Emanuella Nnadozie v. Genesis Healthcare Corporation

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-1272

EMANUELLA NKEM NNADOZIE; PERPETUA EZEH; SUNDAY AINA,

Plaintiffs – Appellants,

v.

GENESIS HEALTHCARE CORPORATION; GENESIS HEALTHCARE, LLC;
GENESIS ELDERCARE NETWORK SERVICES, INC.; 9109 LIBERTY ROAD
OPERATIONS, LLC, d/b/a Randallstown Center, d/b/a Patapsco Valley Center,

Defendants – Appellees.

Appeal from the United States District Court for the District of Maryland, at Baltimore.
Richard D. Bennett, District Judge. (1:14-cv-02694-RDB)

Argued: January 25, 2018 Decided: April 17, 2018

Before KEENAN, WYNN, and HARRIS, Circuit Judges.

Affirmed in part, reversed in part, vacated in part, and remanded by unpublished opinion.
Judge Wynn wrote the opinion, in which Judge Keenan and Judge Harris concurred.

ARGUED: Leizer Z. Goldsmith, GOLDSMITH LAW FIRM, LLC, Washington, D.C.,
for Appellants. Darryl G. McCallum, SHAWE & ROSENTHAL, LLP, Baltimore,
Maryland, for Appellees. ON BRIEF: Elizabeth Torphy-Donzella, SHAWE &
ROSENTHAL, LLP, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.

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WYNN, Circuit Judge:

This appeal concerns an employment discrimination action brought by two nurses

and a nursing assistant against their former employers. They alleged discrimination and

retaliation on the bases of race and national origin, in violation of 42 U.S.C. § 1981 and

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court

granted summary judgment for the employers on all counts. Although we mostly agree

with the district court’s disposition, the court erred by mischaracterizing Plaintiff Perpetua

Ezeh’s two discriminatory hostile work environment claims—one on account of her race,

in violation of Section 1981, and the other on account of her national origin, in violation

of Title VII. Accordingly, we affirm in part, reverse in part, vacate in part, and remand for

further proceedings.

I.

Patapsco Valley Center (“the Center”) is a long-term nursing care facility located in

Randallstown, Maryland. The Center is managed by Defendant-Appellee Genesis

Eldercare Network Services, Inc. (“Genesis”) and staffed by Defendant-Appellee 9109

Liberty Road Operations, LLC (“Liberty Road,” and collectively with Genesis,

“Defendants”).

In late 2010, the Center was in a troubled state. During an August on-site

investigation, the Maryland Department of Health and Mental Hygiene discovered several

compliance problems. The Department thereafter imposed on the Center a monetary civil

penalty and threatened to revoke its operational license. In response, Genesis installed new

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management at the Center by hiring Mary Hochradel (“Hochradel”) as Administrator and

Denise Zimmerman (“Zimmerman”) as Director of Nursing. The new managers were told

they were coming aboard “a poor performer,” and their job was to “turn it around” by

evaluating staff and, if necessary, taking corrective action. J.A. 530–37.

Plaintiffs Emanuella Nkem Nnadozie (“Nnadozie”), Perpetua Ezeh (“Ezeh”), and

Sunday Aina (“Aina,” and collectively with Nnadozie and Ezeh, “Plaintiffs”) are former

Center employees who worked under Hochradel and Zimmerman. All are of African

descent. Plaintiffs allege that, upon arriving at the Center, Zimmerman immediately

created a severe and hostile work environment and engaged in several acts of invidious

discrimination. Despite commonalities among their claims, Plaintiffs proceed individually.

A.

Plaintiff Nnadozie, a registered nurse, was born in Sierra Leone and raised in

Nigeria. Notwithstanding her history of alleged poor performance at another Genesis-

managed care center, Nnadozie applied for and was granted a transfer to the Center in

September 2009. She assumed work as a Unit Manager and Assistant Director of Nursing,

supervising the Center’s subacute unit. Between September and October of 2010, the

Center issued Nnadozie an “Individual Performance Improvement Plan,” instructing her to

improve her accountability, timeliness, and quality of patient care.

Tensions increased between Nnadozie and Center management after Zimmerman’s

arrival. Nnadozie claims that Zimmerman pressured her to discipline African staff while

preventing her from disciplining white staff. Moreover, Nnadozie and Zimmerman

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repeatedly argued over Nnadozie’s work performance. During one dispute, Zimmerman

allegedly raised her hand to Nnadozie’s face and told her to “shut up.” J.A. 1284, 1770.

