IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-328
Filed: 6 February 2018
Wake County, No. 15 CVS 4544
RASHIA NORMAN, Plaintiff,
v.
NORTH CAROLINA DEPARTMENT OF ADMINISTRATION, Defendant.
Appeal by plaintiff from order entered 21 December 2016 by Judge Michael R.
Morgan in Wake County Superior Court. Heard in the Court of Appeals 20
September 2017.
Schiller & Schiller, PLLC, by David G. Schiller, for plaintiff-appellant.
Attorney General Joshua H. Stein, by Assistant Attorney General Ann Stone,
for defendant-appellee.
ELMORE, Judge.
Rashia Norman (“plaintiff”) appeals from an order granting summary
judgment in favor of the North Carolina Department of Administration (“defendant”
or “NCDOA”) on plaintiff’s Title VII employment discrimination and retaliation
claims. On appeal, plaintiff argues that she has demonstrated at least two genuine
issues of material fact, and that the trial court should not have granted summary
judgment on any of her claims. After careful review, we disagree and hold that the
NORMAN V. NCDOA
Opinion of the Court
trial court did not err in granting summary judgment in favor of defendant.
Accordingly, we affirm the order of the trial court.
I. Background
On 23 February 2010, plaintiff began probationary employment as a parking
booth attendant with the State Parking Division of the NCDOA. Plaintiff’s
immediate supervisor at the NCDOA was Mr. Derrick Moore, a parking operations
manager. However, Mr. Moore was on family medical leave from 4 March 2010 until
1 June 2010, during which time plaintiff was supervised by Ms. Catherine Reeve, a
state parking director. Plaintiff read and signed the NCDOA’s unlawful workplace
harassment policy on 10 March 2010.
While under Ms. Reeve’s supervision, plaintiff left her booth unattended on
more than one occasion, and she had to be counseled by Ms. Reeve regarding the
importance of remaining at her assigned post. Because plaintiff was still in the
learning stages of her probationary employment, no formal disciplinary measures
were taken against her at that time.
Mr. Moore returned to work in June 2010. According to plaintiff, between late
June and July 2010, Mr. Moore made multiple inappropriate comments of a sexual
nature toward plaintiff. For example, Mr. Moore told plaintiff that he liked how she
walked and twisted her hips; that she had a “big butt” and “don’t let nothing out”;
and that he liked a woman “with meat on her bones.” Additionally, over the course
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of several days in July 2010, Mr. Moore pulled on plaintiff’s bag and arm, touched her
hair, held her hand, and asked her to eat lunch with him in his office; plaintiff
declined Mr. Moore’s request and told him to stop his inappropriate behavior. On one
occasion, when plaintiff told Mr. Moore that she needed booth supplies, Mr. Moore
responded in a low, breathy voice, “What else do you need?” Mr. Moore also told
plaintiff that “his good word” would get her a promotion.
In late July 2010, plaintiff told a co-worker about Mr. Moore’s behavior, which
the co-worker then relayed to Mr. Moore. Mr. Moore telephoned plaintiff at her booth
and asked her why she treated him “like a stepchild” before he ultimately apologized
for making her feel uncomfortable. At that time, plaintiff did not suspect Mr. Moore
of attempting to have her dismissed, and she did not report his behavior to NCDOA
management or personnel. Mr. Moore did not make further comments of a sexual
nature to plaintiff, nor did he touch her, at any point after July 2010.
On 18 August 2010, plaintiff failed to properly log off from her fee computer,
which caused two days of transactions to be included in the daily transaction report
for 19 August 2010. Ms. Reeve summoned plaintiff to her office, where Mr. Moore
was also present, and counseled her regarding the importance of logging off properly.
In September 2010, plaintiff submitted a certificate of return to work form signed by
her healthcare provider in which she admitted altering the date, and Ms. Reeve and
Mr. Moore again counseled plaintiff regarding her work performance.
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Plaintiff received a pre-disciplinary conference letter on 20 September 2010
indicating that she was being considered for dismissal. The letter set forth the
specific reasons for dismissal as follows: (1) plaintiff’s failure to communicate with
her supervisor regarding the time needed for necessary appointments and repeatedly
leaving the parking division without sufficient time to secure replacement personnel;
(2) plaintiff’s altering a certificate of return to work form; and (3) plaintiff’s failure to
follow defined work procedures by failing to log off her fee computer. The letter also
informed plaintiff that a conference would be conducted by Ms. Reeve on 22
September 2010.
