UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-1002

LISA COOPER,

Plaintiff - Appellant,

v.

THE SMITHFIELD PACKING COMPANY, INC.,

Defendant - Appellee.

-------------------------------

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Amicus Supporting Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:13-cv-00145-F)

Argued: December 6, 2017 Decided: March 5, 2018

Before DUNCAN and DIAZ, Circuit Judges, and Paula XINIS, United States District Judge for the District of Maryland, sitting by designation.

Affirmed by unpublished opinion. Judge Xinis wrote the opinion in which Judge Duncan and Judge Diaz concurred. ARGUED: Angela Newell Gray, GRAY NEWELL, Greensboro, North Carolina, for Appellant. Kurt George Larkin, HUNTON & WILLIAMS, LLP, Richmond, Virginia, for Appellee. ON BRIEF: James L. Lee, Deputy General Counsel, Jennifer S. Goldstein, Associate General Counsel, Elizabeth E. Theran, Acting Assistant General Counsel, Susan L. Starr, Office of General Counsel, UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Amicus United States Equal Employment Opportunity Commission.

Unpublished opinions are not binding precedent in this circuit.

2 XINIS, District Judge:

Plaintiff-Appellant Lisa Cooper is a former employee of Defendant-Appellee The

Smithfield Packing Company (Smithfield). Cooper sued Smithfield under Title VII of

the Civil Rights Act and state tort law based on the actions of Tommy Lowery, a

superintendent with whom Cooper worked. In a series of decisions, the district court

dismissed Cooper’s First Amended Complaint; struck certain factual allegations from

Cooper’s Second and Third Amended Complaints; and granted summary judgment to

Smithfield on the lone remaining claim in Cooper’s Fourth Amended Complaint. On

review, we find that the district court committed no error when it dismissed Cooper’s

First Amended Complaint or in granting summary judgment in Smithfield’s favor. We

further find that any error committed by the district court in striking factual allegations

from the Second and Third Amended Complaints is harmless. Therefore, we affirm the

judgment of the district court.

I. Factual and Procedural Background

Between 1995 and 2011, Cooper was employed by Smithfield, save for a short

period when she had been terminated and then reinstated for reasons unrelated to this

case. According to allegations in Cooper’s Fourth Amended Complaint, Lowery

sexually harassed her on a regular basis between 2007 and 2011, repeatedly asking her to

sleep with him, threatening her when she refused to sleep with him, physically brushing

up against her, demeaning her relationship with her husband, and requiring her to work in

close proximity with him for no apparent reason. This pattern of abuse culminated in

3 July 2011, when Cooper reported Lowery’s behavior to Smithfield’s human resources

department (HR). After her initial verbal report, Cooper was asked by HR to provide a

written statement, which she submitted the following day. The next day, while

Smithfield continued to investigate the claims, Cooper resigned.

Cooper timely filed a claim with the EEOC, alleging discrimination, harassment,

and retaliation arising from Lowery’s alleged pattern of sexual abuse. After receiving a

right-to-sue letter, Cooper brought suit against Smithfield for retaliation (Count I);

wrongful termination, gender discrimination, and hostile work environment (Count II);

negligent infliction of emotional distress (Count III); intentional infliction of emotional

distress (Count IV); and negligent supervision and retention (Count V).

The District Court dismissed with prejudice all counts in Cooper’s First Amended

Complaint except Count II, the hostile work environment claim. With respect to

Cooper’s tort claims, the district court first found that Cooper’s negligent infliction of

emotional distress claim failed as a matter of law because Cooper had pleaded intentional

and not negligent conduct, and that her intentional infliction claim failed because the

conduct alleged was not sufficiently “extreme and outrageous.” The district court found

that Cooper’s negligent retention and supervision claim failed because no common-law

tort was involved.

With respect to the Title VII claims, the district court reasoned that Cooper’s

retaliation claim failed as a matter of law because Cooper had not alleged an adverse

employment action, and her disparate treatment claim likewise failed because she averred

no facts demonstrating that Smithfield had treated her differently from other similarly

4 situated employees. The district court dismissed Cooper’s hostile work environment

claim with leave to amend so that Cooper could marshal additional facts to support that

Lowery’s conduct was motivated by her gender and was severe and pervasive, as

required to state a claim.

Cooper subsequently filed her Second Amended Complaint from which she

removed the dismissed counts and added facts supporting her hostile work environment

claim, but Cooper otherwise did not meaningfully change allegations relating only to the

dismissed claims. Consequently, Smithfield moved to strike certain factual allegations

included in the Second Amended Complaint, including those regarding Cooper’s job

qualifications, Lowery’s treatment of other workers, and statements Lowery made about

the race of Cooper’s husband, which the district court granted. After Cooper filed her

Third Amended Complaint, removing the allegations stricken by the district court,

Smithfield again moved to dismiss. The district court denied the motion to dismiss, but

once again struck portions of the Third Amended Complaint relating primarily to death

threats Cooper alleged that Lowery had made, reasoning that these allegations were not

presented to the EEOC and therefore unpreserved, but otherwise denied Smithfield’s

motion.