In January 2011, Zimmerman instituted a new attendance policy that required all

Assistant Directors of Nursing in charge of units, like Nnadozie, to begin their shifts at

7:00 a.m. Nnadozie asked to be excused from this requirement, but management denied

her request. Around that same time, Zimmerman assigned Nnadozie to oversee the

Center’s dementia unit, in addition to her normal duties, and moved Nnadozie’s office to

the Center’s basement—a location closer to the dementia unit.

Things came to a head when, after a dispute between Nnadozie and the Center’s

medical director over patient care, Zimmerman issued Nnadozie a “Final Written Warning”

on February 1, 2011. Id. at 1796. Three days later, Nnadozie resigned.

In May 2011, Nnadozie filed an Intake Questionnaire with the Equal Employment

Opportunity Commission (“EEOC”), alleging discrimination by Zimmerman and

Hochradel on the bases of race and national origin. After investigation, a formal Charge

of Discrimination followed on April 5, 2012. Nnadozie now brings claims of constructive

discharge, hostile work environment, and retaliation under both Section 1981 and Title VII.

However, although Nnadozie’s EEOC filings alleged discrimination on the bases of race

and national origin, her complaint alleged discrimination on the basis of national origin

only. See id. at 35–40.

B.

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 Plaintiff Ezeh is a registered nurse from Nigeria. Before working at the Center,

Ezeh worked for another Genesis-affiliated employer, Genesis Staffing, LLC. In April

2010, the Center hired her as an Assistant Director of Nursing for its dialysis unit.

Soon after Ezeh’s arrival, but before the leadership transition, Center management

began complaining of Ezeh’s lack of preparedness. As a result, Ezeh was issued an

“Individual Performance Improvement Plan” in September 2010. Id. at 1039. The Plan

stated that Ezeh had exhibited “poor performance” and insisted that she improve her

caregiving. Id. at 1040.

On June 10, 2011, Ezeh emailed the Center’s human resources manager to complain

about “disrespect and insults” she had received from her new supervisor, Zimmerman. J.A.

1583. Later that month, Zimmerman gave Ezeh a “Management Performance Appraisal,”

in which she rated Ezeh’s management, interpersonal, and communication skills as

“marginal,” indicating Ezeh’s performance was “below what is expected” and fell “short

of desired results.” Id. at 1050–51. A few weeks later, Ezeh took health leave pursuant to

the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. At the start of her

leave, Ezeh contacted the Genesis Corporate Hotline to complain again about ill-treatment

from Zimmerman. Ezeh also wrote to Genesis complaining of “persecution and inequitable

treatments based on color, race[,] national origin, and age,” id. at 737, and claimed that

“foreign nurses are denied work [at the Center] for no other reason except their

[n]ationality,” id. at 738.

Following her medical leave, Ezeh met with Zimmerman, Hochradel, and a Genesis

human resources manager to discuss going back to work. Rather than return to the Center,

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Ezeh informed the Center that she would instead seek a transfer back to her former

employer, Genesis Staffing. Citing various infractions, Genesis refused to rehire her at

either site.

On February 4, 2012, Ezeh filed an EEOC Charge of Discrimination alleging

national origin discrimination and retaliation. Ezeh now brings claims of a hostile work

environment, retaliatory termination, and other retaliation on the bases of both race and

national origin under Section 1981 and Title VII.

As additional support for her charges, Ezeh alleges that, sometime between April

and July 2011, Zimmerman told Ezeh that she believed “Africans [were] going to kill” her

or make her “sick” by “putting voodoo on [her].” Id. at 1759. According to Ezeh,

Zimmerman kept a “voodoo catcher” in her office for protection and would perform a

“ritual in front of her door” before going inside. Id. Ezeh also claims that Zimmerman

screamed in her face on at least two occasions, spoke to her inappropriately, and

commented that there were “too many Nigerians,” both at the Center and in her class at

Baltimore City Community College, where Zimmerman worked as a teacher. Id. at 1591,

1797.

Another former Center employee, Robin Ross (“Ross”), testified that voodoo was

indeed a “big thing” for Zimmerman, id. at 1075, and that Zimmerman would “often make

comments about how she didn’t like the Africans and wanted them all out of the building,”

id. at 1079. In September 2011, Ross sent an email to Genesis’s corporate headquarters

expressing concern about Zimmerman’s alleged request to help her “get rid of the African

people at Genesis.” Id. at 1124.

