ERIKA BAZEMORE, Plaintiff - Appellant, v. BEST BUY, Defendant - Appellee.
No. 18-2196
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
April 21, 2020
PUBLISHED. Appeal from the United States District Court for the District of Maryland at Greenbelt. Peter J. Messitte, Senior District Judge. (8:18-cv-00264-PJM). Submitted: March 20, 2020.
Daniel S. Harawa, Spencer Bailey, Student Counsel, Jeremy Claridge, Student Counsel, Sarah Spring, Student Counsel, Appellate Clinic, WASHINGTON UNIVERSITY SCHOOL OF LAW, St. Louis, Missouri, for Appellant. William W. Carrier, III, Emelia N. Hall, TYDINGS & ROSENBERG LLP, Baltimore, Maryland, for Appellee.
In this appeal, we consider the requirement of a hostile work environment claim that unwelcomed racial and sexual conduct be imputable to an employer. Concluding that the conduct that created the alleged hostile work environment is not imputable to the employer here, we affirm.
I.
The case stems from an incident on February 5, 2017, at the Best Buy store in Waldorf, Maryland, where Erika Bazemore, an African-American woman, was working as a wireless sales consultant.1 According to Bazemore, another Best Buy employee, Anne Creel—a white woman and an appliance sales representative—made a “racist and sexually charged joke” to a small group of coworkers that included Bazemore. J.A. 49. Creel, who was eating mixed nuts, identified a Brazil nut and asked the group, “Hey, do you know what these were called back in the day?” J.A. 49. With the group waiting for the answer, Creel asked, “Do you promise not to call HR on me?” J.A. 49. She then looked directly at Bazemore—the only black woman in the group—and said, “N[****r] T[*]ts!” J.A. 5. Creel laughed while everyone else “was frozen for a few seconds.” J.A. 49. Bazemore broke the silence by saying, “Okay” and then walked away. J.A. 49. In her position, Creel was not
Bazemore reported the incident to Best Buy‘s corporate human resources department the next day, February 6. Three days later, Colleen Hayes, from Best Buy‘s human resources department, called to tell Bazemore she was handling the matter. On February 20, two weeks after Bazemore reported Creel‘s comment, Hayes left a voicemail for Bazemore informing her that the matter had been resolved and that the case was closed, adding that Bazemore could call Hayes if she had further questions.
But Bazemore perceived no sign at work that anything had changed or that management had given the incident “any real attention,” J.A. 50, so she called Hayes to find out how the matter had been resolved. Her calls were unreturned.
Despite Hayes’ earlier voice message that the matter had been resolved, the atmosphere in the store remained tense to Bazemore. She avoided being alone with either Creel or Brewster. The longer Bazemore waited for a response or evidence that action had been taken, the more “trash like” she felt. J.A. 50. In her view, Creel‘s remark had been directed at her and was humiliating. Bazemore felt coworkers looking at her breasts, and said the joke “took me back to the days of [s]lavery,” when black women would be publicly scrutinized before being sold.
At the end of March, having concluded that “nothing was going to [be] done about my traumatic experience,” Bazemore filed a complaint with the Equal Employment Opportunity Commission, claiming she had been harassed based on her race and sex, and
Bazemore sued Best Buy pro se, claiming she was harassed because of her race and gender and subjected to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, as amended,
Best Buy moved to dismiss or, alternatively, for summary judgment. Along with its motion, Best Buy included a copy of its “Coaching and Corrective Action Guidelines” and a copy of a “Coaching & Corrective Action Form” signed by Creel on February 18, 2017. This form showed that she received a “Final Warning,” the last corrective action step before termination, as a result of her remark to Bazemore.
