Rountree v. City of Portsmouth

VETA L. ROUNTREE, Plaintiff,

v.CITY OF PORTSMOUTH, Defendant.

Civil Action No. 2:11cv106

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division

Dated: October 26, 2011

OPINION AND ORDER

This matter comes before the Court upon Defendant City of Portsmouth's ("Defendant") Motion for Summary Judgment filed on October 7, 2011. Plaintiff Veta L. Rountree ("Plaintiff) filed a Response on October 22, 2011, and Defendant filed a Reply on October 24, 2011. The Court has determined that no hearing is necessary. Therefore, the Court hereby DENIES Plaintiff's Request for a Hearing.

Plaintiff alleges Defendant discriminated and retaliated against her, and ultimately terminated her, on the basis of her race, gender, and age as an African American female above the age of forty in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq., the Age Discrimination in Employment Act ("ADEA"), 42 U.S.C. §§ 1981, 1981a, violated her due process rights under 42 U.S.C. § 1983, and breached her employment contract under state law.

For the reasons stated herein, the Court GRANTS Defendant's Motion for Summary Judgment in its entirety.

I. FACTUAL AND PROCEDURAL HISTORY

A. Facts

The following facts are taken from the evidence in the record and Defendant's statements of undisputed facts to the extent that they are not genuinely controverted by Plaintiff's statements of undisputed facts.¹ In addition to the record established during discovery, Plaintiff has submitted an Affidavit with her Response that alleges additional facts that create some ambiguity. However, these additional facts only seem to contradict the previous testimony that Plaintiff gave in her deposition. To the extent that they do, the Court has disregarded them since the Fourth Circuit has held that "A genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the plaintiff's testimony is correct." Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984) (citing Radobenko v. Automated Equipment Co., 520 F.2d 540, 544 (9th Cir. 1975)).

Plaintiff is an African American woman over the age of forty. Amended Complt. ¶¶ 2, 10. She was employed as an administrative staff member at the Office of the Assessor for the City of Portsmouth from 2005 until 2009. Id. at % 10. At the time of Plaintiff's hiring, the Assessor was Alethia Bryce, who is an African American. Id. at ¶ 19. Tawanna Morrow and Marissa Jones, both of whom are African American women, were employed as administrative staff members of the Office of the Assessor while Plaintiff was employed there. Jones Dep. 6; Morrow Dep. 6-7; Rountree Dep. 10-11. Maria Kattman became the City Assessor on July 1, 2009. Kattman Dep. 7-8. Ms. Kattmann is a Caucasian female. Amended Complt. ¶ 32.

During the time that Plaintiff, Ms. Jones, and Ms. Morrow were co-workers, they had a poor working relationship—they had disagreements and got into arguments.² Morrow Dep. 10. Ms. Jones and Ms. Morrow referred to the complexion of Plaintiff's skin in a derogatory way— calling her complexion "yellow" and "red" and saying Plaintiff was a "wannabe white girl." Rountree Dep. 8, 11. In her deposition, Plaintiff did not identify any other action by co-workers that made reference to her race or color, and Plaintiff could not recall any comments in this regard being made during Ms. Kattman's tenure as Assessor.³ Id. at 27, 31. Furthermore, Plaintiff never made Ms. Kattmann aware of her allegations against Ms. Jones and Ms. Morrow and never told her about the racial comments made against her because these incidents took place before Ms. Kattmann started her job at the Office of the Assessor. Id. at 11. 31.

In addition to skin color, Ms. Jones and Ms. Morrow referred to Plaintiff's age relative to theirs in a derogatory way—saying she was twenty and ten years older than they were. Id. at 22. However, no other person in the Assessor's office referred to Plaintiff's age in a derogatory way or had concern over Plaintiff's age, including Ms. Bryce, Ms. Culpepper, Ms. Oxendine, and Ms. Kattman.⁴ Id. at 23. When Ms. Bryce learned of the discord between Plaintiff, Ms. Jones, andMs. Morrow, she referred the three co-workers to the Employee Assistance Program ("EAP") in an effort to help them resolve their differences. Id. at 24, 27-28.⁵

During 2008, for medical reasons, Plaintiff exhausted her leave and encountered difficulty in the processing of leave days without pay. Id. at 46-49. However, prior to her termination, Plaintiff had already received all sums due to her for the work she had performed. Id. at 49.⁶

On May 26, 2009, Plaintiff filed a grievance with the Department of Human Resources Management. Def.'s Ex. A. She sought a lateral transfer and damages based upon claims of color and age discrimination and retaliation. Id. In accordance with the City Grievance Policy, Plaintiff and Defendant each selected a panel member, who in turn selected the chairperson of the panel. Def.'s Ex. B. On July 8, 2009, the City Grievance Panel heard Plaintiff's grievance and afforded her an opportunity to present her evidence, or a summary thereof.⁷ Rountree Dep. 37; Def.'s Ex. C. That same day, the Grievance Panel issued a unanimous decision that found no evidence of discrimination, harassment or retaliation on the basis of color or age.⁸ Rountree Dep. 37; Def's Ex. C. Plaintiff contends that the grievance panel members discriminated against her because they were Caucasian and agreed against her.⁹ Rountree Dep. 37.

