Virginia Lawyers Weekly VA Lawyers Weekly
Where a former employee did not show severe or pervasive harassment or that she was constructively discharged, Virginia Tech and the state prevailed on hostile work environment, discrimination and retaliation claims.
Background
On June 19, 2018, Dr. Kimberly Renae Andrews filed a three-count complaint against Virginia Polytechnic Institute and State University and the Commonwealth of Virginia, asserting claims for race discrimination, a hostile work environment and retaliation. Virginia Tech has moved for summary judgment, and Dr. Andrews has opposed that motion.
Hostile work environment
The court first addresses the verbal statements at issue in this case. The use of diminutives such as “boy” or “girl” toward black men and women, in the context of American history, may be offensive. In this case, however, Dr. Andrews’ own testimony describes events that no reasonable jury could attribute to severe racial animus when viewed in context, especially when Dr. Short stopped using the word after being asked. Moreover, even assuming that Dr. Andrews was aware of all of the relevant statements during her employment, a “handful” of incidents over a five-year employment alone fail to provide sufficient grounds for finding “severe or pervasive” harassment.
Next, the court considers the allegations regarding hair. The court concludes that unwanted physical touching of hair, if done so “because of” an individual’s race, may constitute actionable race-based harassment under Title VII. Yet White’s attribution of hair touching to “fascination” does not indicate that it was “extremely serious” harassment of the same magnitude as hateful slurs with a clear history of animus attached to them.
The court also examines hair-related comments. Dr. Andrews only recounted facially neutral statements about her hair. While Scott and White also testified that fellow employees asked about touching their hair, courts have not found that requests alone constitute “severe” harassment.
Finally, the court turns to Dr. Andrews’ sundry allegations regarding disparate treatment. These events — which Dr. Andrews attributes to her race, based on her “belief,” “suspicion” and “gut feeling” — fail to show actionable disparate treatment or racial animus. Stripped of Dr. Andrews’ conclusory attributions of racial bias, the vast majority of these events are nonactionable under Title VII.
Considering the evidence in its totality, and in the light most favorable to Dr. Andrews, the court cannot agree with Dr. Andrews that she has provided evidence from which rational jury could find that “a reasonable person would perceive [her] environment to be abusive or hostile.” In the court’s view, the evidence simply fails to support a claim that Dr. Andrews was subjected to severe or pervasive harassment.
Discrimination
To establish a race discrimination claim, Dr. Andrews must show “(1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class.” Because she resigned from Virginia Tech, Dr. Andrews opposed summary judgment by arguing that the relevant adverse employment action was a constructive discharge. The court concludes that she has not provided facts that would allow a reasonable jury to find that she was constructively discharged.
Further, “[p]roof of constructive discharge requires a greater severity or pervasiveness of harassment than the minimum required to prove a hostile working environment.” Accordingly, because the court concludes that Dr. Andrews cannot succeed on her hostile work environment claim, her discrimination claim based on a constructive discharge theory must also be dismissed.
Retaliation
To make a prima facie case of retaliation, a plaintiff must show: (1) that she engaged in protected activity, (2) that the employer took a materially adverse action against her and (3) that there is a causal connection between the protected activity and the adverse action. Even assuming that Dr. Andrews engaged in protected activity—that it was objectively reasonable for Dr. Andrews to believe she was subject to a hostile work environment or other discrimination—her retaliation claim fails on the remaining two elements.
Defendant’s motion for summary judgment granted.
Andrews v. Virginia Polytechnic Institute and State University, Case No. 18-cv-00281, Feb. 12, 2020. WDVA at Roanoke (Conrad). VLW 020-3-084. 32 pp.