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 C.

Finally, Plaintiff Aina, born in Nigeria, began working as a geriatric nursing

assistant at the Center in February 2009. Aina received disciplinary warnings from his

supervisors almost immediately. Afterwards, Aina continued to have problems at work.

In June 2011, he was issued a “Final Written Warning” and suspended without pay for

allegedly failing to take proper care of a resident. Id. at 1799. Believing he had done

nothing wrong, Aina disputed his suspension and filed an Intake Questionnaire with the

EEOC, alleging discrimination on the basis of national origin. When Aina returned to the

Center post-suspension, Hochradel allegedly said that she wanted to fire him because “they

have a lot of Africans here.” Id. at 1628. Aina eventually was fired after failing to report

a bruise on a patient’s face.

Months after being terminated, Aina filed a Charge of Discrimination with the

EEOC, alleging his prior suspension was motivated by national origin discrimination. Aina

now brings claims of a hostile work environment, retaliatory termination, and other

retaliation on the basis of national origin, under Section 1981 and Title VII.

D.

On January 31, 2017, the district court granted summary judgment for Defendants

on all counts. In so doing, the district court construed all of Plaintiffs’ allegations as being

based solely on their national origin as “Africans” or “Nigerians,” and not on any “specific

ethnic characteristic” that might reasonably fall under a broad understanding of race, as

opposed to national origin. Id. at 1802. Because Section 1981 “prohibits discrimination

on the basis of race, but . . . does not bar discrimination purely on the basis of national

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origin,” the district court concluded that all of Plaintiffs’ Section 1981 claims failed. Id. at

1801 (internal quotation marks omitted). For that reason, the district court only analyzed

Plaintiffs’ Title VII claims, disposing of each for failure to either present a triable issue of

material fact or exhaust the available administrative remedies. Accordingly, the court

entered judgment in favor of the Defendants. Plaintiffs timely appealed.

II.

“We review de novo the district court’s grant of summary judgment.” Lawson v.

Union Cty. Clerk of Court, 828 F.3d 239, 247 (4th Cir. 2016). “Summary judgment is

appropriate only in those cases where the pleadings, affidavits, and responses to discovery

‘show that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.’” Spriggs v. Diamond Auto Glass, 242 F.3d 179,

183 (4th Cir. 2001) (quoting Fed. R. Civ. P. 56(c)). In reviewing a motion for summary

judgment, the court “cannot weigh the evidence or make credibility determinations.”

Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015). In other

words, “[s]ummary judgment cannot be granted merely because the court believes that the

movant will prevail if the action is tried on the merits.” Id. at 568 (internal quotation marks

omitted).

A.

We begin, as the district court did, with Plaintiffs’ claims under Section 1981.

Section 1981 provides in part that “[a]ll persons within the jurisdiction of the United States

shall have the same right in every State and Territory to make and enforce contracts, to sue,

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be parties, give evidence, and to the full and equal benefit of all laws . . . as is enjoyed by

white citizens.” 42 U.S.C. § 1981(a). Although Section 1981 does not explicitly use the

word “race,” the Supreme Court has construed the statute to ban all racial discrimination

in the making of public and private contracts. See Saint Francis Coll. v. Al-Khazraji, 481

U.S. 604, 609 (1987) (citing Runyon v. McCrary, 427 U.S. 160, 168, 174–75 (1976)). This

includes race-based employment discrimination. See Yashenko v. Harrah’s NC Casino

Co., 446 F.3d 541, 551–52 (4th Cir. 2006).

For purposes of Section 1981, the concept of “race” is much broader than our

modern understanding of the term. See Saint Francis Coll., 481 U.S. at 609–13. As the

Supreme Court detailed in Saint Francis College, in light of the legislative history of

Section 1981 and prevailing mid-19th century notions about race, it is clear that “Congress

intended to protect from discrimination identifiable classes of persons who are subjected

to intentional discrimination solely because of their ancestry or ethnic characteristics.

