TIJUANA DECOSTER v. XAVIER BECERRA, Secretary of the U.S. Department of Health and Human Services, National Institutes of Health
No. 22-1931
United States Court of Appeals for the Fourth Circuit
October 2, 2024
PUBLISHED. Argued: October 27, 2023. Decided: October 2, 2024. Before GREGORY, RICHARDSON, and BENJAMIN, Circuit Judges.
ARGUED: Eden Joanna Brown Gaines, BROWN GAINES, LLC, Washington, D.C., for Appellant. Matthew Adam Haven, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Erek L. Barron, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Tijuana Decoster sued Xavier Becerra, the Secretary of the United States Department of Health and Human Services (“HHS”). She alleged that she was discriminated against on the basis of race in violation of Title VII of the Civil Rights Act of 1964, as amended,
I.
The facts below are taken from Decoster‘s complaint. “[W]here the district court granted the defendant‘s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), we accept those facts as true.” Parker v. Reema Consulting Servs., Inc., 915 F.3d 297, 300 (4th Cir. 2019).
A.
Tijuana Decoster, who identifies as African American, served as the Chief Grants Management Officer for HHS‘s National Institute of Neurological Disorders & Stroke division (“NIH”). [J.A. 6,7]. In 2007, Robert Finkelstein became Decoster‘s supervisor. [J.A. 6–7]. Although their working relationship was great for years, it “became strained”
In August 2019, Finkelstein informed Decoster that he was going to “fire her.” Id. at 7 (internal quotation marks omitted). But Finkelstein didn‘t fire Decoster. Instead, he issued Decoster a Letter of Expectation (“LOE”) regarding her performance and conveyed that he and Decoster would meet weekly to review her progress. [J.A. 7]. These meetings, however, never occurred. [Id.]. That same month, in an effort “to remove herself from the office” and Finkelstein‘s supervision, Decoster sought a work detail. [J.A. 8]. Finkelstein told her that she should ask the division‘s Executive Officer for approval, and the authorization for a one-year detail was granted. [J.A. 8].
Decoster “complained directly to . . . Finkelstein and Human Resources about the hostile work environment.” Id. at 8. However, the harassment continued. In December 2019, Finkelstein placed Decoster on a 60-day Opportunity to Demonstrate Acceptable Performance plan (“ODAP”). [J.A. 8, 76]. The ODAP provided that at the end of the 60-day period, Finkelstein would “conduct a formal review of [Decoster‘s] performance” and
Then, in January 2020, Finkelstein told Decoster that he would think about allowing her to stay employed if her Asian colleague agreed to work with her. [J.A. 8]. Decoster reported this harassment to the Executive Officer, Human Resources, and even Finkelstein, but no corrective action was taken. [Id]. Decoster “involuntarily retired” in February 2020, id. at 9, because “[t]he harassment curtailed [her] []ability to perform her position,” id. at 8, and it was “clear that . . . Finkelstein intended to terminate [her] employment,” id. at 9.
Decoster first contacted, and interviewed with, an EEO Counselor in November 2019. [J.A. 14]. On December 31, 2019, she filed a formal discrimination complaint with NIH. [J.A. 14]. She initially alleged harassment and discrimination based on race, and retaliation, but amended her complaint after she resigned in February 2020 to add an allegation of constructive discharge. [J.A. 13, 14]. On November 13, 2020, NIH issued a Final Agency Decision (“FAD”) that determined Decoster was subjected to retaliation based on her prior EEO activity when Finkelstein allegedly conditioned approval of a detail assignment on Decoster withdrawing her EEO complaint. [J.A. 19-23]. NIH denied the remainder of her claims and directed her to submit evidence in support of her entitlement to damages. [J.A. 39-40]. On May 28, 2021, the NIH issued an amended Final Agency Decision that affirmed its prior finding that Decoster established only her retaliation claim. [J.A. 69]. It also did not grant reinstatement to a comparable position or award back pay due to its finding that Decoster resigned, and any discrimination did not lead to a loss in wages. [J.A. 69–70]. However, attorney‘s fees and both nonpecuniary and pecuniary damages were awarded to Decoster. [J.A. 70].
On August 26, 2021, pursuant to her right to file a civil action if she was dissatisfied with the NIH‘s decision, Decoster filed a complaint against HHS in the District of Maryland. She raised three claims under Title VII: hostile work environment based on race, constructive discharge based on race, and retaliation. [J.A. 9–11].
HHS moved to dismiss Decoster‘s complaint for failure to state a claim under
We review de novo the dismissal of a complaint under
III.
Title VII provides that it is “an unlawful employment practice for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual‘s race.”
A.
We begin with Decoster‘s hostile work environment claim. “A hostile work environment exists when the workplace is 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.” Boyer-Liberto ν. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc) (cleaned up). To state a plausible hostile workplace claim under Title VII, Decoster must allege “that there is (1) unwelcome conduct; (2) that is based on the plaintiff‘s race; (3) which is sufficiently severe or pervasive to alter the plaintiff‘s conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer.” Id. (cleaned up). To determine “whether the harassment alleged was sufficiently severe or pervasive, we must look at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfered with the employee‘s work performance.” Parker, 915 F.3d at 304 (cleaned up).
