Moser v. MCC Outdoor, L.L.C. , 256 F. App'x 634 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1960
SERENA C. MOSER,
Plaintiff - Appellant,
versus
MCC OUTDOOR, L.L.C.; SHIVERS TRADING &
OPERATING COMPANY,
Defendants - Appellees.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:05-cv-00288-WLO)
Argued: September 25, 2007 Decided: December 5, 2007
Before TRAXLER, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Robert J. CONRAD, Jr., Chief United States District Judge for the
Western District of North Carolina, sitting by designation.
Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.
ARGUED: Stephen Ashley Boyce, Winston-Salem, North Carolina, for
Appellant. Mason Gardner Alexander, Jr., FISHER & PHILLIPS,
L.L.P., Charlotte, North Carolina, for Appellees. ON BRIEF:
Shannon Sumerell Spainhour, FISHER & PHILLIPS, L.L.P., Charlotte,
North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit
PER CURIAM:
Serena Moser appeals a district court order granting summary
judgment against her in her action against MCC Outdoor, L.L.C. and
Shivers Trading & Operating Company, alleging claims of hostile
work environment and quid pro quo sexual harassment, termination in
retaliation for her opposition to Title VII violations, and
wrongful termination in violation of North Carolina public policy.
We affirm in part, reverse in part, and remand for further
proceedings.
I.
Because this is an appeal from the grant of summary judgment,
we view the facts in the light most favorable to Moser, the non-
movant. See Saucier v. Katz, 533 U.S. 194, 201 (2001).
A. General
Fairway Outdoor Advertising of the Triad in Greensboro, North
Carolina, is a division of MCC Outdoor, L.L.C. and Shivers Trading
and Operating Company (collectively, “Fairway”). Fairway hired
Moser as a sales representative on July 9, 2003. Her
responsibilities involved calling on potential customers and
selling outdoor advertising space, such as billboard space. She
was one of nine sales representatives in the Greensboro office,
seven of whom were men. As a sales representative, Moser was
required to report to the office for a short time at the beginning
2
and end of every day, but she otherwise spent her work time outside
of the office. Moser and her fellow sales representatives operated
in an open area with no partitions or walls. Her supervisor was
sales manager Eddie Jones, who in turn reported to general manager
Dan O’Shea.
Moser’s time at Fairway was a rocky one. She had disputes
with several Fairway employees, sometimes resulting in heated
exchanges. Although Moser was on the receiving end of much
objectionable behavior, she at times contributed to the less than
professional atmosphere at Fairway. For example, she sometimes
called other employees names, she joked that she was smarter than
they were, and she once shot other employees with a water gun. On
one occasion, she “dressed . . . [Jones] down” in front of O’Shea
after a sales meeting in which she felt that she was being treated
unfairly. J.A. 282. Another time, she was in Jones’s office
complaining about the behavior of another sales representative.
When the meeting was not going as she had hoped, she told Jones,
“You’re getting on my nerves” and “walked off.” J.A. 257 (internal
quotation marks omitted). Moser received written warnings for both
of these incidents.
B. Moser’s Complaints Concerning Other Sales Representatives
Moser’s primary antagonist in the office among the salesmen
was George Wilkes. Moser and Wilkes were very competitive and
often needled each other, leading to escalating conflicts that
3
sometimes required intervention and resulted in verbal reprimands.
Even when the two were not openly hostile, Wilkes often irritated
Moser. For example, he asked her about her personal life and tried
to set her up with men; he commented that he thought she would have
an affair with someone from the office; he once told her to slow
down because she was “bouncing,” J.A. 308 (internal quotation marks
omitted); and once he made a comment about her backside. He
smacked her on the bottom with a water bottle on one occasion. He
also called her a “dingbat” and a “dumb blonde” after she had an
accident while driving a company car. J.A. 242 (internal quotation
marks omitted). Moser complained to O’Shea about Wilkes’ behavior,
specifically mentioning his popping her on the bottom with the
bottle and a number of non-sexual comments he made to her. She
lodged similar complaints about Wilkes to Jones.
