Kristin Cosby v. South Carolina Probation, Parole & Pardon ServicesKristin Cosby v. South Carolina Probation, Parole & Pardon Services
Affirmed by published opinion. Judge Agee wrote the opinion in which Judge Wynn joined. Judge Thacker wrote a dissenting opinion.
ARGUED: Courtney C. Atkinson, METCALFE & ATKINSON, LLC, Greenville, South Carolina, for Appellant. Richard James Morgan, BURR & FORMAN LLP, Columbia, South Carolina, for Appellee. ON BRIEF: G. Wade Leach, III, BURR & FORMAN LLP, Columbia, South Carolina, for Appellee.
Kristin Cosby appeals the district court‘s order granting summary judgment to South Carolina Probation, Parole & Pardon Services (“SCPPP“) on Cosby‘s gender discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964,
I.
In 2006, Cosby started working for SCPPP—a state agency that supervises criminal offenders on probation and parole. Cosby left the agency four years later but sought reemployment with SCPPP in 2012. Cosby was denied the position she sought, however, and “was advised by [SCPPP] that they wanted to hire a male [for] the position.” J.A. 267. In response, Cosby filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC“). The EEOC sided with Cosby and entered a finding of discrimination against SCPPP, which agreed to rehire Cosby in October 2012.
Upon her rehiring, Cosby was supervised by Chadwick Gambrell, the Agent-in-Charge (“AIC“) of Cosby‘s office, though only for a short time.1 Gambrell became Cosby‘s supervisor again in December 2017.
In March 2018, Gambrell sought input from Cosby on filling a position on Cosby‘s team. Cosby recommended Christina Worthy. Gambrell questioned Cosby‘s choice as “he
In September 2018, Cosby applied for a promotion. Shortly thereafter, Gambrell again became concerned that Cosby was having inappropriate relationships with subordinates. “[A]fter some issues came up with another agent,” Gambrell came to believe that Cosby had “moved on from Worthy” and “was concentrating on somebody else.” Id. (cleaned up). As a result, he and the Assistant Agent in Charge (“AAIC“) Robert Honeycutt counseled Cosby on this issue.
Not long after, on October 19, 2018, Cosby filed an internal complaint against Gambrell and Honeycutt. In its entirety, the complaint read:
AAIC Honeycutt and AIC Gambrell have created a hostile working environment for me and some members of my team, to the point where I have been afraid to come to work, not for physical reasons but psychological reasons. I feel as though I am being harassed and repeatedly counseled for things that I am not explained how to fix, or some things that I have not been trained. This harassment has extended to members of my team, to where one of them perceived a threat by AAIC Honeycutt on one occasion based off a statement that was made. My agents have been made to feel as though they are not trusted and do not know how to proceed with me, making my job extremely difficult to do. I have felt attacked how AAIC Honeycutt approached me with issues, working off of wrong information or a
misunderstanding of the information without gathering the facts before addressing the situation with me. This is consistent behavior by AAIC Honeycutt and his approach with dealing with me. He berates and attacks me, and does not provide any coaching or development, making it difficult to interact with him as my immediate supervisor. AAIC Honeycutt and AIC Gambrell have created an environment to [sic] which I cannot succeed. I have consistently done certain things since AAIC Honeycutt became my supervisor and now for no reason has become an issue and repeated counseling sessions. I have made attempts to make changes, but I am still being told repeatedly to communicate, communicate, communicate, you‘re not communicating. I am confused as to why he keeps saying that I do not communicate, inferring a failure or noncompliance on my part. Despite my efforts to better the situation, he has failed to provide guidance as to how I can achieve this. Some of my agents have felt as though AAIC Honeycutt and AIC Gambrell have created an environment for which they cannot thrive. All of this seems to come our to [sic] nowhere for no reason, to which I have to question their motivation. After being told I am the hardest working one in the office, my work is being questioned.
J.A. 434.
Given that Cosby complained of a “hostile working environment,” SCPPP Director Jerry Adger referred the matter to the SCPPP Office of Professional Responsibility (“OPR“), which is responsible for investigating potential Title VII issues. OPR Director Jeffrey Harmon then interviewed Cosby. According to Harmon‘s written notes, Cosby expressed frustration that Gambrell and Honeycutt “were constantly meeting with her concerning her poor communication with management” and “was concerned that her managers asked her about an [unsubstantiated] allegation of misconduct.” J.A. 481. There‘s no evidence that Cosby ever told Harmon, or anyone else at SCPPP, that her internal complaint related to perceived mistreatment based on her sex.
After speaking with Cosby, Harmon determined that the complaint involved a communication issue rather than a hostile work environment claim based on a protected
On November 7, 2018, Gambrell first learned of Cosby‘s complaint against him. The next day, Gambrell met with Nicole Albany, one of Cosby‘s past subordinates, to discuss her interactions with Cosby.2 During this meeting, Albany told Gambrell that she and Cosby had a consensual sexual encounter in 2015, when she was Cosby‘s subordinate; that their relationship later turned hostile; and that Cosby removed Albany from her team, affecting Albany‘s pay and job performance.3
Gambrell reported Albany‘s allegations to Adger, who referred the matter to Harmon for an investigation into whether Cosby had created a hostile working environment for Albany. Harmon interviewed Albany, who repeated her allegations concerning Cosby. Harmon also met with Gambrell and Honeycutt, who provided documentation dating back
Harmon then met with Cosby (now for the second time). After encouraging Cosby to be truthful and warning that she could be subjected to disciplinary action if it was later determined that she had been untruthful, Harmon asked her about Albany‘s allegations. Cosby denied any sexual relationship with Albany. Harmon then told Cosby that a polygraph examination would be scheduled and that refusal to participate could subject her to termination. Harmon also told Cosby that she could amend her statement any time before the polygraph.
