MEMORANDUM OPINION
This employment discrimination action under Title VII of the Civil Rights Act of 1964 is presently before the court on the defendant’s motion for summary judgment. For the reasons set forth below, the court will grant the defendant’s motion.
Factual Background
The following facts are presented in the light most favorable to the plaintiff. See Anderson v. Liberty Lobby, Inc.,
Robin L. Walker, a 52-year-old woman, was previously employed by Mod-U-Kraf Homes, LLC (“Mod-U-Kraf’), a modular
During her second period of employment with Mod-U-Kraf, Walker began dating one of her coworkers, Ray Cassidy. Cassidy was also terminated in July 2011.
Cassidy had a history of not getting along with another coworker, David Mullins. During his deposition, Cassidy described Mullins as a “loud foul mouth character who did nothing but stir up trouble” and a “nuisance.” Cassidy Dep. at 34, ECF No. 28-2. Cassidy testified that Mullins “was always vulgar and loud and arrogant.” Id. at 35. When asked if he could recall any specific vulgarities, Cassidy provided the following example:
I was working on a wall one day, and there [were] a couple people standing around with their hands in their pockets, and I am working. And he leaves his work area, comes over there, and he is showing them something on this telephone, you know, some photos or something. They are over there carrying on about that, and I am working on some walls.
And he comes over there and grabs his crotch and looks down and says — and laughs — [“]While you are down there why don’t you just....[”] You know, I jumped and got in his face. I said, [“]Best thing you can do is get your tail back over to your work area and don’t come back over here,[”] and he cowered down and took off.
Id. at 35-36.
Cassidy also described what he considered to be high school-like behavior by Mullins and another coworker, James Young:
[Young] would grab his crotch and say, [“]Hey, these nuts are looking for you.[”] They would come to my work area and use my table saw and leave a big mess and then, you know, laugh about it. And then after it continued and continued, I approached them and said, ... [“]Look, you know, you guys aren’t in high school anymore. You need to clean your mess up over here, and this is my work area.[”] And they said, [“]What are you going to do about it?[”] And I said, [“JYou just — you know, clean your mess up.[”] I said, [“]You got a saw over there. Don’t come over here and leave your mess in my area.[”]
And, you know, this was on an every-other daily basis. They would come over there just to — just to get somebody’s goat. Just to push people.
Id. at 43-44.
According to Cassidy, Mullins and Young made crude comments to men and women alike:
Q. [D]id Mr. Mullins say these nuts are looking for you or—
A. That was [Young’s] favorite, but Mullins would go right along with it, blurt it out.!..
Q. Did Mr. Mullins say these nuts are looking for you as well ... ?
A. Yeah, yeah.
Q. He said the same thing.
A. Oh, yeah. Yeah. Oh, yeah.
*592 Q. And these crude comments made by-Mr. Young and Mr. Mullins were directed at men and women alike?
A. Oh, yeah.
Q. Didn’t seem to care.
A. Anytime they had the opportunity, yeah. It was just their mentality. That’s the way they think. It’s just their mentality, you know. They see an opportunity to, you know, do something like that they go for it. Most people just walk on by and say, Oh, that’s the way they are. Just deal with it. But when they start getting in your face, you know, it’s time to stop.
Id. at 89-90.
Another incident occurred when Mullins made a vulgar comment to Cassidy in the presence of Walker. As Walker was going into a “box” to work, Mullins turned to Cassidy and said, “Well, go on up in that box if you want a blow job. And then he took off around the corner.” Id. at 54. Cassidy testified that he later “got in [Mullins’] face” and told him to “stop this mess.” Id. at 55.
When asked if he had ever heard Mullins make any other comments to Walker, Cassidy testified that he once overheard Mullins say, “Oh, I bet you could holler real loud, couldn’t you.” Id. at 56.
