Joyner v. Fillion, CIV. A. 2:97cv284.

• Decision Date: 11 August 1998
• Docket Number: No. CIV. A. 2:97cv284.,CIV. A. 2:97cv284.
• Citation: 17 F.Supp.2d 519
• Parties: Shirlene JOYNER, Plaintiff, v. A. James FILLION, individually, and in his official capacity as The Commissioner of the Revenue for the City of Portsmouth, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

Page 519

17 F.Supp.2d 519

Shirlene JOYNER, Plaintiff, v. A. James FILLION, individually, and in his official capacity as The Commissioner of the Revenue for the City of Portsmouth, Defendant.

No. CIV. A. 2:97cv284.

United States District Court, E.D. Virginia, Norfolk Division.

August 11, 1998.

COPYRIGHT MATERIAL OMITTED

Stephen Wainger, Robert Harriss Wood, Huff, Poole & Mahoney, Virginia Beach, VA, for Plaintiff.

Jeff Wayne Rosen, Adler, Rosen & Peters, P.C., Virginia Beach, VA, for Defendant.

MEMORANDUM OPINION AND ORDER

JACKSON, District Judge.

This matter is before the Court on Defendant's Motion for Summary Judgment. Plaintiff Shirlene Joyner brought this suit for compensatory and punitive damages claiming that A. James Fillion, individually and in his official capacity as Commissioner of the Revenue for the City of Portsmouth, harassed and discriminated against her in the workplace based on her race and retaliated against her for filing complaints with the Equal Employment Opportunity Commission ("EEOC"), in violation of 42 U.S.C. §§ 1981, and 2000e, et seq. (Title VII of the Civil Rights Act of 1964 and 1991) (hereinafter "Title VII"). Further, she seeks a remedy for common law wrongful discharge in violation of the Virginia Constitution. The parties have briefed the issues, and the Court has conducted a hearing. The motion is, therefore, ripe for decision. For the reasons that follow, the Court GRANTS the motion in part and DENIES the motion in part.

I. PROCEDURAL HISTORY

On March 19, 1997, Plaintiff, Shirlene Joyner, brought what was originally a pro se action alleging that she was harassed, wrongfully suspended and discharged. Plaintiff filed a motion for the appointment of counsel on March 20, 1997. On April 17, 1997, Defendant filed a motion for an extension of time to respond to Plaintiff's complaint. The motion was granted on April 21, 1997. On April 21, 1997, the Court wrote a letter to Plaintiff indicating that the Court did not have funds to appoint counsel in this matter but advised Plaintiff that attorney Stephen Wainger had agreed to consult with her about the case. Defendant moved for summary judgment on May 16, 1997. On June 3, 1997, Plaintiff filed: (1) a motion for extension of time to file a brief in opposition to the motion for summary judgment; and (2) an affidavit from Mr. Wainger indicating, among other things, that his firm had been retained to represent Plaintiff. On June 9, 1997, Plaintiff filed a brief response to the motion for summary judgment requesting discovery to facilitate a response. On June 13, 1997, the Court granted Plaintiff a ten day extension of time. No further response was filed by the Plaintiff.

On June 12, 1997, Plaintiff filed an amended complaint. On June 27, 1997, Defendant filed a motion to strike the amended complaint pursuant to Federal Rule of Civil Procedure 15. On July 2, 1997, Plaintiff filed a brief in response to the motion to strike. On July 3, 1997, Defendant replied to Plaintiff's response. On July 15, 1997, the Court denied the City of Portsmouth's motion to strike the amended complaint and declined to rule on the pending motion for summary judgment in order to give the Defendant the opportunity to address the amended complaint in an amended motion for summary judgment. On August 4, 1997, the City of Portsmouth filed an amended motion for summary judgment and Plaintiff filed a brief in opposition to the City's amended motion for summary judgment. Defendant filed a reply brief to Plaintiff's opposition to the motion for summary judgment. On December 30, 1997, the Court heard oral argument on the motions as aforestated.

II. FACTS

The undisputed facts are concisely stated. Defendant A. James Fillion is the Commissioner of Revenue for the City of Portsmouth. The office employs approximately twenty-eight persons. In 1992, Plaintiff, Shirlene Joyner, began her employment in the Office of the Commissioner of Revenue for the City of Portsmouth on a part-time basis. Based on her excellent work record, she was offered and she accepted, a full-time position beginning February 1, 1994. She remained in that position until she was terminated September 21, 1995 for reasons which are disputed.