After Bazemore filed an opposition to Best Buy‘s motion, the district court granted the motion to dismiss. In granting Best Buy‘s motion, the district court did not rely on the “Coaching and Corrective” documents submitted by Best Buy. Instead, it relied only on Bazemore‘s factual allegations. The court concluded that Bazemore failed to state a hostile work environment claim because she had not pleaded any facts that would impute Creel‘s conduct to Best Buy. The court held that Bazemore‘s allegations were not imputable to Best Buy because she did not allege facts suggesting that Best Buy knew about the harassment and failed to stop it. Rather, it found that the allegations in the complaint indicated that “Best Buy responded promptly to Bazemore‘s complaint and Creel‘s harassment ceased.” J.A. 133. It further found that, based on those allegations, Creel‘s
The district court also considered allegations from Bazemore‘s Opposition to Best Buy‘s Motion to Dismiss even though they were not made in her complaint. Specifically, in her Opposition, Bazemore alleged that other Best Buy employees who used racial slurs similar to the one Creel used had been terminated. The court concluded that these allegations, lacking dates, detail and context, were too general to compare to Bazemore‘s allegations about Creel. It reached a similar conclusion with respect to allegations made for the first time in Bazemore‘s Opposition that Creel made racial slurs against “gypsies” before and after the alleged incident. The court held that general allegations of racial slurs, without detail, context, date or circumstances, are insufficient to establish a hostile work environment. Thus, it granted Best Buy‘s motion to dismiss, and dismissed Bazemore‘s complaint with prejudice.
After the district court denied her motion for reconsideration, Bazemore timely appealed the initial order and the denial of reconsideration. The district court had jurisdiction pursuant to
II.
We review de novo the district court‘s ruling on a motion to dismiss for failure to state a claim. Stewart v. Iancu, 912 F.3d 693, 702 (4th Cir. 2019). In assessing the sufficiency of a complaint, this Court “assume[s] as true all its well-pleaded facts and
Title VII prohibits racial or sexual harassment that creates a hostile work environment for the harassed employee. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 276–77 (4th Cir. 2015) (en banc). To make such a claim, Bazemore must show she was subjected to (1) unwelcome conduct, (2) based on her race or sex, that was (3) severe or pervasive enough to make her work environment hostile or abusive and (4) imputable to Best Buy, her employer. Boyer-Liberto, 786 F.3d at 277.
The question presented to us relates to element four: whether Bazemore has sufficiently alleged that Creel‘s conduct is imputable to Best Buy. Importantly, the existence of unwelcome conduct, based on an employee‘s race or sex, that is severe or pervasive enough to create a hostile work environment, is not on its own enough to hold
Our analysis of the imputability requirement is informed by the status of the alleged harasser. Here, Creel, according to the complaint, made the allegedly harassing remark. But Bazemore alleges that Creel is her coworker, not her supervisor. Therefore, imputing Creel‘s harassment to Best Buy requires Bazemore to show that Best Buy knew, or should have known, about the harassment and failed to take action reasonably calculated to stop it. Strothers v. City of Laurel, 895 F.3d 317, 332–34 (4th Cir. 2018); Pryor v. United Air Lines, Inc., 791 F.3d 488, 498 (4th Cir. 2015).
Applying that standard to Bazemore‘s complaint, we accept, as we must, all of Bazemore‘s allegations as true. While Bazemore alleged that Best Buy knew of Creel‘s conduct by virtue of her complaint to the corporate human resources department, she does not allege that Best Buy failed to stop it. Instead, Bazemore asserts that Hayes contacted her three days after she reported what Creel said and within two weeks Creel received a written warning. Importantly, she does not assert that Creel, or anyone else at Best Buy, harassed her again. The district court correctly held that, given those assertions, Bazemore
To be sure, Bazemore‘s allegations express her belief that the action taken by Best Buy in response to her complaint was inadequate. She alleged she expected “maybe a sit down with the General Manager, [or] maybe a store meeting reminding the staff about the ethics policy, especially considering it happened in such a public manner on the sales floor, and so many people knew about it.” J.A. 50. But Title VII does not prescribe specific action for an employer to take in response to racial or sexual harassment, or require that the harasser be fired, as Bazemore suggests should have happened to Creel. As noted above, it is enough for an employer to take action “reasonably calculated” to stop the harassment. Pryor, 791 F.3d at 498; Xerxes Corp., 639 F.3d at 669–72.