Both Ms. Reeve and Mr. Moore were present at plaintiff’s pre-disciplinary
conference. At the end of the meeting, Ms. Reeve asked plaintiff if she had any
questions, and plaintiff responded by telling Ms. Reeve that Mr. Moore had been
sexually harassing her. This was the first time that plaintiff had lodged a complaint
against Mr. Moore with NCDOA management, and Ms. Reeve immediately reported
the allegations to the human resources office. The Office of State Personnel
subsequently conducted an investigation into the report and determined there was
no sexual harassment or retaliation.
With the approval of the human resources office, Ms. Reeve made the ultimate
decision to dismiss plaintiff from probationary employment on 23 September 2010.
On 28 September 2010, plaintiff filed charges against the NCDOA with the Equal
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Employment Opportunity Commission (“EEOC”) in which she alleged a violation of
her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000e, et seq.
(“Title VII”). Plaintiff received a right-to-sue letter from the EEOC on 3 February
2012 and filed an amended complaint against the NCDOA in Wake County Superior
Court on 2 April 2015.1 In her complaint, plaintiff alleged three claims in violation
of Title VII as follows: (1) sexual harassment creating a hostile work environment, (2)
sex discrimination resulting in quid pro quo harassment, and (3) sex discrimination
resulting in retaliatory discharge.
On 3 March 2016, defendant filed a motion for summary judgment as to all of
plaintiff’s claims. The trial court held a hearing on the motion on 24 May 2016 and
granted summary judgment in favor of defendant by order entered 21 December 2016.
In its order, the court made three dispositive findings of fact, citing plaintiff’s own
deposition as evidence of each finding.
The Plaintiff did not report supervisor Derrick Moore’s
alleged illegal behavior to Defendant agency’s
management until the September 22, 2010 pre-dismissal
conference. [Plaintiff’s Deposition, p. 35, lines 2325, p. 36,
lines 14] The Plaintiff did not report alleged illegal
behavior to Defendant agency’s personnel office until “days
after the conference” [Plaintiff’s Deposition, p. 36, lines
57] and Plaintiff did confirm the occurrence of events
which were cited as legitimate non-discriminatory reasons
given for her dismissal. [Plaintiff’s Deposition, pp. 2728,
2930, 3233]
1 Plaintiff filed her initial complaint, Wake County no. 12 CVS 6303, on 2 May 2012. Plaintiff
voluntarily dismissed her complaint without prejudice on 3 April 2014, and she filed her amended
complaint within the one-year period permitted by N.C. Gen. Stat. § 1A-1, Rule 41(a)(1) (2015).
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The court then concluded “there is no genuine issue as to any material fact in the
[p]laintiff’s claims” and that “[d]efendant is therefore entitled to judgment as a matter
of law.” Plaintiff entered timely notice of appeal.
II. Discussion
On appeal, plaintiff argues that the trial court erred in granting summary
judgment in favor of defendant because genuine issues of material fact exist
regarding whether plaintiff unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the NCDOA, and whether the legitimate, non-
discriminatory reasons given for plaintiff’s dismissal were mere pretext.
Defendant contends that summary judgment was proper because plaintiff
cannot impute the alleged misconduct to the NCDOA, and because plaintiff cannot
establish a causal connection between the alleged misconduct, or between her
complaint regarding the alleged misconduct, and her dismissal.
Because plaintiff has failed to forecast sufficient evidence of each essential
element of her three claims, we hold that summary judgment was proper.
A. Standard of Review
Summary judgment is appropriate when the “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 any party is
entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2015).
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The party moving for summary judgment bears the initial burden of proof, which may
be met “(1) by showing an essential element of the opposing party’s claim is
nonexistent or cannot be proven, or (2) by showing through discovery that the
opposing party cannot produce evidence to support an essential element of his or her
claim.” Belcher v. Fleetwood Enters., Inc., 162 N.C. App. 80, 84, 590 S.E.2d 15, 18
(2004).
