Hall v. Bausch & Lomb, Inc., No. 8:2010cv00215 - Document 46 (D. Md. 2012)
Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 8/13/12. (sat, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : TRACI D. HALL : v. : Civil Action No. DKC 10-0215 : BAUSCH & LOMB, INC. : MEMORANDUM OPINION Presently employment pending and discrimination ready case for is resolution the motion for in this summary judgment filed by Defendant Bausch & Lomb, Inc. ( Bausch & Lomb or the company ) (ECF No. 39). The relevant issues have been briefed, and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, the motion will be granted. I. Background A. Factual Background The following facts are either uncontroverted or taken in the light most favorable to Plaintiff Traci D. Hall. Defendant Bausch & Lomb is a technology-based healthcare company for the eye that conducts business in Maryland, as well as nationally and internationally. The company produces and markets vision care, pharmaceutical, and surgical products. Following a series of interviews in 2003, Bausch & Lomb hired Ms. Hall, an African- American female who was then thirty-seven years old, as a Senior Pharmaceutical Sales Specialist, a position referred to interchangeably as Senior Pharmaceutical Territory Manager. 1 (ECF No. 39-7, Hall Dep., at 19).2 The territory initially assigned to Ms. Hall included significant parts of Maryland, ranging from Baltimore to Hagerstown and north Delaware, as well as parts of northern Virginia. professional responsibility was to increase market almost to Her primary share and product sales for pharmaceutical division products by visiting physicians in this territory, dropping off product samples, and conducting sales presentations and medical education programs to convince these physicians to prescribe the company s products. Administratively, Bausch & Lomb required Ms. Hall to log her physician visits and sample distribution into online databases using a company-issued laptop computer.3 1 Prior to being hired into this position, Ms. Hall had worked as a sales representative in three other pharmaceutical companies. She had also worked briefly in retail management as a store manager. She did not, however, have any prior experience in pharmaceutical sales management. 2 In this memorandum opinion, the page numbers are those provided by the ECF system. 3 As her tenure with the company increased, Ms. Hall attended medical conferences as a Bausch & Lomb representative and informally mentored new sales representatives. 2 In 2004 and 2005, Ms. Hall received overall performance ratings of below targets and expectations. 16, 22). (ECF No. 39-4, at The 2004 rating was driven principally by Ms. Hall s low sales numbers.4 While Ms. Hall s sales performance improved in 2005, her overall rating remained below expectations due to problems she experienced with several Cultural Drivers. Id. at 22). (ECF Specifically, the lengthy summary that Mr. Gass appended to the 2005 evaluation emphasized numerous instances in which Ms. Hall had submitted incomplete, inaccurate, or untimely reports, failed territory, management. and to follow provided up with key inconsistent physicians in her communications to Ms. Hall refused to sign this evaluation because she disagreed with Mr. Gass s assessment. The company realigned Ms. Hall s territory in March 2006. This realignment process, described by Ms. Hall as very common, resulted in the addition of Fredericksburg, Virginia, and other parts of Virginia to her territory, and the removal from her territory of the area from Baltimore to Hagerstown, Maryland. 4 (ECF No. 39-7, at 39). Although the new territory Dean Gass, the Regional Business Director ( RBD ) for the upper Mid-Atlantic region and Ms. Hall s manager, stated in this evaluation that Ms. Hall had met company expectations with regard to Cultural Drivers, which encompassed areas such as external focus, personal accountability, and selfproductivity. (Id. at 15). 3 was tougher for Ms. Hall because it required her to deal[] with [more] traffic congestion (id. at 40), her 2006 performance rating improved to meets targets and expectations, with Troy Stribling, the new RBD for her region, concluding that Traci had a fantastic year and did a [g]reat job in 2006 (ECF No. 39-4, at 29). When Mr. Stribling announced his departure in the late summer or early fall of 2007, Bausch & Lomb announced a vacancy in this RBD position and solicited applications via an internal job posting and external advertisements. The qualifications for the RBD position were stated as follows: BA/BS Required MBA Preferred. 10+ years sales experience and prior pharmaceutical sales management experience preferred. Strong analytical skills required. Computer skills, strong written and verbal communication skills, prior experience in Marketing a plus, prior technology and or medical training a plus. (Id. at 2). representatives Company to have policy served also in required their current territories years in order to be eligible for the promotion. sales for two Bausch & Lomb received 136 applications, including one from Ms. Hall, for the RBD position. The recruiting and hiring committee, which included Maria Martinez, the Director of Human Resources, and Michael O Rourke, the Vice President and General Manager of the company s national pharmaceuticals 4 division, reviewed the applications for each candidate as well evaluations for all internal applicants. selected for interviews: LeFevre, Jeff Rheault, Kelly Glen as performance Six applicants were Haderer,5 DeBoey, the and Marc Newman, Jeff George Ajaj. Ms. Haderer, a Caucasian female, was the only external applicant selected for an interview. pharmaceutical experience sales opening She had more than six years of management and running experience her and own even had business for approximately one year prior to her application for the [RBD] position. notified (ECF No. 39-3, Martinez Aff., ¶ 16).6 Ms. Hall that she had not been selected interview because her sales numbers were bad. at 36).7 Mr. O Rourke for an (ECF No. 39-7, He also indicated that he wanted to place Ms. Hall on a 5 Ms. Haderer s last name has since changed to Curia. For purposes of this memorandum opinion, however, the court like the parties will refer to her using her last name during the period relevant to Ms. Hall s claims. 6 Mr. Newman, a Caucasian male over the age of forty and older than Ms. Hall - and Mr. LeFevre, a Caucasian male under the age of forty, were selected for an interview based on their extensive management experience, performance ratings of exceeds targets and expectations, and receipt of numerous performance and recognition awards during their tenure with Bausch & Lomb. (Id. ¶¶ 11-14). Mr. LeFevre, however, had only worked for the company for approximately twenty months at the time he submitted his application. 