Moser also had a few unpleasant interactions with sales
representative Kelly Phipps, although she admits that she had no
“real problem[]” with him. J.A. 322. On one occasion, Phipps
asked her if she was gay. On another, Phipps told her that he felt
like she dressed like a man, and he “went to touch [her] breast.”
J.A. 255. She rebuffed him, resulting in only his fingertips
touching her. Another time, Phipps told Moser that he “would do”
her. J.A. 321.
Although Moser identifies sales representative Tom Poe as a
friend and the only person she felt “comfortable talking with” at
4
Fairway, J.A. 317, he also was guilty at times of acting
unprofessionally toward her. For example, Poe once asked Moser if
she was wearing a thong and if she had had sex with her then-
current boyfriend. He suggested that she find someone with whom
she could have casual sex. He said he himself would consider
having sex with her if he were not married. Poe talked about
another woman suffering from premenstrual syndrome and told Moser
details of how he had sex with his wife. He also told her how
female clients used to rub their breasts against him. One time Poe
picked Moser up around the waist and carried her around, trying to
“pull up [her] skirt.” J.A. 309 (internal quotation marks
omitted). Although Moser did not explain why she thought Poe did
that, she testified that at the time she “didn’t think [he] meant
anything by it,” and she soon “forgot about” the incident. J.A.
310. Moser admitted that she and Poe “did joke around.” J.A. 312.
C. Complaints Concerning Jones
Moser experienced far more serious problems with her
supervisor, Jones. Jones once told Moser she was a “hottie,” J.A.
295 (internal quotation marks omitted), and made a similar comment
on another occasion. He once said to Wilkes (in front of Moser)
that Moser seemed to come by Jones’s house whenever Jones’s wife
was not around. Jones told Moser one time on a car trip that he
“would do [her] in a heartbeat.” J.A. 300 (internal quotation
marks omitted). Another time, he said, “It’s a good thing you work
5
out, because you don’t have a boyfriend to have sex with.” J.A.
306 (internal quotation marks omitted). He once showed her a
pornographic picture of a little boy “with a very large penis” and
told her that it was him when he was young. J.A. 301. When she
told him that that was very inappropriate and pinched him, Jones
told her that if she pinched him again, he would grab her breast.1
He told her on one occasion that he liked small breasts, which she
understood to refer to her. Finally, Jones once commented to
another male employee, in front of Moser, “[W]e need to talk to
Serena about different sexual techniques.” J.A. 307 (internal
quotation marks omitted).
Jones also talked to Moser on several occasions about how to
tell how long a man’s penis is and how he liked women’s breasts and
bottoms. In Moser’s presence, Jones commented one time to Poe that
he could help a particular woman with back problems by having sex
with her “doggy-style.” J.A. 286 (internal quotation marks
omitted). On another occasion, he and Poe agreed in front of Moser
that they “would do [a particular woman] in a heartbeat.” J.A.
287.
One day, before an upcoming conference, Jones told Moser to
“bring a bikini [because] there’s a hot tub at the hotel we can
1
Moser testified to this fact in her deposition, but shortly
before, in the same deposition, she had testified that Jones had
threatened to “grab [her] butt” rather than her breast. J.A. 151
(internal quotation marks omitted).
6
use.” J.A. 293 (internal quotation marks omitted). He also told
Moser that he “care[d] for” her and that he otherwise would have
fired her for inappropriate behavior. J.A. 270, 300 (internal
quotation marks omitted). One time when Moser and Jones were
trying to resolve a disagreement, Jones “just threw his hands and
arms up into the air and said, ‘But, Serena, I love you.’” J.A.
303. He used to ask Moser what she was cooking for dinner and
would say that he would not come over if she was not making
something he liked. Once when Moser told him that she would like
to get married within five years, he told her that he would be
divorced within that time frame.
Unfortunately, Jones’s unwelcome conduct toward Moser was not
limited to the verbal. One day when Jones was driving Moser and
some others in his car—Moser and Jones were in the front seat—Jones
placed his hand on Moser’s left thigh at least three times, each
time for “a couple of minutes” until Moser squirmed away from him.