In the following days, Cosby told Harmon that she would consent to the polygraph but that she wanted to amend her statement to now say that Albany attempted to have a sexual encounter with her but that it never came to fruition because Albany was “interrupted.” J.A. 485.
Cosby‘s polygraph took place on December 17, 2018. Immediately before and during the polygraph, Cosby again denied ever having a sexual relationship with Albany.
After the examination, the administrator informed Cosby that she was being deceptive and had failed the polygraph. At that point, Cosby admitted the truth of Albany‘s allegations and provided a voluntary handwritten statement confirming the same. Based on this admission, Harmon determined that Cosby had made false statements during the course
Before SCPPP acted on that recommendation, on December 19, 2018, Cosby tendered a letter of resignation. Two weeks later, Adger notified the South Carolina Criminal Justice Academy that Cosby‘s employment had been terminated due to statutorily defined misconduct.6 As a result, Cosby‘s law enforcement certification was permanently revoked.
Cosby then filed another charge with the EEOC, alleging gender discrimination and retaliation based on the OPR investigation and her resulting separation from SCPPP. The EEOC dismissed Cosby‘s charge and issued her a right-to-sue letter. Cosby in turn sued SCPPP in South Carolina state court, alleging gender discrimination and retaliation in violation of Title VII, among other claims not at issue here. SCPPP removed the case to federal court and sought summary judgment on Cosby‘s Title VII claims. The matter was referred to a magistrate judge for a report and recommendation, who recommended granting SCPPP‘s motion in full. Over Cosby‘s objections, the district court adopted the report and recommendation and granted summary judgment to SCPPP.
Cosby now appeals, and we have jurisdiction under
We review the district court‘s summary judgment award de novo. Ballengee v. CBS Broad., Inc., 968 F.3d 344, 349 (4th Cir. 2020). In doing so, we “view[] all facts and reasonable inferences in the light most favorable to the nonmoving party.” Id. Summary judgment is proper “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.”
III.
Cosby argues that the district court erred in granting summary judgment to SCPPP on her Title VII gender discrimination and retaliation claims. As explained below, we disagree.
A.
We begin with Cosby‘s gender discrimination claim.
Under Title VII, an employer may not “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual‘s . . . sex.”
Here, Cosby‘s gender discrimination claim proceeds under two distinct theories of liability: disparate treatment and hostile work environment. We consider each theory in turn.
1.
To establish a prima facie case of disparate treatment, a plaintiff must prove four elements: “(1) membership in a protected class; (2) satisfactory job performance; (3)
Consistent with the magistrate judge‘s recommendation, the district court concluded that Cosby failed to identify a valid comparator for purposes of the fourth element.7 Cosby challenges that determination on appeal.
The similarly situated element requires a plaintiff to “provide evidence that the proposed comparators are not just similar in some respects, but ‘similarly-situated in all respects.‘” Spencer v. Va. State Univ., 919 F.3d 199, 207–08 (4th Cir. 2019) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). To that end, the plaintiff must prove that she and the comparator “dealt with the same supervisor, were subject to the same standards[,] and engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer‘s treatment of them for it.” Haynes v. Waste Connections, Inc., 922 F.3d 219, 223–24 (4th Cir. 2019) (cleaned up). To be sure, “a comparison between similar employees will never involve precisely the same set of work-related offenses occurring over the same period of time and under the same sets of circumstances.” Id. at 223 (cleaned up). Nonetheless, “[t]he similarity between comparators and the seriousness of their respective offenses must be clearly established in order to be meaningful.” Lightner v. City of Wilmington, 545 F.3d 260, 265 (4th Cir. 2008).
Three of the four identified comparators are agents who worked in Cosby‘s office and applied for the same promotion that Cosby sought in September 2018. Unlike Cosby, these three individuals received interviews for the promotion,9 “were not subjected to similar and repeated investigations for conduct that did not violate [SCPPP‘s] policies, and were not forced to resign.” Opening Br. 11.
But Cosby provided no evidence that any of these agents were also accused or suspected of having a sexual relationship with a subordinate that adversely affected the subordinate‘s employment, or of engaging in any similar conduct. Cf. J.A. 621 (Harmon testifying that Albany‘s allegations that her employment was negatively affected by the ending of her relationship with Cosby prompted an investigation into whether Cosby created a hostile work environment for Albany). Absent evidence that these three male agents “engaged in the same conduct” as Cosby, they cannot serve as valid comparators.
There are at least two material differences between Cosby‘s situation and Stewart‘s that preclude Stewart from serving as a valid comparator as to the decision to formally investigate Cosby but not Stewart.