Upon a forecast of evidence tending to support the motion for summary
judgment, the burden shifts to the non-moving party to likewise “produce a forecast
of evidence demonstrating that [she] will be able to make out at least a prima facie
case at trial.” Collingwood v. Gen. Electric Real Estate Equities, Inc., 324 N.C. 63, 66,
276 S.E.2d 425, 427 (1989) (citation omitted). The non-moving party survives the
motion not by “rest[ing] upon the mere allegations” of her pleading, N.C. Gen. Stat. §
1A-1, Rule 56(e) (2015); rather, she “must come forward with specific facts showing a
genuine issue for trial.” Beaver v. Hancock, 72 N.C. App. 306, 310, 324 S.E.2d 294,
298 (1985) (citation omitted). In evaluating a motion for summary judgment, the trial
court must view the evidence in the light most favorable to the non-moving party,
and all inferences of fact must be drawn in her favor. In re Estate of Redding v.
Welborn, 170 N.C. App. 324, 329, 612 S.E.2d 664, 668 (2005). “Our standard of review
of an appeal from summary judgment is de novo[.]” In re Will of Jones, 362 N.C. 569,
573, 669 S.E.2d 572, 576 (2008).
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B. Sexual Harassment under Title VII
Title VII makes it unlawful for an employer “to discriminate against any
individual with respect to [her] compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . sex[.]” 42 U.S.C. § 2000e-2(a)(1). Sexual
harassment, which includes unwelcome sexual advances, requests for sexual favors,
and other verbal or physical conduct of a sexual nature, “is a form of sex
discrimination prohibited by Title VII.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S.
57, 65, 106 S. Ct. 2399, 2404, 91 L. Ed. 2d 49 (1986). For analytical purposes,
employment discrimination in the form of sexual harassment is often categorized into
two varieties: harassment that creates an offensive or “hostile” work environment,
and quid pro quo harassment, where sexual consideration is demanded in exchange
for job benefits. Katz v. Dole, 709 F.2d 251, 254 (4th Cir. 1983). Here, plaintiff alleges
that defendant subjected her to both varieties of sexual harassment by its employee
supervisor, Mr. Moore.
i. Hostile Work Environment
Because “an employee’s work environment is a term or condition of
employment, Title VII creates a hostile working environment cause of action” in favor
of individuals forced to work in a hostile workplace. EEOC v. R&R Ventures, 244
F.3d 334, 338 (4th Cir. 2001).
To establish a hostile work environment based on sexual
harassment under [Title VII], a plaintiff-employee must
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prove that (1) the conduct was unwelcome; (2) it was based
on the plaintiff’s sex; (3) it was sufficiently severe or
pervasive to alter the plaintiff’s conditions of employment
and to create an abusive work environment; and (4) it was
imputable on some factual basis to the employer.
Crockett v. Mission Hosp., Inc., 717 F.3d 348, 354 (4th Cir. 2013) (citation omitted).
As to the fourth element, an employer may “avoid strictly liability for a supervisor’s
sexual harassment of an employee if no tangible employment action was taken
against the employee” in connection with the unwelcome conduct. Matvia v. Bald
Head Island Mgmt., Inc., 259 F.3d 261, 266 (4th Cir. 2001). “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, 2268, 141 L. Ed. 2d. 633 (1998). If no such action
was taken against the employee in relation to the misconduct, the employer has an
affirmative defense to vicarious liability if (1) “the employer exercised reasonable care
to prevent and correct promptly any sexually harassing behavior,” and (2) “the
plaintiff employee unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid harm otherwise.”
Matvia, 259 F.3d at 26667 (citations omitted).
In regard to her hostile work environment claim, plaintiff does not assert that
she suffered a tangible employment action in connection with Mr. Moore’s conduct,
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nor does she argue that defendant failed to exercise reasonable care to deter
harassment in the workplace. Rather, plaintiff contends that a dispute of fact exists
as to the second element of the employer-liability defense: that is, whether plaintiff
unreasonably failed to take advantage of any preventive or corrective opportunities
provided by the NCDOA.