Walker and Cassidy routinely ate lunch together during their lunch break. When the employees broke for lunch on July 20, 2011, Walker and Cassidy walked across the parking lot to Cassidy’s truck. Mullins, who was walking in front of Walker and Cassidy, turned around and said, “Wiener in your mouth, wiener in your mouth.” Walker Dep. at 113, ECF No. 28-1. In response, Cassidy told Mullins to “shut [his] mouth up,” and “called him a something redneck.” Cassidy Dep. at 60, ECF No. 28-2.
Midway through lunch, Walker called a coworker, Sandra Burnopp, and told her to tell their supervisor, Wayne Craiger, to meet Walker and Cassidy at Cassidy’s workstation when they got back from lunch, “because this stuff with David Mullins is going to stop today.” Walker Dep. at 117, ECF No. 28-1. When they returned inside, “Mullins was looking right at [Walker and Cassidy] laughing.” Id. at 118. Consequently, rather than returning to Cassidy’s workstation and waiting for Craiger, Walker and Cassidy went to Mullins’ work station to confront him. Id. at 120.
When Walker and Cassidy approached Mullins, Cassidy said, “Do you have a problem? This needs to stop.” Id. at 121. In response, Mullins balled up his fists and said, “Bring it on, bring it on.” Id. Walker then “got between them, and ... up in ... Mullins’ face, and ... pointed [her] finger at him,” and said, “This needs to stop right now.” Id. While Walker denies touching Mullins, other employees, including supervisor Craiger, reported that she made physical contact with him. See Craiger Dep. at 18, ECF No. 28-3 (“I [saw] her finger poking at him---- [I]t looked like she was hitting him on the chest.”); Craig-er 7/20/2011 Handwritten Statement, ECF No. 28-9 at 3 (“I saw Robin Walker in David Mullins[’] face hollering and poking her finger at him.”); Mary Jane Johnson Aff. ¶ 3, ECF No. 28-11 at 2 (“I saw [Walker] punching her fingers into [Mullins’] chest.”); Mary Jane Johnson 7/20/11 Handwritten Statement, ECF No. 28-11 at 4 (“I ... witnessed Robin Walker having words in a fussing [manner] with David Mullins [and] she was punching him in the chest with her fingers.”); David Mullins 7/20/11 Handwritten Statement, ECF No. 28-9 at 5 (I ... was attacked by Ray Cassidy and Robin Walker. She put her hands on me and was pushing me.”). By
Craiger intervened and directed Walker and Cassidy to go with him to the break room. While walking in that direction, Cassidy got into an altercation with another coworker, Brad Ragans.
On the day of the altercations, the plant manager, Ricky Adkins, received a radio call advising him that he was needed in the plant because of a fight. He subsequently met with Craiger, Walker, and Cassidy in the break room, and Craiger advised him that there had been two altercations. In response to Adkins’ initial observations, Cassidy said, “If you are going to fire me, fire me now,” and Walker said, “Well, if you are firing him, I am quitting.” Walker Dep. at 132, ECF No. 28-1. Adkins indicated that he had not yet made any decisions and advised Walker to go back to work.
Adkins asked one of the other supervisors, Jeff Manning, to take Cassidy to the conference room and obtain a statement from him. Manning drafted the following statement, which Cassidy reviewed and signed:
Ray says that Robin has complained to her supervisor before. Ray says they[ ] get in their little groups [and] joke and laugh[ ] and look[ ] toward him.
Ray says he has had trouble with Brad [Ragans] a couple of times before and numerous times with David Mullins. Today’s confrontation start[ed] in the parking lot walking out going to lunch[.] Ray and Robin were walking together[.] David was coming from another direction, waited until he got beside them and gestured something about “putting the weenie in the mouth” and looked at them and laughed[.] Ray said [“]G.D. Redneck need[s] to keep hi[s] mouth shut.[”] Later after lunch Ray approached David and told him, “Look you need to” and David backed up, brushed up, and said [“]bring it on.[”] Ray says this is not the first time he has ask[ed] David to keep his comments to himself and stop the B.S.
Ray Cassidy 7/20/11 Written Statement, ECF No. 28-10 at 2. When Manning asked Cassidy if he had anything else to add, Cassidy wrote the following additional comments:
David Mullins made a remark as to that box (where Robin was working) was where to get a blow job.