Such discrimination is racial discrimination that Congress intended § 1981 to forbid,

whether or not it would be classified as racial in terms of modern scientific theory.” Id. at

613 (emphasis added). This might be a “loose sense of the word ‘race,’ but the loose sense

is the right one to impute to a race statute passed in 1866.” Abdullahi v. Prada USA Corp.,

520 F.3d 710, 712 (7th Cir. 2008). Putting this understanding into practice, other circuits

have found that Section 1981 protects against discrimination based on being Jewish, Sinai

v. New England Tel. & Tel. Co., 3 F.3d 471, 474–75 (1st Cir. 1993), “Middle Eastern,”

Amini v. Oberlin Coll., 259 F.3d 493, 503 (6th Cir. 2001), or Iranian, Pourghoraishi v.

Flying J, Inc., 449 F.3d 751, 757 (7th Cir. 2006). Similarly, with evidence of some nexus

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between ethnic or ancestral characteristics and workplace discrimination, there is no reason

why a plaintiff cannot bring a Section 1981 claim on the basis of being “African” or

“Nigerian.”

Still, the scope of Section 1981 protection is not unlimited. It is true that “the line

between discrimination based on ancestry or ethnic characteristics and discrimination

based on place or nation of . . . origin is not a bright one.” Saint Francis Coll., 481 U.S. at

614 (Brennan, J. concurring) (internal quotation marks and citations omitted). Trying to

draw clear distinctions between someone’s ethnicity and national origin can often amount

to impossible hairsplitting. In some instances, evidence of discrimination based on national

origin may even be “identical as a factual matter” to discrimination based on ethnicity or

ancestry. Id. However, at the very least, a Section 1981 claim must allege race-based

discrimination. See, e.g., Torgerson v. City of Rochester, 643 F.3d 1031, 1053 (8th Cir.

2011) (en banc) (dismissing Section 1981 claim where plaintiff pleaded discrimination on

the basis of national origin only); El-Zabet v. Nissan N. Am., Inc., 211 F. App’x 460, 462–

63 (6th Cir. 2006) (per curiam) (same); see also Fed. R. Civ. P. 8(a) (“A pleading that states

a claim for relief must contain . . . a short and plain statement of the claim showing that the

pleader is entitled to relief.” (emphasis added)). In other words, allegations of

discrimination based purely on national origin are insufficient to state a Section 1981 claim.

Here, neither Nnadozie nor Aina alleged race-based discrimination in their

complaint. Instead, both plaintiffs alleged discrimination on the basis of national origin

alone. See J.A. 35–45. To escape this otherwise fatal defect in their complaint, Plaintiffs

argue that “[a] Section 1981 ‘national origin’ discrimination claim not directly identifying

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a ‘race’ basis by name can be legally sufficient.” Appellant’s Br. at 23. But courts have

dismissed Section 1981 claims when a plaintiff fails to allege discrimination based on race,

ancestry, or ethnicity. 1 See, e.g., Torgerson, 643 F.3d at 1053; El-Zabet, 211 F. App’x at

462–63; Ana Leon T. v. Fed. Reserve Bank of Chi., 823 F.2d 928, 931 (6th Cir. 1987) (per

curiam). Because Nnadozie and Aina have failed to allege race-based discrimination under

Section 1981, we agree with the district court’s dismissal of their Section 1981 claims.

That being said, we disagree with the district court’s decision to dismiss those

claims with prejudice. Below, the district court concluded that Plaintiffs’ Section 1981

claims fail as a matter of law, thereby entitling Defendants to summary judgment and

warranting dismissal with prejudice. In so doing, however, it is unclear whether the district

court looked to the summary judgment record or solely considered the adequacy of the

allegations in the complaint. Specifically, in dismissing Plaintiffs’ Section 1981 claims,

the district court neither cited nor referenced any evidence contained in the record. To the

contrary, the district court’s opinion referenced only the allegations made by Plaintiffs in

their complaint. Because the extent to which the district court may have relied on evidence

1
Plaintiffs cite one out-of-circuit case for this misguided contention, Abdullahi v.
Prada USA Corp., 520 F.3d 710 (7th Cir. 2008). There, the Seventh Circuit reversed the
district court’s dismissal of a pro se plaintiff’s Section 1981 claims. The plaintiff’s original
complaint had alleged discrimination on the basis of race, but the amended complaint did
not. Id. at 711–13. Finding it rather “unlikely” that the plaintiff’s omission was intentional,
and “bearing in mind her pro se status,” the Seventh Circuit concluded that the district
court was “premature” in dismissing the plaintiff’s Section 1981 claim. Id. at 712. At best,
Abdullahi amounts to an unusual and case-specific diversion from normal pleading
requirements.