Our Xerxes decision illustrates this important principle. There, African-American employees at a manufacturing facility reported to their supervisors multiple derogatory and racially-based slurs and other conduct by several co-workers. Xerxes, 639 F.3d at 663. The supervisors responded with disciplinary measures after which the conduct ceased for a period of time. Id. at 663. Following a report of another incident, the employer ramped up its discipline which, again, seemed to stop the harassing conduct. Id. at 664. But later, a more severe incident was reported, this time carried out by an unknown perpetrator. Id. The employer admonished the latest conduct at a plant meeting, but, despite an investigation, was unable to identify the perpetrator. Id. at 664-666. No other incidents were reported. Id. at 666.
Here, [the employer‘s] responses to each reported incident of harassment as of February 2006 were “prompt and either effective or proportional to the seriousness and frequency of the incidents, and therefore [they] were reasonably calculated to end the harassment.” Adler, 144 F.3d at 677. When harassment reoccurred, [the employer] “t[ook] increasingly progressive measures to address [it].” Central Wholesalers, 573 F.3d at 178. . . . Holding [the employer] “liable under these circumstances would be tantamount to imposing strict liability on an employer . . . regardless of the employer‘s . . . response,” Spicer, 66 F.3d at 711, and “would make employers insurers against future [racial] harassment by coworkers after an initial employee response, regardless of the nature of the response taken. This is liability without end,” Adler, 144 F.3d at 679.
Id. at 675–676.
Although Xerxes involved an order granting summary judgment and more extensive and severe conduct than that alleged by Bazemore, its holding applies to Bazemore‘s allegations that Best Buy should have disciplined Creel more severely. Those allegations do not state a plausible claim because, so long as discipline is reasonably calculated to end the behavior, the exact disciplinary actions lie within Best Buy‘s discretion. See DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) (“Particularly, this Court ‘does not sit
Bazemore‘s allegations that Creel‘s racist and sexist joke changed the environment at work and caused her to suffer physically and psychologically do not aid her in imputing Creel‘s conduct to Best Buy. Those allegations only go to the third element of her hostile work environment claim—that Creel‘s harassment was so severe or pervasive that it made the environment at work hostile or abusive. See Harris, 510 U.S. at 21–23; Boyer-Liberto, 786 F.3d at 277. As set forth above, we do not address whether or not Bazemore has sufficiently pled severe and pervasive harassment because we hold today that she has not pled facts that plausibly allege that Creel‘s conduct is imputable to Best Buy. Therefore, even accepting these allegations as true, they do not allege that Best Buy failed to stop Creel‘s conduct or even that it was negligent in responding to it.
The district court also considered two additional allegations Bazemore lodged against Best Buy in her Opposition to Best Buy‘s Motion to Dismiss even though they were not included in her complaint. Without opining on whether these allegations were properly before the district court, we agree that they do not sufficiently bolster Bazemore‘s claim.
Similarly, Bazemore argued her in Opposition to Best Buy‘s Motion to Dismiss that Creel also called another employee as well as Best Buy customers “gypsies.” But this argument, like the claim that other Best Buy employees had been fired for using the n-word, lacks sufficient detail to allow a comparison with Creel‘s conduct. See id. at 677. Thus, it does not plausibly allege a claim. Additionally, Bazemore did not allege any of these remarks were directed at her or that she, herself, heard them. Finally, Bazemore does not assert, as the district court noted, that Best Buy knew or should have known about Creel‘s gypsy statements. See Strothers, 895 F.3d at 332–34; Pryor, 791 F.3d at 498. Thus, like Bazemore‘s allegations about the discipline imposed on other employees who used the n-word, the allegations about Creel‘s use of the word “gypsy” do not assert facts sufficient to impute Creel‘s harassment of Bazemore to Best Buy.
Our decision today should not be construed as condoning or even minimizing Creel‘s tasteless effort at a joke. Instead, our decision is limited to analyzing whether Bazemore‘s allegations plausibly state a Title VII hostile work environment claim. As noted above, in the case of allegedly harassing comments by a co-worker, an employee must allege plausible facts that the employer knew, or should have known, about the harassment and failed to take action reasonably calculated to stop it. For the reasons set forth above, Bazemore failed to do this.
We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid in the decisional process. Accordingly, the judgment of the district court is
AFFIRMED.