J.A. 285. Jones once slid his arm around Moser’s waist at an
after-work-hours reception, causing Moser to “f[a]ll back into a
crowd of people” as she tried to extricate herself. J.A. 236.
Moser recalled two times when Jones hugged her from the side,
squeezing her shoulder. At least two times, Jones hugged Moser
after they had gone together to the YMCA to work out. And, one
evening when the two were at a bar with friends, Jones hugged her
and kissed her head when she left. Jones also “would eyeball
7
[Moser] up and down constantly,” J.A. 268, and looked down Moser’s
blouse on several occasions, often forcing her to cover herself
when she sensed Jones was in position to look.
Moser often objected to Jones’s sexual comments and actions
when they occurred. As a result, Jones became increasingly hostile
toward her and repeatedly expressed concern to Moser that she was
going to claim that he had sexually harassed her. Moser described
the uncomfortable pattern that developed:
[Jones] would make some kind of sexual advance toward me
and I would say no or I would confront him on it to get
him to understand it makes me uncomfortable per his
request and he would get really mad and start yelling.
Then, later on, he would be real nice and make some other
advance toward me and the whole cycle would start over
again.
J.A. 386.
One of the most upsetting incidents with Jones occurred just
12 days before Moser was fired. On the day in question, Jones
called Moser into his office after a sales meeting. He opened the
door only a couple of feet and when she walked in he “cornered”
her, “came right up on [her] person,” “pushed [her] behind the back
of the door,” “look[ed] down [her] blouse,” and shut the door.
J.A. 266, 294. As he backed away from her and began to sit down in
a chair, he said, “Serena, what do we need to do to get our
relationship back on track?” J.A. 266 (internal quotation marks
omitted). The incident ended when she said that she did not know
what they should do. Moser also described another bizarre event
8
in which Jones “walked up to [her] and just yanked [her] out of
[her] chair.” J.A. 386.
As a result of the mistreatment she received, many times in
front of other Fairway employees, Moser felt she “had to work ten
times harder to earn people’s respect.” J.A. 356. As the abuse
began to escalate in January and February of 2004, she became very
anxious. The stress prevented her from sleeping, which, in turn,
affected her work performance. She became frustrated and depressed
and eventually consulted with a counselor to help her “deal with
the offensive behaviors at Fairway.” J.A. 396.
D. Moser’s Termination
According to Fairway’s answers to interrogatories produced as
discovery in the present case, general manager O’Shea decided to
terminate Moser in late June 2004, effective immediately, because
of what Fairway contends were “constant conflicts with other staff
members that were instigated by [Moser], her condemnation of
management, her disruptive disposition, her failure and refusal to
cooperate with others and her rude, arrogant and condescending
treatment of others.” J.A. 652. Moser was called into O’Shea’s
office, where Jones told her the news, and O’Shea told Moser, “I
back up [Jones].” J.A. 273 (internal quotation marks omitted).
When Moser asked why she was being let go, both men told her that
she no longer appeared happy to work at Fairway and no longer fit
in.
9
E. Moser’s Lawsuit
Moser brought this action against Fairway in the district
court, alleging violations of Title VII of the Civil Rights Act of
1964, namely, quid pro quo and hostile environment sexual
harassment, retaliatory discharge based on Moser’s complaints of
sexual harassment, and discriminatory discharge based on her
gender. She also alleged a state law claim for wrongful
termination in violation of North Carolina public policy. The
district court granted summary judgment in favor of Fairway on all
claims. The court disposed of the quid pro quo and discriminatory
discharge claims on the ground that Moser failed to properly
contest Fairway’s motion with regard to those claims under the
court’s local rules. As for the hostile environment claim, the
court determined that the forecasted evidence was insufficient to
create a prima facie case because it could not support a reasonable
inference that the unwelcome sexual conduct was sufficiently severe
or pervasive to alter the terms of her employment. Regarding
retaliation, the district court noted that Moser relied only on her
alleged complaints about Wilkes’s behavior to show that she had
engaged in protected conduct, but she failed to forecast evidence
that her complaints about Wilkes covered sexual or gender-based
harassment. Finally, the court ruled that Moser’s violation of
North Carolina public policy claim failed because Moser did not
point to evidence tending to show that Jones continually made
10
sexual advances toward her and because the court was not aware of
any such evidence.
