Notice: Fourth Circuit Local Rule 36(c) States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit.andrea Nelson, Plaintiff-appellant, v. Watergate at Landmark, Defendant-appellee.equal Employment Opportunity Commission, Amicus Curiae, 108 F.3d 1373 (4th Cir. 1997)

Andrea Nelson, an African American, filed a complaint under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e (1994 & Supp.1996), and 42 U.S.C. § 1981 (1994 & Supp.1996), charging that her employer discriminated against her because of her race, and that she was unlawfully terminated in retaliation for filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). The jury returned a verdict of $4,000 in Nelson's favor on the Title VII and 1981 discrimination claims, but found for the employer on the retaliation claim.

The district court set aside the jury verdict and entered a judgment as a matter of law in favor of the defendant employer on the grounds that Nelson had failed actually or constructively to notify her employer regarding her racial discrimination claim as required by Dennis v. County of Fairfax, 55 F.3d 151, 155 (4th Cir. 1995).¹  Since we find that Nelson's EEOC complaint was sufficient to satisfy her burden of notice under Dennis, we reverse the district court's grant of a judgment as a matter of law and remand so that the verdict in Nelson's favor may be reinstated.

Andrea Nelson was originally hired by Watergate at Landmark (WAL) in December 1991 as a temporary switchboard operator. After the temporary position ended in February 1992, Nelson was re-hired as a customer service representative. In March 1992 she transferred to be the assistant to the director of activities. In June 1992 Nelson accepted her final position as administrative assistant to the director of administration, Robert Swain. Nelson was the only African American employed in the front office at WAL, and she was the only African American administrative assistant.

Nelson claims that after accepting the position as an administrative assistant she began to experience disparate treatment in her employment. She argues that the terms and conditions of her employment were drastically different than that of the white person who previously held her position, and were different than that of other white people who were similarly situated.

Nelson alleges that (1) she was paid on an hourly basis while other white employees similarly situated, and the white person previously employed in her position were salaried employees;²  (2) she was "written up" for being one minute tardy while a white employee similarly situated was able to come and go as she pleased; (3) her name was purposefully left off the company's organizational chart even though her predecessor's name was on the chart, and even though all other administrative assistants' names were on the chart;³  (4) white employees who were given supervisory responsibility were given raises while she was not;⁴  (5) she was required to speak directly with her supervisor whenever she needed time off, while other white employees were able to leave voice mail messages or speak with the supervisor's secretary; and (6) she was required to bring in a physician's note to justify her taking two sick days leave while other white employees were only required to bring in a physician's note if their illness exceeded three days.

In April 1993 Nelson wrote a memorandum to James Cisco, the president of WAL's Board of Directors, complaining about Swain's treatment of her. In October 1993 Nelson filed a complaint with the EEOC alleging that she had received disparate wages and that she was harassed and disciplined more harshly in retaliation for her complaints and because of her race.⁵  Nelson also asserted constant harassment and subjection to disparate discipline and wages.

After filing the complaint, Nelson wrote another memorandum, this time to Swain, complaining that he ridiculed her in a meeting with the general manager, that he commented as he was passing her desk that she was "bout [sic] to break" and that he spent numerous hours typing memos against her. She also claimed that she had been "informed that, because of [her] charges, there would be numerous attempts to frustrate [her]...."

In February 1994 Nelson wrote a memorandum to the general manger, Petrine Squires, complaining that, during her tenure at WAL, Swain would not approve requests for changes in her work schedule to accommodate doctor's appointments, he applied sick leave policies differently to her than to others, he purposely made her job more difficult to do, he caused upper management to hold her in low esteem, he engaged in sexual harassment of other employees, he yelled at her, and he appeared to have a difficult time working with men, older women and minorities.⁶ 

In response to this memorandum, WAL hired a law firm to investigate Nelson's allegations of sexual harassment.⁷  The firm concluded that there was no evidence to substantiate these allegations. In April 1994 Nelson was terminated.

Five months elapsed between the time Nelson filed her EEOC complaint and the time she was fired. WAL took no corrective action regarding the discrimination claim.⁸  Therefore, during the five months, adequate notice had been given to the employer regarding Nelson's racial discrimination claim, yet no timely and adequate corrective action concerning racial harassment or discrimination had been taken. "The employer is liable where it had actual or constructive knowledge of the existence of a sexually hostile working environment and took no prompt and adequate remedial action." Dennis, 55 F.3d at 155 (internal quotations omitted). "The above reasoning applies as well to claims of racial discrimination in the workplace under § 1981." Id. WAL had such notice; accordingly, we remand so that the verdict in Nelson's favor may be reinstated.

REMANDED

WILLIAMS, Circuit Judge, dissenting:

For the reasons stated in the district court's memorandum opinion in this case, see Nelson v. Watergate at Landmark, 898 F. Supp. 346 (E.D. Va. 1995), I do not believe that Nelson's employer, WAL, failed to respond to sufficient notice of a racially hostile environment. I would affirm the district court's grant of judgment as a matter of law for WAL on Nelson's claims under Title VII and 42 U.S.C. § 1981.¹  Accordingly, I dissent.