The district court found that Decoster‘s allegations did not establish severe or pervasive conduct. Decoster, 2022 WL 3083343 at *3. Specifically, it held that Decoster failed to allege “specific facts that would demonstrate that Finkelstein engaged in the kind of discriminatory intimidation, ridicule, and insult that characterizes a hostile work environment claim.” Id. (internal quotation marks omitted).
In Parker, a woman was promoted to a manager position and a male employee spread a false rumor that she had a sexual relationship with a manager to obtain her promotion. 915 F.3d at 300. The rumor spread throughout the workplace, and many coworkers treated Parker “with open resentment and disrespect . . . including employees she was responsible for supervising.” Id. (internal quotation marks omitted). Parker alleged that a high-level manager asked the man with whom Parker was accused of sleeping with, “whether his wife was divorcing him because he was ‘f- -king’ Parker.” Id. at 304. The manager also blamed Parker for the rumor, called an all-staff meeting where the rumor was discussed, refused to let Parker attend that meeting, and later told Parker “he should have fired her when she began ‘huffing and puffing’ about” the rumor. Id. Parker “then faced a false harassment complaint launched by the male employee who started the rumor and was sanctioned based on that complaint.” Id.
The case before us today is not Parker. The harassment Decoster alleges centers on a difficult working relationship with Finkelstein and criticisms of her work performance that she believes were unfair—not a rumor that attacked Decoster‘s “merit as a human being,” undermined her supervisory authority, and eventually led to threats on her physical safety. Id. (internal quotation marks omitted).
Finkelstein‘s issuance of the LOE and the ODAP constituted a supervisor providing negative performance assessments, and just as the court indicated in Holloway, “while perhaps unpleasant, [such acts are] not abusive.” Id. Decoster does not allege potentially physically abusive behavior; she claims only that Finkelstein “spoke to [her] with contempt” and “treated her with disdain.” J.A. 7, 8. And as the district court noted, these “general characterizations of Finkelstein‘s tone or manner of speaking while interacting with Decoster . . . do not provide specific facts that would demonstrate that Finkelstein engaged in the kind of ‘discriminatory intimidation, ridicule, and insult’ that characterizes a hostile work environment claim.” Decoster, 2022 WL 3083343, at *3 (quoting Boyer-Liberto, 786 F.3d at 277).
B.
Turning now to Decoster‘s constructive discharge claim, we similarly hold that she has not sufficiently alleged facts to state a plausible claim.
To state a claim for constructive discharge premised on a hostile work environment in this circuit, Decoster must show “ ‘something more’ than the showing required for a hostile work environment claim.” Evans v. Int‘l Paper Co., 936 F.3d 183, 193 (4th Cir. 2019) (quoting Pennsylvania State Police v. Suders, 542 U.S. 129, 147 (2004)); see also Nnadozie v. Genesis HealthCare Corp., 730 F. App‘x 151, 162 (4th Cir. 2018) (“The ‘intolerability’ standard governing constructive discharge claims is more stringent than the ‘severe and pervasive’ standard for hostile work environment claims.”).
Namely, she must show that because of her employer‘s conduct, she “was subjected to circumstances ‘so intolerable that a reasonable person would resign,” Equal Emp. Opportunity Comm‘n v. Consol Energy, Inc., 860 F.3d 131, 144–45 (4th Cir. 2017) (quoting Green v. Brennan, 578 U.S. 547, 560 (2016)), “and that she actually resigned,” Evans, 936 F.3d at 193. “ ‘Intolerability’ is not established by showing merely that a reasonable person, confronted with the same choices as the employee, would have viewed resignation as the wisest or best decision, or even that the employee subjectively felt compelled to resign.” Id. (quoting Blistein v. St John‘s Coll., 74 F.3d 1459, 1468 (4th Cir. 1996), overruled on other grounds by Oubre v. Entergy Operations, Inc., 552 U.S. 422 (1998), as recognized by Adams v. Moore Business Forms, Inc., 224 F.3d 324, 327 (4th Cir. 2000)). Courts instead assess intolerability “ ‘by the objective standard of whether a reasonable person in the employee‘s position would have felt compelled to resign . . . that is, whether he would have had no choice but to resign.’ ” Id. (alteration in original) (emphasis removed). It follows then that the test is “objective intolerability,” Consol, 860 F.3d at 145, and not “ ‘deliberateness,’ or a subjective intent to force a resignation.” Id., at 144. “[D]ifficult or unpleasant working conditions, without more, are not so intolerable as to compel a reasonable person to resign.” Evans, 936 F.3d at 193; see also James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 378 (4th Cir. 2004) (“[M]ere [d]issatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to resign.” (quoting Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994)) (second alteration in original)).