First, while Harmon testified that he was generally aware of rumors that Stewart had a romantic relationship with a subordinate, Cosby hasn‘t presented any evidence that Stewart was accused of altering a subordinate‘s job conditions, or otherwise subjecting a subordinate to a hostile work environment, after having a sexual relationship with that subordinate, as was Cosby. Furthermore, the allegations involving Cosby and Albany came from Albany herself, whereas Cosby has not pointed to any evidence showing that the subordinate with whom Stewart was rumored to have had a sexual relationship (or anyone else) made a similar allegation against him as part of any informal or formal SCPPP investigation. In light of these critical distinctions, no reasonable jury could conclude that Cosby‘s and Stewart‘s respective alleged misconduct was sufficiently similar as to be “comparable in seriousness.” Haynes, 922 F.3d at 223.
Second, and independently fatal to her claim, Cosby has not shown that the supervisor or supervisors that made the decision to investigate her also made the decision not to investigate Stewart. The record reveals that Gambrell initiated an investigation into Cosby regarding potential misconduct for having romantic relationships with her
Instead, Cosby and the dissent take the view that Harmon was the common denominator: he conducted the investigation into Cosby but declined to investigate Stewart. But even were we to accept that Harmon, who was Stewart‘s supervisor at the relevant time, had the authority to open an investigation into Stewart based on the rumors, his decision not to exercise that authority would not help Cosby here. As just explained, although Harmon was responsible for conducting the OPR investigation into Cosby, the undisputed evidence is that the decision to initiate that investigation was made by Adger, not Harmon—an important distinction the dissent glosses over. That Harmon followed his boss‘s instructions does not render him “the same supervisor” for purposes of the similarly situated inquiry. Haynes, 922 F.3d at 223.
Absent any record evidence that would allow a factfinder to conclude that the decision to investigate Cosby and the decision not to investigate Stewart were made by the
2.
To demonstrate a prima facie case of a hostile work environment based on gender, “a plaintiff must show that the offending conduct (1) was unwelcome, (2) was because of her sex, (3) was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment, and (4) was imputable to her employer.” Bonds v. Leavitt, 629 F.3d 369, 385 (4th Cir. 2011) (citation omitted).
The district court agreed with the magistrate judge that Cosby failed to produce sufficient evidence to meet the second element—that any mistreatment she experienced was “because of her sex.”12 Unsurprisingly, Cosby says otherwise.
Our case law illustrates that a plaintiff may satisfy the “because of sex” element in one of several ways. She may, for example, provide evidence that she was “subjected to sexual advances or propositions.” Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003). Alternatively, she may point to evidence that she was “the individual target of open hostility because of her sex” or was “harassed in such sex-specific and derogatory terms as to make it clear that the harasser [was] motivated by general hostility to the presence of women in the workplace.” Id. at 331–32 (cleaned up). Whatever the chosen method of proof, the evidence must be such that it would allow a reasonable jury to
In challenging the district court‘s conclusion, Cosby relies primarily on her own affidavit that she submitted in opposing SCPPP‘s motion for summary judgment as well as the October 2018 internal complaint she lodged against Gambrell and Honeycutt. Cosby‘s affidavit asserts that, shortly after she applied for the promotion, Gambrell began investigating and harassing her, while the other applicants (both male and female) were not subjected to the same treatment. The affidavit then goes on to reference Cosby‘s 2018 internal complaint, characterizing it as “alleging that [Cosby] was being subjected to a ‘hostile work environment’ by [her] two male supervisors.” J.A. 268. And “[i]n making that complaint and using the language [she] did,” the affidavit continues, “it was [her] intention of reporting [her] belief that [she] was being treated differently and subjected to harassing conduct on the basis of [her] gender.” J.A. 268. According to Cosby, this evidence is sufficient at the summary judgment stage to demonstrate that her mistreatment was “because of” her gender.
We agree with the district court that Cosby has not raised a triable issue of fact on this claim. Aside from her now-stated belief, Cosby has provided no evidence indicating that her gender was the reason that she was subjected to an investigation after applying for the promotion. To the contrary, her affidavit undercuts her claim of gender-based mistreatment as it specifically notes that “one other female . . . applied for the same promotion” and “was not subjected to the same treatment and ongoing investigations.” J.A.
In the end, we are left only with Cosby‘s subjective “belief,” as expressed in her self-serving affidavit prepared in the course of this litigation, that she was singled out because of her gender. And our cases make clear that such an expressed belief, standing alone, is insufficient to defeat summary judgment. See Webster v. Chesterfield Cnty. Sch. Bd., 38 F.4th 404, 413–14 (4th Cir. 2022) (observing that a plaintiff “cannot primarily rely upon her own statements” to create a triable issue of fact on the “because of sex” element of a hostile work environment claim); Nat‘l Enters., Inc. v. Barnes, 201 F.3d 331, 335 (4th Cir. 2000) (concluding that a “self-serving affidavit” was insufficient to overcome summary judgment where the plaintiffs provided no other supporting evidence); see also Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002) (holding that a plaintiff asserting
We therefore find no error in the district court‘s summary judgment award to SCPPP on Cosby‘s gender discrimination claim premised on a hostile work environment theory.
B.
We next turn to Cosby‘s retaliation claim.
Title VII bars retaliation against an employee that has “opposed” a practice that Title VII forbids or has “made a charge, testified, assisted, or participated in” a Title VII “investigation, proceeding, or hearing.”
To establish a prima facie case of retaliation, a plaintiff “must show (1) that she engaged in protected activity; (2) that her employer took an adverse action against her; and (3) that a causal connection existed between the adverse activity and the protected action.” Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 578 (4th Cir. 2015) (cleaned up).
