Virginia Whitaker v. Nash County, No. 12-2128 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2128 VIRGINIA DIEPHEAL WHITAKER, Plaintiff Appellant, v. NASH COUNTY; NASH COUNTY DEPARTMENT OF SOCIAL MELVIA BATTS, Director; JOSIE GREEN, Food and Supervisor, SERVICES; Nutrition Defendants - Appellees. No. 12-2181 VIRGINIA DIEPHEAL WHITAKER, Plaintiff Appellant, v. NASH COUNTY; NASH COUNTY DEPARTMENT OF SOCIAL MELVIA BATTS, Director; JOSIE GREEN, Food and Supervisor, SERVICES; Nutrition Defendants - Appellees. Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:11-cv-00055-FL; 5:11-cv-00015-FL) Submitted: January 3, 2013 Decided: January 11, 2013 Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Virginia Diepheal Whitaker, Appellant Pro Se. Mary Nell Craven, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Winston-Salem, North Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM Virginia Diepheal Whitaker appeals the district court s order granting summary judgment to the Defendants in her civil action under Title VII of the Civil Rights Act of 1964, as amended ( Title VII ), 42 U.S.C.A. §§ 2000e to 2000e-17 (West 2003 & Supp. 2012), and her state law libel claims. Whitaker challenges the district court s grant On appeal, of summary judgment on her claims for retaliation, racial discrimination, creation of discrimination. a hostile work environment, and religious We affirm. We review a district court s grant of summary judgment de novo, drawing reasonable inferences favorable to the non-moving party. in the light most PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 119 (4th Cir. 2011). Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). To withstand a motion for summary judgment, the non-moving party must produce competent evidence to reveal the existence of a genuine issue of material Potomac Elec. Power Co., fact 312 for F.3d trial. 645, See 649 (4th Thompson Cir. v. 2002) ( Conclusory or speculative allegations do not suffice, nor does a mere scintilla party s] case. of evidence in support of [the (internal quotation marks omitted)). 3 non-moving Title VII prohibits employers from discriminat[ing] against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual s . . . race. 42 U.S.C.A. § 2000e-2(a)(1). Where there is no direct evidence of discrimination, a plaintiff may proceed under the [McDonnell Douglas] pretext framework, under which the employee, after establishing a prima facie case of discrimination, demonstrates that the employer s proffered permissible reason for taking an adverse employment action is actually a pretext for discrimination. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005) (internal quotation marks and brackets omitted); see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Title VII also forbids an employer from retaliating against an employee through adverse protected employment conduct discrimination. Cir. 2003). actions such as because filing the employee grievances engaged alleging in racial King v. Rumsfeld, 328 F.3d 145, 150-51 (4th It is well established that, even under the McDonnell Douglas burden-shifting scheme, the ultimate burden of persuasion remains on the plaintiff at all times. Tex. Dep t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). The district court properly suffered two adverse employment actions: termination. found that Whitaker failure to promote and See James v. Booz-Allen & Hamilton, Inc., 368 F.3d 4 371, 375 (4th Cir. 2004) ( An adverse employment action is a discriminatory conditions, act or which benefits adversely of the affects plaintiff s the terms, employment. ) (internal quotation marks and brackets omitted). We conclude that Whitaker has failed to demonstrate that the Defendants legitimate, and her non-discriminatory termination were reasons for pretextual, failure to promote either for racial for hostile work (1) she discrimination or retaliation. In environment, order to Whitaker establish must a claim demonstrate that: experienced unwelcome harassment; (2) based on race; (3) that was sufficiently severe or pervasive to alter the conditions of her employment and to create an abusive atmosphere ; and (4) that employer. this conduct it imputable on some basis to her EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009). when was We find that the district court did not err dismissed Whitaker s claims because she did not establish the presence of conduct severe or pervasive enough to create a work environment both that she perceived as abusive and that a reasonable person would find hostile and abusive. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993). Finally, we conclude that the district court did not err when it dismissed Whitaker s religious discrimination claim for failure to exhaust her administrative remedies. 5 Under 42 U.S.C. § 2000e-5(e)(1) (2006), a Title VII charge must be filed with the EEOC within 180 days after the alleged unlawful employment practice occurred, or with a state or local agency within 300 days of such practice. 551 F.3d 297, 300 (4th Cir. Jones v. Calvert Grp., Ltd., 2009). [A] failure by the plaintiff to exhaust administrative remedies concerning a Title VII claim deprives the federal jurisdiction over the claim. her EEOC complaint discrimination. be barred if Id. that courts of subject matter Whitaker did not indicate on she had suffered religious [A] claim in formal litigation will generally the EEOC charge alleges discrimination on one basis, such as race, and the formal litigation claim alleges discrimination on a separate basis. Id. Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 6

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