II.
Moser first argues that the district court erred in ruling
that the evidence she forecasted was insufficient to create a prima
facie case of hostile environment sexual harassment. We agree
there is sufficient evidence to warrant a jury trial on this issue.
We review a district court’s grant of summary judgment de
novo, viewing any facts and inferences drawn from them in the light
most favorable to Moser, the non-moving party. See Evans v.
Technologies Applications & Serv. Co., 80 F.3d 954, 958 (4th Cir.
1996). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
Title VII of the Civil Rights Act of 1964 prohibits an
employer from “discriminat[ing] against any individual with respect
to his compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . sex.” 42 U.S.C.A.
§ 2000e-2(a)(1). This prohibition “not only covers ‘terms’ and
‘conditions’ in the narrow contractual sense, but evinces a
congressional intent to strike at the entire spectrum of disparate
treatment of men and women in employment.” Oncale v. Sundowner
11
Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (internal quotation
marks omitted). Thus, it is a violation of Title VII to maintain
a sexually hostile work environment, i.e. a “workplace . . .
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.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal
quotation marks & citation omitted). To establish a hostile
environment sexual harassment claim, a plaintiff must show conduct
that “(1) was unwelcome, (2) was based on her sex, (3) was
sufficiently severe or pervasive to alter the conditions of her
employment and create an abusive work environment, and (4) was
imputable to her employer.” Ocheltree v. Scollon Productions,
Inc., 335 F.3d 325, 331 (4th Cir. 2003) (en banc).
The district court determined that the evidence was
insufficient to create a genuine issue of material fact regarding
the third element. In deciding as a matter of law whether
harassment was sufficiently severe or pervasive to bring it within
Title VII’s purview, we must examine the totality of the
circumstances, including “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.”
Harris, 510 U.S. at 23. This standard is designed to “filter out
12
complaints attacking the ordinary tribulations of the workplace,
such as the sporadic use of abusive language, gender-related jokes,
and occasional teasing.” Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998) (internal quotation marks omitted). “Unlike other,
more direct and discrete unlawful employment practices, hostile
work environments generally result only after an accumulation of
discrete instances of harassment.” Jordan v. Alternative Resources
Corp., 458 F.3d 332, 339 (4th Cir. 2006), cert. denied, 127 S. Ct.
2036 (2007). “Harassment reaches the sufficiently severe or
pervasive level when it creates ‘an environment that a reasonable
person would find hostile or abusive’ and that the victim herself
‘subjectively perceive[s] . . . to be abusive.’” Jennings v. Univ.
of N.C., 482 F.3d 686, 696 (4th Cir. 2007) (en banc) (quoting
Harris, 510 U.S. at 21), cert. denied, 2007 WL 2010134 (U.S. Oct.
1, 2007). In this case, Moser clearly forecasted sufficient
evidence that she perceived her work environment to be abusive.
The issue on which we focus is whether this evidence created a
genuine issue of material fact regarding whether Moser’s perception
was reasonable.
We have recognized “that the line between a merely unpleasant
working environment and a hostile or deeply repugnant one” is
sometimes difficult to locate. Hopkins v. Baltimore Gas & Elec.
Co., 77 F.3d 745, 753 (4th Cir. 1996) (internal quotation marks &
alteration omitted). While this case demonstrates just how
13
difficult placing that line can be, we nonetheless conclude that
the district court erred in granting summary judgment on Moser’s
hostile environment claim.
Even without taking into account the conduct of Moser’s fellow
sales representatives, a reasonable jury could determine that Jones
constantly made Moser reasonably feel that she was his sexual prey.
By telling Moser that she was a hottie, that he would like to see
her in a bikini, or that he “would do [her] in a heartbeat,” J.A.