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outside of the parties’ pleadings is unclear, we think it best to treat the district court’s

disposal of Plaintiffs’ claims as a judgment on the pleadings. See A.S. Abell Co. v. Chell,

412 F.2d 712, 715 (4th Cir. 1969); Rutherford v. United States, 702 F.2d 580, 581 n.1 (5th

Cir. 1983). Moreover, because the district court’s analysis rested solely on the adequacy

of the allegations in Plaintiffs’ complaint, and in light of the Supreme Court’s expansive

definition of “race” under Section 1981, we think it best to vacate the order of dismissal

with prejudice and remand the case to the district court. On remand, the court should

determine whether the inadequacy of Plaintiffs’ pleadings could be cured through

amendment, thus rendering dismissal without prejudice appropriate.

We also disagree with the district court’s conclusion that Ezeh, in particular, did not

allege race-based discrimination with respect to her hostile work environment claim under

Section 1981. For purposes of both Section 1981 and Title VII claims, a hostile work

environment is one that is “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) (internal citation and quotation marks omitted). Thus, to prevail on a hostile work

environment claim under Section 1981, a plaintiff must show that there is “(1) unwelcome

conduct; (2) that is based on the plaintiff’s . . . race; (3) which is sufficiently severe or

pervasive to alter the plaintiff’s conditions of employment and to create an abusive work

environment; and (4) which is imputable to the employer.” Boyer-Liberto v. Fontainebleau

Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc). Viewed in the light most favorable to

Ezeh, we believe that the evidence in the record could allow a rational factfinder to

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conclude that Ezeh endured unwelcome conduct, based on her race, that was severe or

pervasive enough to constitute a hostile work environment, and that such conduct is

imputable to her employer.

Unlike Nnadozie and Aina, Ezeh does allege discrimination on the basis of race in

her complaint. Moreover, Ezeh assembles the following evidence in support of her hostile

work environment claim: (1) Ezeh’s own sworn testimony alleging that Zimmerman made

statements that Africans were plaguing her with voodoo, (2) sworn testimony alleging

Zimmerman screamed in her face; (3) Ross’s sworn testimony alleging that Zimmerman

routinely instructed Ross to “get rid of the Africans”; and (4) Ross’s testimony that

Zimmerman mainly screamed at African nurses. Whether this evidence supports an

objectively hostile or abusive environment is “judged from the perspective of a reasonable

person in the plaintiff’s position.” Boyer-Liberto, 786 F.3d at 277 (internal quotation

marks omitted). In making this evaluation, we must consider a number 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 23.

The district court concluded that Ezeh’s claims were not based on any “specific

ethnic characteristics associated with” being African or Nigerian that could fit under

Section 1981’s broad umbrella. J.A. 1801. We disagree. Ezeh’s evidence, if found

credible by a factfinder, shows that Zimmerman stereotyped her African employees as

voodoo practitioners, which, in conjunction with her other evidence, provides a basis for

finding discrimination based on ethnicity or ancestry, and, therefore, on race.

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 Defendants argue that because “voodoo is a religion, which . . . is also practiced in

places such as Canada, the nations of the Caribbean and the United States,” this evidence

cannot form part of a Section 1981 claim. Appellee’s Br. at 27. But shared religious

practice can be a facet of ethnic or ancestral identity. See Shaare Tefila Congregation v.

Cobb, 481 U.S. 615, 617–18 (1987) (reversing court of appeals dismissal of plaintiffs’

claim based upon plaintiffs’ status as Jewish people). And the assumption, based on

stereotype alone, that employees with shared ancestry also share a common religious

practice is exactly the type of broad-brush appraisal suggesting an ethnic characterization.

As such, the combination of the alleged voodoo commentary and hostility towards African

employees provides a basis for a reasonable jury to conclude that Ezeh endured

unwelcome, race-based conduct from her supervisor that was pervasive and severe. 2

The district court, citing our opinion in Mackey v. Shalala, 360 F.3d 463, 469–70

(4th Cir. 2004), discounted Ezeh’s sworn deposition testimony as “self-serving opinions,”

insufficient to establish a case of discrimination. J.A. 1815. We, however, find Mackey

inapposite. There, a federal employee, Mackey, brought a sex discrimination claim against

the Department of Health and Human Services (“HHS”) after being passed over for a

2
On similar facts, the U.S. District Court for the District of Maryland reached the
same conclusion in Mandengue v. ADT Security Systems, Inc., No. ELH-09-3103, 2012
WL 892621 (D. Md. March 14, 2012). There, the plaintiff—a black woman of
Cameroonian origin—filed suit against ADT Security Systems, alleging, inter alia, that
she was subjected to a hostile work environment on the basis of race, in violation of Section
1981. Id. at *29 n.34. In denying summary judgment to ADT, the district court relied on
the plaintiff’s sworn testimony in which she alleged that her ADT supervisor had suggested
that she was performing “voodoo” or “witchcraft” on customers and remarked that she
should “go back to Cameroon.” Id. at *28.