Here, Cosby identifies two instances of purportedly protected activity for which she claims SCPPP retaliated against her: (1) her filing of the 2018 internal complaint; and (2) her filing of the 2012 EEOC charge of discrimination.
In granting summary judgment to SCPPP on this claim, the district court agreed with the magistrate judge‘s findings that Cosby‘s filing of the 2018 internal complaint did not constitute protected activity and that there was no causal connection between the 2012 EEOC charge and any of the alleged adverse employment actions.13
We first consider the district court‘s finding that Cosby‘s filing of the 2018 internal complaint did not constitute protected activity under Title VII‘s retaliation provision.
As indicated above,
Although opposition activity can take the form of an internal complaint like Cosby‘s, see DeMasters v. Carilion Clinic, 796 F.3d 409, 417 (4th Cir. 2015) (noting that “utilizing informal grievance procedures” falls within this Court‘s “expansive view of what constitutes oppositional conduct” (citation omitted)), such a complaint constitutes protected activity only if it was directed at “an unlawful employment practice” under Title VII.
We have previously said that the term “unlawful employment practice” should be interpreted broadly such that it encompasses “not only employment actions actually unlawful under Title VII but also employment actions [the employee] reasonably believes to be unlawful.” DeMasters, 796 F.3d at 417 (cleaned up).
We agree with the district court that Cosby falls short of the required showing to put this issue before a jury.
As explained above, Cosby‘s internal complaint is undisputedly facially neutral as to sex: it did not allege that she was singled out for mistreatment because of her gender, and in fact it charged that members of her team (both male and female) were being subjected to the same hostility and harassment. Thus, the substance of the complaint itself provides no basis to infer that Cosby believed she was opposing unlawful discrimination. See Skiba v. Ill. Cent. R.R. Co., 884 F.3d 708, 718 (7th Cir. 2018) (“Merely complaining in general terms of discrimination or harassment, without indicating a connection to a protected class or providing facts sufficient to create that inference, is insufficient” to constitute protected activity under Title VII. (citation omitted)).14 The mere fact that the
Nonetheless, Cosby and the dissent maintain that two pieces of evidence in the record provide a sufficient evidentiary basis to preclude summary judgment. The first is Cosby‘s affidavit‘s assertion that “[i]n making that complaint and using the language I did, it was my intention of reporting my belief that I was being treated differently and subjected to harassing conduct on the basis of my gender.” J.A. 268. The second is that SCPPP “initially considered the internal complaint to be one made pursuant to Title VII based on the face of the internal complaint.” Opening Br. 21.
Neither piece of evidence can bear the weight that Cosby and the dissent put on it.
Beginning with Cosby‘s litigation affidavit, we have already explained that the employee‘s belief that she was engaging in protected activity must be evaluated by reference to objective criteria. And Cosby‘s self-serving affidavit containing an after-the-fact and otherwise unsubstantiated statement concerning her subjective intent and belief does not fit the bill. Cf. Webster, 38 F.4th at 413–14; Barnes, 201 F.3d at 335.
Importantly, however, after meeting with Cosby “and collect[ing] her information as she gave [it],” J.A. 554, Harmon determined that Cosby’s complaint did not implicate
Critically, Cosby does not contest any of this. She does not dispute that Harmon met with her to gather more information about her complaint, nor does she dispute Harmon’s characterizations of what she told him or otherwise contend that Harmon’s investigation
Faced with these circumstances, which the dissent doesn’t confront, we fail to see how SCPPP’s decision to initially staff Cosby’s complaint with OPR for further investigation is sufficient to create a jury issue as to whether Cosby reasonably believed at the time that she was engaging in protected activity. To do so would ignore—as the dissent does—part of the record properly submitted on summary judgment. And it’s a crucial part as it shows that even after SCPPP’s initial staffing decision, Cosby was given an opportunity to expand on her complaint. Yet she failed to convey any belief that she was the target of gender-based discrimination. Instead, the uncontroverted evidence is that Cosby’s comments to Harmon during the interview dispelled any notion that the complaint sounded in unlawful discrimination.
Given the stark absence of other supporting evidence for her claim, we cannot conceive of any jury that could find that Cosby reasonably believed that she was engaging
2.
Finally, we turn to the district court’s finding that Cosby failed to demonstrate a causal relationship between her filing of the 2012 EEOC charge of discrimination and any of the alleged adverse employment actions in 2018.
Where, as here, “temporal proximity between protected activity and allegedly retaliatory conduct is missing, courts may look to the intervening period for other evidence
In this case, Cosby asserts that she has shown a causal relationship given that (1) Gambrell was her AIC for a short time in 2012 after SCPPP was required to rehire her as a result of the 2012 EEOC charge, which Cosby “believe[s]” Gambrell “had full knowledge of,” J.A. 268; and (2) shortly after Gambrell became her AIC again in 2017, he began investigating Cosby for conduct that “was not a violation of any policy” and about which SCPPP “had been on notice . . . for three years” without taking any action. Opening Br. 23. In other words, Cosby’s theory is that when Gambrell ceased being her supervisor in 2012, he bided his time and retaliated against her for the 2012 EEOC charge at the first available opportunity: when he became her AIC again in 2017. The dissent subscribes to this postulation, musing that a jury could “connect the dots and find that AIC Gambrell retaliated against Cosby because he harbored resentment from the 2012 Charge of Discrimination.” Post at 37.