7 Ms. Martinez stated that the company did not select Ms. Hall for an interview due to her general lack of management 5 development plan to get [her] promoted as fast as possible. (Id.). According implemented. to Ms. Hall, no such plan was ever Ultimately, following interviews with each of the six selected candidates, Bausch & Lomb selected Ms. Haderer as RBD for the upper Mid-Atlantic region. Ms. Haderer began working in this position in October 2007. On October 16, 2007, during a one-on-one conference call between Ms. Hall and Ms. Haderer, Ms. Hall mentioned that she was experiencing ongoing problems with her company-issued computer and that she had been unable to enter her physician visits into the company s online database.8 Ms. Haderer informed Ms. Hall that the company still expected her to find a way to enter the physician visit information into the database. When Ms. Hall had still only entered a limited number of physician visits into the system several weeks later, despite the apparent resolution of her computer problems in the interim, Ms. Haderer asked Ms. Hall to contact provide the an update information resolve the issue. on the technology situation department and offered to personally to When Ms. Hall s computer problems continued, experience and the inconsistency in her job performance from 2004-2006. 8 During her tenure with Bausch & Lomb, Ms. Hall received at least three replacement computers, each of which had numerous technical problems and frequently crashed. 6 she fell behind on her administrative tasks and often had to use her personal time to finish work she would have otherwise completed during business hours. when discussing these (Id. at 49). delays with Ms. At one point, Hall, Ms. Haderer suggested that Ms. Hall had sabotaged her laptop by throwing it down. (Id. at 43). On November 14, 2007, Ms. Haderer accompanied Ms. Hall on her physician Following visits this field as part visit, report documenting the day. of Ms. a field Haderer coaching prepared a program. detailed The report emphasized strengths in Ms. Hall s presentation skills and customer interactions, but it critiqued her use of an outdated visual aid and difficulty in locating one physician s office. The report also discussed the fact that Ms. Hall consistently failed to submit timely and accurate reports about her sales visits and sample distribution. Finally, the report scolded Ms. Hall for violating company policy and pharmaceutical industry guidelines by purchasing a baby gift for a physician in her territory using company funds. Ms. Hall responded to the report, acknowledging that many of her own reports had been submitted late; she maintained, however, that ongoing computer problems were the reason for the delay. She also insisted that she had only purchased the baby gift after receiving approval from an employee in the finance 7 department. That employee subsequently admitted providing Ms. Hall with erroneous advice on this issue. Around this time, Ms. Hall contacted Ms. Martinez and informed her that Ms. Haderer s continuing criticism was creating a hostile work environment for her.9 Nothing was done in response to this complaint. (ECF No. 39-7, at 52). When Ms. Hall s computer problems continued into December 2007, Ms. Haderer began requiring her to submit an itemized list of physician visits and sample distributions on a weekly basis until the company could be 100 percent confident that [her] computer [was] up and running properly on a consistent basis. (Id. at 50). substitute This method requirement for entering company s online databases. the essentially same served information as in a the Ms. Hall frequently submitted these weekly faxes in an untimely manner. Ms. Haderer also requested that Ms. Hall provide her with documentation about the days that she had taken vacation certain sample reports. during 2007 due to discrepancies in Ms. Hall did not respond promptly to this request and, when she did respond, she told Ms. Haderer that she 9 could not easily access this information. The The parties dispute whether Ms. Hall informed Ms. Martinez that she believed this harassment was motivated by race or any other category protected by federal law. 8 relationship between Ms. Hall and Ms. Haderer continued to deteriorate after this point. Early in 2008, Ms. Hall sought emergency medical treatment after experiencing numbness, tingling, and pain in her left side. One of Ms. Hall s friends contacted Ms. Haderer to inform her that Ms. Hall was unable to come to work, and Ms. Haderer then told the company s human resources department about Ms. Hall s illness and hospitalization. her not to return to work After her physician advised during the duration of this undiagnosed illness, Ms. Hall submitted a claim for disability benefits. On February 22, 2008, Ms. Martinez notified Ms. Hall that the company s insurer had denied her disability benefits claim, but stated that she could apply for leave under the Family Medical Leave Act ( FMLA ) if she submitted the necessary paperwork by the close of business on March 4, 2008.10 Ms. Martinez indicated that Ms. Hall s absence would be considered unauthorized, possibly resulting in disciplinary action, if she did not return this paperwork in a timely manner. Ms. Hall requested additional information on the evening of March 4, and 10 While Ms. Hall was on FMLA leave, her territory was again realigned to include West Virginia. To accommodate this addition, Ms. Hall s responsibilities to physician offices in Maryland were reduced. During her deposition, Ms. Hall indicated that she was only disputing the March 2006 realignment in this action. (ECF No. 39-7, at 40). 9 submitted the required paperwork two days later. Bausch & Lomb then approved her request for FMLA leave through April 14, 2008. On April 11, 2008, Laura Long, a disability case manager for Bausch & Lomb, attempted to contact impending expiration of her FMLA leave. Ms. Hall about the Ms. Hall called Ms. Long later that day and stated that her physician had instructed her not to return to work for another two weeks. Ms. Long asked Ms. Hall to submit additional medical documentation, but Ms. Hall never did so. The company s FMLA leave policy explicitly provides that [e]mployees failing to return to work on the day following the end of leave will be treated as having resigned their job, and will be terminated. April 18, 2008, informing her abandoned her Ms. that Martinez Bausch position & by (ECF No. 39-5, at 42). faxed Lomb a letter assum[ed] failing to submit to Ms. that any she On Hall had medical documentation regarding an FMLA leave extension and that her employment status following day. Ms. Hall would be converted to terminated the (ECF No. 44-1, at 71).11 subsequently submitted expense reports to the company for various unreimbursed expenses on her company credit 11 Two days earlier, in response to a request from Ms. Martinez, Ms. Haderer submitted a timeline of communications documenting her communications with Ms. Hall since joining Bausch & Lomb. (ECF No. 44-1, at 66-69). 