“If Title VII’s prohibitions against sexual harassment are to be effective,
employees must report improper behavior to company officials.” Id. at 269 (citation
omitted). Thus, “evidence that the plaintiff failed to utilize the [employer’s] complaint
procedure will normally suffice to satisfy [the employer’s] burden under the second
element of the defense.” Id. (citation and internal quotation marks omitted). Here,
however, plaintiff claims to have feared retaliation from Mr. Moore had she
complained to defendant about his conduct. Plaintiff cites two casesone from the
Fifth Circuit Court of Appeals and one from the Second Circuitfor the proposition
that under such circumstances, an employee’s decision not to report sexual
harassment can be reasonable.
In Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512 (5th Cir. 2001),
the plaintiff was a visiting professor from a foreign country who was sexually
harassed by his supervisor. The supervisor told the plaintiff that the university
would defend the supervisor against any type of harassment complaint, that it had
done so in the past, and that the supervisor had previously helped remove from the
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university certain people whom he disliked, suggesting further that the plaintiff’s
immigration status could be jeopardized if he no longer worked at the university. Id.
at 516. The court in Mota concluded that a rational jury could infer that the plaintiff’s
failure to take advantage of available remedies was not unreasonable given the
supervisor’s “repeated threats of retaliation” and “influence at the [u]niversity.” Id.
at 52526.
In Distasio v. Parkin Elmer Corp., 157 F.3d 55 (2nd Cir. 1998), the plaintiff
was harassed by a co-worker and reported the conduct to her immediate supervisor.
The supervisor first told the plaintiff she was crazy, then warned her not to report
further conduct or she would lose her job. Id. at 5960. As in Mota, the court in
Distasio concluded that “the jury could find that [the plaintiff] . . . believed that she
would lose her job if she reported further incidents to [the supervisor]” such that the
plaintiff’s failure to report was not unreasonable. Id. at 6465.
The present case is readily distinguishable from both Mota and Distasio. Here,
there is no evidence whatsoever that Mr. Moore ever threatened plaintiff such that
she could reasonably have feared retaliation for reporting his conduct to
management. Taking plaintiff’s allegations as true, the harassment began in June
2010 and ended in July 2010, but plaintiff did not even begin to suspect Mr. Moore of
attempting to have her dismissed until late August or September 2010.
Plaintiff was aware of the NCDOA’s sexual harassment policy, yet she failed
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to take advantage of corrective opportunities provided by her employer. No rational
jury could infer that this failure was reasonable due to fear of retaliation, as there is
no evidence that Mr. Moore threatened to retaliate against plaintiff, either for
denying his unwelcome advances or for reporting his conduct to management. Thus,
plaintiff cannot impute the alleged misconduct to her employeran essential element
of her hostile work environment claimand the trial court did not err in granting
summary judgment as to that claim.
ii. Quid Pro Quo Harassment
The second form of Title VII sex discrimination, known as quid pro quo sexual
harassment, can be established by a five-element prima facie case as follows:
1. The employee belongs to a protected group.
2. The employee was subject to unwelcome sexual
harassment.
3. The harassment complained of was based upon sex.
4. The employee’s reaction to the harassment affected
tangible aspects of [her] compensation, terms,
conditions, or privileges of employment. The
acceptance or rejection of the harassment must be an
express or implied condition to the receipt of a job
benefit or cause of a tangible job detriment to create
liability. Further, as in typical disparate treatment
cases, the employee must prove that she was
deprived of a job benefit which she was otherwise
qualified to receive because of the employer’s use of
a prohibited criterion in making the employment
decision.
5. The employer . . . knew or should have known of the
sexual harassment and took no effective remedial
action.
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Spencer v. Gen. Electric Co., 894 F.2d 651, 658 (4th Cir. 1990) (citations omitted)
(emphasis added).
In order to satisfy the fourth element of her quid pro quo claim, plaintiff must
show that her reaction to the harassmentthat is, her acceptance or rejection of Mr.
Moore’s sexual advanceswas an express or implied condition to the receipt of a job
benefit or the cause of a tangible job detriment. To that end, plaintiff asserts that
Mr. Moore attempted to influence her to accept his sexual advances by telling plaintiff
that the only thing between plaintiff getting an office job (i.e. a job benefit) was “his
good word.” Plaintiff also contends that her dismissal constitutes a tangible job
detriment for purposes of her quid pro quo claim. We disagree.