We readily reject this unsubstantiated theory. Guesswork aside, neither Cosby nor the dissent points to any evidence that Gambrell was in some way involved in the events giving rise to Cosby’s 2012 EEOC charge; that he even knew about the charge or the subsequent investigation; or that he “handled [Cosby’s] forced rehiring” following the investigation. Opening Br. 23. Nor has Cosby or the dissent identified any evidence
At bottom, Cosby and the dissent’s asserted causal connection between events six years apart relies on pure conjecture. And it goes without saying that such conjecture cannot defeat summary judgment. See Graves v. Lioi, 930 F.3d 307, 324 (4th Cir. 2019) (“[S]urviving summary judgment . . . requires evidence, not unsupported conjecture.“). The district court therefore appropriately entered summary judgment in SCPPP’s favor on Cosby’s claim of retaliation in connection with her 2012 EEOC charge.19
For these reasons, we affirm the district court’s award of summary judgment to SCPPP.
AFFIRMED
The majority affirms the district court’s holding that Cosby failed to present sufficient evidence to survive summary judgment on either her
I.
Retaliation
A.
2018 Internal Complaint
On October 11, 2018, Cosby filed a Citizen/Personnel Formal Complaint Form (“Internal Complaint“) alleging that her male supervisors -- Agent in Charge (“AIC“) Chadwick Gambrell and Assistant Agent in Charge (“AAIC“) Robert Honeycutt -- were subjecting her to “a hostile work environment” and “harassment.” J.A. 104. Despite the fact that the SCPPP “initially assessed” the Internal Complaint as a
Upon learning that Cosby had filed a complaint against him, the very next day AIC Gambrell opened an investigation into a personal relationship Cosby was rumored to have
Yet, the majority has nixed Cosby’s retaliation claim because, according to the majority, Cosby never engaged in “protected activity.” In my view, Cosby clearly engaged in protected activity when she filed a complaint form alleging a “hostile work environment” and “harassment,” which was assessed by her employer as a
Our precedent makes room for
Where the majority knocks Cosby is the substance of the Internal Complaint, which, per the majority, “provide[d] no basis to infer that Cosby believed she was opposing unlawful discrimination.” Ante at 19 (citing Skiba v. Ill. Cent. R.R. Co., 884 F.3d 708, 718 (7th Cir. 2018)). But the Internal Complaint expressly stated Cosby was enduring a “hostile work environment” and “harassment” -- language apparently sufficient to prompt the SCPPP to view the complaint as a
However, under our precedent, Cosby did not need the magic words. The purpose of the
Thus, employees complaining of
Cosby reasonably believed a
In reaching its conclusion, the majority dissects Cosby’s evidence piece by piece, failing to consider whether, taken together and considered in the light most favorable to her, the evidence creates a triable issue. See Cook v. CSX Transp. Corp., 988 F.2d 507, 512 (4th Cir. 1993) (“The question confronting a judge faced with determining whether a prima facie case under
First, the majority finds no evidence of gender discrimination on the face of the Internal Complaint. Failing that, the majority turns to Cosby’s affidavit, which it deems self-serving. Then, citing cases in which the only evidence was a self-serving affidavit, determines this “otherwise unsubstantiated statement” cannot create a triable issue. Ante at 20 (citing Webster v. Chesterfield Cty. Sch. Bd., 38 F.4th 404, 413–14 (4th Cir. 2022) (affirming summary judgment when a plaintiff’s only evidence that the defendant targeted her based on her sex was “her own statements“); Nat’l Enters., Inc. v. Barnes, 201 F.3d 331, 335 (4th Cir. 2000) (affirming summary judgment when “appellants [we]re unable to produce any evidence” regarding obligations created by a repurchase agreement apart from a “self-serving affidavit describing the content of the repurchase agreements“)). Not yet having found any single piece of evidence sufficient, the majority last turns to the fact that the SCPPP itself treated Cosby’s Internal Complaint as a
The majority emphasizes the lack of evidence that Cosby told Director Harmon or anyone at SCPPP that her Internal Complaint was about sex discrimination. Ante at 5. To be sure, that fact weighs against Cosby. But, I emphasize that it is not our role to weigh facts when resolving an appeal from summary judgment. In doing so, the majority usurps the role of the jury by picking the version of the story it most prefers at the expense of contrary facts. In my view, those facts create a triable issue.