10 card. but She submitted receipts to substantiate these expenses, Bausch & Accordingly, Lomb it contended refused that to it reimburse never Ms. received Hall them. for these expenses. B. Procedural Background On May 1, 2008, Ms. Hall filed a charge of discrimination with the Equal Employment Opportunity Commission ( EEOC ). That charge stated, in pertinent part, as follows: In September 2007, I was denied an interview for the position of Regional Business Director. On November 14, 2007, I was subjected to harassment and falsely accused of sabotaging the laptop computer and this employer changed my territory which lowered my rating. . . . I believe that I have been discriminated against in violation of Title VII of the Civil Rights Act of 1964 . . . with respect to my race, Black, and the Age Discrimination in Employment Act of 1967 because of my age (41), with respect to promotion and harassment. (ECF No. 39-7, at 2). After investigating Ms. Hall s allegations, the EEOC issued a Dismissal and Notice of Rights on October 28, 2009. investigation, The form explained that, [b]ased upon [the] the EEOC [was] unable to conclude that the information obtained establish[ed] violations of the statutes. (ECF No. 39-7, at 4). On January 27, 2010, Ms. Hall commenced this action by filing a multi-count complaint against Bausch & Lomb, asserting 11 violations of Title VII of the Civil Rights Act of 1964 ( Title VII ), 42 U.S.C. §§ 2000e et seq., for hostile work environment, wrongful termination, and retaliation. The complaint also mentioned a claim for [n]on payment of [c]orporate [e]xpenses. (ECF No. 1, at 6). dismiss. On May 28, 2010, Bausch & Lomb moved to Approximately two weeks later, Ms. Hall filed an amended complaint, setting forth claims of wrongful termination, failure to interview, and hostile work environment on the basis of race under Title VII and 42 U.S.C. § 1981, and claims of wrongful termination and failure to interview on the basis of age under the Age Discrimination in ( ADEA ), 29 U.S.C. §§ 621 et seq. asserted a claim for breach of unreimbursed corporate expenses. motion to dismiss the original Employment Act of 1967 The amended complaint also contract stemming (ECF No. 17).12 complaint was from her The company s subsequently terminated as moot, Defendant answered the amended complaint, and the court entered a scheduling order. Following discovery, on November 4, 2011, Bausch & Lomb filed a motion for summary judgment. opposed the motion. (ECF No. 39). Ms. Hall Bausch & Lomb has replied to Ms. Hall s opposition. 12 Original jurisdiction over the case was based on the federal questions set forth in the amended complaint. 12 II. Standards of Review Bausch & Lomb has moved for summary judgment as to each of Ms. Hall s claims. A court may enter summary judgment only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); 322 Celotex Corp. v. Catrett, 477 U.S. 317, Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). (1986); Summary judgment is inappropriate if any material factual issue may reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). A party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of [his] pleadings, but rather must set forth specific showing that there is a genuine issue for trial. facts Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed.R.Civ.P. 56(e)). proof . . . will not suffice to prevent A mere scintilla of summary Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003). judgment. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. 249 50 (citations omitted). Liberty Lobby, 477 U.S. at At the same time, the court must 13 construe the facts that are presented in favorable to the party opposing the motion. the light most Scott v. Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297. As to the breach-of-contract claim, Bausch & Lomb has also moved to dismiss for lack of supplemental jurisdiction. The party bringing suit in federal court bears the burden of proving that subject matter jurisdiction properly exists. See Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (noting that the plaintiff generally bears this burden); Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 200 (4th Cir. 2008) (stating that a party seeking to remove a case to federal court must demonstrate subject matter jurisdiction). In a 12(b)(1) motion, the court may consider evidence outside the pleadings to help determine whether it has jurisdiction over the case before it. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991), cert. denied, 503 U.S. 948 (1992); see also Evans, 166 F.3d at 647. The court should grant a 12(b)(1) motion only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law. Richmond, 945 F.2d at 768. 14 III. Analysis A. Summary Judgment Is Warranted in Bausch & Lomb s Favor as to Ms. Hall s Employment Discrimination Claims Ms. Hall alleges violations of Title VII, the ADEA, and § 1981 in her amended complaint. multiple grounds claims. Two for of summary these Bausch & Lomb has presented judgment arguments as to each failure of to these exhaust administrative remedies and timeliness affect which factual allegations the court may consider in resolving Ms. Hall s Title VII and ADEA claims, but they do not change the scope of allegations that may be considered with regard to the § 1981 claims. Therefore, in resolving the presently pending motion, Ms. Hall s Title VII and ADEA claims will be analyzed separately from her § 1981 claims. 1. Title VII and ADEA Claims Bausch & Lomb has moved for summary judgment as to Ms. Hall s Title VII and ADEA claims on three grounds. First, the company contends that certain of Ms. Hall s claims and factual allegations are barred for failure to exhaust administrative remedies or to submit a timely EEOC charge of discrimination. Second, Bausch & Lomb asserts that the properly considered allegations, even when supported by evidence, fail to establish a prima facie case of employment discrimination. company argues that a legitimate, 15 Third, the non-discriminatory reason existed to support its decision not to interview Ms. Hall for the RBD position. arguments, Ms. contending Hall that has material generally disputes opposed of these fact make summary judgment improper on her Title VII and ADEA claims. a. Failure to Exhaust Administrative Remedies Both Title VII and the ADEA require a plaintiff to file a charge of discrimination with the EEOC prior to filing suit in federal court. Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300- 01 (4th Cir. 2009). of the right to Although the EEOC charge defines the scope file a subsequent civil suit, the initial administrative complaint does not create strict, impenetrable limits on those subsequent rights. Rather, the scope of the civil action is confined to those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation [of that complaint]. (D.Md. 2011) Thorn v. Sebelius, 766 F.Supp.2d 585, 596 (quoting Jones, 551 F.3d at 300), aff d, 465 F.App x 274 (4th Cir. 2012) (unpublished opinion). Civil suits may not, however, present entirely new factual bases or entirely new theories of liability from those set forth in the initial EEOC complaint. See Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963-64 (4th Cir. 1996) (concluding that a plaintiff was barred from litigating a sexual harassment claim 16 where her EEOC charge included only a claim for failure to promote based on gender); Lawson v. Burlington Indus., Inc., 683 F.2d 862, 863-64 (4th Cir. 1982) (finding failure to exhaust where a plaintiff had alleged a discriminatory layoff claim in his EEOC complaint, but presented a discriminatory failure to rehire claim in formal litigation). Thus, a plaintiff fails to exhaust her claims when [her] administrative charges reference different time frames, actors, and discriminatory conduct than the central factual allegations in [her] formal suit. Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005). Here, the amended complaint presents a theory of liability not set forth in Ms. Hall s EEOC charge. The EEOC charge did not allege wrongful termination as a basis for discrimination; in fact, despite being filed approximately two weeks after Ms. Hall s employment with Bausch & Lomb ended, it did not even mention her termination. Accordingly, Ms. Hall failed to exhaust her administrative remedies with regard to this theory of liability, and it will not be considered in resolving her Title VII and ADEA claims. Chacko, 429 F.3d at 509. Bausch & Lomb contends that Ms. Hall also failed to exhaust administrative remedies allegations her in racial with regard harassment to claim several under factual Title VII. Specifically, the company emphasizes that the only incidents of 17 harassment mentioned in the EEOC charge were the March 2006 territory accusing realignment Ms. Hall of and Ms. Haderer s sabotaging her alleged laptop statement computer. This argument, however, overlooks the fact that the new allegations in the amended complaint (i.e., the criticisms of Ms. Hall s performance in the field coaching report and the requirement that she submit weekly reports regarding physician visits and sample distribution by fax) were reasonably related to the original complaint and likely would have been developed by reasonable investigation of that complaint. 300. Indeed, these allegations all Jones, 551 F.3d at involved Ms. Haderer, occurred around the same time as her laptop sabotage accusation, and generally organizational Because these involved and her response administrative factual allegations to Ms. Hall s performance referenced the perceived deficiencies. same actor, time frame, and type of conduct as those set forth in Ms. Hall s EEOC charge, the investigation of her EEOC charge likely would have uncovered them. Chacko, 429 F.3d at 506-09; see also Thorn, 766 F.Supp.2d at 596-97 (concluding that a plaintiff had exhausted his remedies as to facts mentioned for the first time in his complaint because those facts all relate[d] to the same fundamental theme discussed within his EEOC charge). They are, therefore, properly before the court and may be considered in 18 resolving Ms. Hall s hostile work environment claim under Title VII. b. Failure to File a Timely EEOC Charge Regarding the March 2006 Territory Realignment Bausch & Lomb next contends that the court may not consider the territory realignment when resolving Ms. Hall s Title VII and ADEA claims because she did not file a timely EEOC charge addressing this event.13 Both statutes require a plaintiff to file an EEOC charge within a prescribed limitations period. U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(1)(B). 42 In deferral states such as Maryland, that limitations period is 300 days from the date of the allegedly discriminatory act. 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(1)(B); see also Jones, 551 F.3d at 300. Ms. Hall concedes that she did not file her EEOC charge within 300 days of the March 2006 territory realignment. She argues, however, that to successfully bring a hostile work environment claim, an employee need only show that one of the underlying period. allegations (ECF No. 44, at 7). occurred within the statutory According to Ms. Hall, because the accusation about sabotaging her laptop occurred within 300 13 Although a cursory reading of Ms. Hall s EEOC charge suggests that the challenged territory realignment may have occurred on November 14, 2007, Ms. Hall stated in her deposition that the realignment she contested in the EEOC charge occurred in March 2006. 19 days of the time that she filed her EEOC charge, her hostile work environment claim may also include the March 2006 territory realignment, even though it occurred outside that 300-day window.14 The Supreme Court of the United States has recognized this continuing violation involving employment Passenger Corp. v. doctrine in discrimination Morgan, 536 limited circumstances actions. U.S. 101 Nat l (2002). R.R. Indeed, although the Court concluded that discrete discriminatory acts are not actionable if they occur outside the statutory limitations periods, it set forth a more lenient principle with regard to incidents underlying hostile work environment claims. Id. at 113, 115. Because the harassment that leads to a hostile work occurs environment over a series of days or perhaps years, an EEOC charge referencing events outside the statutory time period will be considered timely as long as those events are part practice of as the events Id. at 115, 118-20. statutory period same actionable occurring within hostile the work environment limitations period. In determining whether events beyond the satisfy this test, 14 courts are advised to In setting forth this argument, Ms. Hall acknowledges sub silentio that she cannot pursue an independent discrimination claim under Title VII or the ADEA with regard to the March 2006 territory realignment. 