“An insulting or demeaning remark does not create a federal cause of action
for sexual harassment merely because the ‘victim’ of the remark happens to belong to
a class protected by Title VII.” Hartsell v. Duplex Products, Inc., 123 F.3d 766, 772
(4th Cir. 1997). While plaintiff claims on appeal to have interpreted Mr. Moore’s
“good word” comment as an attempt to influence her to reciprocate his conduct, there
is no indication that the comment was sexual in nature, and it appears to be a
reflection of plaintiff’s status as a probationary employee rather than her gender.
Similarly, plaintiff has not demonstrated a causal connection between her rejection
of Mr. Moore’s advances in June and July 2010 and her September 2010 dismissal,
for which defendant offered legitimate, non-discriminatory reasons that have not
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been refuted.
Because plaintiff has failed to establish that her reaction to Mr. Moore’s
harassment affected a tangible aspect of her employment, the trial court did not err
in granting summary judgment on plaintiff’s quid pro quo claim.
C. Retaliation under Title VII
In addition to making certain employment practices themselves unlawful, Title
VII also makes it unlawful for an employer “to discriminate against any of [its]
employees . . . because [s]he has opposed any practice made an unlawful employment
practice by this subchapter[.]” 42 U.S.C. § 2000e-3(a). Unlike plaintiff’s quid pro quo
claim, which includes an element of retaliation resulting from her refusal to acquiesce
to her supervisor’s sexual advances, the form of retaliation prohibited by this
subsection refers to retaliation in response to an employee’s engagement in a
protected activity, such as reporting the unlawful conduct. Here, plaintiff alleges that
defendant terminated her employment in retaliation for her complaint regarding the
alleged sexual harassment by her supervisor, Mr. Moore.
[A] prima facie showing of retaliatory discharge requires a
plaintiff to show: (1) [s]he engaged in some protected
activity, such as filing an EEO[C] complaint; (2) the
employer took adverse employment action against
plaintiff; and (3) that the protected conduct was a
substantial or motivating factor in the adverse action (a
causal connection existed between the protected activity
and the adverse action).
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Emp’t Sec. Comm’n of N.C. v. Peace, 128 N.C. App. 1, 9, 493 S.E.2d 466, 471 (1997).
As to the third element, “Title VII retaliation claims must be prove[n] according to
traditional principles of but-for causation . . . . This requires proof that the unlawful
retaliation would not have occurred in the absence of the alleged wrongful action or
actions of the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, ___,
133 S. Ct. 2517, 2533, 186 L. Ed. 2d. 503 (2013). If the plaintiff establishes a prima
facie case of retaliation, the defendant may rebut the showing with proof of a
legitimate, non-discriminatory reason for the adverse action. Beall v. Abbott Labs.,
130 F.3d 614, 619 (4th Cir. 1997). The burden then shifts back to the plaintiff to
demonstrate that the reason given by the defendant is mere pretext by showing “that
the reason was false, and that discrimination was the real reason for the challenged
conduct.” Id. (citation and internal quotation marks omitted).
Plaintiff argues that the trial court erred in dismissing her retaliation claim
because a genuine issue of material fact exists as to whether the reasons given by
defendant for her dismissal were mere pretext. However, plaintiff cannot prove the
third essential element of this claim and has, therefore, failed to meet her initial
burden of establishing a prima facie case of retaliatory discharge.
In her deposition, plaintiff admitted that she did not report the alleged
unlawful conduct to NCDOA management until her pre-dismissal conference, and
she did not report the conduct to the NCDOA personnel office until several days after
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the conference. Because plaintiff did not engage in a protected activity at any time
prior to the exact moment in which adverse employment action was being taken
against her, plaintiff’s reporting of the misconduct could not possibly have been a
substantial or motivating factor in her dismissal. Even assuming, arguendo, that
plaintiff has established a prima facie case of retaliation, she nevertheless confirmed
the existence of legitimate, non-discriminatory reasons for her dismissal. Thus, the
trial court did not err in granting summary judgment on plaintiff’s Title VII
retaliation claim.
III. Conclusion
Because plaintiff has failed to forecast sufficient evidence of each essential
element of her Title VII employment discrimination and retaliation claims, we hold
that summary judgment was proper. The order of the trial court is hereby:
AFFIRMED.
Judges STROUD and TYSON concur.
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