The district court correctly found that “[t]o the extent that Decoster‘s claim is that her work environment was so hostile that she had no choice but to resign . . . for similar reasons to those discussed . . . in relation to the hostile work environment claim, the allegations are insufficient to state a plausible constructive discharge claim on that basis.” Decoster, 2022 WL 3083343, at *4 (citing Evans, 936 F.3d at 193, for its holding that a constructive discharge claim based on a hostile work environment requires the plaintiff to show “something more than the showing required for a hostile work environment claim.”).
Decoster‘s allegations that Finkelstein once threatened to fire her, issued her a LOE, then placed her on an ODAP, told her she could do a terminal detail, “spoke to [her] with
On appeal, Decoster further argues that we should adopt a theory of constructive discharge endorsed by the Seventh Circuit in EEOC v. Univ. of Chicago Hospitals, 276 F.3d 326 (7th Cir. 2002), whereby constructive discharge occurs “[w]hen an employer acts in a manner so as to have communicated to a reasonable employee that she will be terminated.” Id. at 332; see also id. (reasonable employee would believe termination was imminent where she arrived at work to find her “belongings were packed and her office was being used for storage”). Beyond the fact our circuit has not adopted this theory of constructive discharge, Decoster‘s allegations fall woefully short to state a claim under the cited caselaw as she does not allege any acts on HHS‘s part demonstrating the type of imminence University of Chicago Hospitals and related Seventh Circuit authority seem to require. Accordingly, we affirm the district court‘s dismissal of Decoster‘s constructive discharge claim on this additional basis.2
Finally, we address Decoster‘s challenge to the dismissal of her retaliation claim, beginning with the relevant background information. HHS argued in its motion to dismiss that this claim is moot because Decoster prevailed during the EEO proceeding and did “not contest the previous finding by the [NIH] on the merits of [the retaliation claim], with the exception of any damages sought in excess of those already awarded.” Mot. to Dismiss (ECF No. 18-1) at 11.3 In her response in opposition, Decoster conceded that the “NIH found in her favor on her retaliation claim in the administrative process,” and argued that the district court should not dismiss the claim because although “[s]he d[id] not seek to appeal [NIH‘s administrative] finding,” she sought to challenge “NIH‘s failure to award an appropriate amount of back pay and compensatory damages.” Opposition to Mot. to Dismiss (ECF 19) at 6. She asked, “for a jury or the [district] [c]ourt, where appropriate, to determine the proper amount of damages given the finding of liability.” Id. at 7.
In ruling on the
If Decoster acknowledges that the agency‘s determination on the issue of retaliation is now at issue in this case, she may proceed with her retaliation claim in order to seek a more favorable remedy but may not “require the district court to make a finding of liability” based on NIH‘s finding. If she chooses not to place NIH‘s finding on retaliation at issue, the Court will dismiss the retaliation claim.
Id. (citation omitted).
In the order granting in part the motion to dismiss, the court directed Decoster to “inform[] the Court whether she agree[d] to have the administrative agency‘s determination on retaliation placed at issue in th[e] litigation.” J.A. 96. “If she d[id] not agree, [the retaliation claim] w[ould] be dismissed.” Id. Decoster then filed her notice:
Plaintiff . . . notifies the Court that she agrees with the Agency‘s administrative finding of retaliation but that she disagrees with the Agency‘s determination of damages pursuant to its finding of retaliation. In light of the Court‘s Order dismissing the remainder of Plaintiff‘s claims, Plaintiff requests and is entitled to a trial concerning damages.
J.A. 97.
Decoster now argues that her retaliation claim should not have been dismissed because she indisputably stated a claim of retaliation in her complaint, rather than a request for a hearing on damages. We agree.
In order “ ‘[t]o state a prima facie case of retaliation, a plaintiff must show that (1) the plaintiff engaged in a protected activity . . . ; (2) the employer acted adversely against the plaintiff; and (3) the protected activity was causally connected to the employer‘s adverse action.’ ” Okoli v. City of Baltimore, 648 F.3d 216, 223 (4th Cir. 2011) (quoting Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir. 1997), abrogation on other grounds recognized by Gilliam v. South Carolina Dept. of Juvenile Justice, 474 F.3d 134 (4th Cir. 2007)).
Decoster alleged that after her original one-year detail was approved, and after she complained to both Human Resources and Finkelstein about the hostile work environment, Finkelstein “told her that she could do a terminal detail,” but “that the detail would not ensue unless Decoster dropped or dismissed her pending EEO complaint.” J.A. 8 (emphasis removed). Decoster also alleged that her “supervisor and Human Resource officials were aware of her significant protected activity, namely formal and informal
The district court found that dismissal of Decoster‘s retaliation claim was not appropriate at the time of ruling on the
Therefore, we hold that the district court erred by dismissing Decoster‘s retaliation claim. Decoster properly placed both the merits and remedy of her retaliation claim at
IV.
In sum, we affirm the district court‘s dismissal of Decoster‘s Title VII claims for hostile work environment and constructive discharge. But we reverse the dismissal of Decoster‘s retaliation claim and remand for further proceedings.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
18