Summary judgment is not a tool to jettison imperfect cases. Webster, 38 F.4th at 412 (“[T]he aim of summary judgment is not to determine the exact strength of a case and dispose of so-called weak cases, but instead to determine whether a rational jury could find in the plaintiff’s favor . . . .“) (emphasis in original). Our role at summary judgment is not to break Cosby’s case into pieces and see if one of those pieces can lift Cosby over the summary judgment barrier. See DeMasters, 796 F.3d at 418 (“[W]e must examine the course of a plaintiff’s conduct through a panoramic lens, viewing the individual scenes in their broader context and judging the picture as a whole.“). Our job is to consider whether all of the material evidence Cosby has adduced is enough that a reasonable jury could find for her. Here, it could. Although Cosby did not expressly claim in her Internal Complaint, as a lawyer might have, that she was discriminated against “on the basis of sex,” there is
The majority also posits that “a causal connection between the purported protected activity and any adverse employment action” is “precluded.” Ante at 23 n.17. This is ostensibly because Appellant’s Internal Complaint never put the SCPPP “on notice” of protected activity. Id. But the SCPPP plainly had notice. We know it had notice because it opened a
The majority attempts to diminish this evidence by collapsing the elements of protected activity and causation. The majority reasons that because the Internal Complaint was not protected activity, the SCPPP lacked notice of protected activity, and thus the SCPPP’s retaliatory actions could not be caused by protected activity. In this way, the majority stretches its conclusion regarding lack of protected activity to undermine causation, avoiding the glaring fact that AIC Gambrell retaliated against Cosby as soon as he learned of the Internal Complaint. Thus, the majority’s holding doubly undermines the remedial purpose of
I disagree with the majority regarding both protected activity and causation. Cosby’s facts create a triable issue at summary judgment, where a plaintiff need only present a genuine dispute, and we must read those facts in the light most favorable to the non-movant.
B.
2012 Charge of Discrimination
Cosby applied to work for the SCPPP in 2012. But she was not hired because the SCPPP wanted to “hire a male.” Ante at 2 (quoting J.A. 267). As a result, Cosby filed a Charge of Discrimination with the EEOC. When the EEOC sustained her charge, the SCPPP hired her. When Cosby started work in Fall 2012, she was assigned to AIC Gambrell, whom Cosby testifies had full knowledge of the EEOC charge.
Cosby was transferred to a different AIC shortly after she was hired, but she was eventually transferred back to AIC Gambrell. That occurred in December 2017. In March 2018, a position opened on the sex offender team that Cosby led, and AIC Gambrell sought Cosby’s recommendation to fill the position. Cosby recommended Christina Worthy. AIC Gambrell had heard Cosby and Worthy “had more than a professional relationship.” J.A. 763. Eight months later, in November 2018, AIC Gambrell opened an investigation into
The majority notes that AIC Gambrell believed Cosby’s conduct violated the SCPPP’s catch-all professionalism policy. Ante at 25 n.19. But AIC Gambrell himself admitted that “nothing in that policy specifically defines a relationship of that type of being unethical and immoral.” J.A. 259; id. (admitting there was not “any policy in the Agency that prohibited that“). Whatever the majority might think, in the light most favorable to Cosby, AIC Gambrell’s personal “opinion” on what is “morally and ethically improper” was hardly a legitimate ground to investigate Cosby (the day after discovering she filed a complaint). Id. at 260 (“HEARING OFFICER SMITH: So that’s your opinion? WITNESS GAMBRELL: Right.“).
It stands to reason, then, that these relationships were not an issue from the time Cosby was hired in 2012 until 2018, shortly after AIC Gambrell became Cosby’s boss
The district court determined there could be no causal connection in this series of events because it concluded the time lapse of six years was too long. However, we have held that a plaintiff can show causation on a retaliation claim with “other relevant evidence” beyond temporal proximity. Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007). Here, Cosby’s other relevant evidence can provide a sufficient basis from which to infer she was retaliated against by AIC Gambrell for filing the 2012 Charge of Discrimination.
AIC Gambrell became Cosby’s boss when the EEOC forced SCPPP to rehire her in 2012. He was Cosby’s AIC for only a short time before Cosby was transferred to another AIC. AIC Gambrell became Cosby’s AIC again in December 2017. He began investigating her relationship with Christina Worthy by March 2018, and began investigating her relationship with Nicole Albany in November 2018. Neither of Cosby’s relationships directly violated office policy, and the SCPPP had been aware of the Albany relationship for three years before AIC Gambrell began investigating it. These facts provide a sufficient causal nexus between the 2012 Charge of Discrimination and the adverse actions Cosby endured.
Rather than grapple with the district court’s decision to resolve the question of causation here on temporal proximity, the majority relies instead on reasoning that there was nothing in the record proving AIC Gambrell knew about the 2012 Charge of Discrimination. This defies logic. AIC Gambrell was the Agent in Charge of the office
A factfinder drawing reasonable inferences in Cosby’s favor could connect the dots and find that AIC Gambrell retaliated against Cosby because he harbored resentment from the 2012 Charge of Discrimination. By disregarding that theory, the majority prefers the SCPPP’s story to Cosby’s. That we cannot do. Guthrie, 79 F.4th at 342 (“[A] court cannot base a grant of summary judgment merely on the belief that the movant will prevail if the action is tried on the merits.“) (internal quotation marks omitted).
In sum, there is sufficient evidence from which a finder of fact could determine the SCPPP retaliated against Cosby because of her protected activity.
II.
Discrimination
The majority rejects Cosby’s disparate treatment theory for the same reason as the district court: Cosby’s proposed comparators were differently situated. To make a prima facie case of discrimination under the theory of disparate treatment, a plaintiff must establish four elements: “(1) membership in a protected class; (2) satisfactory work performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class.” Perkins v. Int’l Paper Co., 936 F.3d 196, 207 (4th Cir. 2019) (citing Coleman v. Maryland Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010)). A plaintiff can prove similarly situated employees were treated differently through use of “comparators” -- employees in similar positions to the plaintiff, but who lacked her protected classification, and who did not suffer the same ill treatment the plaintiff suffered. See Haynes v. Waste Connections, Inc., 922 F.3d 219, 223 (4th Cir. 2019); Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993).