20 consider whether the pre- and post-limitations period incidents involve[] the relatively managers. same type frequently, of and employment [are] actions, perpetrated by occur[] the same Id. at 120-21 (internal quotation marks omitted); see also Wilkie v. Dep t of Health & Human Servs., 638 F.3d 944, 951 (8th Cir. 2011) (considering similar factors). Assuming arguendo that the March 2006 territory realignment is not a discrete discriminatory act precluding application of the continuing violation doctrine,15 Ms. Hall has not demonstrated that it is part of the same actionable hostile work environment she purportedly faced in the fall of 2007, the time period at issue in her EEOC charge. The March 2006 realignment was a one-time corporate decision that altered Ms. Hall s sales territory, an event dissimilar in nature from Ms. Haderer s ongoing criticism of her organizational and administrative performance deficiencies during the fall of 2007. 15 This conclusion is hardly free from doubt. Indeed, other courts have held that an unfavorable job assignment is a discrete act that cannot form the basis for a continuing violation claim. E.g., Gross v. Nat l Broadcasting Co., Inc., 232 F.Supp.2d 58, 68-69 (S.D.N.Y. 2002) (citing Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997)); see also Chennareddy v. Dodaro, 698 F.Supp.2d 1, 13-14 (D.D.C. 2009) (concluding that a plaintiff could not invoke the continuing violation theory to bootstrap discrete discriminatory acts into a broader claim for hostile work environment (citing Rattigan v. Gonzales, 503 F.Supp.2d 56, 80-82 (D.D.C. 2007))), aff d, 2010 WL 3199827 (D.C. Cir. Aug. 10, 2010) (unpublished opinion). 21 The EEOC charge does not mention any intervening incidents of harassment events. Gass s during The the nineteen-month territory tenure as RBD realignment of the period also upper between occurred these during Mid-Atlantic Mr. region, indicating that these events involved different supervisors. In fact, Ms. Haderer did not begin working for Bausch & Lomb until roughly eighteen months after the realignment occurred. These differences illustrate that there is little if any relationship between these events and that they do not compose the same actionable hostile work environment. See, e.g., McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 74-78 (2d Cir. 1020) (reaching the same conclusion about a sleep-over comment that occurred following an employee s transfer to a different department (internal quotation marks omitted)); Duncan v. Manager, Dep t of Safety, City and Cnty. of Denver, 397 F.3d 1300, 1308-10 (10th Cir. 2005) (holding that pre- and post- limitations period events did not involve the same hostile work environment where several years had passed between the events and the type of harassment, occurring under different supervisors, had changed from physical and psychological threats to off-color comments); Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 376-77 (6th Cir. 2002) (reasoning that a plaintiff could not invoke the continuing violation doctrine where the two 22 acts at issue were unrelated in nature and separated by a period of eight months). As a result, Ms. Hall s EEOC charge was untimely as to the March 2006 territory realignment, and that event will not be considered in analyzing the merits of her racial harassment claim under Title VII. c. Due Failure to Interview to termination the and procedural territory deficiencies realignment in Ms. allegations, Hall s the only discrete act at issue with regard to the Title VII and ADEA claims is the company s decision not to interview Ms. Hall for the RBD position. Although failure to interview would generally encompass the failure to hire or promote, Sanchez-Rodriguez v. AT&T Mobility P.R., Inc., 673 F.3d 1, 14 (1st Cir. 2012), Ms. Hall has expressly decoupled those events here. Indeed, in her amended complaint, she stated that Bausch & Lomb s failure to interview her for this position evinced discrimination on the basis of race and age because two of the individuals selected for interviews but not ultimately hired for the RBD position were Caucasian and under forty years old.16 that the company s discriminatory 16 or selection indicate of that Ms. she She did not contend Haderer as contested its RBD was ultimate The evidence subsequently revealed that Mr. Newnan, one of these individuals, was over forty and older than Ms. Hall at the time of his selection as an interview candidate. 23 decision not to promote her to RBD. During her deposition, Ms. Hall even reiterated that she was challenging [o]nly the fact that she did not receive an interview, not the fact that she did not receive a promotion as a result the company s decision not to interview her. (ECF No. 39-7, at 34) ( Q: . . . Are you alleging race discrimination and age discrimination based on not getting the position? interview. ). A: No. Only not receiving an On this basis, Bausch & Lomb asserts that Ms. Hall cannot prevail on her failure-to-interview claim because she did not suffer an adverse employment action. To set forth a discrimination claim on the basis of race or age, a plaintiff must demonstrate that she suffered an adverse employment action. Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (race discrimination), aff d on other grounds, 132 S.Ct. 1327 (2012); Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 513 (4th Cir. 2006) (age discrimination); Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985) ( The employment discrimination laws require as an absolute precondition to suit that some adverse employment action have occurred. ). Not every workplace dispute involves an adverse employment action. Indeed, to qualify as an adverse action, a discriminatory must act result in a significant change in employment status, Burlington Indus., Inc. v. Ellerth, 524 U.S. 24 742, 761 (1998), by adversely affect[ing] the terms, conditions, or benefits of the plaintiff s employment, James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004); Thorn, 766 F.Supp.2d at 598. Lesser interlocutory or mediate decisions rise generally employment actions. (D.Md. 2000) do not to the level of adverse Axel v. Apfel, 171 F.Supp.2d 522, 526-27 (internal quotation marks omitted), aff d, 118 F.App x 677 (4th Cir. 2004). Here, Ms. Hall s failure-to-interview claim lacks such a tangible employment action. Circumscribing her claim to focus only on the company s decision not to interview her, rather than its decision not to promote her, Ms. Hall fails to identify any significant detrimental interlocutory decision. 