A recent Fourth Circuit decision held that alleged statements from a supervisor that included, “We don’t want women working in the morning” and “I don’t want three women on my schedule,” were not sufficient to support a plaintiff’s claims of discrimination or harassment in violation of Title VII. In the unpublished opinion issued October 10, 2017, the Fourth Circuit also stated that placing the plaintiff on a Performance Improvement Process (“PIP”) did not constitute an adverse action that could support her discrimination or retaliation claims. The panel, consisting of Judges Niemeyer, Traxler, and Keenan, affirmed the District Court’s grant of summary judgment for the employer.
The plaintiff worked the morning shift on the cleaning staff of a Maryland high school from 1997 until her resignation on July 19, 2011. She alleged that her supervisor told her that he did “not want women working in the morning” and that he “did not want three women working on his schedule.” The supervisor denied ever making these statements.
On May 24, 2010, following these alleged remarks, the plaintiff’s (and other workers’) schedule was changed. Two days later, the plaintiff sent a letter to the HR department and complained of discrimination.
Characterization of Supervisor’s Comments
The plaintiff asserted that the two statements made by her supervisor that he did “not want women working in the morning” and that he did “not want the three women on his schedule” were direct evidence of discrimination. The court disagreed, holding that the plaintiff had not shown a “clear nexus between the employment decision in question and the isolated remarks.” (emphasis added). Neither the Fourth Circuit nor the District Court stated when the statements were made (though one can infer that they came somewhat close in time to the schedule change) but still found no clear nexus between the remarks and the employment decision.
Alternatively, the plaintiff asserted liability under the McDonnell Douglas burden-shifting framework, alleging three adverse actions because of her sex: (1) a negative performance evaluation and subsequent placement into the employer’s PIP, (2) a two-hour change in her schedule, and (3) constructive discharge.
Placement in a Performance Improvement Plan Not an Adverse Action
The Fourth Circuit held that the placement of the plaintiff into the PIP was not an adverse action because she was unable to provide evidence of “something more.” More specifically, the only consequence she identified because of the PIP was an “inability to transfer to another position” which, the court found, “alone does not constitute an adverse action.” The court distinguished between a failure to promote, which would impact the terms and conditions of her employment, and the PIP, which the court held did not impact the terms and conditions of employment.
Two-Hour Schedule Change Not an Adverse Action
The panel also ruled that the two-hour schedule change was not an adverse employment action even though the plaintiff had to rearrange her childcare arrangements and her commuting expenses marginally increased as a result of the schedule change.
Displeasure With Work Assignments Not A Constructive Discharge
Finally, the Fourth Circuit concluded that the plaintiff’s had not shown that she was constructively discharged because her displeasure with her work assignments and her disagreement with her negative performance evaluations were not enough to support her claim. The plaintiff offered some proof that the supervisor pushed a trash can at her, but because the event allegedly occurred more than a year before her resignation, the court held that a reasonable employee would not have resigned because of this lone incident.
This case confirms that, despite more employee-friendly rulings in recent years, employers can still rely on the “isolated” or “stray” remarks doctrine to avoid liability for allegedly discriminatory statements where the plaintiff fails to prove a sufficient nexus between the remarks and an adverse employment action. This case also confirms that the Fourth Circuit will find that a PIP, without “something more,” does not constitute an adverse employment action.
Zachary Anstett is a 3L at Campbell Law School. Zachary is from Severna Park, Maryland and received a Bachelor of Arts in English Language and Literature from the University of Maryland at College Park. He moved to Raleigh, North Carolina to attend Campbell Law School and enjoyed competing this past spring in the law school’s Client Counseling Competition, in which he and his partner placed seventh in the nation. Zachary hopes to stay in the Raleigh area after graduation.
MARIA MELENDEZ, Plaintiff – Appellant, v. BOARD OF EDUCATION FOR MONTGOMERY COUNTY, Defendant – Appellee, & MONTGOMERY COUNTY PUBLIC SCHOOLS; ALBERT EINSTEIN HIGH SCHOOL, Defendants., No. 17-1116, 2017 WL 4512169, at *1 (4th Cir. Oct. 10, 2017)