Cosby points to four comparators whom she says were similarly situated to her but disparately treated. The parties and the majority split these comparators among, on one hand, a group of three agents, Brian Fahnle, Allan Norfus, and Michael Richards; and, on another hand, a single agent, Greg Stewart. The first three men applied for an open unit coordinator position that Cosby also applied for in September 2018. The three men got an interview. Cosby did not. As for Stewart, like Cosby, he was rumored to have had a relationship with a subordinate in the office, but he faced none of the adverse consequences Cosby faced.
As the majority does, I take these two camps in turn.
A.
Fahnle, Norfus, and Richards
Fahnle, Norfus, and Richards were similar to Cosby in the following respects: (1) they worked in the same office (Greenville); (2) they held the same position (agent); (3) they had the same supervisor (AIC Gambrell); (4) they applied for the same promotion (unit coordinator). But none of the three men was investigated for anything; none was pushed out of their position, and each was given an interview. In my view, that satisfies
In the “disparate discipline” context, this court has emphasized that the comparison between a plaintiff and a comparator “will never involve precisely the same set of work-related offenses occurring over the same period of time and under the same sets of circumstances.” Cook, 988 F.2d at 511. Courts must instead consider whether “the plaintiff and the comparator ‘dealt with the same supervisor, [were] subject to the same standards and . . . engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it.’” Haynes, 922 F.3d at 223–24 (quoting Haywood v. Locke, 387 F. App’x 355, 359 (4th Cir. 2010) (per curiam)) (alteration in Haynes).
Yet, the majority opines that Fahnle, Norfus, and Richards were differently situated from Cosby because none of these men was “accused or suspected of having a sexual relationship with a subordinate that adversely affected the subordinate’s employment, or of engaging in any similar conduct.” Ante at 10. In other words, the SCPPP had reason to
But even setting this quite suspect series of events aside, the majority’s reasoning misapplies our precedents regarding disparate treatment. The rumors about Cosby should, at most, qualify as a “legitimate, nondiscriminatory reason” for differential treatment under the second step of the McDonnell Douglas framework. Cowgill, 41 F.4th at 381 (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Why the lower courts did not treat it as that, and instead treated it as “differentiating or mitigating circumstances that would distinguish [Cosby’s] conduct,” J.A. 712 (R&R) (quoting Haywood, 387 F. App’x at 359), is not clear. But there is a critical distinction between a “legitimate, nondiscriminatory reason” and “differentiating or mitigating circumstances.” The former would permit Cosby’s case to proceed at this stage while, with the later, she loses that opportunity as a matter of law.
For many employees in
kinds of things that would justify distinguishing a comparator as “differently situated” from
But if, in a failure to promote case like this one, employers’ reasons for differential treatment go outside qualifications and performance, it starts to look less like the comparators were situated differently and more like the employer is offering a justification as to why an otherwise qualified candidate was not interviewed. At that point, we are moving to the second prong of the McDonnell Douglas framework: the legitimate, non-discriminatory reason.
Employers can always manufacture some reason to discriminate against an employee otherwise shielded by
rid of [the employee],’ the employer’s proffered explanation may not be worthy of
In sum, the problem with treating a “legitimate, non-discriminatory reason” as a “differentiating or mitigating” comparator characteristic is that it legally deprives a plaintiff of the chance to demonstrate pretext. Perhaps Cosby cannot demonstrate pretext. But the McDonnell Douglas framework gives her the opportunity to try to do so.
B.
Greg Stewart
The majority also rejects a fourth comparator, Greg Stewart. Stewart held a supervisory role in the SCPPP’s Greenville office. Stewart was also rumored to have been involved in a romantic relationship with a subordinate, but he was not subjected to any of the adverse actions to which Cosby was subjected. Cosby emphasizes that Director Harmon -- the same agent who conducted the final investigation of Cosby in 2018 -- was aware of the rumors about Stewart, yet Director Harmon only spoke to Stewart informally, never subjected him to a polygraph test, never attempted to corroborate the rumors, and never required a formal statement of him. Instead, Director Harmon simply asked Stewart if the rumors were true, got assurances they were not, and considered that the end of the matter -- hardly the inquisition Cosby endured.
First, the supervisors. The evidence is undisputed that Director Harmon, who had heard rumors about Stewart’s activity, was responsible for investigating rumors of Cosby’s activity too. The majority seeks to distinguish Director Harmon’s position with respect to Stewart from Director Harmon’s position with respect to Cosby, as if there were two Director Harmons who were different people. The majority undertakes this effort without precedential support because this court has not parsed the same supervisor requirement as finely as the majority does here. In fact, our court originally borrowed the same supervisor requirement from a Sixth Circuit case, Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992), which many courts, including ours, have cabined or set aside in appropriate cases. See Cowgill, 41 F.4th at 382 (“As Mitchell’s progeny have long noted, plaintiffs do not need to share the same supervisor in every case, and that comparison point is not a bar to relief in a case like this one, where the comparators are otherwise similar in all relevant
Regardless, it is clear that Director Harmon investigated rumors about both Greg Stewart and Cosby. While it is true that AIC Gambrell, not Director Harmon, initiated the investigation into Cosby’s relationship with Nicole Albany (the day after he discovered Cosby had filed the Internal Complaint against him), Albany’s report about Cosby reached Director Harmon roughly three weeks later. And Director Harmon carried the investigation forward thereafter. He did so in a way categorically different from his investigation into the rumors concerning Greg Stewart. Director Harmon interviewed Nicole Albany, then AIC Gambrell and AAIC Honeycutt, and then Cosby.
