. at 1376 (quoting the settlement agree-
ment) (alterations in original).

The district court granted Miss Munday backpay, Munday, 858 F.
Supp. at 1378, as well as compensatory and punitive damages for the
conduct of Waste Management occurring after November 21, 1991,
the effective date of the Civil Rights Act of 1991, which provides for
such remedies. Munday, 858 F. Supp. at 1378-79; see 42 U.S.C.
§ 1981a(b)(1), (3). The district court found that Maryland law would
permit an award of compensatory and punitive damages for the tor-
tious breach of a contract, Munday, 858 F. Supp. at 1379-80, but held
that federal law governs the enforcement of a Title VII settlement
agreement and that Miss Munday could not recover through a state
law breach-of-contract claim compensatory and punitive damages for
pre-November 21, 1991 conduct where those damages"are unavail-
able under the very federal law which itself provides the right which
plaintiff is enforcing." Munday, 858 F. Supp. at 1381. Accordingly,
the district court held that "plaintiff is limited to Title VII remedies."
Munday, 858 F. Supp. at 1381.

Defendants, while disputing none of the factual findings of the dis-
trict court, challenge each adverse conclusion of the district court as
erroneous as a matter of law. We will address each such challenge.

I.

In order to establish a prima facie claim of retaliation in violation
of Title VII, 42 U.S.C. § 2000e-3(a),3 a plaintiff must show that
_________________________________________________________________
3 "It shall be an unlawful employment practice for an employer to dis-
criminate against any of his employees . . . because he has opposed any
practice made an unlawful employment practice by this subchapter, or
because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this subchap-
ter." 42 U.S.C. § 2000e-3(a).

5
"1) the employee engaged in protected activity; 2) the employer took
adverse employment action against the employee; and 3) a causal
connection existed between the protected activity and the adverse
action." Ross v. Communications Satellite Corp., 759 F.2d 355, 365
(4th Cir. 1985).4 The employer may then rebut the prima facie case,
see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), by
showing that there was a legitimate non-discriminatory reason for the
adverse action, Ross, 759 F.2d at 365, after which the burden shifts
back to the plaintiff to show that those reasons are pretextual. Carter
v. Ball, 33 F.3d 450, 459 (4th Cir. 1994).

A.

The district court found that Miss Munday had established a prima
facie case of retaliation and that defendants had not presented any
legitimate nondiscriminatory alternative. See Munday, 858 F. Supp.
at 1374-75. The district court found that Bohager's conduct in "yell-
ing at [Miss Munday] during the July 26, 1991, meeting, directing
other employees to ignore her and to spy on her, and generally refus-
ing to communicate with her concerning her employment-related
complaints, even though some of them were not meritorious," consti-
tuted "a pattern of retaliation. . . . In effect, Bohager had knowledge
of a number of Munday's employment related and non-employment
related problems and failed to act appropriately in a number of
instances in the expectation that those problems would eventually
wear down Munday and force her to quit." Munday, 858 F. Supp. at
1374.

We agree with the defendants that, as a matter of law, this scenario
does not rise to the level of an adverse employment action for Title
VII purposes. In no case in this circuit have we found an adverse
employment action to encompass a situation where the employer has
instructed employees to ignore and spy on an employee who engaged
in protected activity, without evidence that the terms, conditions, or
benefits of her employment were adversely affected. See Hopkins v.
Baltimore Gas and Elec. Co., 77 F.3d 745, 754 (4th Cir. 1996) (Hop-
kins was not discharged from employment, and the comments in
_________________________________________________________________
4 There is no dispute that Miss Munday's complaint before the Office
of Human Rights constituted a protected activity.

