United States District Court, D. Maryland
May 29, 2014
NATIONWIDE BETTER HEALTH INSURANCE
CATHERINE C. BLAKE, District Judge.
Plaintiff Ginnie McKnight, proceeding pro se, filed this action alleging discriminatory treatment by her former employer, Nationwide Better Health Insurance ("Nationwide"),  in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Americans with Disabilities Act ("ADA"). She claims discriminatory treatment based on race, retaliatory discharge, a hostile work environment, and failure to accommodate a disability. Nationwide has moved for summary judgment. For the reasons stated below, Nationwide's motion will be granted.
McKnight began working for Nationwide in July 2007 as a Disease Management Coordinator. (Compl., ECF No. 1, at 2; Hendy Aff., ECF No. 2, ¶ 8.) McKnight, who is African American, initially reported to Kim Stokes, an African American woman. (Compl. at 3; Hendey Aff. ¶ 13.) After Stokes left the company, McKnight reported to Chanell Banks, also an African American woman. (Compl. at 3; Hendey Aff. ¶ 15.)
The evidence demonstrates, and McKnight does not dispute, that, soon after her hire, she began having attendance and tardiness problems. Under Nationwide employment policies, employees that have at least four "chargeable occurrences" within three months or seven "chargeable occurrences" within twelve months may be placed on an "Attendance Improvement" plan. (Section 12.1, Nationwide Policy Guide, Hendey Aff. Ex. A.) "Chargeable occurrences" include absences occurring with less than 24 hours notice or that are unscheduled or not approved in advance. ( Id. ) The exception is leave protected by statutes like the Family and Medical Leave Act of 1993 ("the FMLA"). ( Id. ) An employee with more than the allowable "chargeable occurrences" is placed on "Attendance Improvement" for a period of three to twelve months, as set by the employee's manager and Human Resources. ( Id. ) The employee's manager, working with Human Resources, also specifies the number of allowable absences the employee may have during her "Attendance Improvement" period. ( Id. ) If the employee does not comply with the terms of her "Attendance Improvement" plan, her employment is subject to termination at the time she violates the plan. ( Id. )
McKnight was first placed on a "Performance Improvement Plan" on January 7, 2008. (Hendey Aff. Ex. C.) She was provided with a warning notifying her that she had accumulated seven unplanned absences and had been late for work on fourteen days between the date of her hire in July 2007 and December 27, 2007. ( Id. ) Some of the absences and late arrivals occurred during the ninety-day probationary period during which new hires are to take no unplanned leave or ever be late. ( Id. ) The warning also noted that McKnight previously had received two verbal warnings regarding her attendance. ( Id. ) McKnight was placed on an additional sixty-day probationary period during which she was expected to adhere to the attendance policy-which was reiterated in the warning. ( Id. ) McKnight noted in the "employee comments" section of the warning that she was absent due to illness related to her asthma and an emergency room visit on October 31, 2007, as well as "emergencies that weren't foreseen." ( Id. ) Kim Stokes, her supervisor, verified that McKnight had submitted a doctor's note for her visit to the emergency room on October 31, 2007, but had provided no documentation of illness for the other days she was absent. ( Id. )
On her first performance review, administered on January 10, 2008, covering the period from her hire through December 31, 2007, McKnight received a rating of "did not meet" for a number of objectives, including attendance, professionalism, completing documentation, being available in the call queue as required, being a team player, and committing errors. (Hendey Aff. Ex. B at 2.) She also was reminded of Nationwide's attendance policy. ( Id. at 5.)