Cooper then filed her Fourth Amended Complaint. After the close of discovery,

Smithfield moved for summary judgment as to the remaining hostile work environment

claim. The district court granted summary judgment in Smithfield’s favor on the ground

that Lowery’s misconduct could not be imputed to Smithfield. Cooper appeals.

5 II. Standard of Review

A district court properly dismisses a claim under Federal Rule of Civil Procedure

12(b)(6) when the complaint does not include sufficient factual allegations to render the

claim facially plausible, or to permit reasonable inference that the defendant is liable for

the alleged misconduct. See Ashcroft v. Iqbal,

, 678–79 (2009). The court

accepts as true all well-pleaded factual allegations and makes all reasonable inferences in

the favor of the plaintiff. Phillips v. Pitt Cty. Mem. Hosp.,

(4th Cir.

1999). Summary judgment similarly is appropriate when the court, construing all

evidence and drawing all reasonable inferences in the non-movant’s favor, finds no

genuine dispute as to material fact exists and the movant is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(a); see In re Family Dollar FLSA Litig.,

(4th Cir. 2011).

On appeal, this Court reviews the district court’s conclusions of law regarding

dismissal and summary judgment de novo and reviews factual findings for clear error.

See Monroe v. City of Charlottesville,

(4th Cir. 2009); Newport News

Holdings Corp. v. Virtual City Vision, Inc.,

(4th Cir. 2011); N.C. State

Conference of NAACP v. McCrory,

(4th Cir. 2016), cert. denied sub

nom. North Carolina v. N.C. State Conference of NAACP,

(2017). A

district court’s striking of factual allegations from a complaint is reviewed for abuse of

discretion. SAS Inst., Inc. v. World Programming Ltd.,

(4th Cir.

6 2017); see also Renaissance Greeting Cards, Inc. v. Dollar Tree Stores, Inc.,

(4th Cir. 2007).

III. Discussion

A. Dismissal of First Amended Complaint

Cooper appeals the dismissal of the Intentional Infliction of Emotional Distress

(IIED), Disparate Treatment and Wrongful Termination, and Retaliation claims from her

First Amended Complaint. We address each in turn.

1. Intentional Infliction of Emotional Distress

To sustain an IIED claim under North Carolina law, a plaintiff must allege

plausibly that (1) the defendant engaged in extreme and outrageous conduct; (2) the

conduct was intended to cause severe emotional distress; and (3) the conduct in fact

caused severe emotional distress. See Waddle v. Sparks,

(N.C. 1992).

“Conduct is extreme and outrageous when it exceeds all bounds usually tolerated by a

decent society.” Shreve v. Duke Power Co.,

(N.C. Ct. App. 1987).

A plaintiff must plead with specificity such shocking and outrageous conduct by the

wrongdoer. See Piro v. McKeever,

(N.C. Ct. App. 2016).

Undoubtedly, sexual harassment is odious and offensive in any context. When

sufficiently extreme, the conduct may also support a common-law IIED claim. See

Hogan v. Forsyth Country Club Co.,

(N.C. Ct. App. 1986). The

critical flaw in Cooper’s First Amended Complaint, however, is her failure to plead facts

sufficient to raise the inference that Lowery’s actions were “extreme and outrageous.”

7 Cf.

(on summary judgment, finding a genuine issue of material fact with respect to

intentional infliction of emotional distress for sexual harassment when the plaintiff

provided evidence that the defendant told her he wanted to “take” her, “would brush up

against her, rub his penis against her buttocks and touch her buttocks with his hands,” and

“screamed profane names at her, threatened her with bodily injury, and on one occasion,

advanced toward her with a knife and slammed it down on a table in front of her.”).

Rather, in her First Amended Complaint, Cooper averred in a general and conclusory

fashion that she was “subjected to sexual harassment . . . which mostly consisted of

sexually explicit comments” and that the harassment “worsened and included, but was

not limited to, sexually explicit statements made to her, sexual advances made toward

her, inappropriate sexual contact and making continuous physical and emotional threats.”

J.A. 25. She further alleged that Lowery subjected her to “offensive sexual harassment,

in terms of the work conditions, privileges, benefits, and work environment [sic].” J.A.