208, 219 (4th effect stemming from this Holland v. Wash. Homes, Inc., 487 F.3d Cir. 2007) (noting that [t]here must be some significant detrimental effect resulting from a discriminatory act for that act to constitute an adverse employment action). This situation plaintiff is contends analogous to only she performance evaluation. where the plaintiff that circumstances has received in a which a negative A poor evaluation is actionable only demonstrates that the evaluation somehow negatively affected the terms and conditions of her employment. James, 368 F.3d at 377-78. In the absence of such evidence, a 25 poor performance employment action. present case. evaluation Id. does not constitute an adverse Similar reasoning is instructive in the By choosing to contest only her non-selection for the RBD interview, rather than her ultimate lack of promotion to the RBD position, Ms. Hall has failed to demonstrate that she suffered an adverse employment action. E.g., Cook v. Caldera, 45 F.App x 371, 377 (6th Cir. 2002) (reasoning that an employer s failure to select the plaintiff for an interview was not, in itself, an adverse action). Ms. Hall attempts to avoid the force of Bausch & Lomb s persuasive argument by suggesting in her opposition papers that the crux of her claim is actually the company s failure to promote her to the RBD position, rather than its decision not to select her for an interview. She also baldly asserts for the first time - that she may have outperformed Ms. Haderer during the interview process if the company had chosen her as an interview candidate. These arguments are unavailing for two reasons. plaintiff through First, a argument in Sensormatic Sec. a Corp. brief v. may not amend opposing Sensormatic F.Supp.2d 399, 436 (D.Md. 2006) (citing Chi., 82 F.3d 776, 781 (7th Cir. 1996)). her summary Elecs. complaint judgment. Corp., 455 Shanahan v. City of A plaintiff seeking to amend the complaint at the summary judgment stage must follow 26 the procedures Procedure. set forth in the Federal Rules of Civil Id. (quoting Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314-15 (11th Cir. 2004)). Ms. Hall failed to do so here, as she never sought to amend her complaint to include the allegations on which she now seeks to rely. Second, Ms. Hall conceded during her deposition that Bausch & Lomb had a legitimate, non-discriminatory reason for selecting Ms. Haderer to fill the RBD position. When asked whether she disputed the company s selection of Ms. Haderer, she emphasized that she was not disputing that at all because Ms. Haderer ha[d] more years of experience in management than she did. (ECF No. 39-7, at 33-34). Hall s newly-introduced promote. 457, allegations regarding failure to See Ham v. Wash. Suburban Sanitary Comm n, 158 F.App x (4th 476 deal[t] This concession is fatal to Ms. a Cir. fatal 2005) blow to (explaining his that a plaintiff failure-to-promote claim had when admitting that he would have chosen the selected employee for an open position if he had been the hiring manager). Accordingly, summary judgment in Bausch & Lomb s favor is warranted on this claim. d. Hostile Work Environment Ms. Hall also contends that she endured racial harassment during her tenure at Bausch & Lomb. 27 Because she failed to file a timely EEOC charge with regard to the March 2006 territory realignment, the only remaining allegations of harassment relate to Ms. Haderer s repeated criticism of her performance during the fall of 2007. A plaintiff can prevail on a claim for racial harassment only where she can show that the unwelcome conduct she faced was based on her race and was sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment. Hawkins v. PepsiCo, Inc., 203 F.3d 274, 281 (4th Cir. 2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)); Khoury v. Meserve, 268 F.Supp.2d 600, 612 (D.Md. 2003), aff d, 85 F.App x 960 (4th Cir. 2004). Ms. Hall wholly fails to make either showing, and her hostile work environment claim under Title VII must, therefore, fail. First, Ms. Hall fails to demonstrate that race motivated any of Ms. Haderer s criticisms of her performance deficiencies. It is axiomatic that a plaintiff s mere speculation as to racial animus will not suffice to prove that she faced unwelcome conduct on the basis of race; concrete evidence of animus is required. F.Supp.2d See, 475, e.g., 482-93 Nicole (D.Md. v. 2002); Grafton Sonpon Sch., v. Inc., Grafton 181 Sch., Inc., 181 F.Supp.2d 494, 500 (D.Md. 2002); cf. Evans, 80 F.3d at 959 (explaining that a plaintiff s own naked opinion, without more, is not enough to establish 28 a prima facie case of []discrimination (alteration in original) (internal quotation marks and citations omitted)). Here, Ms. Hall offers nothing more than speculation to support her racial harassment claim. When asked during her deposition why she believed that Ms. Haderer s criticisms related to her race, Ms. Hall stated only that she felt singled out and like she was [being] target[ed] and pick[ed] on by Ms. Haderer. 50). Her entire case for (ECF No. 39-7, at 43-44, 49- harassment is based on her own conclusory allegations that race drove Ms. Haderer s conduct. These unsubstantiated allegations, however, are patently insufficient to prove a linkage between the hostile behavior and [her] membership in a protected class. Douglas-Slade v. LaHood, 793 F.Supp.2d 82, 101 (D.D.C. 2011) (internal quotation marks omitted). Second, the events set forth by Ms. Hall the accusation about sabotaging her laptop, the criticisms presented in the field coaching report, and the requirement that she submit weekly faxes regarding physician visits and sample distribution are far afield from the extreme constitute actionable harassment. conduct necessary to Karim v. Staples, Inc., 210 F.Supp.2d 737, 752-53 (D.Md. 2002), appeal dismissed, 60 F.App x 999 (4th Cir. 2003). Indeed, these instances of harassment . . . hardly constitute harassment at all. 29 Thorn, 766 F.Supp.2d at 601. where From an objective viewpoint, they amount to instances she disagreed with Ms. Haderer s management style and methods and that alone is not actionable under Title VII. Id.; Douglas-Slade, 793 F.Supp.2d at 101. Workplaces are not always harmonious locales, EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008) (internal quotation marks omitted), and [p]ersonality conflicts and questioning of job performance are unavoidable aspects of employment, Hawkins, 203 F.3d at 282 (internal quotation marks and citation omitted). The incidents presented by Ms. Hall - if accepted as sufficiently pervasive or severe to be actionable harassment - would countenance a federal cause of action for mere unpleasantness. Chacko, 429 F.3d at 512 n.3 (quoting Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 773 (4th Cir. 1997)). Bausch This, of course, is not permissible, and judgment in & Lomb s favor is thus warranted Hall s hostile work environment claim. 