Smith v. Va. Hous. Dev. Auth.

• Decision Date: 04 February 2020
• Docket Number: Civil Action No. 3:18cv858
• Citation: 437 F.Supp.3d 486
• Parties: Talithia SMITH, Plaintiff, v. VIRGINIA HOUSING DEVELOPMENT AUTHORITY, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

437 F.Supp.3d 486

Talithia SMITH, Plaintiff,

v.VIRGINIA HOUSING DEVELOPMENT AUTHORITY, Defendant.

Civil Action No. 3:18cv858

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

Signed February 4, 2020

Henry W. McLaughlin, III, The Law Office of Henry McLaughlin, P.C., Richmond, VA, for Plaintiff.

Adrienne Hammond Paterson, Micah Block Schwartz, Summer Laine Speight, Elizabeth Page Redpath, McGuireWoods LLP, Richmond, VA, for Defendant.

MEMORANDUM OPINION

M. Hannah Lauck, United States District Judge

This matter comes before the Court on two motions:

(1) Defendant Virginia Housing Development Authority's ("VHDA") Motion for Summary Judgment (the "Motion for Summary Judgment"), (ECF No. 26); and,

(2) Plaintiff Talithia Smith's Motion Seeking Leave to File Late Witness and Exhibit List (the "Motion for Leave"), (ECF No. 30).

VHDA filed the Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56.¹ Smith responded to the Motion for Summary Judgment, (ECF No. 28), and VHDA replied, (ECF No. 29). VHDA has not responded to the Motion for Leave and the time to do so has expired. On January 16, 2020, the Court heard oral argument on the Motion for Summary Judgment. These matters are ripe for disposition.

The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331.² For the reasons stated below, the Court will grant the Motion for Summary Judgment and will deny as moot the Motion for Leave.³

I. Procedural Background

In this employment action, Smith seeks recovery for race and gender discrimination she alleges she faced during her employment with VHDA. She also asserts that her supervisors retaliated against her for her complaints about that discrimination. In her Complaint, Smith raised seven counts under three statutes: (1) Title VII, 42 U.S.C. § 2000e ; (2) Title VI, 42 U.S.C. § 2000d ; and, (3) 42 U.S.C. § 1981. VHDA filed a Partial Motion to Dismiss to which Smith responded in agreement. The Court then dismissed Smith's allegations of gender discrimination brought under 42 U.S.C. § 1981. (May 28, 2019 Mem. Order 4, ECF No. 12.) During an Initial Pretrial Conference with Counsel from both Parties, Counsel for Smith orally moved to withdraw an additional count from the Complaint, which the Court granted. (July 30, 2019 Order 1, ECF No. 18.) Smith's remaining counts are as follows:

Count One: Race Discrimination and Retaliation, in violation of 42 U.S.C. § 1981.

Count Two: Race Discrimination, in violation of 42 U.S.C. § 1981.⁴

Count Four: Race Discrimination and Retaliation, in violation of Title VII, 42 U.S.C. § 2000e, et seq.

Count Five: Gender Discrimination and Retaliation, in violation of Title VII, 42 U.S.C. § 2000e, et seq.

Count Six: Race Discrimination and Retaliation, in violation of Title VI, 42 U.S.C. § 2000d, et seq.

Following discovery, VHDA filed the instant Motion for Summary Judgment. The Court now turns to the instant motions.

II. Factual Background ⁵

In its Motion for Summary Judgment, VHDA provides a comprehensive overview of Smith's employment with VHDA. It provides support, in the form of admissible evidence, for each of the facts it presents.

In her response to the Motion for Summary Judgment, Smith identifies those facts in VHDA's Motion for Summary Judgment that she does not dispute. She also states that she "disputes many of the statements of fact by VHDA." (Resp. Mot. Summ. J. 3, ECF No. 28.) Smith submits only two of her own declarations in support of the facts that she disputes.

Because Smith only sets forth those facts that she disputes and VHDA provides facts, supported by evidence, that show a full picture of Smith's employment with VHDA, the Court will first set forth the facts as presented by VHDA. It will then identify those facts that Smith disputes. Smith does not dispute many of the facts set forth by VHDA.

A. Facts as Presented by VHDA

1. VHDA and General Allegations as to Smith's Employment at VHDA

"VHDA is a political subdivision created by the Commonwealth of Virginia to assist Virginians in obtaining quality, affordable housing through public-private partnerships with local government, community service organizations, lenders, realtors, developers, and others." (Mem. Supp. Mot. Summ. J. ¶ 1, ECF No. 27 (citing Mem. Supp. Mot. Summ. J. Ex. A "Burke Declaration" ¶ 3, ECF No. 27-1).) VHDA asserts that it "is an equal opportunity employer and has policies prohibiting discrimination, harassment, and retaliation in the workplace." (Id. ¶ 2 (citing Mem. Supp. Mot. Summ. J. Ex. B "Smith Deposition" 18–20, ECF No. 27-2; Mem. Supp. Mot. Summ. J. Ex. C "VHDA Policies" 1–9, ECF No. 27-3).) Smith does not contest that VHDA has several policies that are relevant to the instant Motion for Summary Judgment, including: (1) a Code of Conduct; (2) a Performance Management Policy; (3) a Disciplinary Action Policy; (4) policies that address timesheets and pay; and, (5) an Alternative Work Schedule Policy. (Id. ¶¶ 3–5; Resp. Mot. Summ. J. 2.)