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managerial position and reassigned, allegedly in retaliation for having filed EEOC

complaints. Id. at 466–67. The only connection between Mackey’s EEOC complaints and

the alleged retaliation, however, was her own speculation that she had been reassigned for

voicing her complaints. Thus, in affirming the district court’s entry of judgment in favor

of HHS, we noted that “[a] plaintiff’s own self-serving opinions, absent anything more, are

insufficient to establish a prima facie case of discrimination.” Id. at 469–70 (first emphasis

added) (citing Goldberg v. B. Green and Co., 836 F.2d 845, 848 (4th Cir. 1988)).

In contrast to Mackey’s unadorned opinion as to the basis for her discrimination,

Ezeh has presented testimony replete with alleged facts about the work environment at the

Center and her supervisors’ behavior. That Ezeh’s allegations lack extensive corroborating

evidence is of little import, because the volume of corroborating evidence “relates only to

the credibility and weight of the evidence, which are issues for the jury.” EEOC v.

Warfield-Rohr Casket Co., 364 F.3d 160, 164 (4th Cir. 2004) (emphasis added); see also

United States v. Stein, 881 F.3d 853, 856 (11th Cir. 2018) (en banc) (“Nothing in Rule 56

prohibits an otherwise admissible affidavit from being self-serving. And if there is any

corroboration requirement for an affidavit, it must come from a source other than Rule

56.”); Payne v. Pauley, 337 F.3d 767, 772–73 (7th Cir. 2003) (explaining same). And, in

any event, the district court completely ignored Ross’s testimony, which corroborated

Ezeh’s testimony about Zimmerman’s mistreatment of African employees and obsession

with voodoo. As we have previously explained, “comments made to others are also

relevant to determining whether [a plaintiff] was subjected to severe or pervasive . . .

harassment.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 317 (4th Cir. 2008) (internal

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quotation marks omitted). Because there are genuine disputes of material fact present in

the record, a jury—not the court—should decide whether Ezeh was subjected to a hostile

work environment. Thus, we conclude that the district court erred in granting summary

judgment to Defendants on Ezeh’s discriminatory hostile work environment claim under

Section 1981.

Finally, although the district court scrutinized Ezeh’s retaliatory hostile work

environment claim under Title VII only, we agree with the district court’s assessment of

that claim and find it equally applicable to Ezeh’s retaliation claim under Section 1981.

See Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 217 (4th Cir. 2016) (explaining

that elements to establish prima facie claim of retaliation under Title VII and Section 1981

are identical). To make out a prima facie case of retaliation, an employee “must show (i)

that she engaged in protected activity; (ii) that her employer took adverse action against

her; and (iii) that a causal relationship existed between the protected activity and the

adverse employment activity.” Id. (internal brackets omitted). On the evidence in the

record, Ezeh has failed to demonstrate any causal link between activity protected under

Section 1981 and an adverse employment action. Ezeh argues that her receipt of a negative

performance evaluation less than a month after sending Genesis management an email

complaining about Zimmerman’s alleged discrimination amounts to an adverse

employment action that would not have occurred but for her allegation of discrimination.

However, Ezeh’s history of poor work performance rebuts such a conclusion. In particular,

the record is undisputed that Genesis management had discussed Ezeh’s substandard job

performance at least two weeks prior to Ezeh’s protests. And, as mentioned above, Ezeh

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had been told that her performance was substandard even before Zimmerman arrived at the

Center. Accordingly, Defendants are entitled to summary judgment on Ezeh’s retaliatory

hostile work environment claims. See Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008)

(“Workers are shielded from retaliation on account of their assertion of rights protected

under Title VII. But a complaining worker is not thereby insulated from the consequences

of insubordination or poor performance.”). 3

B.

