Janeene Jensen-Graf v. Chesapeake Employers' Insurance Company, No. 14-2081 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-2081 JANEENE J. JENSEN-GRAF, Plaintiff - Appellant, v. CHESAPEAKE EMPLOYERS’ INSURANCE COMPANY, Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. George L. Russell, III, District Judge. (1:14-cv-01427-GLR) Submitted: June 16, 2015 Decided: June 26, 2015 Before WILKINSON, AGEE, and HARRIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Morris E. Fischer, MORRIS E. FISCHER, LLC, Silver Spring, Maryland, for Appellant. Jefferson L. Blomquist, FUNK & BOLTON, P.A., Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Janeene J. Jensen-Graf appeals the district court’s order dismissing her Title VII action for failure to state a claim. On appeal, Jensen-Graf argues that the district court erred in finding that she did not suffer any adverse employment actions and that she failed to allege that similarly employees were treated more favorably. In her Jensen-Graf complaint, is employed male We affirm. Jensen-Graf by situated alleged Chesapeake the following. Employers’ Insurance Company (“Chesapeake”) as a loss control consultant. In June 2009, Chesapeake informed her that she was required to come into the office scheduled if on expenses. a she did day, not causing have her two to onsite incur client personal visits commuting In October 2009, Chesapeake placed Jensen-Graf on a performance improvement plan (“PIP”) because she was not scheduling enough meetings, did not have enough onsite client visits, and had overdue job orders. Jensen-Graf alleges these deficiencies existed because Chesapeake referred clients to her male colleagues already overdue. Jensen-Graf, but and was assigning Because not her of the male her job PIP, colleagues, orders Chesapeake to have that were required 20 onsite visits per month, 40 “activity points” per month, and attend biweekly meetings to discuss her performance. She also received no credit when a client cancelled a scheduled meeting. 2 On December against 22, Chesapeake 2010, Jensen-Graf alleging sex received notice the same day. asked to participate Chesapeake denied in her a filed an EEOC discrimination. charge Chesapeake On December 21, 2011, Jensen-Graf professional request because development she was on course. the PIP. Jensen-Graf amended her EEOC charge to include a retaliation claim, and alleging eventually one retaliation. count filed of sex a complaint in discrimination district and one court, count of The district court dismissed her complaint on the grounds that she failed to establish an adverse action as to both the discrimination and retaliation claims and that she failed to allege that similarly situated male employees were treated more favorably as to her discrimination claim. This court reviews dismissals for failure to state a claim de novo, reviewing the facts in the light most favorable to the plaintiff. 2008). Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. A plaintiff need not make out a prima facie case of employment discrimination to survive a motion to dismiss. McCleary-Evans v. Md. Dep’t of Transp., State Highway Admin., 780 F.3d 582, 584-85 (4th Cir. 2015). state a claim speculative. to relief that is Rather, a plaintiff must plausible, and not merely Id. at 585. While a plaintiff must show the existence of an adverse employment action to show a prima 3 facie case of employment discrimination, this requirement “is derived from the statute’s requirement that the employer’s practice relate to ‘compensation, terms, conditions or privileges of employment’ or that the practice ‘deprive any individual of employment opportunities or otherwise adversely affect [her] status as an employee.’” Ali v. Alamo Rent-A-Car, Inc., 8 F. App’x 156, 158 (4th Cir. 2001) (quoting 42 U.S.C. § 2000e-2(a)(1)&(2)). adverse employment action is an action “that An ‘constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’” Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). “[A] actionable only where the evaluation as basis to poor a performance employer evaluation subsequently detrimentally alter conditions of the recipient’s employment.” the uses terms is the or James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 377 (4th Cir. 2004) (internal quotation marks omitted). Jensen-Graf’s complaint fails to state a plausible discrimination claim because she has not alleged any action that could She reasonably has failed be to considered allege that an adverse she employment received lower action. pay, was demoted, was passed over for a promotion, failed to receive a 4 bonus, or given significantly different responsibilities because she was placed on the PIP. Her complaints about additional requirements being placed on her as a result of the PIP amount to nothing more than “dissatisfaction with this or that aspect of [her] action. work” that fails to allege James, 368 F.3d at 377. additional commuting employment action expenses that is is an actionable adverse Likewise, incurring small, not type under cognizable the of Title adverse VII. See, e.g., Cooper v. United Parcel Serv., Inc., 368 F. App’x 469, 474 (5th Cir. 2010) (collecting cases). For similar reasons, Jensen-Graf fails to state a retaliation claim. In retaliation cases, “a plaintiff must show that employee a reasonable would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker supporting a charge of discrimination.” from making or Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted). Such actions need not affect the terms and conditions of employment. Id. at 64. Denial of professional development opportunities could be a materially adverse action. See id. at 69 (“excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination.”). 5 The only retaliatory act Jensen-Graf alleged was the denial of a professional development course. course because she was on the PIP. Chesapeake denied her the Jensen-Graf pled no facts indicating whether this is a consistent policy of Chesapeake, whether this was a temporary denial, and whether this course was indeed required for her professional development. Moreover, she has pled no facts showing how she was harmed by the denial of this course. See Allen v. Napolitano, 774 F. Supp. 2d 186, 204 (D.D.C. 2011) (dismissing retaliation claim based on refusal to authorize training courses when plaintiff failed to allege any significant harm). change in her employment or objectively tangible Without these facts, we cannot reasonably infer that Jensen-Graf suffered an adverse action so as to state a plausible retaliation claim. Accordingly, dispense with contentions are we oral affirm the argument adequately district because presented in court’s the the facts order. We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 6
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