UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2128
VIRGINIA DIEPHEAL WHITAKER,
Plaintiff – Appellant,
v.
NASH COUNTY; NASH COUNTY DEPARTMENT OF SOCIAL SERVICES;
MELVIA BATTS, Director; JOSIE GREEN, Food and Nutrition
Supervisor,
Defendants - Appellees.
No. 12-2181
VIRGINIA DIEPHEAL WHITAKER,
Plaintiff – Appellant,
v.
NASH COUNTY; NASH COUNTY DEPARTMENT OF SOCIAL SERVICES;
MELVIA BATTS, Director; JOSIE GREEN, Food and Nutrition
Supervisor,
Defendants - Appellees.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:11-cv-00055-FL; 5:11-cv-00015-FL)
Submitted: January 3, 2013 Decided: January 11, 2013
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Virginia Diepheal Whitaker, Appellant Pro Se. Mary Nell Craven,
WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Winston-Salem, North
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM
Virginia Diepheal Whitaker appeals the district
court’s order granting summary judgment to the Defendants in her
civil action under Title VII of the Civil Rights Act of 1964, as
amended (“Title VII”), 42 U.S.C.A. §§ 2000e to 2000e-17 (West
2003 & Supp. 2012), and her state law libel claims. On appeal,
Whitaker challenges the district court’s grant of summary
judgment on her claims for retaliation, racial discrimination,
creation of a hostile work environment, and religious
discrimination. We affirm.
We review a district court’s grant of summary judgment
de novo, drawing reasonable inferences in the light most
favorable to the non-moving party. PBM Prods., LLC v. Mead
Johnson & Co., 639 F.3d 111, 119 (4th Cir. 2011). Summary
judgment is proper “if the movant shows that 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). To
withstand a motion for summary judgment, the non-moving party
must produce competent evidence to reveal the existence of a
genuine issue of material fact for trial. See Thompson v.
Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002)
(“Conclusory or speculative allegations do not suffice, nor does
a mere scintilla of evidence in support of [the non-moving
party’s] case.” (internal quotation marks omitted)).
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Title VII prohibits employers from “discriminat[ing]
against any individual with respect to [her] compensation,
terms, conditions, or privileges of employment, because of such
individual’s . . . race.” 42 U.S.C.A. § 2000e-2(a)(1). Where
there is no direct evidence of discrimination, “a plaintiff may
proceed under the [McDonnell Douglas] ‘pretext’ framework, under
which the employee, after establishing a prima facie case of
discrimination, demonstrates that the employer’s proffered
permissible reason for taking an adverse employment action is
actually a pretext for discrimination.” Diamond v. Colonial
Life & Accident Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005)
(internal quotation marks and brackets omitted); see McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Title VII also
forbids an employer from retaliating against an employee through
adverse employment actions because the employee engaged in
protected conduct such as filing grievances alleging racial
discrimination. King v. Rumsfeld, 328 F.3d 145, 150-51 (4th
Cir. 2003). It is well established that, even under the
McDonnell Douglas burden-shifting scheme, the ultimate burden of
persuasion remains on the plaintiff at all times. Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
The district court properly found that Whitaker
suffered two adverse employment actions: failure to promote and
termination. See James v. Booz-Allen & Hamilton, Inc., 368 F.3d
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371, 375 (4th Cir. 2004) (“An adverse employment action is a
discriminatory act which adversely affects the terms,
conditions, or benefits of the plaintiff’s employment.”)
(internal quotation marks and brackets omitted). We conclude
that Whitaker has failed to demonstrate that the Defendants’
legitimate, non-discriminatory reasons for failure to promote
and her termination were pretextual, either for racial
discrimination or retaliation.
In order to establish a claim for hostile work
environment, Whitaker must demonstrate that: (1) she
experienced unwelcome harassment; (2) based on race; (3) that
was “sufficiently severe or pervasive” to alter the conditions
of her employment and to create an “abusive atmosphere”; and
(4) that this conduct was imputable on some basis to her
employer. EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167, 175
(4th Cir. 2009). We find that the district court did not err
when it dismissed Whitaker’s claims because she did not
establish the presence of conduct severe or pervasive enough to
create a work environment both that she perceived as abusive and
that a reasonable person would find hostile and abusive. See
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993).
Finally, we conclude that the district court did not
err when it dismissed Whitaker’s religious discrimination claim
for failure to exhaust her administrative remedies. Under 42
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U.S.C. § 2000e-5(e)(1) (2006), a Title VII charge must be filed
with the EEOC within 180 days “after the alleged unlawful
employment practice occurred,” or with a state or local agency
within 300 days of such practice. Jones v. Calvert Grp., Ltd.,
551 F.3d 297, 300 (4th Cir. 2009). “[A] failure by the
plaintiff to exhaust administrative remedies concerning a Title
VII claim deprives the federal courts of subject matter
jurisdiction over the claim.” Id. Whitaker did not indicate on
her EEOC complaint that she had suffered religious
discrimination. “[A] claim in formal litigation will generally
be barred if the EEOC charge alleges discrimination on one
basis, such as race, and the formal litigation claim alleges
discrimination on a separate basis.” Id.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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