McKnight's placement on Performance Improvement was renewed again, beginning February 12, 2008, for sixty days, due to continued lateness and unexcused absences. (Hendey Aff. Ex. D.) This warning noted that she had been leaving early, or not coming in at all, without first notifying her supervisors. ( Id. ) It warned McKnight that if she did not comply with the company's attendance policies during the sixty-day period, "consequences of further disciplinary action up to termination will be applied." ( Id. )
McKnight received a "final written warning" on March 5, 2008, from her new supervisor, Chanell Banks. (Hendey Aff. Ex. E.) The warning documented new unplanned absences and noted that she had not complied with the plans on which she previously had been placed for improvement. ( Id. ) It further stated that McKnight could not incur any further attendance infractions and that "[f]ailure to meet the minimum expectations outlined above will result in further disciplinary action up to and including termination of employment." ( Id. ) Without explanation, McKnight refused to sign the warning. ( Id. )
Despite being told the March 5 warning was the final one, McKnight was late on March 11 and 20, 2008. (Hendey Aff. Ex. F.) She was issued another warning and given another sixty days in which to have no "chargeable occurrences." ( Id. ) Although apparently improving for a time, McKnight took two unplanned absences in May and was late on several days in June 2008. (Hendey Aff. Ex. G.) As a result, she was issued another warning on July 3, 2008. ( Id. )
McKnight's attendance did not improve, and she was placed on Performance Improvement yet again on October 28, 2008, after several instances of tardiness in July, August, September, and October. (Hendey Aff. Ex. H.) The written warning stated that McKnight could not be tardy at all during the next three months or she would face discharge. ( Id. ) McKnight signed the warning acknowledging that she had received a copy. ( Id. ) Although Nationwide told McKnight her employment would be terminated should she be late again, she was given another chance when she was late on November 10, 2008, receiving yet another Performance Improvement warning. (Hendey Aff. Ex. I.) This warning stated that "[a]ny future instances of tardy within the next three(3) months will result in the termination of the associate's employment." ( Id. (emphasis in original).)
Despite yet another warning, and what appears to the court to be multiple "second" chances not required by the company's policy, McKnight was late again on January 9 and 12, 2009. (Hendey Aff. ¶ 33; Hendey Aff. Ex. J.) Due to these additional instances of tardiness, McKnight's employment was terminated on January 14, 2009. (Hendey Aff. ¶ 33.)
McKnight's claims in this case center on a number of grievances she has with the username she was assigned by Nationwide, her inability to obtain a different work schedule and desk location, comments made by her coworkers, and her ultimate discharge. Because she has failed to provide evidence from which a reasonable factfinder could conclude Nationwide discriminated against her in violation of Title VII or the ADA, Nationwide is entitled to judgment in its favor.
Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted "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) (emphasis added). Whether a fact is material depends upon the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Accordingly, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Id. "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 facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must view the evidence in the light most favorable to the nonmovant and draw all justifiable inferences in his favor. Scott v. Harris, 550 U.S. 372, 378 (2007) (citation omitted); see also Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, 721 F.3d 264, 283 (4th Cir. 2013) (citation omitted). At the same time, the court must not yield its obligation "to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (citation and internal quotation marks omitted).
I. Disparate Treatment
Title VII makes it illegal for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). In order to state a prima facie claim of discrimination under Title VII, a plaintiff must plausibly allege: "(1) membership in a protected class; (2) satisfactory job performance; (3) an adverse employment action; and (4) different treatment from similarly situated employees outside the protected class." Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010).
McKnight makes two claims of disparate treatment based on race. First, she claims that Nationwide treated her in a discriminatory manner by assigning her the employee username "McKnigg, " which McKnight claims is too close in form to a racial slur, and refusing to change it when she requested, even though other white employees were able to change their usernames. (Compl. at 2-3.) Assuming without deciding that not providing a username or email address at all may constitute an adverse employment action, the mere assigning of and refusal to change a username or email, without more, does not. McKnight does not allege she was unable to perform her job functions with her assigned username or that the username denied her opportunities for promotion, affected her compensation, or otherwise affected her position with the company. See Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 188 (4th Cir. 2004) (noting that adverse employment actions include anything that affects the terms, conditions, or benefits of employment). Because she has provided no evidence of an adverse employment action, McKnight cannot make a prima facie showing of disparate treatment.