300, Jones communicated to Moser that he wanted to have sex with
her. Furthermore, the record, viewed in the light most favorable
to Moser, showed that Jones regularly took opportunities to treat
her in a sexual way. He slipped his arm around her waist, hugged
her, repeatedly placed his hand on her thigh during a car trip, and
“eyeball[ed] [Moser] up and down constantly.” J.A. 268 (emphasis
added). He also repeatedly sought to look down her blouse.
Although not quite as severe, many of Jones’s other actions
could be found by a reasonable jury to have contributed to the
pervasiveness of the unwanted sexual conduct. Such a jury could
find that many statements or actions that Moser otherwise might
have perceived as simply boorish or inappropriate under other
circumstances reasonably were humiliating to her in light of the
sexually predatory relationship Jones had developed with her. For
example, Jones’s subjecting Moser to his general comments about
what parts of the female anatomy he enjoyed and what sex acts he
14
would like to perform on other women could reasonably be expected
to make Moser much more uncomfortable because she knew that he was
interested in her body specifically and would like to perform the
same acts on her. See Jennings, 482 F.3d at 698 (concluding that
a jury could reasonably find that two incidents of direct
harassment of the plaintiff “were more abusive in light of the
general, sexually charged environment” created by other
inappropriate sexual conduct); see also Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 115 (2002) (“Hostile environment claims
are different in kind from discrete acts. Their very nature
involves repeated conduct. . . . Such claims are based on the
cumulative effect of individual acts.”). Similarly, Jones’s
showing Moser a pornographic picture, talking about male sex
organs, noting that Moser did not have anyone to have sex with, and
saying that he and another employee needed to talk to Moser about
sexual techniques could reasonably have made Moser extremely
uncomfortable for the same reason. And, Jones’s telling Moser that
he cared for her or loved her and suggesting that he would like to
come over to her house also reasonably could be viewed as
reiterations of the sexual desire for Moser that Jones had already
expressed.
Indeed, the fact that Moser was a specific object of Jones’s
sexual attention and not just a witness to inappropriate sexual
behavior concerning other women makes much of the conduct that
15
Moser allegedly endured arguably more severe--more humiliating in
an objective sense--than the conduct we found sufficient to support
a plaintiff’s verdict in Ocheltree. In Ocheltree, a female
employee was subjected every day to graphic sexual talk from her
male coworkers, including descriptions that often portrayed women
in a “sexually subservient and demeaning light.” Ocheltree, 335
F.3d at 333. She was once sung a vulgar song that arguably used
her as the subject, and “something sexual” was done to a mannequin
anytime Ocheltree walked by. Id. at 328, 332 (internal quotation
marks omitted). Here, in contrast, it was Moser’s own body that
her supervisor was “constantly” “eyeballing” “up and down”--
particularly when Jones was able to look down her blouse. And
while the coworkers in Ocheltree discussed having sex with their
wives and girlfriends, Jones told Moser that he wanted to have sex
with her and stated that he and another employee should talk to her
about different sexual techniques. While the male employees at
Ocheltree touched a mannequin in sexual ways in front of the
plaintiff, Jones actually touched Moser--in the most egregious
examples, by placing his hand on her thigh several times during a
car trip as she squirmed away to avoid his touch and by pushing her
behind a door in his office and looking down her blouse.
Moreover, in our view, the evidence forecasted of Jones’s
sexual conduct was substantially different from that in Weiss v.
Coca-Cola Bottling Co. of Chicago., 990 F.2d 333 (7th Cir. 1993),
16
on which the district court relied. There, the plaintiff’s
supervisor “asked her for dates, called her a ‘dumb blond,’ put his
hand on her shoulder several times, placed ‘I love you’ signs in
her work area [during one week] and attempted to kiss her in a
bar.” Id. at 337.2 The Seventh Circuit concluded that the
district court had properly granted summary judgment because the
incidents were “relatively isolated” and not sufficiently serious
considering their infrequency. Id. Here, in contrast, Moser
forecasted evidence that, viewed in the light most favorable to
her, showed that Jones’s abuse was relentless. And, it is
important to emphasize that all of the numerous incidents Moser
described occurred during Moser’s less-than-a-year tenure at
Fairway. Cf. Hopkins, 77 F.3d at 753-54 (holding that male
supervisor’s alleged harassment of male employee, including bumping
into employee, positioning magnifying glass over his crotch, giving
him a congratulatory kiss at his wedding, staring at him in the
bathroom, commenting on his appearance, and making inappropriate
sexual comments, was not sufficiently severe or pervasive when the
alleged incidents occurred only intermittently over a seven-year
period).