We now shift to Plaintiffs’ claims under Title VII, beginning with Aina’s. 4 The

only Title VII claim Aina raised on appeal—discriminatory termination on the basis of

national origin—fails. As the district court correctly found, Aina cannot maintain this

cause of action under Title VII because he failed to mention any facts related to his

3
With respect to Ezeh’s race-based discrimination claims arising out of her alleged
termination, we also agree with the district court’s conclusion that Ezeh was not, in fact,
terminated. Ezeh’s own resignation letter, dated October 28, 2011, states that she wanted
to leave the Center and return to her old employer, Genesis Staffing, due to Zimmerman’s
“unvarying directive to arrive at 7am,” which she found “unfeasible.” J.A. 1059, 1817–
18. We therefore agree with the district court that, having failed to make out a prima facie
case of discriminatory or retaliatory termination, summary judgment on Ezeh’s termination
claims is appropriate. See Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 188 (4th
Cir. 2004).
4
We note that Plaintiffs have waived any right to challenge on appeal the district
court’s dismissal of several of their claims, given that Plaintiffs have failed to raise such
challenges in their opening brief to this Court. See Brown v. Nucor Corp., 785 F.3d 895,
918 (4th Cir. 2015) (“The doctrine of waiver derives from the Federal Rules of Appellate
Procedure, which require that the argument section of an appellant’s opening brief contain
the ‘appellant’s contentions and the reasons for them, with citations to the authorities and
parts of the record on which the appellant relies.’” (emphasis added) (quoting Fed. R. App.
P. 28(a)(8)(A))). Accordingly, this opinion addresses only the claims properly before us.

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termination in his EEOC Charge of Discrimination. This Court has explained that “[a]n

individual alleging discrimination in violation of Title VII must first file an administrative

charge with the EEOC.” Chacko v. Patuxent Inst., 429 F.3d 505, 508 (4th Cir. 2005) (citing

42 U.S.C § 2000e-5(e)). The charge must “describe generally the action or practices

complained of,” id. at 509 (quoting 29 C.F.R. § 1601.12(b) (2004)), so as to provide

adequate notice to the charged party, Balas v. Huntington Ingalls Indus., Inc., 711 F.3d

401, 407 (4th Cir. 2013). Although this Court construes EEOC charges liberally, our

liberal construction only stretches so far. For instance, “[a] claim will . . . typically be

barred if the administrative charge alleges one type of discrimination—such as

discriminatory failure to promote—and the claim encompasses another type—such as

discrimination in pay and benefits.” Chacko, 429 F.3d at 509. Accordingly, “[t]he filing

of an administrative charge is not simply a formality to be rushed through so that an

individual can quickly file his subsequent lawsuit.” Id. at 510. Because Aina’s Charge of

Discrimination lacks any reference to his alleged discriminatory termination, he has failed

to exhaust his administrative remedies as required by Title VII. Thus, the district court

correctly granted summary judgment on Aina’s Title VII termination claim.

The Title VII claims Nnadozie raises on appeal also flounder. First, the district

court rightly found that Nnadozie has failed to raise a triable issue of fact regarding her

discriminatory hostile work environment claim. In particular, Nnadozie failed to adduce

evidence sufficient to support an inference of discrimination on the basis of national origin,

much less clear the “high bar” that is required to satisfy the “severe or pervasive” test.

Sunbelt Rentals, 521 F.3d at 315. As this Court has explained, “complaints premised on

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nothing more than rude treatment by coworkers, callous behavior by one’s superiors, or a

routine difference of opinion and personality conflict with one’s supervisor . . . are not

actionable under Title VII.” Id. at 315–16 (internal citations, brackets, and quotations

marks omitted). Nnadozie’s allegations of poor performance evaluations, workplace

disagreements with Zimmerman, an additional workload, and an office relocation simply

cannot demonstrate an environment “permeated with discriminatory intimidation” on

account of her national origin. Harris, 510 U.S. at 21 (internal quotation marks omitted).

Second, Nnadozie has not established a prima facie case of retaliation. Because

Nnadozie has failed to demonstrate a causal connection between the protected activities

she may have engaged in and any subsequent adverse treatment, she cannot prevail on her

retaliatory hostile work environment claim under Title VII. See Ziskie, 547 F.3d at 229.

Nnadozie argues that her objection to Zimmerman’s alleged targeting of African

employees was so close in time to her “Final Written Warning” and office relocation that

those actions must have been retaliatory. Appellant’s Br. at 39–41. But, as with Ezeh,

Nnadozie’s prior history of negative performance evaluations fatally weakens this slim

temporal connection. No rational factfinder could conclude that Nnadozie’s objections

were the but for cause of any adverse employment action she may have experienced.