Even assuming McKnight had made a prima facie showing, Nationwide offers a nondiscriminatory reason for the assignment of the username and the failure to change it. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005) (explaining the employer can rebut the prima facie case with a "legitimate, nondiscriminatory reason for the employment action"). Upon her hire, as with all other employees, the computer system automatically assigned McKnight a username comprised of the first four to six letters of her last name and the first initial of her first name. (Hendey Aff. ¶¶ 41-43.) This resulted in a username of "mcknigg." ( Id. ) To change the username, requests for name changes could be submitted via a form to the IT Help Desk in Columbus, Ohio. ( Id. ) According to Nationwide, there is no record of McKnight ever complaining about her username to management or submitting a request to the IT Help Desk asking for it to be changed. (Hendey Aff. ¶ 44.) Even if McKnight did complain to her supervisors and IT, as she claims, she has failed to provide any evidence that the nondiscriminatory reason provided by Nationwide for its conduct is pretextual. See Diamond, 416 F.3d at 318 (explaining that, to survive summary judgment, the employee must demonstrate the employer's permissible reason for an adverse employment action is a pretext for discrimination). At most she only has provided evidence that her supervisors and the individuals in IT failed to follow up on the matter, with no evidence of racial motivations. Although the court can understand McKnight's concerns regarding her username, she has provided no evidence from which to conclude Nationwide's conduct constituted discriminatory treatment in violation of Title VII.
McKnight also claims Nationwide discriminated against her when it failed to give her the daytime shift, instead giving it to a white employee, Kristen Hooks. (Compl. at 4-5.) The evidence demonstrates, and there is nothing to dispute, that Hooks actually was hired into a separate position. ( See Hendey Aff. ¶ 39; Hendey Aff. Ex. S (listing the applicants for the position that Hooks obtained).) To demonstrate discrimination in hiring or promotion, McKnight initially must demonstrate that she applied for a specific position and that she was qualified for the position. Williams v. Giant Food Inc., 370 F.3d 423, 430 (4th Cir. 2004). McKnight did not apply for Hook's position, (Hendey Aff. Ex. S)-the evidence only demonstrates that she asked in an email to change departments-nor was she eligible to apply for new positions, receive a salary increase, or obtain a promotion due to her placement on a Performance Improvement Plan, ( see Hendey Aff. Exs. H, I.). She thus cannot demonstrate discriminatory hiring or promotion by Nationwide. See Williams, 370 F.3d at 430 (noting that merely expressing interest in obtaining a different position is not sufficient to state a prima facie case of discrimination where the company has a formal system for applying for vacancies and the employee has failed to apply).
II. Hostile Work Environment
McKnight claims she was subjected to a hostile work environment based on her race. (Compl. at 3.) To establish a hostile work environment claim under Title VII, a plaintiff must show that: (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment was sufficiently severe or pervasive to alter the conditions of employment; and (5) some factual basis exists to impute liability for the harassment to the employer. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183-84 (4th Cir. 2001).
McKnight has failed to provide sufficient evidence of a hostile work environment. First, she has not demonstrated that any of the comments of which she complains were based on her race. ( See, e.g., Hendey Aff. Ex. M (stating that a coworker referred to McKnight's neighborhood as being "where the queer' folks live"); McKnight Dep. Vol. 1, Gallagher Aff. Ex. A, ECF No. 52-3, at 295:12-298:17 (noting that a coworker made a joke to another employee in McKnight's presence, saying, "Which do you prefer to sit around you, someone that is loud like me, or someone sick all the time?").) Harassment that McKnight may have incurred unrelated to her protected status is not actionable under Title VII. See Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 80 (1998) ("Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at discrimination." (internal quotation marks omitted) (citation omitted)).
