474 F.3d 134 (4th Cir. 2007), 05-1995, Gilliam v. South Carolina Dept. of Juvenile Justice

Docket Nº:05-1995.
Citation:474 F.3d 134
Party Name:Jennifer GILLIAM, Plaintiff-Appellant, v. SOUTH CAROLINA DEPARTMENT OF JUVENILE JUSTICE, Defendant-Appellee.
Case Date:January 16, 2007
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 134

474 F.3d 134 (4th Cir. 2007)

Jennifer GILLIAM, Plaintiff-Appellant,



No. 05-1995.

United States Court of Appeals, Fourth Circuit.

January 16, 2007

Argued: October 24, 2006.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief District Judge, CA-03-3370.


William Jacob Watkins, Jr., Womble, Carlyle, Sandridge & Rice, Greenville, South Carolina, as Amicus Curiae Supporting Appellant.

Shahin Vafai, Gignilliat, Savitz & Bettis, Columbia, South Carolina, for Appellee.


Vance J. Bettis, Gignilliat, Savitz & Bettis, Columbia, South Carolina, for Appellee.

Before WIDENER, KING, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge WIDENER and Judge SHEDD joined.

Page 135

KING, Circuit Judge:

Plaintiff Jennifer Gilliam appeals from the district court's award of summary judgment to defendant South Carolina Department of Juvenile Justice (the "SCDJJ") on her Title VII hostile work environment claim. See Gilliam v. S.C. Dep't of Juvenile Justice, No. 3:03-3370-JFA (D.S.C. August 10, 2005) (the "Opinion"). Gilliam contends on appeal that the court erred in concluding that her claim was partially time barred and in declining to apply the "continuing violation doctrine." We agree that the court erred in refusing to apply the continuing violation doctrine. The award of summary judgment to the SCDJJ must be affirmed, however, because Gilliam is nevertheless unable to make a prima facie showing of a hostile work environment.




Gilliam is an African-American woman who began work for the SCDJJ as a Staff Nurse on April 15, 1995.1 As a Staff Nurse, she rotated among the various campuses of the SCDJJ and was supervised by Dr. Sandra Carnesale. In March of 1998, Gilliam was promoted to Campus Nurse. In this position, she was supervised by George Bader and was assigned to work exclusively at the Willow Lane campus of the SCDJJ.

When Gilliam worked at the Willow Lane campus, she was the only African-American nurse at that facility. She contends that, from March 1998 until August 31, 2001 (when she became unable to work because of a disability), she was routinely harassed by Bader because of her race. Gilliam asserts that Bader continuously treated her differently than he treated the white nurses. Although Bader never made racial comments or slurs to or about her, Gilliam testified by deposition that she could infer from Bader's actions that he was discriminating against her. The alleged incidents of harassment are mainly comprised of reprimands she received for tardiness and for work performance. In her testimony, Gilliam made general statements about Bader's discriminatory treatment of her, but she described few specific incidents to support her claim. And, other than her own testimony, Gilliam failed to forecast evidence that Bader had treated her differently than the white nurses.


Gilliam asserts that, beginning in 1998, Bader harassed her about her work schedule and required that she turn in leave slips for the time she missed when she was late for work. Under the SCDJJ's written policy on attendance and work hours, Gilliam's shift ran from 7:00 a.m. to 3:00 p.m. On October 29, 1998, Bader wrote a memorandum concerning Gilliam's work schedule, explaining that it had been revised to 7:30 a.m. to 4:00 p.m. to accommodate Gilliam's need to take her child to school. The memorandum noted, however, that Gilliam was still required to present leave slips for the deviations in her schedule that had occurred prior to the October 29 schedule change. The memorandum summarized that Gilliam, in arriving late to work, had missed a total of 8 hours in August 1998, 21.75 hours in September, and 15.75 hours in October.

Page 136

When Gilliam was late for work, she sought to make up time by staying late or skipping lunch. Instead of allowing Gilliam to make up time in this manner, Bader required that she turn in leave slips for the missed time.2 As a result, Gilliam was not credited with working full shifts. She acknowledged that making up time by staying late or skipping lunch contravened the SCDJJ's written policy, but testified that Bader had allowed white nurses to make up missed time in that manner. Gilliam provided only one example, however, of such differential treatment. Gilliam asserted that two white nurses--Christy Johnson and Bill Merritt--were not penalized, as she had been, for failing to work a complete shift. She did not forecast evidence to support this allegation. In response to Gilliam's testimony, the SCDJJ proffered a reprimand Bader gave Merritt on December 16, 1998. In an accompanying affidavit, Bader stated that after Merritt received this reprimand, he came to work on time. Gilliam, on the other hand, continued to be late for work, despite receiving several reprimands.