Brad [Ragans] ma[de] sexual innuendos in my face. (Sticking tongue out and laughing [and] jeering).
It would seem to me that if employees would mind their own business more work would get done. I had told David Mullins before that his laughing and joking and carrying on about what was being said and joked about needed to stop.
Id. at 4.
Manning then obtained the following statement from Walker:
[A]bout May 2011[,] David Mullins would make accusations about me[.] I*594 was going in the box to work and David said [“]if you want a blow job go up in that box[.”] I think I was the only person in that box[.] When I walk[ed] past his table, he would say stuff like “There she goes, there it is” — 2 or 3 times a week. Today we were walking out to lunch, me and Ray[.] David and John Craft were in front of us[.] David kept saying, “wiener in the mouth” over and over, laughing.
During lunch I told Ray I was tired of David’s mouth. I called Sandra and told her to tell Wayne to meet us at Ray’s table after lunch. Coming back from lunch, going to Ray’s tablet,] we had to go by David’s area[.] David turned and started looking and laughing at us[.] Ray went over and ask[ed] him what he was laughing at. Argument [ejnsued. Plant manager got there and told us to go to break room. We passed by Brad [Ragans] and pushing [ejnsued. Don’t know who pushed first.
Walker 7/20/11 Written Statement, ECF No. 28-10 at 6.
While Manning obtained statements from Walker and Cassidy, Adkins began interviewing other employees. He obtained signed written statements from David Mullins, Brad Ragans, Sandra Burnopp, Mary Jane Johnson, and Wayne Craiger. He also talked to John Craft, James Young, and Regina Chaney.
Cassidy was immediately suspended for three days pending further investigation. Because Walker and Cassidy rode to work together, Adkins advised Walker that Cassidy had been suspended but that he could pick her up that day from work. Adkins informed Walker that she would need to drive to work for the next couple of days.
Adkins then proceeded to discuss the results of his investigation with Kathy McDaniel from Human Resources. Jointly, they decided that Walker and Cassidy needed to be terminated. When asked to provide the reason for Walker’s termination, McDaniel testified that Walker was terminated for misconduct, specifically for “put[tingj her hands on David Mullins.” McDaniel Dep. at 36, ECF No. 28-7. Likewise, Adkins testified that Walker was terminated for “fighting with David Mullins on-site.” Adkins Dep. at 26, ECF No. 28 — 4.
On Thursday, July 21, 2011, Adkins and McDaniel called Cassidy and notified him that his employment was terminated. Adkins planned to notify Walker, in person, of the decision to terminate her employment, but Walker called in sick on July 21, 2011 and July 22, 2011, and McDaniel was out of the office on the second day. Therefore, the decision was made to wait until Walker returned to work on Monday, July 25, 2011.
On Friday, July 22, 2011, Walker was examined by Dr. Steven Lewis at Smith Mountain Lake Family Practice. During the examination, Walker indicated that she was having nerve problems. Dr. Lewis diagnosed her with job stress and depression, and issued a prescription for Citalopram, an antidepressant.
On Monday, July 25, 2011, Walker left a message indicating that she would be out
At the end of July, Walker called the phone number listed in the Mod-U-Kraf employee handbook for reporting harassment. After leaving several messages, Walker eventually spoke to a man whose name she could not recall at her deposition. Walker testified that she told him that she “was terminated for wrong reasons ... and [she] thought that it needed to be checked into.” Walker Dep. at 85, ECF No. 30-20.
On August 12, 2011, Adkins issued David Mullins a written reprimand for violating the company’s anti-harassment policy on July 20, 2011. The disciplinary form was issued at the direction of Les Thelimar, Mod-U-Kraf s Vice President of Human Resources. The form states that “complaints were made against [Mullins] during an investigation and [were] not reported until later,” and that Mullins is “not to make any comments to other employees.” PL’s Ex. 17, ECF No. 30-17. During his deposition, Adkins testified that Thelimar instructed him to issue the disciplinary form and told him what the form should say. Adkins Dep. at 35-37, ECF No. 30-22.