Further, to the extent any comments related to her username can be deemed harassment based on her race, there is no evidence from which to conclude they were sufficiently severe or pervasive to alter the conditions of her employment. To establish a hostile work environment claim, a plaintiff must show not only that she subjectively believed her workplace environment was hostile, but also that a reasonable person in the plaintiff's position would have found the environment objectively hostile. Equal Emp't Opportunity Comm'n v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008). To determine whether a reasonable person would perceive workplace conduct to be severe and pervasive, the court considers a number of factors, such as "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (internal quotation marks and citation omitted). The workplace must be "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
McKnight is only able to point to a few comments that she believes were racially hostile based on her username. On one occasion, a coworker yelled the username as a racial slur from the copy room while apparently trying to find who had printed some documents-each document printed with a cover page identifying the username of the employee that printed it. (Compl. at 3; McKnight Dep. Vol. 2, Gallagher Aff. Ex. 2, ECF No. 52-3, at 589:6-14.) In addition, McKnight's second supervisor, Chanell Banks, repeated the term back to McKnight in meetings concerning her desire to change it. (McKnight Dep. Vol. 2 at 597:1-598:20 (testifying that Banks stated that it was a "crazy" username when McKnight brought the issue up with Banks).) Any reference to the username by Banks-repeating the term while discussing McKnight's desire to change it-is not objectively hostile, leaving one comment by a coworker in the one and one-half years McKnight worked for Nationwide. Although the court strongly condemns the use of such slurs in any setting, its use once by one coworker cannot provide evidence of pervasive harassment. See Sunbelt Rentals, 521 F.3d at 315 (noting that although Title VII "surely prohibits an employment atmosphere that is permeated with discriminatory intimidation, ridicule, and insult, ' it is equally clear that Title VII does not establish a general civility code for the American workplace.'" (internal citations omitted).) Nationwide is entitled to summary judgment on McKnight's hostile work environment claims.
McKnight claims she was discharged in retaliation for filing a complaint of a hostile work environment. (Compl. at 5.) To state a claim for retaliatory termination, McKnight must establish that 1) she engaged in protected activity, 2) an adverse employment action was taken against her, and 3) a causal link exists between the protected activity and the adverse employment action. Mackey v. Shalala, 360 F.3d 463, 469 (4th Cir. 2004) (Title VII); Haulbrook v. Michelin N. Am., 252 F.3d 696, 706 (4th Cir. 2001) (ADA). McKnight claims she was fired after submitting a "final complaint of a hostile work environment" on January 7, 2009. (Compl. at 5.) It appears she is referring to an email she sent to Laura Rossi on January 9 complaining about an email she received from Daniel Marecki, another supervisor in McKnight's department, on January 7. ( See Hendey Aff. Ex. R.) In her email to Rossi, McKnight complains that Marecki directed her to complete a task with a "rude tone of voice, " sent an email that was "rude and condescending" and "taunting, " and was dishonest about his discussions with other supervisors. She also states that she felt his behavior was "a personal attack on my character." ( Id. )
McKnight's email is not protected activity, and she thus has failed to establish a prima facie case of retaliatory termination. Although an employer may not take adverse employment action against an employee for opposing discrimination in the workplace,  Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998), there is nothing in the record from which to conclude that McKnight ever raised concerns about discrimination, see Sajadian v. Am. Red Cross, 202 F.3d 260 (table), 1999 WL 1111455 *1 (4th Cir. 1999) (finding an employee had not engaged in protected activity where there was no evidence her employer was aware that her complaints were based on an allegation of discrimination); Ruffner v. MD OMG EMP LLC, 2012 WL 3542019, at *3 (D. Md. 2012) ("The employee must, at least implicitly or indirectly, complain about or oppose prohibited discrimination."). She thus has failed to establish even the first element of a retaliatory discharge claim.
Even assuming McKnight has established a prima facie case of retaliation, Nationwide had a nondiscriminatory reason for terminating her employment. The record demonstrates that she was repeatedly tardy or absent in violation of Nationwide's attendance policy after several warnings and second chances, and that she ultimately was discharged on that basis. She has done nothing to demonstrate such a reason is pretextual.
IV. Failure to Accommodate
Finally, McKnight claims Nationwide failed to provide a reasonable accommodation for her claimed disability-asthma-by failing to move her desk location away from an air vent and failing to grant her two requests to change departments. (Compl. at 4.) To prove a failure to accommodate claim, a plaintiff must show: "that he was an individual who had a disability within the meaning of the statute; (2) that the [employer] had notice of his disability; (3) that with reasonable accommodation he could perform the essential functions of the position...; and (4) that the [employer] refused to make such accommodations." Rhoads v. Fed. Deposit Ins. Corp., 257 F.3d 373, 387 n.11 (4th Cir.2001). McKnight has failed to provide evidence of a disability within the meaning of the ADA and thus Nationwide is entitled to summary judgment on the issue.