In holding that the forecasted evidence here was sufficient,
we emphasize that a reasonable jury could infer from the evidence
2
The supervisor “also may have twice attempted to kiss her in
the office, though [the plaintiff’s] deposition testimony [was]
contradictory on th[at] point.” Id.17
that the hostility that Jones developed toward Moser when she
repeatedly objected to his sexual behavior further interfered with
her opportunity to have an effective working relationship with her
supervisor and contributed heavily to the abusiveness of the
working environment. The cycle Moser described of Jones engaging
in sexually inappropriate conduct toward her and then lashing out
at her as she attempted to distance herself from him left Moser in
an impossible situation. In this respect, the evidence in this
case resembles that of Beardsley v. Webb, 30 F.3d 524 (4th Cir.
1994). There, the plaintiff, a second lieutenant in the sheriff’s
office, alleged that her supervisor harassed her for a five-month
period, thereby prompting her resignation. The alleged harassment
included the supervisor calling the plaintiff “honey” and “dear” in
front of subordinates; standing behind the plaintiff during roll
call and touching her shoulders; and, following the plaintiff’s
complaint that this made her and her husband (also a member of the
sheriff’s department) uncomfortable, massaging the plaintiff’s
shoulders while staring at her husband. It also included
unjustifiably accusing her of having an affair with a deputy,
asking her what kind of underwear she wore and what type of birth
control she used, and ordering her to drive him to pick up his car
from a repair shop and stating that “it was his turn to make out in
the parking lot” with her. Id. at 528 (internal quotation marks
omitted). After the plaintiff complained, she was given the “cold
18
shoulder” by her supervisor and her relationship with the deputies
suddenly soured. Id. The court rejected the defendant’s argument
that the plaintiff’s evidence was not substantial enough to require
submission to the jury of the question of whether the supervisor’s
discriminatory conduct was sufficiently severe and pervasive to
make out a sexual harassment claim, stating that: “In combination,
his acts altered the condition of [the plaintiff’s] employment and
created an objectively abusive work environment.” Id. at 529. We
conclude that the same is true here.
In sum, a jury could reasonably conclude from the evidence
forecasted that Jones was unyielding in his sexual treatment of
Moser, crippling her ability to have a healthy working relationship
with him, and causing her significant personal anguish as she
attempted to avoid his sexual behavior and deal with the antagonism
he directed toward her. On this basis, a rational jury could
conclude that Moser reasonably found her working environment to be
both hostile and abusive such that the terms of her employment were
altered. We therefore reverse the grant of summary judgment on
Moser’s hostile environment claim.
III.
Moser next maintains that the district court erred in granting
summary judgment against her on her quid pro quo sexual harassment
claim. We disagree.
19
Although quid pro quo and hostile environment sexual
harassment claims both arise under Title VII, each type of claim
requires proof of an element that the other does not. To wit, to
establish quid pro quo liability, a plaintiff must prove “that a
tangible employment action resulted from a refusal to submit to a
supervisor’s sexual demands.” Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 753 (1998). In contrast, to establish a hostile
environment claim, the plaintiff must prove that the objectionable
conduct was “severe or pervasive.” Id. at 754.
In Moser’s quid pro quo claim asserted in her complaint, Moser
alleged that her “express rejection of [Jones’s] demands for sexual
favors caused her termination.” J.A. 19. The district court
granted summary judgment against Moser on this claim (as well as on
her discriminatory discharge claim), stating:
Under these facts, the court considers summary judgment
on those claims to be uncontested. See L.R. 7.3(k), L.R.
56.1(e). Because Defendants’ uncontested argument
appears to be reasonable, summary judgment on those
grounds will be granted.