For the period from February 1, 1994, through approximately August 1994, Joyner received a performance evaluation indicating that her work generally met expectations. On April 11, 1995, Joyner filed an administrative charge with the EEOC alleging gender and racial bias in her workplace. On April 26, 1995, Joyner received a notice of disciplinary action and was suspended for ten (10) days without pay, to begin April 26, 1995 and end May 4, 1995. The notice of disciplinary action form recited that Joyner's behavior during the preceding weeks represented violations of the Standards of Conduct for employees of the City of Portsmouth and listed the alleged infractions. On May 2, 1995, Joyner filed a second charge with the EEOC claiming her suspension was retaliation for her filing an EEOC charge. On September 22, 1995, Plaintiff's yearly performance evaluation was prepared. It indicated that her performance was below expectations. On October 3, 1995, Defendant notified Joyner that her employment was terminated effective September 21, 1995 for continuous unsatisfactory job performance including poor attendance, poor job performance, and unprofessional behavior with co-workers and citizens. In March 1996 this lawsuit was filed.¹

III. LEGAL STANDARD

Summary judgment is appropriate when the Court determines that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). Once a party has properly submitted evidence supporting the motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c), the burden shifts to the nonmoving party to set forth specific facts showing genuine issues for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); accord Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 817 (4th Cir. 1995). "[T]he plain language of Rule 56 mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. The court must view the record as a whole and in the light most favorable to the nonmoving party. Terry's Floor Fashions, Inc. v. Burlington Indus., Inc., 763 F.2d 604, 610 (4th Cir.1985).

IV. DISCUSSION

A. Hostile Work Environment Claim

The race standard "is the same standard now used when determining whether sexual harassment renders a work environment hostile." Burlington Industries, Inc. v. Ellerth, ___ U.S. ___, ___, 118 S.Ct. 2257, 2272, 141 L.Ed.2d 633 (1998)(Thomas, J., dissenting.). Accordingly, Plaintiff must prove the following four standards enumerated in Harris v. Forklift Systems: (1) the conduct to which she was subjected was unwelcome; (2) the harassment was based on sex or race; (3) the harassment was sufficiently severe or pervasive to create an abusive working environment; and (4) there is some basis for imposing liability on the employer. 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); See Swentek v. USAIR, 830 F.2d 552, 557 (4th Cir.1987). The work environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so, in order to comply with the statutory requisites. Faragher, 118 S.Ct. 2275 (citing Harris, 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). To ascertain "hostility" or "abusiveness," the court considers four factors: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether the conduct is physically threatening or humiliating, as opposed to merely offensive; and, (4) whether it unreasonably interferes with the claimant's performance. Id.

To sustain her burden of proof of a racially hostile work environment, Plaintiff must prove "that [her] work environment was so pervaded by racial harassment as to alter the terms and conditions of [her] employment." Burlington Industries, Inc. v. Ellerth, ___ U.S. ___, ___, 118 S.Ct. 2257, 2272, 141 L.Ed.2d 633 (1998)(Thomas, J., dissenting.); See Snell v. Suffolk Cty., 782 F.2d 1094, 1103 (2d Cir.1986), in which the Court held that "to establish a hostile atmosphere, ... plaintiffs must prove more than a few isolated incidents of racial enmity"; accord, Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir.1981) (holding that there is no violation of Title VII due to infrequent use of racial slurs). In Faragher v. City of Boca Raton, the Court has held that "`simple teasing,' offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." ___ U.S. ___, ___, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662 (1998)(citing Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir.1971)where the court held that the "mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee" fails to sufficiently alter the conditions of employment enough to violate Title VII).

With respect to the fourth prong of the Harris standard, an employer cannot be held liable for discriminatory conduct of its subordinates unless the employer knew or should have known of the harassment and took no action to effectively correct the situation. Spicer v. Com. of Virginia Department of Corrections, 66 F.3d 705, 710 (4th Cir. 1995); accord Andrade v. Mayfair Management, Inc., 88 F.3d 258, 261 (4th Cir.1996) (holding that supervisory employee's sexual harassment of former employee was not automatically imputable to employer). As to the analytical predicate concerning the conduct of the subordinate, a plaintiff must...