Fourth Circuit Update

By Sean F. Herrmann

The Fourth Circuit has been relatively quiet on the labor and employment front. But on October 19, 2018, through an unpublished per curium opinion, it affirmed summary judgment in an employment case — Nzabandora v. Rectors and Visitors of the University of Virginia; Commonwealth of Virginia, No. 17-2350 (4th Cir. Oct. 19, 2018). So let’s take a look at it. 

The plaintiff appealed the U.S. District Court for the Western District of Virginia’s dismissal of her disparate treatment (race), retaliation, and hostile work environment Title VII claims. The plaintiff also brought a race discrimination claim under 42 U.S.C. § 1981, but she did not argue it on appeal, so she waived it. The Court also found that she waived her retaliation claim by not briefing pretext.

The plaintiff, a black woman of Rwandan national origin, was a nurse at UVA Medical Center. She alleged that a white coworker regularly harassed her with racially charged remarks. The plaintiff alleged that she reported these racist remarks to her supervisor at some point between July and September 2015, and her supervisor dismissed the allegations or made discriminatory remarks of her own. In December 2015, the same supervisor fired the plaintiff for, allegedly, making threatening statements and refusing to cooperate in an investigation.  

The plaintiff initially tried to tie the comments directly to the termination with a direct evidence theory. The Court quickly dismissed this argument, finding that the comments were neither contemporaneous with nor directly related to the termination. 

The Court then just as quickly dispatched with the discrimination claim through the McDonnell Douglas test. It essentially skipped straight to pretext and applied the heightened Proud v. Stone standard since the same supervisor hired the plaintiff in March 2014 and fired her in December 2015. It then said that the plaintiff’s shifting reasons and other evidence was belied by the record. 

With regard to the racially hostile environment claim, the Court held that the defendant was not liable for the supervisor’s comments because they, among other things, were not based on race. The Court also declined to impute the plaintiff’s coworker’s racist comments to the defendant because, when the plaintiff complained, her supervisor changed the alleged harasser’s schedule. 

The takeaways from this decision are few. Although it is technically a win for management lawyers, the decision is unpublished and otherwise presents very little in the way of factual scenarios or holdings that can be usefully applied elsewhere.