281-82 (affirming summary judgment to with regard to Ms. See Hawkins, 203 F.3d at an employer where the evidence showed merely that the plaintiff had to repeat work and work late in order to complete assignments and that the supervisor questioned the plaintiff about her performance); see also Combs-Burge v. Rumsfeld, 170 F.App x 856, 862 (4th Cir. 2006) (affirming the district court s grant of summary judgment 30 to an employer environment where claim the events involved underlying counseling a hostile about work performance deficiencies and assignment of some additional tasks). 2. § 1981 Claims Ms. Hall also presents claims for failure to interview, racial harassment, and wrongful termination pursuant to § 1981. Section 1981 claims are not subject to the same exhaustion and timeliness requirements as those made under Title VII and the White v. BFI Waste Servs., LLC, 375 F.3d 288, 291-92 (4th ADEA. Cir. 2004). Rather, as long as the facts at issue in the action occurred within four years of the time that the plaintiff filed her complaint in federal court, those facts may be considered in resolving her § 1981 claims. Id. at 292. All of the incidents in Ms. Hall s complaint including her March 2006 territory realignment17 and termination - took place within this four-year window. 17 The court may, therefore, consider them here. Ms. Hall has not contended that this realignment could serve as the basis of an independent discrimination claim under § 1981. Even if she had made such an argument, it would fail because there is no evidence that the territory realignment qualifies as an adverse action. James, 368 F.3d at 376 (reasoning that an unappealing job assignment does not, in itself, constitute an adverse employment action); see also Holland, 487 F.3d at 219 (concluding that a reassignment was not an adverse action where the plaintiff merely asserted that it would have been more difficult for him to perform his job but offered no evidence in support of that assertion). Ms. Hall worried that the March 2006 realignment would affect her 31 The framework that governs Title VII claims also governs § Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir. 1981 claims. 2004) ( [T]he elements [circumstantial] [both] case statutes. ). [of required to establish discrimination] As a result, are Ms. the Hall s such same a under failure-to- interview and racial harassment claims fail here for the same reasons that those claims failed under Title VII.18 Although considered termination Ms. under Hall s § claims 1981, under wrongful it § termination ultimately 1981, like claim fails. under In Title may be wrongful VII, the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for the plaintiff s termination after the plaintiff has set forth a prima facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); Dang v. Inn at productivity, but the record is devoid of any evidence substantiating this concern. In fact, following this realignment, Ms. Hall s performance rating actually improved from the prior year. 18 Unlike the Title VII claim, the § 1981 claim for racial harassment would include the March 2006 territory realignment. This minor alteration, however, does not enable Ms. Hall to set forth a prima facie case for harassment because the record is still devoid of any evidence that the realignment was racially motivated. Ms. Hall conceded as much during her deposition. (ECF No. 39-7, at 40). 32 Foggy Bottom, 85 F.Supp.2d 39, 42-43 (D.D.C. 2000).19 If the defendant makes this showing, the burden then shifts back to the plaintiff to demonstrate that the defendant s proffered reason for her termination was pretextual. McDonnell Douglas Corp., 411 & U.S. at legitimate, 802-03. Here, termination: non-discriminatory Bausch reason Lomb existed contends for Ms. that a Hall s her FMLA leave had expired, she had not returned to work, and she had failed to provide any medical documentation to support the extension of this leave. arguments in response. Ms. Hall presents two First, she contends that much of the documentation Bausch & Lomb submitted in support of its decision for terminating her notably, Ms. Long s communications to her and Ms. Martinez about FMLA leave expiration - is hearsay and, therefore, 19 may not be considered in resolving the summary Bausch & Lomb initially contends that Ms. Hall cannot establish a prima facie case for wrongful termination because she has no evidence giving rise to an inference of race discrimination. (ECF No. 39-9, at 38). As support for this argument, the company cites a portion of Ms. Hall s deposition testimony in which she was unable to identify specific evidence supporting her contention that race discrimination prompted her termination. In opposition, Ms. Hall responds that she is proceeding under the circumstantial McDonnell Douglas framework, not as she apparently interprets Bausch & Lomb to suggest a direct evidence framework. (ECF No. 44, at 13). The company s reply then contends that Ms. Hall s failure to set forth any such circumstantial evidence merits judgment in its favor. Because Ms. Hall understood Bausch & Lomb to challenge only her lack of direct evidence of wrongful termination, however, her failure to set forth evidence supporting a prima facie case is not fatal to her claim. 33 judgment motion. was merely a Second, she suggests that her leave expiration pretext for her termination. Both of these arguments are without merit. Ms. Hall s hearsay argument fails on two fronts. As an initial matter, it is not clear that her objection is proper because she does not argue that Bausch & Lomb cannot produce an admissible version of this evidence at trial. Rule 56(c)(2) was amended in 2010 to provide that [a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. Thus, the objection [now] contemplated by the amended Rule is not that the material has not been submitted in admissible form, but that it cannot be. Ridgell v. Astrue, No. DKC 10-3280, 2012 WL 707008, at *9 (D.Md. Mar. 2, 2012) (quoting Foreword Magazine, Inc. v. OverDrive, Inc., No. 1:10-cv-1144, 2011 WL 5169384, at *2 (W.D.Mich. Oct. 31, 2011)). Even assuming that Ms. Hall s objection was proper, however, she waived it with regard to Ms. Long s emails about her FMLA leave expiration by relying on those very communications in her opposition. (Compare ECF No. 39-5, at 45, with ECF No. 44, at 63); cf. Motor Club of Am. Ins. Co. v. Hanifi, 145 F.3d 170, 175 (4th Cir. 1998) (holding that the defendant waived its hearsay objection to evidence proffered by the plaintiff in opposition to a motion for summary judgment 34 where the defendant submitted the same evidence in support of its own prior motions). Ms. Hall s argument about pretext also fails. Citing company policy, Bausch & Lomb asserts that Ms. Hall abandoned her position by failing to return to work following