United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Chief United States District Judge
Glen E. Conrad Chief United States District Judge Lisa Ann
McKinley filed this action under Title VII of the Civil
Rights Act of 1964 ("Title VII") against her former
employer, The Salvation Army. McKinley alleges that she was
sexually harassed by Michael Moffitt, an individual she
refers to as her supervisor, and that she was constructively
discharged by The Salvation Army. She asserts a sexually
hostile work environment claim, as well as claims of gender
discrimination and retaliation. The case is presently before
the court on The Salvation Army's motion for summary
judgment. For the reasons set forth below, the motion will be
granted in part and denied in part.
following facts are either undisputed or presented in the
light most favorable to McKinley. See Anderson v. Liberty
Lobby, Inc.. 477 U.S. 242, 255 (1986) (emphasizing that
"[t]he evidence of the nonmovant is to be believed, and
all justifiable inferences are to be drawn in [her] favor,
" when ruling on a motion for summary judgment).
Salvation Army is a Christian charitable organization
structured in a quasi-military fashion. The organization is
headed by a General and divided into geographical
territories. The Roanoke Corps of The Salvation Army
("Roanoke Corps") is part of the United States
Southern Territory. The Roanoke Corps operates an
administrative office located at 724 Dale Avenue in Roanoke;
the Red Shield Lodge, a homeless shelter for men located at
821 Salem Avenue; Turning Point, a domestic violence shelter
for women located at 815 Salem Avenue; and a Salvation Army
thrift store. At all times relevant to the instant action,
the operations of the Roanoke Corps were overseen by two
Corps Officers, Captains Kenneth and Amy Argot.
March of 2013, McKinley interviewed for an open case worker
position with the Roanoke Corps, which was funded through a
grant that The Salvation Army received from the City of
Roanoke. The position was created to assist the shelters'
residents in obtaining housing. McKinley learned about the
position through her friend and former colleague, Evelyn
Jordan, who worked as the Director of Turning Point.
attended two interviews for the case worker position. The
second interview was conducted by Jordan, Kenneth Argot, and
Michael Moffitt, the Director of the Red Shield Lodge.
McKinley claims that Moffitt's sexual harassment of her
began during the interview, when he commented on her
attractiveness multiple times and told her that she was
wearing a - beautiful outfit. Moffitt referred to
McKinley's good looks as "the elephant in the room,
" and questioned how she would handle men who may
"come on" to her. Jordan Dep. 55-56.
McKinley was offered and accepted the position for which she
interviewed. She was employed by The Salvation Army for
approximately eight months. Her first day of work was March
25, 2013. In August of 2013, McKinley took a leave of absence
to assist her daughter after the birth of a child. She
returned in September and worked until November 11, 2013,
when she resigned.
McKinley was hired by The Salvation Army, she initially
worked from the administrative office on Dale Avenue. She
then moved to the Red Shield Lodge, where she shared an
office space with Moffitt and Susan Latta, the case manager
at the men's shelter. While based at that location,
McKinley generally worked from 7:30 a.m. until 4:00 or 4:30
p.m., depending on when she took a lunch break.
position with The Salvation Army, McKinley was assigned
homeless clients at both shelters, but most of her time was
spent at the Red Shield Lodge. In the beginning, she was
primarily responsible for helping her clients find stabilized
housing through funds provided by the Community Housing
Resource Center ("CHRC"), a local housing
organization. At some point thereafter, the relationship
between The Salvation Army and the CHRC soured and
McKinley's duties changed. She took on more of a case
management role in which she assisted Latta with the case
load of clients at the men's shelter.
to McKinley's evidence, Moffitt was her direct supervisor
at the Red Shield Lodge and Jordan was her direct supervisor
at Turning Point. See McKinley Dep. 80; Jordan Dep.
61-62. Because McKinley spent most of her time working with
clients at the Red Shield Lodge, Moffitt was her
"primary supervisor." Jordan Dep. 62.
claims that she was sexually harassed by Moffitt throughout
her period of employment with The Salvation Army. While they
worked together at the Red Shield Lodge, Moffitt regularly
commented on McKinley's attractiveness, her attire, and
her perfume choices. For instance, Moffitt would tell
McKinley that she was "very attractive, " that she
"look[ed] great" in what she was wearing, and that
he loved her perfume. McKinley Dep. 202, 270 (internal
quotation marks omitted); see also id. at 274
("Some of the comments were, you know, 'Great skirt.