The extent of the evidence McKnight offers to demonstrate she had a "disability" is as follows: McKnight states in her complaint that her asthma worsened in late 2007 due to the "stress of the hostile work environment and the location of [her] work station." (Compl. at 4.) She states that in 2008 she became "increasingly ill, " had an asthma attack at home on September 23, 2008, and continued to have intermittent absences due to asthma. ( Id. ) In October 2008, she submitted an updated Federal Certification of Health Care Provider ("CHCP") form to Nationwide in order to classify some of her absences as FMLA-protected. ( Id.; Hendey Aff. ¶¶ 34, 35; Hendey Aff. Ex. L.) On the CHCP, McKnight's primary care physician marked her asthma under the category of "Chronic Conditions Requiring Treatments." (Hendey Aff. Ex. L at 1; Pl.'s Opp'n Ex. C, ECF No. 56, at 1, 4.) The doctor stated that her asthma would be a life-long condition and that McKnight would need to take time off of work about one day every three months for a year to attend follow-up visits. (Hendey Aff. Ex. L at 1.) The doctor also stated that McKnight could not work during asthma exacerbations, but did not describe what might lead to exacerbations. ( Id. at 2.)
The ADA defines "disability" as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(1). To prove she is actually disabled or has a record of impairment, McKnight must demonstrate that her asthma substantially limited one or more major life activities. Major life activities include "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." 42 U.S.C. § 12102(2)(A). Although unclear from her filings, McKnight appears to allege that her ability to work or breathe was substantially impaired. Her evidence is entirely insufficient, however, to prove substantial impairment.
"[T]o be substantially limited in the major life activity of working, one must be precluded from more than one type of job, a specialized job, or a particular job of choice.'" Pollard v. High's of Balt., Inc., 281 F.3d 462, 471 (4th Cir. 2002) (quoting Sutton v. United Air Lines, Inc., 527 U.S. 471, 491-92 (1999)). A plaintiff must show she cannot work "in a broad range of jobs." Id. There is no evidence from which to conclude McKnight is precluded from working in any job due to her asthma. That she may have needed to be absent a few times over the year for follow-up visits regarding her asthma, (Hendey Aff. Ex. L at 1), does not mean she was precluded from working. See Taylor v. Rite Aid Corp., ___ F.Supp.2d ___, 2014 WL 320214, at *7 (D. Md. Jan. 27, 2014) (holding that a plaintiff had failed to demonstrate a substantial limitation where she had shown only that her condition negatively affected her job performance sometimes). In addition, McKnight has offered no evidence that her asthma substantially limited her breathing. That she had asthma is not enough alone. See Tangires v. Johns Hopkins Hosp., 79 F.Supp.2d 587, 594-95 (D. Md. 2000) (noting that a plaintiff must prove that asthma was a physical or mental impairment and that her asthma substantially limited her breathing).
McKnight also has failed to demonstrate she was regarded as disabled as the record is completely devoid of evidence that Nationwide mistakenly believed either that she had a physical impairment that substantially limited a major life activity or that an actual, nonlimiting impairment she had substantially limited a major life activity. See Taylor, at *8 (articulating the standard for being regarded as disabled) (citations omitted). The fact that Nationwide was aware McKnight had asthma, and as a result took intermittent FMLA leave, is insufficient. Id. (citing Rohan v. Networks Presentations LLC, 375 F.3d 266, 278 (4th Cir. 2004); Haulbrook, 252 F.3d at 703).
Because McKnight has failed to demonstrate she had a disability as defined by the ADA, Nationwide is entitled to summary judgment on her claim of failure to accommodate.
For the reasons stated above, Nationwide's motion for summary judgment will be granted. A separate order follows.