two offhand comments referencing the fact that plaintiff was black could not create an objectively reasonable belief of hostile work environment
How later courts described this case
- two offhand comments referencing the fact that plaintiff was black could not create an objectively reasonable belief of hostile work environment
Written by the judges who cited it.
The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1827
MARILYN MORGAN SESSION,
Plaintiff - Appellant,
v.
MONTGOMERY COUNTY SCHOOL BOARD,
Defendant – Appellee,
and
TIFFANY E. ANDERSON,
Defendant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:09-cv-00138-sgw-mfu)
Argued: December 7, 2011 Decided: January 25, 2012
Before NIEMEYER, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Stephen Z. Chertkof, HELLER, HURON, CHERTKOF, LERNER,
SIMON & SALZMAN, PLLC, Washington, D.C., for Appellant. Jeremy
E. Carroll, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke,
Virginia, for Appellee. ON BRIEF: Jonathan M. Rogers, Floyd,
Virginia; Douglas B. Huron, HELLER, HURON, CHERTKOF, LERNER,
SIMON & SALZMAN, PLLC, Washington, D.C., for Appellant.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Marilyn M. Session appeals the district court’s grant of
summary judgment for the Montgomery County School Board (“School
Board”) in her Title VII action. Session contends that the
School Board unlawfully retaliated against her because she filed
a grievance against the Superintendent, Dr. Tiffany Anderson,
for making two comments that, according to Session, constituted
racial harassment. Because no reasonable person could have
believed that the two comments were so objectively offensive as
to alter the conditions of Session’s employment, we hold that
the district court properly granted summary judgment in favor of
the School Board and dismissed Session’s Title VII complaint.1
I.
Session has been employed by the Montgomery County Public
Schools since 1977. In September 2004, Session was promoted to
Supervisor of Social Studies and Library Media. Soon
thereafter, in March 2005, Anderson became the Superintendent of
the Montgomery County Public Schools.
Session, an African-American, alleges that in June and July
of 2005, Anderson, also an African-American, made two racially
1
Anderson was previously a named defendant. The district
court dismissed her from the suit on February 11, 2010, and that
order is not before us on appeal.
3
derogatory comments that, according to Session, amounted to
racial harassment. Regarding the first alleged incident,
Session claimed that she was at her school desk speaking with a
friend when Anderson walked in. Anderson asked Session and her
friend, both of whom are African-American, about finding a local
hairdresser. Anderson asked Session how she styled her hair,
and Session responded that she “wash[ed]/dr[ied] it.” J.A. 53.
Anderson then commented “oh, you have that good hair.” J.A. 53-
54. Session complained that the comment meant that Session did
not “‘have hair like other black people’” and that it was a
“condescending remark.” J.A. 54.
The second alleged incident occurred the following month at
a staff meeting. During the meeting, Anderson proposed a team-
building exercise for the next meeting. Session stated that
Anderson asked the staff, including Session, “to bring baby
pictures [of themselves] during the next month for a contest on
who could accurately guess the identities of the pictures.” Id.
According to Session, Anderson stated that they would need to
use “plant,” i.e. fake, pictures because “‘some of us have more
melanin in our skin than others.’” Id. Session contended that,
“[b]eing a fair-skinned African-American person, I knew that
participating in that contest would make me the recipient of
comments/questions about my baby picture not ‘looking black.’”
4
Id. Session believed that this comment created an uncomfortable
environment.
On September 9, 2005, Session lodged an official harassment
complaint about these two comments with the School Board. The
School Board considered Session’s complaint and determined that
it was unfounded. Around that same time, the School Board
approved Anderson’s request to eliminate Session’s supervisor
position and create a new position in its place. Session
applied for the new position, but the School Board ultimately
hired someone else.
In Spring 2006, Session was reassigned from her supervisory
role to a teaching position and took a forced pay cut. In July
2006, Session received a negative performance evaluation, and in
August 2006, she was assigned to an alternative education
program for troubled students. Session alleges that these
actions were in retaliation for her internal complaint against
Anderson.
Session filed a discrimination charge with the Equal
Employment Opportunity Commission (“EEOC”). The EEOC found
reasonable cause to believe that the School Board had retaliated
against Session, and Session in turn filed this suit. On June
21, 2010, the district court granted the School Board’s motion
for summary judgment “because Anderson’s alleged comments did
not violate Title VII, and because Session could not have
5
reasonably believed that they did . . . .” J.A. 81-82. Session
appeals from this ruling.
II.
We “review[] a district court’s decision to grant summary
judgment de novo, applying the same legal standards as the
district court.” Pueschel v. Peters, 577 F.3d 558, 563 (4th
Cir. 2009). 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.