After Bader altered Gilliam's work shift to begin at 7:30 a.m., Gilliam still had problems getting to work on time. Gilliam explained that she was unable to make it on time because she was not permitted to drop her child off at school until 7:30 a.m. Gilliam again made the general allegation that Bader allowed other nurses to arrive after 7:30 a.m. When asked for specifics at her deposition, she provided the example of Bader allowing Suzanne Bretz, a white nurse, to begin her shift at 8:00 a.m. so that she could get her child to school. Bader explained, however, that Bretz was allowed to start late because she was a lower level nurse than Gilliam. He could not change Gilliam's starting time to 8:00 a.m. because of her position as Campus Nurse. Bader repeatedly advised Gilliam, both orally and in writing, that she could start work at 8:00 a.m. if she returned to the position of Staff Nurse. After arguing with Bader over her start time for months, Gilliam submitted a memo to Lawrence Eberlin (the Director of Nursing), Greg Cornell (the Director of Medical Services), and Bader, seeking permission to report to work each day at 8:00 a.m. until January 8, 1999, when her son would begin attending a new school. Because Gilliam could drop her son off earlier at the new school, she could then be at work by 7:30 a.m. This request was approved.


Gilliam next contends that, beginning in 1999, she was unjustly reprimanded with respect to her work. Gilliam received several reprimands, approved by Eberlin, Bader's supervisor, concerning problems with documentation of medications administered to juveniles. Most of those reprimands occurred after Bader had inspected the Willow Lane campus. Gilliam contends that several of the reprimands were for deficiencies in the 7:00 a.m. medications administration, when she was not working. She testified that Bader also entered her office on weekends to search for evidence of mistakes in her work. Gilliam made the general allegation that white nurses were not reprimanded for their work performance deficiencies. When asked for detail, she provided the name of a white nurse who was not penalized as Gilliam had been. The SCDJJ,

Page 137

however, had filed a reprimand against that nurse.

Gilliam next alleges that, in late 2000 and early 2001, Bader began to harass her about her duty to stock and organize the medications at Willow Lane. This duty was an additional responsibility Bader had asked her to undertake. In response to a memorandum Bader sent her on the deficiencies in her performance in this respect, Gilliam stated that this assignment was "a forum for [her] to be frequently Questioned, Threatened, Criticized and Humiliated in front of my co-workers, as well as a Stage for possible disciplinary action(s)." J.A. 307.3 Bader later removed the duty to stock and organize medications from Gilliam's list of responsibilities.4

Aside from Gilliam's testimony on Bader's treatment of her, she proffered the testimony of Williene Harrison, a retired African-American nurse who worked in a different SCDJJ department, and Jacques Reeves, a custodian for the SCDJJ. In her deposition, Harrison testified that she felt Bader treated her and Gilliam differently than the white nurses and that he was overly critical of their work. She also testified that she had seen and heard Bader question Gilliam about her work duties in the presence of other nurses. She observed that Bader's tone of voice was unfriendly and that he did not similarly question the white nurses. Reeves testified that he felt Bader treated Gilliam differently than the white nurses at Willow Lane. He recalled observing an incident in which Bader reprimanded Gilliam for laughing too loudly in the hallway. Reeves was uncertain if Bader had reprimanded other nurses for also laughing loudly in the hallway.


Bader's harassment of Gilliam culminated in an alleged assault that occurred on January 26, 2001. On that occasion, Bader entered Gilliam's office with a memorandum indicating her reassignment to a different department. Gilliam asked to make a copy of the memorandum so that she could discuss it with her lawyer, but when she started to the door Bader blocked her path. She tried to step around him, but he grabbed her arm and pulled her back into the office. Bader then took the memorandum from Gilliam and wrote a note on it, indicating that Gilliam had "[r]efused to sign [the] paper." J.A. 212. At this point, Gilliam cried out for help and some co-workers came to her office. Gilliam retrieved the memorandum from Bader after the co-workers arrived. She wrote her own note on it, stating that she "did not refuse to sign[.] I wanted to make a copy first for my Attorney." Id. she then made a copy of the memorandum. Gilliam reported the incident to the SCDJJ's Human Resources Department, the Deputy Director of Rehabilitation Services, and the Director of Nursing. After this incident, Gilliam was...

To continue reading