Accordingly, summary judgment for Defendants is warranted.

Third, because Nnadozie cannot maintain a hostile work environment claim, the

district court properly dismissed her claims of constructive discharge. Although hostile

work environment claims are assessed under a “severe and pervasive” standard,

constructive discharge claims are evaluated under an objective “intolerability” standard,

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requiring a plaintiff to prove “circumstances of discrimination so intolerable that a

reasonable person would resign.” EEOC v. Consol Energy, Inc., 860 F.3d 131, 144 (4th

Cir. 2017) (quoting Green v. Brennan, 136 S. Ct. 1769, 1779 (2016)). The “intolerability”

standard governing constructive discharge claims is more stringent than the “severe and

pervasive” standard for hostile work environment claims. See Amirmokri v. Balt. Gas &

Elec. Co., 60 F.3d 1126, 1133 (4th Cir. 1995) (explaining that hostile work environment

claims require “less severe” conditions vis-á-vis the intolerable conditions necessary for

constructive discharge claims); see also Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311,

316 n.4 (3d Cir. 2006) (same); Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1050

(7th Cir. 2000) (same); Landgraf v. USI Film Prods., 968 F.2d 427, 430 (5th Cir. 1992)

(same). Having failed to show hostile conditions that were severe and pervasive, Nnadozie

similarly cannot show that conditions at the Center were intolerable. Accordingly, the

district court properly granted summary judgment to the Defendants on these claims.

We arrive, finally, at Ezeh’s claims under Title VII. In support of her claim of

discriminatory hostile work environment on the basis of national origin, Ezeh relies on the

same evidence underlying her Section 1981 discriminatory hostile work environment claim

on the basis of race. See supra Part II-A. We find that this evidence is, likewise, sufficient

for a reasonable jury to find that Ezeh experienced a hostile work environment on account

of her national origin. It may seem peculiar that the same evidence can underlie both a

race-based Section 1981 claim and a national-origin-based Title VII claim. However,

because the line between ethnicity and national origin is, once again, “not a bright one,”

materials showing that Ezeh was discriminated against for being “African” can fairly

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support either claim. See Saint Francis Coll., 481 U.S. at 614 (Brennan, J., concurring)

(noting that, in the Title VII context, national origin, ethnicity, and ancestry often “overlap

as a legal matter”); Guessous, 828 F.3d at 225–26 (concluding that district court “put itself

in the place of the jury” when it determined that comments made by plaintiff’s supervisor

evinced animus based on national origin and religion only, because jury could conclude

that such comments were also “motivated by broader ethnic animus”); Vill. of Freeport v.

Barrella, 814 F.3d 594, 606 (2d Cir. 2016) (“[C]laims based on race and national origin

may substantially overlap or even be indistinguishable depending on the specific facts of a

case.” (internal quotation marks omitted)).

Defendants are entitled, however, to summary judgment on Ezeh’s remaining Title

VII claims. Specifically, Ezeh’s decision to resign from the Center nullifies her wrongful

termination claims, and, as discussed above, her retaliation claims fail because she has not

demonstrated a causal relationship between a protected activity and any adverse

employment action she allegedly suffered. Lastly, having checked only the “national

origin” box on her EEOC Charge, Ezeh’s race-based claims under Title VII are foreclosed

for failure to exhaust administrative remedies.

III.

In sum, we agree with the district court’s dismissal of Nnadozie and Aina’s Section

1981 claims, but vacate and remand the dismissal insofar as the claims were dismissed with

prejudice. We conclude that the district court erred in dismissing Ezeh’s Section 1981

claims, as she has sufficiently alleged discrimination on the basis of race. However, we

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nonetheless conclude that summary judgment is appropriate for Defendants on all but one

of her claims under Section 1981; we reverse the district court’s grant of summary

judgment on Ezeh’s race-based hostile work environment claim. And finally, we affirm

the district court’s grant of summary judgment to Defendants on of all but one of Plaintiffs’

Title VII claims; we reverse the district court’s grant of summary judgment on Ezeh’s

hostile work environment claim on the basis of national origin under Title VII. For the

foregoing reasons, the judgment of the district court is

AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND REMANDED

FOR FURTHER PROCEEDINGS.

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