This court has on numerous occasions held that an employer is liable for impermissibly harassing behavior only if it had actual or constructive knowledge of the illegal conduct and took no prompt and adequate remedial action. See Andrade v. Mayfair Management, Inc., 88 F.3d 258, 261 (4th Cir. 1996) (collecting cases). In Dennis v. County of Fairfax, 55 F.3d 151 (4th Cir. 1995), we applied this rule to claims of racial discrimination in the workplace under Title VII and § 1981 and held "that where an employer implements timely and adequate corrective measures after harassing conduct has come to its attention, vicarious liability should be barred regardless of the specific motivation for the wrongdoing or the particular cause of action." Id. at 156. Implicit in this rule is that the employer must have adequate notice of the wrongdoing that it is charged with remedying.

The majority finds WAL liable because " [f]ive months elapsed between the time Nelson filed her EEOC complaint and the time she was fired [and because] WAL took no corrective action regarding the discrimination claim." Majority Op. at 5-6. Because the record does not disclose when WAL received notice of Nelson's EEOC claim, we can assume only that notice was sent within ten days as required. Nelson admits that, after investigating, " [t]he Alexandria Office of Human Rights found no probable cause and dismissed the complaint."²  (Appellant's Br. at 5.) It would be curious indeed to require WAL to implement remedial measures to correct an allegedly racially-hostile work environment when the investigatory agency made a finding of "no probable cause" and when Nelson, an individual admittedly familiar with EEOC requirements, never alleged that the offensive conduct was due to her race, despite numerous correspondence with management complaining about unfair treatment.

I agree with the district court that the record reflects no complaints of discrimination by Nelson between the EEOC charge and the exchange of memos between Nelson and WAL's general manager, Petrine Squires, during February 1994. Within one week of Nelson's statements, Squires acknowledged Nelson's "first time allegations of sexual harassment and other discriminatory conduct." (J.A. at 90k.) Squires noted that Nelson's allegations covered an extended period of time. In addition, she criticized Nelson, particularly due to her supervisory status and familiarity with EEOC requirements, for not promptly bringing matters to Squires's attention and for refusing to disclose the victims of the alleged discrimination. Nevertheless, WAL immediately hired a law firm to investigate Nelson's claims of harassment. Based on Squires's reasonable reading of Nelson's memo, the two-day on-site investigation focused on sexual harassment and a sexually hostile work environment. Moreover, although Nelson was interviewed by the attorney at length, she made no claim of harassment of any kind. Accordingly, the law firm's final report in March 1994 concluded that there was no evidence of sexual harassment.

Thus, when confronted by Nelson's allegation of misconduct, WAL took immediate and decisive action. If racial discrimination existed at WAL, then it was Nelson's failure to particularize her concerns that prevented its discovery and correction. As the district court stated, "Nelson did not merely fail to inform Watergate of the problem, but she also actively, if inadvertently, prevented management from discovering it." Nelson, 898 F. Supp. at 350.

I therefore agree with the district court that the testimony and exhibits at trial do not support a finding of actual or constructive notice to WAL of a racially-hostile environment. This conclusion is consistent with Nelson's own testimony at trial, in which she conceded that she "never used the word race," (J.A. at 172), because she "was trying to be very diplomatic" and did not want "to just come out and say, you-all are treating me bad because I am black" (J.A. at 171). Nelson admitted that she never reported that Miss Green directed racial slurs towards her. Furthermore, Nelson herself contradicts the majority's conclusion that the February 1994 memo to Petrine Squires gave WAL notice of the alleged racial discrimination:

Q: In this memo to Miss Squires, anywhere in here do you make a charge of racial discrimination?

A: No, I didn't come out in those words, no, I did not.

(J.A. at 177.) If Nelson recognized that her memo did not convey a complaint of racial discrimination, how can the majority hold WAL accountable for not taking remedial action to cure such discrimination?

Squires testified that in the two-and-one-half years Nelson was employed at WAL, she complained neither orally nor in writing that she was subjected to discrimination because of her race, and that no employee ever reported that Nelson had made such a claim. Further, Squires did not interpret Nelson's letter complaining about being treated indifferently as a complaint of racial discrimination. Moreover, Squires's assistant, Ms. Reynolds, testified that in four interviews with Nelson in response to various complaints about management, Nelson never said she felt discriminated against because of her race. In fact, the issue of racial discrimination was never raised. In sum, not a single witness at trial heard Nelson complain to a supervisor or to anyone else that she was discriminated against because of her race. (J.A. at 162 (M.Gomez), 163 (T.L. Bower), 164-65 (P.M. Squires, 167 (J.W. Cisco), 197 (K.M.Green), 198 (P.A. Warters), 199 (L.A.Speakmon).)

All the evidence presented suggests that had Nelson raised the issue of racial discrimination, WAL would have investigated the charges immediately, as it did in response to Nelson's charges of sexual harassment. I find no legally sufficient evidentiary basis upon which a jury could find that WAL failed to take prompt action to correct any racially-hostile environment of which it had actual or constructive notice. Because I would affirm the district court, I dissent from the opinion of the majority.