6
question were not and did not result in any adverse employment
action); DiMeglio v. Haines, 45 F.3d 790, 804 & n.6 (4th Cir. 1995)
(a reprimand and reassignment may constitute an adverse employ-
ment action); Bristow v. Daily Press, Inc., 770 F.2d 1251, 1254 (4th
Cir. 1985) (the Age Discrimination in Employment Act"affords no
protection unless there has been some adverse employment action by
the employer. Because Bristow was not actually discharged, he relies
here on a theory of constructive discharge."), cert. denied, 475 U.S.
1082 (1986); Evans v. Davies Truckers, Inc., 769 F.2d 1012, 1014
(4th Cir. 1985) (Title VII retaliation claim requires adverse employ-
ment action, which does not obtain where plaintiff voluntarily
resigns). We note that, although the district court found that Bohager
knew of and did not address Miss Munday's employment-related
complaints, the district court also found that Miss Munday's
employment-related complaints were addressed, investigated and,
where appropriate, corrected, by other employees of Waste Manage-
ment. See Munday, 858 F. Supp. at 1369, 1370, 1371, 1372.

We thus hold that, because there was no adverse employment
action, the district court erred in concluding that Miss Munday suf-
fered unlawful retaliation under § 2000e-3(a) of Title VII by virtue of
Bohager's conduct in, for example, yelling at Miss Munday and tell-
ing others to ignore and to spy on her.

B.

The district court, after concluding that Bohager had unlawfully
retaliated against Miss Munday for the reasons we have rejected
above, continued by concluding that Waste Management had con-
structively discharged Miss Munday. See Munday , 858 F. Supp. at
1375-76. Constructive discharge may be an adverse employment
action in violation of § 20003e-3(a) "when the record discloses that
it was in retaliation for the employee's exercise of rights protected by
the Act." Holsey v. Armour & Co., 743 F.2d 199, 209 (4th Cir. 1984),
cert. denied, 470 U.S. 1028 (1985). The district court did not explic-
itly find any causal link between the protected activity of Miss Mun-
day and the constructive discharge, as required by Ross; however, we
are of opinion that because the district court relied upon substantially
the identical factual bases in determining that Miss Munday had been
constructively discharged as it had relied upon in determining that

7
Miss Munday had been unlawfully retaliated against, the gist of the
district court's conclusion regarding the Title VII retaliation claim is
that Miss Munday was subjected to retaliatory constructive discharge
because of her pursuit of a complaint before the Office of Human
Rights, in violation of § 2000e-3(a) of Title VII. We now take up the
defendants' challenge to the district court's finding that Miss Munday
was constructively discharged.

Constructive discharge occurs "when `an employer deliberately
makes an employee's working conditions intolerable and thereby
forces him to quit his job.'" Holsey, 743 F.2d at 209 (quoting J.P. Ste-
vens & Co. v. NLRB, 461 F.2d 490, 494 (4th Cir. 1972)). Thus, "[a]
plaintiff alleging constructive discharge must . . . prove two elements:
deliberateness of the employer's action, and intolerability of the
working conditions." Bristow, 770 F.2d at 1255. The district court
found that Bohager deliberately attempted to force Miss Munday to
quit her job, Munday, 858 F. Supp. at 1375. Defendants argue, how-
ever, that the facts as stated by the district court do not, as a matter
of law, support its conclusion that Miss Munday's working conditions
were intolerable.

"Intolerability of working conditions . . . is assessed by the objec-
tive standard of whether a `reasonable person' in the employee's posi-
tion would have felt compelled to resign. . . . An employee is
protected from a calculated effort to pressure him into resignation
through the imposition of unreasonably harsh conditions, in excess of
those faced by his co-workers. He is not, however, guaranteed a
working environment free of stress." Bristow , 770 F.2d at 1255. We
agree with the defendants that the facts as found by the district court
do not rise to the level of objective intolerability sufficient to create
an adverse employment action under § 2000e-3(a).