Both Walker and Cassidy subsequently filed charges of discrimination with the Equal Employment Opportunity Commission (“EEOC”). In her charge of discrimination, Walker claimed that she was sexually harassed by David Mullins and James Young. She also claimed that she reported the sexual harassment to her line leader, Sandra Burnopp, and to her supervisor, Wayne Craiger, and that she believed that she was discharged in retaliation for reporting the harassment.
Walker filed the instant action on October 31, 2012. In her amended complaint, Walker claims that she was subjected to a hostile work environment because of her sex. The claim is based on the following misconduct by Mullins and Young:
1. Mullins “would grab himself and would say, These nuts are looking for you.” Walker Dep. at 88, ECF No. 28-1. He did this “two or three times a week.” Id. at 89.
2. On one occasion, Mullins instructed Cassidy to “go on up in that box [where Walker was working] if [Cassidy wanted] to get a blow job.” Cassidy Dep. at 54, ECF No. 28-2; Walker 7/20/11 Handwritten Statement, ECF No. 28-10 at 6.
3. Two or three times per week, when Walker walked by Mullins, he would say, “There she goes, There it is.’ ” Walker 7/20/11 Handwritten Statement, ECF No. 28-10.
4. On one occasion, Mullins looked over to where Walker was working and said, “Oh, I bet you could holler real loud, couldn’t you.” Cassidy Dep. at 56, ECF No. 28-2.
5. On one occasion, Mullins grabbed his crotch in front of another female employee and said, ‘While you are down there why don’t you just____” Id. at 35.
6. Mullins referred to new female employees as “fresh meat.” Walker 10/12/11 Typewritten Statement, ECF No. 30-5.
7. On the day of the altercation with Mullins, Mullins turned to Walker and Cassidy and “kept saying, Wiener in your mouth, wiener in your mouth.” Walker Dep. at 113, ECF No. 28-1.
8. James Young would “grab [himself]” and say “These nuts are looking for you.” Id. at 94. Young would do*596 this “[e]very day beginning in March or April [of 2011].” Id. at 96.
See PL’s Resp. in Opp’n at 2-3, EOF No. 30.
Walker also contends that she was terminated in retaliation for complaining about her coworkers’ misconduct.
The case is presently before the court on the defendants’ motion for summary judgment. The court held a hearing on the motion on November 19, 2013, during which the parties confirmed that the motion had been fully briefed and was ripe for review.
Standard of Review
An award of summary judgment is appropriate “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). In determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-movant. Anderson,
Discussion
I. Hostile Work Environment
Title VII prohibits an employer from “discriminat[ing] against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex.” 42 U.S.C. § 2000e-2(a)(l). Since an employee’s work environment is a term or condition of employment, Title VII provides a cause of action for hostile work environment. EEOC v. R & R Ventures,
The third element of a hostile work environment claim has both subjective and objective components. Id. at 333. “The environment must be perceived by the employee as hostile or abusive, and that perception must be reasonable.” Ziskie v. Mineta,
The United States Court of Appeals for the Fourth Circuit has emphasized that “plaintiffs must clear a high bar in order to satisfy the severe or pervasive test.” EEOC v. Sunbelt Rentals, Inc.,
After careful review, the court concludes that Walker’s evidence of misconduct by Mullins and Young is insufficient, as a matter of law, to meet the high bar required to survive summary judgment on a hostile work environment claim. While some of the comments made by Young and Mullins were clearly inappropriate, and the court has no reason to doubt that Walker found them offensive, her coworkers’ behavior was simply not of the same magnitude as that which the Fourth Circuit has found sufficiently severe or pervasive to constitute actionable sexual harassment. See Ziskie,
For instance, in Smith v. First Union National Bank,
In Ocheltree v. Scollon Productions, the Fourth Circuit affirmed the denial of the defendant’s motion for judgment as a matter of law, where the plaintiff was subjected to a “daily stream” of sex-based discussion and conduct by her male coworkers and supervisor in a costume production shop in which she was the only female employee. Ocheltree,
In EEOC v. Fairbrook Medical Clinic, the Fourth Circuit reversed the entry of summary judgment in favor of the defendant, where the allegations, if proven, showed that the sole owner of the medical clinic “targeted [a female physician] with highly personalized comments designed to demean and humiliate her.” Fairbrook Med. Clinic,
While [the female physician] was pregnant, [the owner] frequently commented about the size of her breasts. After she gave birth, he asked to see her breasts and to pump them, stated that he wanted to lick up her breast milk, inquired about the status of her libido, and opined that she was probably a “wild thing” in bed.