25, 28. Devoid of any specific facts accompanying these characterizations, the First

Amended Complaint simply failed to make out acts sufficiently extreme and outrageous

to sustain an IIED claim. 1

1 The subsequent iterations of Cooper’s Complaint provided further detail. However, Cooper never requested leave to amend her Complaint as to the IIED claim, nor did she challenge the district court’s dismissal of the claim with prejudice. Therefore, our review is confined to the allegations set forth in the First Amended Complaint.

8 2. Disparate Treatment and Wrongful Termination

Cooper’s First Amended Complaint failed to allege sufficiently that she suffered

an adverse employment action or that similarly situated employees outside of her

protected class received more favorable treatment to state a claim for disparate treatment.

“Disparate treatment theory as it has emerged in application [to] . . . Title VII . . . has

consistently focused on the question of whether there has been discrimination in what

could be characterized as ultimate employment decisions such as hiring, granting leave,

discharging, promoting, and compensating.” Page v. Bolger,

(4th Cir.

1981). Here, Cooper alleged that Lowery “requir[ed] her to work later than her male

coworkers for no legitimate business reason,” that Lowery required her to work in close

physical proximity to him and complete “extensive menial tasks,” and that “Lowery did

not engage in aforementioned [sexually harassing] acts with any of the male employees.”

J.A. 25. These general and conclusory averments do not adequately support a reasonable

inference that Lowery discriminated against Cooper regarding an employment decision

comparable to hiring, firing, promoting, or compensating an employee.

As to Cooper’s wrongful termination/constructive discharge claim, Cooper’s First

Amended Complaint was likewise deficient. To make out a claim for constructive

discharge, Cooper must allege plausibly that her “working conditions became so

intolerable that a reasonable person in [her] position would have felt compelled to

resign.” Green v. Brennan,

, 1776–77 (2016). Because Cooper did not

plead facts demonstrating such intolerable conditions, this claim was properly dismissed.

9 3. Retaliation

Cooper alleged in her First Amended Complaint that Smithfield retaliated against

her by failing to investigate her complaints about Lowery and “ratifying” Lowery’s

conduct; “failing to transfer her or Lowery to work in other departments . . . [and]

continuing to allow Lowery to supervise her”; and “disregarding [her] concerns that

Lowery’s conduct was affecting her and her ability to work under his supervision,

thereby making a concerted effort to get the Plaintiff to quit.” J.A. 27–28. Although

Cooper is correct that an adverse employment action giving rise to a retaliation claim

need not be an “ultimate” employment action (e.g., hiring or firing), the action must

nonetheless be “materially adverse.” Burlington Northern & Santa Fe Ry. Co. v. White,

(2006). A plaintiff must plausibly allege that the employer’s response

would dissuade a reasonable employee from making or supporting a charge of

discrimination.

Cooper, by contrast, alleges inaction on the part of Smithfield. As

pleaded, Cooper’s employment status remained the same, as did her wages and terms of

employment. See Yeager v. UPMC Horizon,

, 546–47 (W.D. Pa.

2010) (cited by Robinson v. G.E. Aviation, No. 7:10-cv-00240-BR,

, at

*2 (E.D.N.C. Feb. 24, 2012)); cf. Baird v. Gotbaum,

(D.C. Cir.

2011). And Cooper’s voluntary resignation is not an adverse employment action on

Smithfield’s part. See Honor v. Booz-Allen & Hamilton, Inc.,

(4th Cir.

2004). This claim, too, was properly dismissed.

10 B. Summary Judgment on the Hostile Work Environment Claim

The district court properly granted summary judgment in Smithfield’s favor on

Cooper’s hostile work environment claim because liability for Lowery’s actions could

not, as a matter of law, be imputed to Smithfield. An employer may be liable for the

harassing behavior of its employee in one of two ways. First, if the plaintiff demonstrates

that the harasser is the plaintiff’s supervisor, then the employer is strictly liable for

harassment culminating in a “tangible employment action.” See Boyer-Liberto v.

Fontainbleau Corp.,

(4th Cir. 2015). As an affirmative defense, the

employer may establish that it exercised reasonable care to prevent and correct the

harassing behavior, and that the plaintiff unreasonably failed to take advantage of the

employer’s preventive or corrective measures. See

Alternatively, if the harasser is a coworker rather than a supervisor, then the

employer may be held liable only if the employer “knew or should have known about the

harassment and failed to take effective action to stop it.” Pryor v. United Air Lines, Inc.,

(4th Cir. 2015) (quoting EEOC v. Sunbelt Rentals, Inc.,

(4th Cir. 2008)). An employer’s negligence may be established where the plaintiff

proves that the employer failed to provide reasonable procedures for victims of

harassment to report complaints. See Hoyle v. Freightliner, LLC,

(4th

Cir. 2011). An employer’s written anti-harassment policy “provides ‘compelling proof’

that the company exercised reasonable care in preventing and correcting harassment,”

unless the policy was “adopted or administered in bad faith or . . . it was otherwise

11 defective or dysfunctional.”