J.A. 42.3 “We review the district court’s application of its local
rules for an abuse of discretion.” See Northwest Bank & Tr. v.
First Ill. Nat’l Bank, 354 F.3d 721, 725 (8th Cir. 2003).
Middle District of North Carolina Local Rule 7.3(k) provides:
The failure to file a brief or response within the time
specified in this rule shall constitute a waiver of the
3
Moser does not challenge the district court’s ruling
regarding her claim of discriminatory discharge.
20
right thereafter to file such brief or response, except
upon a showing of excusable neglect. A motion
unaccompanied by a required brief may, in the discretion
of the court, be summarily denied. A response
unaccompanied by a required brief may, in the discretion
of the court, be disregarded and the pending motion may
be considered and decided as an uncontested motion. If
a respondent fails to file a response within the time
required by this rule, the motion will be considered and
decided as an uncontested motion, and ordinarily will be
granted without further notice.
M.D.N.C. Local Rule 7.3(k). Middle District of North Carolina
Local Rule 56.1(e) states:
In a responsive brief the party having made the
challenged claim may, within 30 days after service of the
summary judgment motion and brief, file with the court a
response that sets out the statements required by
LR7.2(a)(1)-(3) and also sets out the elements that it
must prove (with citations to supporting authority), and
the specific, authenticated facts existing in the record
or set forth in accompanying affidavits that would be
sufficient to support a jury finding of the existence of
the disputed elements. The failure to file a response
may cause the court to find that the motion is
uncontested.
M.D.N.C. Local Rule 56.1(e).
We find no abuse of discretion in the district court’s
application of its local rules. Moser’s brief to the district
court argued that Moser had presented a prima facie case of sexual
harassment amounting to a hostile work environment. The brief then
proceeded to present facts that Moser contended demonstrated that
the harassment was sufficiently severe or pervasive to impose
liability. It included no mention of quid pro quo liability or the
elements that would establish such liability, and it did not
identify any issue of material fact concerning those elements.
21
Especially considering that Moser’s brief did not assert that she
could prove sexual harassment liability if the harassment were not
sufficiently severe or pervasive to create a jury issue on hostile
environment, the district court’s application of its local rules
was reasonable.
IV.
Moser next contends that the district court erred in granting
summary judgment against her on her illegal retaliation claim. We
disagree.
The relevant portion of Title VII provides: “It shall be an
unlawful employment practice for an employer to discriminate
against any of his employees . . . because he has opposed any
practice made an unlawful employment practice by this subchapter.”
42 U.S.C.A. § 2000e-3(a). Moser sought to establish her Title VII
retaliation claim under the well-known McDonnell-Douglas burden-
shifting proof scheme. See McDonnell-Douglas Corp. v. Green, 411
U.S. 792, 802-04 (1973). A plaintiff establishes a prima facie
case of retaliation under this scheme when she presents evidence
that 1) she was engaged in a protected activity, 2) she was
subjected to an adverse employment action, and 3) there was a
causal link between the two.4 See Beall v. Abbot Labs., 130 F.3d
4When a plaintiff makes such a showing, the burden then shifts
to the employer to rebut the presumption of retaliation by
articulating a legitimate nonretaliatory explanation for its
actions. See Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994).
22
614, 619 (4th Cir. 1997). In order to satisfy the first element,
a plaintiff must proffer sufficient evidence that she had an
objectively reasonable belief that she was complaining of conduct
that constituted a Title VII violation. See Jordan, 458 F.3d at
340-41.
In granting summary judgment against Moser on this claim, the
district court concluded that Moser had failed to create a genuine
issue of material fact regarding whether she engaged in a protected
activity. The court rejected Moser’s claim that she “complained to
her employer about unlawful harassment” because the complaints she
relied on as constituting protected activity--“complaints about
Wilkes”--did not concern conduct that could reasonably believed to
be prohibited by Title VII because it was mostly unrelated to
gender. J.A. 48.