"In October 2006, VHDA hired [Smith] as a full-time Associate Desktop Support Analyst in its Information Technology Services ... Department." (Mem. Supp. Mot. Summ. J. ¶ 7 (citing Burke Decl. ¶ 4; Smith Dep. 23).) Smith worked in "Service Central" within the Information Technology Services Department. (Id. ¶ 10 (citing Mem. Supp. Mot. Summ. J. Ex. E "Information Technology Services Organization Chart," ECF No. 27-5).) "Service Central provides technical assistance and support to VHDA employees on issues related to computer systems, software, hardware, phones, and printers." (Id. (citing Mem. Supp. Mot. Summ. J. Ex. F "Kirkland Declaration" ¶ 4, ECF No. 27-6).) It "also researches, tests, and deploys new or upgraded [Information Technology ("IT") ] programs and solutions to VHDA employees." (Id. (citing Kirkland Decl. ¶ 4).) "A critical component of Service Central's IT support function is a dedicated phone line available to VHDA employees and others during the hours of 7:30 a.m. to 5:30 p.m., Monday through Friday," known as the Service Line. (Id. ¶ 21 (citing Kirkland Decl. ¶ 15; Kirkland Decl. Ex. 1; Mem. Supp. Mot. Summ. J. Ex. I "Service Central Description," ECF No. 27-9).)

"On December 26, 2012," VHDA promoted Smith to "Desktop Support Analyst with a five percent increase in salary." (Id. ¶ 8 (citing Burke Decl. ¶ 5; Smith Dep. 51; Mem. Supp. Mot. Summ. J. Ex. D "Smith Promotion," ECF No. 27-4).) VHDA contends, and Smith does not dispute, that Smith's "job responsibilities did not change when she was promoted." (Id. ¶ 9 (citing Burke Decl. ¶ 6, Smith Dep. 51–52); Resp. Mot. Summ. J. 2.) VHDA explains that throughout her employment, Smith was a non-exempt employee, meaning that she had "to timely submit bi-weekly timesheets documenting the hours worked during the pay period."⁶ (Id. ¶ 4 (citing Smith Dep. 18, 20–22; VHDA Policies 23–26).) In June 2018, Smith voluntarily resigned from VHDA. (Id. ¶ 9 (citing Burke Decl. ¶ 6; Smith Dep. 51–51).)

2. Smith's Performance at VHDA 2006 to 2014

a. 2006 to 2011

From 2006—when Smith began working at VHDA—until 2011, David Kohan, a Caucasian male, supervised Smith. (Id. ¶ 31 (citing Burke Decl. ¶ 7; Smith Dep. 67–68).) During her deposition, Smith "testified [that] she had a good working relationship with Kohan." (Id. (citing Smith Dep. 68).) Smith testified that Kohan did not discriminate against her on the basis of race or gender. (Id. (citing Smith Dep. 68).) She also testified that Kohan did not retaliate against her. (Id. (citing Smith Dep. 68).)

b. 2011 to 2013

From 2011 to 2013, Mark McBride, a Caucasian male, supervised Smith. (Id. ¶ 32 (citing Burke Decl. ¶ 8; Smith Dep. 68–69).) Smith testified in her deposition that McBride, as with Kohan, did not discriminate against her on the basis of race or gender. (Id. (citing Smith Dep. 69–71).) Smith also stated that McBride did not retaliate against her. (Id. (citing Smith Dep. 69–71).) Smith further testified that McBride treated her fairly and "gave her fair performance reviews." (Id. (citing Smith Dep. 71–72).)

"McBride administered Smith's Annual Performance Review for the period of July 1, 2011 to June 30, 2012 (‘2012 Performance Review’)." (Id. ¶ 33 (citing Smith Dep. 72; Mem. Supp. Mot. Summ. J. Ex. L "2012 Performance Review," ECF No. 27-12).) The 2012 Performance Review, which VHDA attaches, included the following comments:

[Smith] has a strong customer focus and works to maintain good customer relationships with her customers and her peers. However, she needs to learn to maintain them without spending so much time "fraternizing." In addition, by completing necessary documentation in a concise and professional manner, her effectiveness in collaboration could be greatly improved.

[Smith] also needs to focus on efficiently managing her own time. We cannot have additional incidents like the recent one where her assistance was needed urgently, but her whereabouts were unknown. While I appreciate her commitment to and interest in her fellow associates, she needs to focus on the efficient completion of her tasks. In addition, she must be aware of the impact her prolonged absences have on the rest of the Service Central staff.

[Smith] takes pride in her work, but sometimes spends time "chatting" that would be better spent documenting her efforts. I encourage her to focus on increasing her efficiency and professionalism in the coming year.

(Id. (citing 2012 Performance Review 131–32).)

When asked about this performance review in her deposition, Smith testified that she believed the feedback as to "fraternizing" was fair. (Smith Dep. 73.) She explained that "[m]ost of the time, I was in the cafeteria. One of the ladies there was having a hard time with her son. So I was just there trying to console her." (Mem. Supp. Mot. Summ. J. ¶ 34 (citing Smith Dep. 73–74).)

c. 2012 to 2013

From in or around 2012 to 2013, Jeffrey Kyle Howard ("JK Howard), an African American male, supervised Smith. (Id. ¶ 35 (citing Mem. Supp. Mot. Summ. J. Ex. G "Howard...