(quoting Barrett v. Applied Radiant Energy,

, 266 (4th Cir. 2001)); cf. Davis v. City of Charlottesville Sch. Bd.,

,

, at *1 (4th Cir. 2012) (finding complaint adequately made out

negligence when plaintiff “alleged that she immediately reported her first incident of

harassment to a supervisor and that the harassment occurred again after she brought it to

the attention of her employer”).

The district court correctly determined that Lowery was not a supervisor under

Title VII. Vance v. Ball State University,

(2013), clarified that a

“supervisor” under Title VII is a person “empowered by the employer to take tangible

employment actions against the victim.”

. Specifically, the individual must

possess the power to hire, fire, demote, promote, transfer, or discipline the plaintiff.

. By contrast, “those who, although lacking this power, nevertheless have the ability

to direct a co-worker’s labor to some ill-defined degree” are not supervisors.

The facts construed in the light most favorable to Cooper do not support a finding

of supervisory liability under Vance. Lowery was neither involved in nor had the

authority to hire or fire Cooper, or make any like-kind employment decisions. At best,

Lowery provided informal evaluations of Cooper to the HR department, and seemingly

had some input regarding vacation days and her work schedule. J.A. 510–12; 743–45.

This is insufficient to confer supervisory status under Title VII. Accordingly, the district

court did not err by determining that Lowery was Cooper’s coworker.

Under coworker liability, the evidence construed most favorably to Cooper does

not support a finding that Smithfield was negligent—i.e., that it knew or should have

12 known about Lowery’s harassment of Cooper and failed to take any corrective action.

Smithfield maintained a written anti-harassment policy reasonably calculated to prevent

and address workplace sexual harassment, as well as a written code of conduct

prohibiting harassment. J.A. 204–05; 576–78. Smithfield trained employees annually on

anti-harassment standards, including the requirement to report violations of Smithfield’s

code of conduct, and maintained a hotline for employees to report concerns

anonymously. See, e.g., J.A. 574. This clearly is not a case in which Smithfield adopted

a “see no evil, hear no evil strategy.” Freeman v. Dal-Tile Corp.,

(4th

Cir. 2014).

Further, the record evidence shows that Smithfield first learned of Lowery’s

harassment only days before Cooper voluntarily resigned. 2 Smithfield immediately

began investigating Cooper’s claims and offered to change Cooper’s work assignment

while the investigation was ongoing. Cf. Foster v. Univ. of Md.-Eastern Shore,

(4th Cir. 2015) (prompt investigation of complaint and remedial actions taken in

response supported conclusion that employer’s response to harassment was effective and

that employer was not negligent). Cooper then resigned before Smithfield could provide

Cooper any meaningful redress. Taking the evidence in the light most favorable to

2 The district court struck Cooper’s sworn declaration submitted in response to Smithfield’s motion for summary judgment, finding it a “sham affidavit” designed solely to generate a dispute of material fact after discovery had concluded. Cooper, on appeal, failed to challenge this ruling and so it is waived. The EEOC’s arguments as to the sham affidavit, presented as amici, cannot preserve that which Cooper did not pursue. See Snyder v. Phelps,

(4th Cir. 2009).

13 Cooper, a finding of negligence on this record would be tantamount to requiring

Smithfield to “exercise an all-seeing omnipresence over the workplace,” which this Court

will not do. Howard v. Winter,

(4th Cir. 2006). Smithfield’s motion

for summary judgment on the hostile work environment claim was properly granted. 3

C. Allegations Stricken from Second and Third Amended Complaints

Cooper finally challenges the district court’s order striking certain allegations from

her Second and Third Amended Complaint. The district court’s determination had no

effect on the ultimate decision to grant summary judgment for failure of proof on

Smithfield’s supervisory liability and negligence. Accordingly, even if the district court

erred in striking allegations that were possibly relevant and properly exhausted, those

facts were not material to the summary judgment determination, and any error is

harmless.

IV. Conclusion

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

3 The EEOC is correct that Cooper should not be penalized for enduring Lowery’s longstanding abuse. See EEOC v. Fairbrook Med. Clinic, PA,

(4th Cir. 2010). But Smithfield’s liability turns not on how long Cooper suffered in silence, but when she reported Lowery’s harassment (or Smithfield otherwise learned of Lowery’s harassment) sufficient to put Smithfield on notice that corrective action must be taken. The EEOC does not dispute that Cooper first reported the harassment to Smithfield’s Human Resources department just days before she resigned, and so the EEOC’s point, while well taken, is not outcome-determinative.

14