Although Moser maintains that she in fact forecasted evidence
that she engaged in protected activity, she does not directly
challenge the district court’s ruling that she failed to create a
genuine factual issue regarding whether she reasonably believed
that the conduct of Wilkes about which she complained violated
Title VII. Moser now argues that she forecasted evidence of
complaints about Jones’s conduct that a jury could reasonably find
The plaintiff then must prove that the offered explanation is false
and that retaliation was the actual reason for the adverse action.
See Jiminez v. Mary Washington College, 57 F.3d 369, 377-78 (4th
Cir. 1995).
23
constituted conduct protected under Title VII. In so doing, she
does not so much as acknowledge--let alone challenge--the district
court’s determination that, in opposing Appellees’ summary judgment
motion on her retaliation claim, Moser relied exclusively on her
complaints about Wilkes. We need not address the issue of whether
Moser forecasted evidence of the record of her complaints of
conduct of people other than Wilkes in light of the district
court’s unchallenged determination that she did not present that
legal theory in the district court. See Muth v. United States, 1
F.3d 246, 250 (4th Cir. 1993) (refusing to reverse summary judgment
on the basis of an issue raised for the first time on appeal). We
therefore affirm the grant of summary judgment on Moser’s
retaliation claim.
V.
Moser finally argues that the district court erred in granting
summary judgment against her on her state law claim that she was
terminated in violation of North Carolina public policy since she
was fired for refusing the sexual advances of her supervisor. The
district court ruled against Moser on the basis that she did not
highlight any forecasted evidence in support of her claim that
Jones continually made sexual advances toward her and the court was
not aware of any such evidence. Moser now argues that she
forecasted evidence sufficient to create a genuine issue of
material fact regarding whether Jones implicitly conditioned
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Moser’s employment upon her consenting to have sex with him. We
disagree.
Although North Carolina employees are generally terminable at
will, an exception exists for discharges made in contravention of
North Carolina public policy. See Coman v. Thomas Mfg. Co., 381
S.E.2d 445, 447 (N.C. 1989). We have held that “[w]hatever the
breadth of the Coman exception, it most definitely includes firings
resulting from an employee’s refusal to follow his employer’s
instructions to violate the law.” Harrison v. Edison Bros. Apparel
Stores, Inc., 924 F.2d 530, 534 (4th Cir. 1991). Reasoning that a
supervisor’s requiring an employee to have sex with him in order to
retain her job would amount to requiring her to commit
prostitution, we have held that terminating an employee for
refusing such demands constitutes a wrongful termination in
violation of North Carolina public policy. See id.We, like the district court, see no evidence that Jones
conditioned Moser’s continuing employment on her consent to have
sex with him. Jones’s constant lechery (and eventual hostility)
may well have ruined any opportunity Moser had to have a successful
working relationship with him and caused Moser tremendous anguish
in the process. However, Moser did not forecast any evidence that
he sought to require her to have sex with him or even evidence that
he asked her to have sex. The closest she came in that regard
would have been her testimony concerning an incident in which Jones
25
pushed her behind the back of his office door before backing up and
asking, “Serena, what do we need to do to get our relationship back
on track?” J.A. 266. We conclude that it would be simply too big
a leap for a jury to be able to reasonably find that with that
question he was asking her for some sort of sexual favor. In this
regard, it is important to emphasize that there was no evidence
that Jones had ever actually asked Moser for sex before; that at
the time of the incident she did not believe he was asking for sex;
and that when she responded that she did not know what they could
do to improve their relationship, he gave no indication that he was
suggesting anything sexual. On these facts, any finding that Jones
actually propositioned Moser could only be based on rank
speculation. We therefore conclude that the district court
correctly granted summary judgment on this cause of action. See
Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) (“The nonmoving
party . . . cannot create a genuine issue of material fact through
mere speculation.”).
VI.
In sum, because we conclude that Moser forecasted evidence
sufficient to create a genuine issue of material fact regarding
whether the sexual conduct she complained of was sufficiently
severe or pervasive to create a hostile environment, we reverse the
district court’s grant of summary judgment on that claim, and we
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remand to the district court for further proceedings. Finding no
other error, we otherwise affirm.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
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