the expiration of her FMLA leave or to provide any documentation justifying an extension of her medical leave beyond April 14, 2008. Ms. Hall does not contest her failure to return to work on April 14, 2008, or her failure to provide such documentation. In light of these undisputed facts, the company has proffered a legitimate, non-discriminatory reason for Ms. Hall s termination, Austin v. Fuel Sys., LLC, 379 F.Supp.2d 884, 903 (W.D.Mich. 2004) ( An employee may be terminated for failing to return to work after her FMLA leave has expired. ); see also Anderson v. Dunbar Armored, Inc., 678 F.Supp.2d 1280, 1311 (N.D.Ga. 2009) (concluding that defendants had satisfied their burden of producing a legitimate, non-discriminatory reason for filling the expired), and plaintiff s the burden position shifts after back her to FMLA her to leave had demonstrate pretext. [A] plaintiff demonstrates pretext by showing the employer s proffered nondiscriminatory reason is a lie and the real reason is based on discriminatory 35 intent. Smith v. Vilsack, 832 F.Supp.2d 573, 584 (D.Md. 2011) (quoting Hobbs v. City of Chi., 573 F.3d 454, 462 (7th Cir. 2009)). Here, Ms. Hall wholly evidence fails to do either. Indeed, her only of pretext is an email that Ms. Haderer sent to Ms. Martinez on April 16, 2008, two days prior to her termination, documenting Ms. Hall s frequent failures to communicate with Ms. Haderer. According to Ms. Hall, this email raises a genuine dispute of material fact regarding Ms. Haderer s decision to terminate her employment. involvement in the At the outset, it is unclear why Ms. Haderer s involvement in Ms. Hall s termination matters at all, particularly as the company did not discuss Ms. Haderer s role or lack thereof - in the termination decision at any point in its motion papers. Additionally, even assuming that Ms. Haderer knew about Ms. Hall s impending termination, her email does nothing to cast doubt on Bausch & Lomb s asserted reason for terminating her. If anything, it reinforces the ongoing communication problems that the company was experiencing with Ms. Hall and emphasizes that she had once again failed to respond to the company s attempts to contact her. In this instance, her failure to respond to Bausch & Lomb s request for information justifying about an returning extension of to work her termination. 36 FMLA or for leave documentation led to her At bottom, Ms. Hall s pretext argument seems to rest on her own belief that her termination was racially motivated. bald allegations substantial evidence are, of however, [a] insufficient legitimate, reason[] for adverse employment action. to Such counter non-discriminatory Nichols v. Comcast Cablevision of Md., 84 F.Supp.2d 642, 651 (D.Md. 2000) (citing Williams v. Cerberonics, Inc., 871 F.2d 452, 456 (4th Cir. 1989)), aff d, 217 F.3d 840 (4th Cir. 2000) (unpublished table opinion). Accordingly, summary judgment will be entered in Bausch & Lomb s favor on this claim. B. Ms. Hall s Breach of Contract Claim Must Be Dismissed Without Prejudice for Lack of Supplemental Jurisdiction Bausch & Lomb has moved to dismiss Ms. Hall s breach of contract claim on jurisdictional grounds, contending that it is not sufficiently related to her employment discrimination claims and that supplemental jurisdiction over the claim is, therefore, lacking.20 Although Ms. Hall presents other arguments about why the court should not enter judgment on her breach of contract claim, she has not addressed this threshold issue. 20 Bausch & Lomb also moved for summary judgment on the merits of this claim. Because the jurisdictional issue is dispositive, however, the company s arguments for summary judgment need not be addressed. 37 When a district court s original jurisdiction over an action is based on federal questions in the complaint and the complaint includes both federal and state claims, the court may exercise supplemental jurisdiction over the state claims if they form part claim[s]. Cir. of the same case or controversy as the federal Eriline Co., S.A. v. Johnson, 440 F.3d 648, 653 (4th 2006) (quoting 28 U.S.C. § 1367(a)). State claims constitute part of the same case or controversy as federal claims when they derive from a common nucleus of operative fact such that the plaintiff would ordinarily be expected to try the claims in one judicial proceeding. White v. Cnty. of Newberry, S.C., 985 F.2d 168, 171 (4th Cir. 1993) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)). Thus, although state and federal claims need only revolve around a central fact pattern to satisfy this test, id. at 172, supplemental jurisdiction does not encompass claims [in which the state] count is separately maintainable and determinable without any reference to the facts alleged or contentions stated in . . . the [federal] count, Hales v. Winn-Dixie Stores, Inc., 500 F.2d 836, 848 & n.12 (4th Cir. 1974). Here, no common nucleus of operative fact exists between Ms. Hall s employment discrimination claims and her breach of contract claim. The claims arise 38 from two unique sets of facts. Lanford v. Prince George s Cnty., Md., 175 F. Supp.2d 797, 803 (D.Md. 2001). The discriminatory treatment that Ms. Hall purportedly endured on the basis of her race and age is completely irrelevant to whether the company wrongfully refused to reimburse her for expenses she incurred on her corporate credit card. Indeed, the only connection between the breach of contract action and the federal claims is the general employeremployee relationship between the parties, a connection long deemed insufficient for supplemental jurisdiction. Lyon v. Whisman, 45 F.3d 758, 762-63 (3d Cir. 1995) (citing Hales with approval); Nicol v. Imagematrix, Inc., 767 F.Supp. 744, 747-48 (E.D.Va. 1991) (concluding that the court lacked supplemental jurisdiction over a plaintiff s breach of contract claim where that claim stemmed from the employer s alleged non-payment of a commission and the federal claims involved sex discrimination and sexual harassment); Mason v. Richmond Motor Co., Inc., 625 F.Supp. 883, 886-89 (E.D.Va. 1986) (reasoning that supplemental jurisdiction over a breach of contract claim was lacking where its only connection to the plaintiff s employment discrimination claim was the employer-employee relationship between the parties), aff d, 825 F.2d 407 (4th Cir. 1987) (unpublished table opinion). Because the court lacks 39 supplemental jurisdiction over Ms. Hall s breach-of-contract claim, it must be dismissed without prejudice. IV. Conclusion For summary the foregoing judgment will reasons, be Bausch granted. & A Lomb s motion for separate Order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 40
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