Janeene Jensen-Graf v. Chesapeake Employers' Insurance Company , 616 F. App'x 596 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2081
JANEENE J. JENSEN-GRAF,
Plaintiff - Appellant,
v.
CHESAPEAKE EMPLOYERS’ INSURANCE COMPANY,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:14-cv-01427-GLR)
Submitted: June 16, 2015 Decided: June 26, 2015
Before WILKINSON, AGEE, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Morris E. Fischer, MORRIS E. FISCHER, LLC, Silver Spring,
Maryland, for Appellant. Jefferson L. Blomquist, FUNK & BOLTON,
P.A., Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Janeene J. Jensen-Graf appeals the district court’s order
dismissing her Title VII action for failure to state a claim.
On appeal, Jensen-Graf argues that the district court erred in
finding that she did not suffer any adverse employment actions
and that she failed to allege that similarly situated male
employees were treated more favorably. We affirm.
In her complaint, Jensen-Graf alleged the following.
Jensen-Graf is employed by Chesapeake Employers’ Insurance
Company (“Chesapeake”) as a loss control consultant. In June
2009, Chesapeake informed her that she was required to come into
the office if she did not have two onsite client visits
scheduled on a day, causing her to incur personal commuting
expenses. In October 2009, Chesapeake placed Jensen-Graf on a
performance improvement plan (“PIP”) because she was not
scheduling enough meetings, did not have enough onsite client
visits, and had overdue job orders. Jensen-Graf alleges these
deficiencies existed because Chesapeake referred clients to her
male colleagues and was assigning her job orders that were
already overdue. Because of the PIP, Chesapeake required
Jensen-Graf, but not her male colleagues, to have 20 onsite
visits per month, 40 “activity points” per month, and attend bi-
weekly meetings to discuss her performance. She also received
no credit when a client cancelled a scheduled meeting.
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On December 22, 2010, Jensen-Graf filed an EEOC charge
against Chesapeake alleging sex discrimination. Chesapeake
received notice the same day. On December 21, 2011, Jensen-Graf
asked to participate in a professional development course.
Chesapeake denied her request because she was on the PIP.
Jensen-Graf amended her EEOC charge to include a retaliation
claim, and eventually filed a complaint in district court,
alleging one count of sex discrimination and one count of
retaliation. The district court dismissed her complaint on the
grounds that she failed to establish an adverse action as to
both the discrimination and retaliation claims and that she
failed to allege that similarly situated male employees were
treated more favorably as to her discrimination claim.
This court reviews dismissals for failure to state a claim
de novo, reviewing the facts in the light most favorable to the
plaintiff. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.
2008). A plaintiff need not make out a prima facie case of
employment discrimination to survive a motion to dismiss.
McCleary-Evans v. Md. Dep’t of Transp., State Highway Admin.,
780 F.3d 582, 584-85 (4th Cir. 2015). Rather, a plaintiff must
state a claim to relief that is plausible, and not merely
speculative. Id. at 585.
While a plaintiff must show the existence of an adverse
employment action to show a prima facie case of employment
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discrimination, this requirement “is derived from the statute’s
requirement that the employer’s practice relate to
‘compensation, terms, conditions or privileges of employment’ or
that the practice ‘deprive any individual of employment
opportunities or otherwise adversely affect [her] status as an
employee.’” Ali v. Alamo Rent-A-Car, Inc., 8 F. App’x 156, 158
(4th Cir. 2001) (quoting 42 U.S.C. § 2000e-2(a)(1)&(2)). An
adverse employment action is an action “that ‘constitutes a
significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in
benefits.’” Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th
Cir. 2011) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 761 (1998)). “[A] poor performance evaluation is
actionable only where the employer subsequently uses the
evaluation as a basis to detrimentally alter the terms or
conditions of the recipient’s employment.” James v. Booz-Allen
& Hamilton, Inc., 368 F.3d 371, 377 (4th Cir. 2004) (internal
quotation marks omitted).
Jensen-Graf’s complaint fails to state a plausible
discrimination claim because she has not alleged any action that
could reasonably be considered an adverse employment action.
She has failed to allege that she received lower pay, was
demoted, was passed over for a promotion, failed to receive a
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bonus, or given significantly different responsibilities because
she was placed on the PIP. Her complaints about additional
requirements being placed on her as a result of the PIP amount
to nothing more than “dissatisfaction with this or that aspect
of [her] work” that fails to allege an actionable adverse
action. James, 368 F.3d at 377. Likewise, incurring small,
additional commuting expenses is not the type of adverse
employment action that is cognizable under Title VII. See,
e.g., Cooper v. United Parcel Serv., Inc., 368 F. App’x 469, 474
(5th Cir. 2010) (collecting cases).
For similar reasons, Jensen-Graf fails to state a
retaliation claim. In retaliation cases, “a plaintiff must show
that a reasonable employee would have found the challenged
action materially adverse, which in this context means it well
might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation
marks omitted). Such actions need not affect the terms and
conditions of employment. Id. at 64. Denial of professional
development opportunities could be a materially adverse action.
See id. at 69 (“excluding an employee from a weekly training
lunch that contributes significantly to the employee’s
professional advancement might well deter a reasonable employee
from complaining about discrimination.”).
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The only retaliatory act Jensen-Graf alleged was the denial
of a professional development course. Chesapeake denied her the
course because she was on the PIP. Jensen-Graf pled no facts
indicating whether this is a consistent policy of Chesapeake,
whether this was a temporary denial, and whether this course was
indeed required for her professional development. Moreover, she
has pled no facts showing how she was harmed by the denial of
this course. See Allen v. Napolitano, 774 F. Supp. 2d 186, 204
(D.D.C. 2011) (dismissing retaliation claim based on refusal to
authorize training courses when plaintiff failed to allege any
significant change in her employment or objectively tangible
harm). Without these facts, we cannot reasonably infer that
Jensen-Graf suffered an adverse action so as to state a
plausible retaliation claim.
Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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