In a published opinion filed August 27, 2019, U.S. Circuit Court Judge A. Marvin Quattlebaum of the Fourth Circuit affirmed the District Court’s grant of summary judgment brought under Title VII. Judge Quattlebaum’s decision in Perkins v. International Paper Company is another feather in the defense attorney’s cap and illustrates the importance of timely filing at the EEOC and how the Fourth Circuit continues to cling to the adage that “Title VII is not a general civility code.” Specifically, Perkins alleged race discrimination and brought claims for disparate treatment, hostile work environment, constructive discharge, and retaliation.
Allegations According to the lawsuit, Perkins, a black male, was hired in 1984 as a technician at the Eastover Paper Mill until he retired in 2014. An important interjection of procedural history is that Perkins did not file with the EEOC until January 8, 2015, which put a time bar on any allegation of deliberate discrimination that occurred more than 300 days before (March 14, 2014). The Fourth Circuit consolidated Perkins’ allegations into three categories: (1) mistreatment in various ways compared to white employees; (2) improper denials of requests for promotions; and (3) racially offensive conduct and statements at work.
Perkins’ alleged mistreatment was that his department’s 2007 ranking of the technicians for feedback listed the bottom-tiered employees as mostly women and black employees. Perkins also noted that, unlike his white co-workers, he was being questioned about overtime hours and he never received his own annual reviews. Furthermore, though he could not identify the race of the persons who received the promotions, Perkins alleged that he was passed over for several promotion opportunities.
In 2012, Perkins complained about this behavior to management and he advocated for an increase in pay for one of his black co-workers. Perkins further testified that the workplace rules were enforced more stringently against black employees and that some white employees did not talk to and otherwise shunned the black employees.
Regarding the racially offensive conduct, Perkins testified that even though he was not privy to these experiences, several years before 2014 (the time bar because of the late filing), Perkins heard about a white employee wearing a KKK hood to work and that a different white employee complained about being given n***** work in the office. Two other black co-employees testified that they had heard about an instance when a different black employee was told he entered the “white door” and needed to leave and come back through the “black door.”
In the Spring of 2014, Perkins was considering retirement when one of the managers accused him of not completing his job responsibilities. Perkins testified that after this encounter he believed that he was going to be fired if he did not leave voluntarily. Perkins then took his accumulated vacation time, never returned to work, and officially retired approximately forty-five days later. After leaving, Perkins reported the above behavior during his exit interview and filed a complaint with the company’s Ethics Helpline.
Plaintiff’s Disparate Treatment and HWE Claims Failed as a Matter of Law The Fourth Circuit began its analysis by noting that Perkins’ allegations that he was denied positions, overtime, and additional education benefits and training all occurred between 2007 and 2013 and were therefore untimely as beyond the 300-day time bar. On the other hand, Perkins’ allegation that he was denied annual reviews was within the timeframe and the Fourth Circuit discarded that claim because Perkins never offered testimony that the company’s failure to offer him an annual review adversely affected the terms, benefits, and conditions of employment.
Moving to Perkins’ Hostile Work Environment claim, the Fourth Circuit accepted three of the four elements required for a prima facie showing and focused in on the severe or pervasive requirement. Further accepting that Perkins subjectively perceived his environment to be abusive or hostile, the court narrowed its attention to whether a reasonable jury could conclude that an objective person would perceive Perkins’ work environment as the same.
As the objective severe or pervasive test is still “a high bar,” the court looked to the totality of the “circumstances, 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.” The reader probably understood where this was going once the court cited Faragher for the proposition that “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.”
The Fourth Circuit then went on and held that the handful of incidents that occurred between 2007 and 2013, “while no doubt serious to Perkins, from an objective perspective cannot reasonably be described as either frequent, physically threatening or humiliating. Further, Perkins does not allege the incidents interfered with his ability to perform his job. And the evidence offered by Perkins’ co-workers is of the same character.” Putting the final nail in the HWE coffin, the court opined that the experiences of third parties about which a plaintiff was unaware should not be considered in evaluating a hostile work environment’s severe or pervasive requirement and the Fourth Circuit reaffirmed that “information about which a plaintiff is unaware cannot, by definition, be part of a plaintiff’s work experience.”
Retaliation, Constructive Discharge, and Wrapping Things Up The court was able to dismiss the retaliation and constructive discharge claims due to an essential element of constructive discharge requiring proof of “a greater severity or pervasiveness of harassment than the minimum required to prove a hostile working environment.” And because Perkins failed on his HWE, he failed there as well.
Regarding Perkins’ retaliation claim, Perkins alleged that his Ethics Helpline call, exit interview complaint, advocacy for another black employee to receive a raise, and his complaint in 2012 that black employees were being treated unfairly all qualified as protected activity. Unfortunately for Perkins, the Ethics Helpline call and exit interview complaint were conducted after the alleged adverse action. Moreover, the advocacy and complaint had no supporting evidence of any adverse action that occurred within the 300-day time bar and in any event, Perkins could not show a causal connection.
The Fourth Circuit noted at least three separate times that it did not condone or endorse the inappropriate conduct that Perkins alleged, but the opinion was bound by the procedural and factual posture before it. Because Perkins waited so long to file with the EEOC, the timeline could only stretch so far to give the court a chance at scrutiny. Also, because Perkins’ alleged discriminatory treatment happened over a period of seven years, the court (though it did not mention this explicitly) permeated with the Stray Remarks doctrine. All in all, another win for employers as the Fourth Circuit continues to hold that a few comments here and there do not arise to the level of race discrimination under Title VII and that the court will hold fast to filing requirements and timelines.
https://ncbarblog.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Laborhttps://ncbarblog.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngLabor2019-09-19 08:34:172019-10-01 13:50:58Timing may not be everything, but it’s definitely something with Title VII claims