Id. The physician testified that the frequency of the owner’s conduct escalated after she returned from maternity leave, and that by her estimation, he made comments about her breasts at least once or twice a week during a two-month period. Id. at 330. The Fourth Circuit emphasized that “[t]he impact of these comments may have been aggravated by the fact that [the owner] had previously made comments to [the female physician] about his genitals and those of his wife.” Id. at 329. With respect to his own anatomy, the owner had previously “display[ed] an image of his penis twenty-five to thirty times and referred] to it as ‘Mr. Happy’ on five to ten of those occasions.” Id. at 330. Although there was no indication that the owner had ever touched the physician inappropriately, the Fourth Circuit emphasized that “there [was] evidence that he, at least implicitly, proposed that they engage in sexual activity,” when the owner said that she “owed him ‘big’ for his help in [a particular] matter and asked if she would let him pump her breasts.” Id.
Most recently, in Okoli v. City of Baltimore,
Here, unlike the foregoing cases, Walker does not allege that Mullins or Young ever touched her inappropriately, or earnestly propositioned her for sexual acts. She does not allege that they went out of their way to disgust her and make her feel uncomfortable by engaging in demonstrations of sexual acts or extremely graphic discussions regarding their sexual activity. She does not suggest that she was subjected to frequent comments about her body. She does not claim that she was exposed to demeaning, gender-based epithets or subjected to physical threats.
Instead, Walker describes a workplace in which it was not uncommon for two of her co-workers to act in a boorish, moronic manner. “[W]hile no one condones boorishness, there is a line between what can justifiably be called sexual harassment and what is merely crude behavior.” Ziskie,
Walker has also failed to proffer evidence from which a reasonable jury could find that Mullins and Young’s actions unreasonably interfered with her work performance. Although Walker testified that she thought that Mullins’ behavior slowed down her performance at work, she acknowledged that she “had two less people doing the same amount of work” during the same time period, and that her increased workload also contributed to her “stay[ing] behind.” Walker Dep. at 164-65, EOF No. 30-20. Additionally, while the record reveals that Walker has a history of anxiety and depression, which may have been aggravated by her coworkers’ conduct, “not every workplace aggravation gives rise to an actionable legal claim.” Andrews v. Staples the Office Superstore East, Inc., No. 7:11CV00037,
This case is also distinguishable from a number of existing Fourth Circuit cases, since the relative power between Walker and her alleged harassers does not contribute to making their conduct more severe. As the Court observed in Ziskie, hostile work environment cases that have succeeded in this circuit “have often involved a disparity in power between the harasser and the victim.” Id. at 227. For instance, in Jennings v. University of North Carolina,
In sum, the court concludes, based upon all of the relevant factors, that there is not enough evidence from which a jury could find that the conduct at issue was sufficiently severe or pervasive to create an abusive working environment. There is no
II. Retaliation
Walker also contends that Mod-U-Kraf terminated her in retaliation for complaining about sexual harassment. In addition to prohibiting discrimination on the basis of a protected trait, Title VII makes it unlawful for an employer to retaliate against an employee “because [the employee] has opposed any practice made an unlawful practice by this subchapter.” 42 U.S.C. § 2000e-3(a). When there is no direct evidence of retaliation, a plaintiff may proceed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
Once a plaintiff establishes her prima facie case, the burden shifts to the employer to articulate a legitimate, nonretaliatory reason for the adverse action. Price,
In this case, even assuming that Walker has set forth a prima facie case of retaliation, Mod-U-Kraf has articulated a legitimate, nonretaliatory reason for terminating her employment, namely, her involvement in the fight with David Mullins. Because Mod-U-Kraf has clearly met its burden of proffering a permissible reason for its termination decision, Walker must show that the asserted reason is pretext for retaliation. While Walker advances several arguments in an attempt to establish pretext, the court concludes that she has failed to create a genuine issue of material fact with respect to this issue.