Oh, you know, we're not used to seeing any ... legs
around here.'"). Such comments were made on a
"daily" basis. McKinley Decl.¶14. Although
McKinley "specifically asked Moffitt on dozens of
occasions to 'stop' his comments because they made
[her] feel uncomfortable, " Moffitt "refused."
Id. His conduct "upset McKinley to the point of
tears, " and she would go to Jordan's office at the
women's shelter to "seek support." Jordan
evidence indicates that the conduct at issue was not limited
to remarks regarding her attractiveness and attire. On one
occasion, while McKinley and Moffitt were riding in a
vehicle, Moffitt allegedly told McKinley that he had been
involved in adulterous relationships in the past and
propositioned her to begin a similar relationship with him.
Moffitt indicated that he had "never started any kind of
relationship based upon a friendship, and he proceeded to
tell [McKinley] that he would like that to be [her]."
McKinley Dep. 277. On another occasion, Moffitt advised
McKinley that he had arranged for his wife to assist at the
Red Shield Lodge because he was "worried about [his]
intentions towards [McKinley]." Id. at 171.
evidence also indicates that Moffitt referred to her as a
"Jezebel, " both directly and in conversations with
other employees. For instance, David Winley, one of
McKinley's former co-workers, testified that Moffitt told
him that McKinley "was a Jezebel and that [Winley] was
under her spell." Winley Dep. 71. Winley interpreted
Moffitt's comments to mean that McKinley was "a
woman with loose morals, a whore practically."
Id. at 78. After hearing Moffitt call McKinley a
"Jezebel, " other employees and clients began to
refer to her in the same manner.
morning of Monday, November 11, 2013, Moffitt approached
McKinley in the parking lot of the Red Shield Lodge. He
called McKinley a "Jezebel" and advised her that he
was "going to have to fire [her]." McKinley Dep.
157. When McKinley asked Moffitt why he was calling her a
"Jezebel, " Moffitt "explained [that] a
Jezebel creates havoc, and ... is ~ a whore-type person that
puts . .. spells on people." Id. at 158
(internal quotation marks omitted).
went to the administrative office and reported Moffitt's
comments to Karin Vaughn, the Director of Human Resources for
the Roanoke Corps. After speaking with Vaughn, McKinley met
with Kenneth and Amy Argot. McKinley advised the Argots that
she intended to resign. According to a written statement
prepared by McKinley, Kenneth Argot refused to accept her
resignation and advised her that she would be placed on paid
administrative leave while her complaints were investigated.
At the conclusion of her meeting with the Argots, Amy Argot
recommended that McKinley "[p]ick [her]self up by the
bootstraps, and go on." McKinley Dep. 248.
was placed on paid administrative leave from Monday, November
11, 2013 to Friday, November 15, 2013. On November 15, 2013,
The Salvation Army issued disciplinary notices to Moffitt,
Susan Latta, and another employee, Kevin Cashion, for their
inappropriate conduct toward McKinley. The notice issued to
Moffitt indicated that he had admitted to engaging in conduct
that violated The Salvation Army's non-discrimination
policies, which included treating Lisa McKinley differently
due to her appearance. The notice set forth the following
corrective action plan:
Lisa McKinley is to be reassigned to the Corps under the
supervision of the Corps Officer. Mike [Moffitt] is to
apologize to Lisa for statements that violate the spirit of
the non-discriminatory policies of the Army. Mike is to
engage in training after Christmas in regard to proper
boundaries and harassment in the workplace. He is to make
this training mandatory for all his staff to be completed by
6/1/14. Mike will not discuss staff or client issues
outside of the workplace or Corps Officer. Mike will not
discuss staff issues with other staff.
Def.'s Ex. O.
same day, Kenneth Argot sent McKinley a letter outlining his
findings and The Salvation Army's proposed ...