On June 30, 2009, Ms. Bryce retired, and on July 1, 2009, Ms. Kattmann succeeded her as City Assessor. Kattmann Dep. 7-8. At no time did Plaintiff personally make Ms. Kattmannaware of any discriminatory racial comments concerning her made by Ms. Jones or Ms. Morrow. Rountree Dep. 11. Furthermore, Plaintiff presents no evidence that Ms. Kattmann was aware of any complaints concerning Plaintiff's age that Ms. Morrow and Ms. Jones had made. See Rountree Dep. 31. Ms. Kattmann was, however, aware that Plaintiff had filed a grievance with the Grievance Panel when she stated working, Kattman Dep. 28.

On July 14, 2009, Ms. Kattmann, the head of the department and Plaintiff's boss, asked Plaintiff to prepare a computer-generated form for Orders of the Board of Equalization to replace a form that had previously been completed by hand.¹⁰ Rountree Dep. Ex. 1; Kattmann Dep. 40-42, 51. Ms. Kattmann testified that Plaintiff refused to perform the task because she believed it was someone else's responsibility.¹¹ Kattmann Dep. 40-42. See also Rountree Aff. ¶ 22. Later, Plaintiff came into Ms. Kattmann's office and had a discussion with Ms. Kattmann in which Plaintiff referred to at least one of her co-workers as a "bitch." Id. at 44-47.¹²

On July 15, 2009, Ms. Kattmann presented Plaintiff with a Notice of Disciplinary Action. Id. at 47-49. Ms. Kattmann advised Plaintiff that she had been found to have engaged in unethical and/or unprofessional conduct with her and other employees in relation to a work assignment, and that Plaintiff was being terminated from employment effective the next day.¹³ Rountree Dep. Ex. 1; Rountree Dep. 15. Ms. Kattmann met with Plaintiff for between ten tothirty minutes during this time.¹⁴ Kattmann Dep. 68. Plaintiff testifies that she did discuss this disciplinary action with Ms. Kattmann on the telephone on July 16, 2009, and that Ms. Kattmann advised Plaintiff that she was not going to change her mind about terminating Plaintiff. Amended Compl. ¶ 31; Rountree Dep. 50, 74-75. Plaintiff's position at the Office of the Assessor was not directly filled upon her termination, but another employee, who was over the age of forty, was later hired for Plaintiff's position.¹⁵ Morrow Dep. 23-24; Jones Dep. 19-20.

Plaintiff's Notice of Disciplinary action states on its face that Plaintiff may have a right of grievance. Rountree Dep. Ex. 1. Nevertheless, Plaintiff did not file a grievance concerning the termination of her employment. Rountree Dep. 50. Prior to her termination, Plaintiff had, however, filed a charge of Discrimination against Defendant with the Equal Employment Opportunity Commission ("EEOC") on November 21, 2008. Amended Compl. ¶ 15. Ms. Kattmann was not aware of the charge Plaintiff had filed with the EEOC. Kattman Dep. 28. Following her termination, Plaintiff amended her EEOC Charge of Discrimination on November 13, 2009. Id.

B. Procedural History

On November 23, 2010, the EEOC concluded its investigation and determined that it was unable to conclude that the information provided by Plaintiff established a violation of the statues. Pl.'s Ex. 2. The EEOC therefore issued a Notice of Right to Sue to Plaintiff. Id.

On February 22, 2011, Plaintiff filed her Complaint against Alethia C. Bryce, Janey Culpepper, Maria Kattmann, and the City of Portsmouth. On March 29, 2011, these defendantscollectively filed a Motion to Dismiss Plaintiff's Complaint. On June 20, 2011, this Court dismissed Plaintiff's Complaint in its entirety but granted Plaintiff leave to amend in accordance with the Court's Order. The Court found Plaintiff's Complaint was scant on facts, Plaintiff's suit against Culpepper, Kattmann, and Bryce was, redundant and duplicative, and there was no legal basis for Plaintiff's request for punitive damages.

In accordance with the Court's Order, Plaintiff filed an Amended Complaint on July 5, 2011. Defendant filed a timely Answer and subsequently filed its Motion for Summary Judgment on October 7, 2011. This matter has been fully briefed and is ripe for decision.

II. LEGAL STANDARD

A. Summary Judgment

In reviewing a motion for summary judgment under Federal Rule of Civil Procedure 56, the Court construes all facts and inferences in the light most favorable to the non-moving party. Scott v. Harris. 550 U.S. 372, 378 (2007) (citing United States v. Diebold. Inc., 369 U.S. 564, 655 (1962); Saucier v....