Walker first argues that she “never touched Mullins,” and that the evidence demonstrates that she merely fussed at Mullins about the comments that he made in the parking lot. PL’s Br. in Opp’n at 8, 39, ECF No. 30. This argument, however, misconstrues Walker’s burden. When an employer articulates a legitimate, nonretaliatory basis for terminating a plaintiff,
In the instant case, Walker has failed to proffer evidence from which a reasonable jury could find that the Mod-U-Kraf officials responsible for terminating her employment did not honestly believe that Walker had engaged in misconduct on the day in question. “The key inquiry in assessing whether an employer holds such an honest belief is whether the employer made a reasonably informed and considered decision before taking the complained-of action.” Michael v. Caterpillar Fin. Servs. Corp.,
The court must also reject Walker’s argument that Adkins’ investigation of the incident in question was inadequate. As the Fourth Circuit has previously explained, focusing on the quality of the investigation “misses the point,” since “[a] federal court ‘does not sit as a kind of super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination.’ ” Cupples v. AmSan, LLC,
Finally, the mere fact that Adkins and McDaniel “knew of Walker’s complaints prior to terminating her” is insufficient to withstand summary judgment. Br. in Opp’n at 38, EOF No. 30. The Fourth Circuit has made clear that “mere knowledge on the part of an employer that an employee it is about to fire has [made] a discrimination charge is not sufficient evidence of retaliation to counter substantial evidence of legitimate reasons for discharging that employee.” Williams v. Cerberonics, Inc.,
For all of these reasons, the court concludes that Walker has failed to rebut the legitimate, nonretaliatory reason Mod-UKraf proffered to support its decision to terminate her employment. Accordingly, Mod-U-Kraf is entitled to summary judgment on her claim of retaliation.
Conclusion
For the reasons stated, the court will grant the defendant’s motion for summary judgment. The Clerk is directed to send certified copies of this memorandum opinion and the accompanying order to all counsel of record.
FINAL ORDER
For the reasons stated in the accompanying memorandum opinion, it is now
ORDERED
as follows:
1. The defendant’s motion for summary judgment is GRANTED; and
2. All other pending motions are DISMISSED as moot.
The Clerk is directed to strike the case from the active docket of the court, and to send certified copies of this order and the accompanying memorandum opinion to all counsel of record.
Notes
. This was not the first time that Walker was diagnosed with depression. An exhibit submitted by Walker indicates that, in December of 2005, before she ever worked for Mod-UKraf, Walker was prescribed Cymbalta after complaining that her “nerves [were] so bad that she would not have the mentality or the personality to be a good employee.” ECF No. 30-8. Exhibits submitted by the defendant indicate that the plaintiff was prescribed Ativan for "nerves” in February of 2010, before she returned to work for Mod-U-Kraf, and that she was prescribed Alprazolam (Xanax) beginning in August 2010. ECF Nos. 36-3 at 3, 36-4 at 3.
. This claim is not specifically pled in Walker's amended complaint. Nonetheless, Mod-U-Kraf liberally construed the amended complaint to raise a claim for retaliation, and both parties briefed the claim as if it had been properly pled in the amended complaint.
. In light of this conclusion, the court need not address the defendant’s argument that Walker has also failed to demonstrate that the offending conduct was based on her sex.
. For instance:
The men talked everyday about their sexual experiences of the night before, making comments about their female partners such as “she swallowed, she gave good head, [or] I fucked her all night long.” One employee announced that his girlfriend “gave good head[,] that she likes to swallow, that she liked it from behind, [and] that she would do it anywhere with him.”
Ocheltree,