That takes us to the majority’s second reason for distinguishing Stewart from Cosby: the gravity of the rumors. The majority says Cosby was investigated, and Stewart was not, because the allegations about Cosby were worse: Cosby “hasn’t presented any evidence that Stewart was accused of altering a subordinate’s job conditions, or otherwise subjecting a subordinate to a hostile work environment, after having a sexual relationship with that subordinate.” Ante at 12 (emphasis in original). But the accusation about Cosby altering an employee’s job conditions came from Nicole Albany, whose statement AIC Gambrell procured based upon rumors. What the majority views as the cause of differential treatment could just as easily be viewed as the consequence of differential treatment. The SCPPP investigated the rumors about Cosby to develop evidence, but with Stewart, Director Harmon simply took him at his word.
What is more, like Stewart, Cosby initially denied the allegations against her. Unlike Stewart, Cosby was then instructed by Director Harmon to sit for a polygraph on pain of termination. Cosby, but not Stewart, was required to give a formal statement. Cosby, but not Stewart, was ultimately forced to resign.
Given this context, Stewart is a valid comparator. He held a supervisory role like Cosby, in the same office as Cosby. Like Cosby, he had been accused of having inappropriate relationships with subordinates. Like Cosby, he was investigated based upon these rumors by Director Harmon. But unlike he did with Cosby, Director Harmon credited Stewart’s attestation that the rumors about him were false. And unlike Cosby, nobody ever
Viewing the facts in the light most favorable to Cosby at this stage, I would hold that Cosby has identified suitable comparators and remand with instructions that the district court consider whether Cosby can carry her burden at summary judgment to identify a pretext behind the SCPPP’s proffered reasons for disparate treatment.
III.
For these reasons, I dissent. Cosby should have her day in court.
Notes
The majority asserts that “Cosby has never raised a failure to promote claim” “[i]n her complaint” and that “[t]he same goes for Cosby’s argument on appeal.” Ante at 11 n.10. In fact, the majority confidently asserts that “only the dissent raises failure to promote.” Id.
This assertion is belied by the record. Cosby specifically alleged that SCPPP “began investigating [her] for supposedly engaging in an inappropriate relationship . . . . to disqualify [her] from being considered for the promotion she was seeking.” J.A. 15 ¶ 10 (emphasis supplied); id. 16 ¶ 11 (“[T]his new investigation was undertaken . . . to further prevent [Cosby] from seeking a promotion . . . .“) (emphasis supplied). Cosby reiterated this contention at numerous points in her brief. See Opening Br. at 4 (“Cosby contends they [began investigating her for allegedly engaging in personal relationships] in order to prevent her from receiving the promotion.“); id. at 11 (contending Cosby’s “comparator evidence should have been sufficient to overcome [summary judgment]” because “[a]ll three male agents . . . applied for the same promotion Cosby was seeking” and “[a]ll three agents . . . were subsequently interviewed for the promotion Cosby had sought without being granted an interview“); id. at 11–12 (“Gambrell . . . did not interview Cosby for the promotion she was seeking, and did interview the three male comparators.“).
But Cosby has never raised a failure to promote claim, a distinct theory of liability under Title VII with a distinct set of elements. See Amirmokri v. Balt. Gas & Elec. Co., 60 F.3d 1126, 1129 (4th Cir. 1995). In the gender discrimination count of her complaint, Cosby alleged that SCPPP “treat[ed] her differently than her similarly situated male colleagues” by “harassing” her and “creating a hostile work environment“; “constantly investigating her for various matters that were not a violation of any rule or policy“; and “disciplining her more harshly.” J.A. 19–20 (emphasis added). Although the dissent cites two cursory allegations in the background section of the complaint that SCPPP investigated Cosby to “disqualify” and “prevent” her from being promoted, J.A. 15–16, Cosby‘s counseled complaint never alleged a gender discrimination claim in the form of failure to promote. Nor did she advance such a claim in opposing summary judgment before the district court below.
The same goes for Cosby‘s argument on appeal, which is that she “was subjected to harsher discipline, including the ultimate termination of her employment, than similarly situated male employees.” Opening Br. 2 (emphasis added). Although Cosby again stated (once) in passing that SCPPP sought to “prevent” her promotion, Opening Br. 4, she never developed that argument before this Court. Indeed, Cosby‘s briefs never mentioned the failure to promote elements, let alone argued that they were at issue—and satisfied—in this case. See Grayson O Co. v. Agadir Int‘l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (“A party waives an argument by failing to present it in its opening brief or by failing to develop its argument—even if its brief takes a passing shot at the issue.” (cleaned up)). In fact, Cosby‘s reply brief relies on the very “disparate discipline” language that the dissent disclaims. Compare post at 41, with Reply Br. 9–10. In short, therefore, only the dissent raises failure to promote in this case.
Moreover, it is difficult to see how the failure to promote theory would fit here given that SCPPP did not even interview candidates for the position until nearly two months after Cosby‘s employment ended.
In any event, we have applied the correct analytical framework with respect to these three comparators.