“Under Title VII of the Civil Rights Act . . ., it is
unlawful ‘for an employer to discriminate against any of his
employees . . . because [the employee] has opposed any practice
made an unlawful employment practice by [Title VII], or because
[the employee] has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under [Title VII].’” Clark Cnty. Sch. Dist. v. Breeden,
532 U.S. 268, 269 (2001) (citation omitted). To make out a
prima facie case of retaliation, a plaintiff must show: (1) that
she engaged in a protected activity; (2) that the defendant took
a materially adverse action against her; and (3) that a causal
connection existed between the protected activity and the
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materially adverse action. E.E.O.C. v. Navy Federal Credit
Union, 424 F.3d 397, 405-06 (4th Cir. 2005).
Protected activity can be either “opposition” activity or
“participation” activity. Id. at 406. Opposition activity
includes internal complaints about alleged discriminatory
activities—the activity at issue in this case. Id. Such
opposition activity is protected when the employee opposes an
“actual unlawful employment practice” or “an employment practice
that the employee reasonably believes is unlawful.” Jordan v.
Alternative Res. Corp., 458 F.3d 332, 338 (4th Cir. 2006).
“Because the analysis for determining whether an employee
reasonably believes a practice is unlawful is an objective one,
the issue may be resolved as a matter of law.” Id. at 339. See
also Breeden, 532 U.S. at 271 (reinstating district court’s
entry of summary judgment where plaintiff could not have
reasonably believed that she was opposing an employment practice
that violated Title VII).
Title VII “forbids only behavior so objectively offensive
as to alter the ‘conditions’ of the victim’s employment.”
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81
(1998). To evaluate whether that standard has been met, courts
look “‘at all the circumstances,’ including the ‘frequency of
the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive
7
utterance; and whether it unreasonably interferes with an
employee's work performance.’” Breeden, 532 U.S. at 270-71
(quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-88
(1998)). Relatedly, a “‘recurring point in [our] opinions is
that simple teasing, offhand comments, and isolated incidents
(unless extremely serious) will not amount to discriminatory
changes in the ‘terms and conditions of employment.’’” Breeden,
532 U.S. at 271 (quoting Faragher, 524 U.S. at 788).
In Breeden, the Supreme Court held that no reasonable
person could believe that a Title VII violation occurred when a
supervisor read a comment from a job applicant’s file stating “I
hear making love to you is like making love to the Grand
Canyon,” after which the supervisor stated that he did not
understand the comment, a male colleague stated that he would
explain later, and both men chuckled. Breeden, 532 U.S. at 269.
The Supreme Court made clear that the incident was “at worst an
‘isolated inciden[t]’ that cannot remotely be considered
‘extremely serious,’ as our cases require.” Id. at 271
(citation omitted).2
2
Session dedicates a substantial portion of her brief to
arguing why Jordan does not apply and why it should be
overturned. None of this furthers Session’s cause, because
Breeden, a Supreme Court case pre-dating Jordan, points us to
precisely the same result in this case. Compare Jordan, 458
F.3d 332, with Breeden, 532 U.S. 268.
8
Similarly, in this case, Session’s harassment complaint
referred only to the two previously-discussed comments by
Anderson: the first comment, in the context of Anderson’s
seeking recommendations for a hairdresser, that Session had
“‘that good hair’” (J.A. 53-54); and the second comment, about
the need to use plant pictures in the baby picture icebreaker
because “‘some of us have more melanin in our skin than
others.’” J.A. 54. Those two comments are the entire universe
of Session’s complaint.
Looking objectively at these comments, the first appears to
this Court to be an innocuous comment as opposed to an insult.
The second comment seems to us to be a clear reference to the
fact that Anderson herself, with a darker complexion, would
stand out in the baby picture guessing game. We fail to see how
the second comment was directed at, not to mention in any way
derogatory about, Session.
It may well be that Session found the comments subjectively
offensive. Nevertheless, Anderson’s two comments are inadequate
as a matter of law for Session to have held an objectively
reasonable belief that she confronted an abusive work
environment that violated Title VII: The comments were not
frequent, severe, physically threatening, or objectively
humiliating; and the comments could not have reasonably
interfered with Session’s work performance. The comments did
9
not alter the terms, conditions, or privileges of Session’s
employment. See Breeden, 532 U.S. at 270-71. We therefore
affirm the district court’s grant of summary judgment for the
School Board.
III.
In sum, because no reasonable person could have believed
that the two comments at issue in this case violated Title VII,
we affirm summary judgment in favor of the School Board.
AFFIRMED
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