The district court found that "[t]hroughout her tenure at Waste
Management, [Miss Munday] had to cope with being ignored both by
her co-workers and by the top supervisor at the . . . facility." Munday,
858 F. Supp. at 1376. As stated above, this conduct is insufficient to
establish an adverse employment action in itself. Miss Munday's
complaints were investigated, and were corrected where meritorious.
See Munday, 858 F. Supp. at 1369, 1370, 1371, 1372. She never com-
plained about being ignored, and there is no evidence that any co-

8
worker actually spied on her or reported her statements to Bohager or
other management. Moreover, Miss Munday's employment status
was not altered, and there is no evidence that she ever received a rep-
rimand in her record or an unsatisfactory evaluation. Finally, Miss
Munday did not actually resign her employment with Waste Manage-
ment until December 1992, some seventeen months after the events
leading to and including July 26, 1991, upon which most of her claim
was based, thus objectively belying her assertion that she was forced
to resign from her employment with Waste Management.

In short, there is simply no evidence that Miss Munday was forced
to resign from Waste Management by any conduct of Bohager or oth-
ers. See Holsey, 743 F.2d at 209. We thus hold that she was not con-
structively discharged, notwithstanding either Bohager's intent to
persuade her to resign or the fact that he successfully made her work-
ing environment unpleasant. Indeed, the district court found as a fact
that Miss Munday "wrongly viewed such antagonism and retaliatory
conduct as based on sex discrimination and sexual harassment."

Because we hold that Waste Management took no adverse employ-
ment action against Miss Munday in retaliation for her engagement
in protected activity, we reverse the judgment of the district court on
Miss Munday's claim of unlawful retaliation in violation of § 2000e-
3(a) of Title VII.

II.

The district court found that Waste Management breached the
April 1991 settlement agreement by retaliating against Miss Munday
for engaging in protected activity, in violation of paragraph 4 of the
settlement agreement.5 The district court relied on the reasons stated
in its analysis of the Title VII retaliation claim to support this conclu-
_________________________________________________________________
5 The district court held that a second alleged breach of the settlement
agreement, the failure to expunge Miss Munday's termination of May 30,
1989 prior to her return to work, would result in nominal damages at
most, and that a third, the failure to provide Miss Munday with adequate
restroom facilities, did not occur because the bathroom facilities were
made adequate within a reasonable time after her return to work. See
Munday, 858 F. Supp. at 1376.

9
sion. Defendants argue that this conclusion, as well, was erroneous as
a matter of law.

Paragraph 4 of the settlement agreement provides that "there shall
be no discrimination or retaliation of any kind" against any person for
engaging in protected activity. The language "of any kind" clearly
requires a lower threshold of proof than the adverse employment
action required to show a violation of § 2000e-3(a), see Ross, 759
F.2d at 365; thus, we think the district court was correct in concluding
that Bohager and Waste Management violated the settlement agree-
ment by intentionally making Miss Munday's working conditions
unpleasant because of her claim before the Office of Human Rights.6

Because we have reversed the district court's judgment on Miss
Munday's Title VII claim, and because the district court held that "the
damages which plaintiff suffered as a result of defendant's Title VII
violation and breach of contract are identical. Therefore, plaintiff is
limited to Title VII remedies," Munday, 858 F. Supp. at 1381, we
must remand this case to the district court for a determination of the
extent of Miss Munday's damages resulting from defendants' breach
of the settlement agreement. For the same reason, we are of opinion
that Miss Munday's cross-appeals are moot, and we will not address
those issues.

III.

For the foregoing reasons, the judgment of the district court is
_________________________________________________________________
6 Defendants present us with no argument to support their contention
that paragraph 4 is not an enforceable contract provision, and we find
none. As we have stated, the promise made by defendants in their settle-
ment agreement is not identical to the prohibition in § 2000e-3(a) against
taking adverse employment action in retaliation for protected conduct;
thus, the contract provision, although related to Title VII as found by the
district court, see Munday, 858 F. Supp. at 1380-81, is not identical to
§ 2000e-3(a), and the district court properly found paragraph 4 to be
enforceable independently.

We also reject as without merit defendants' assertion that the district
court found Miss Munday's contract claim preempted by Title VII.

10
affirmed in part, reversed in part, and remanded for further proceed-
ings consistent with this opinion.

No. 94-2192 -AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH INSTRUCTIONS

No. 94-2193 -DISMISSED AS MOOT

HEANEY, Senior Circuit Judge, concurring and dissenting:

I agree with the district court that Munday was constructively dis-
charged from her employment at Waste Management. For over a year,
Waste Management alienated Munday from her co-workers, creating
intolerable working conditions that forced Munday to quit her job. I
also agree that Munday has demonstrated retaliation in violation of 42
U.S.C. § 2000e-3(a) because the intolerable working conditions were
orchestrated by Waste Management in response to Munday's filing of
a discrimination claim against the company. Therefore, I respectfully
dissent from the majority's opinion.*

With respect to the constructive discharge claim, the district court
found that after Munday returned to work following the settlement
agreement, Bohager set a plan into motion with the specific purpose
of "gradually causing Munday herself to reach the conclusion that she
could not continue her employment [with Waste Management]."
Munday, 858 F. Supp. at 1372. Bohager instructed his drivers to have
as little contact with Munday as possible both on and off the job and
to "spy on her, to report her activity and comments to him, to watch,
in effect, for every slip that she made." Id. Bohager targeted only
Munday; he did not forbid his drivers from speaking or associating
with anyone else. Although an employee is not guaranteed a working
environment free of stress, Bohager's plan created exactly the type of
environment this court has recognized as impermissible: "a calculated
effort to pressure [Munday] into resignation through the imposition of
unreasonably harsh conditions, in excess of those faced by her co-
_________________________________________________________________
*Consistent with my views on Munday's Title VII claim, I concur in
the majority's determination that Waste Management breached the April
1991 settlement agreement by retaliating against Munday for engaging
in protected activity.

11
workers." See Bristow, 770 F.2d at 1255. I cannot imagine anything
worse for an employee than to work in an environment in which co-
workers refuse to speak or associate with her any more than is abso-
lutely essential to carry out their respective jobs. In my view, Munday
has demonstrated that Waste Management acted deliberately in creat-
ing a working environment in which she could no longer perform and
that a reasonable person in Munday's position would have felt com-
pelled to quit as a result of Waste Management's conduct.

The majority concedes that Bohager intended to persuade Munday
to resign and that he successfully made her working environment
unpleasant, but nonetheless rejects Munday's constructive discharge
claim. In reaching its conclusion, the majority contends that the fact
that Munday did not resign until December 1992, seventeen months
after the events leading to and including the July 26th meeting, belies
her assertion that she was forced to resign. This contention ignores the
district court's specific finding that although a considerable amount
of time passed between the meeting and Munday's resignation, Boh-
ager continued to urge other employees not to have contact with her
and to spy on her. Munday, 858 F. Supp. at 1375-76. The district
court determined that during the entire time Munday worked for
Waste Management after the settlement agreement, she had to cope
with being ignored by her co-workers and her supervisor. Id. In light
of its factual findings on the extent of Bohager's conduct, I agree with
the district court that Munday was constructively discharged.

Similarly, the district court correctly determined that Waste Man-
agement retaliated against Munday because she filed a discrimination
claim against the company. No one disputes that Munday engaged in
protected activity by filing the claim. In discussing the breach of con-
tract claim, the majority also concedes that Bohager's conduct was
causally related to Munday's filing of the discrimination claim with
the Office of Human Rights. My point of departure with the majority
on Munday's retaliation claim therefore is exactly the same as I set
forth in the above discussion. The majority rejects Munday's retalia-
tion claim solely because it determined that Bohager's conduct did
not rise to the level of an adverse employment action for Title VII
purposes. In contrast, I believe that Munday has established that
Waste Management took an adverse employment action against her

12
because Bohager's conduct set into motion a working environment so
intolerable as to constitute a constructive discharge.

In light of my views on the liability issues, I must also address
whether the district court erred in awarding of equitable relief and
compensatory and punitive damages for conduct that occurred after
November 21, 1991 and in denying front pay. I believe that the dis-
trict court's award was appropriate in all respects, and I would affirm
the damages as allocated.

13