United States District Court, W.D. Virginia, Roanoke Division
December 29, 2016
SARAH CARROLL, Plaintiff,
SALON DEL SOL, INC. Defendant.
MEMORANDUM OPINION 
Robert S. Ballou United States Magistrate Judge
employment discrimination case, I GRANT summary judgment for
Defendant Salon Del Sol (“salon”) as to Plaintiff
Sarah Carroll's (“Carroll”) hostile work
environment claim and DENY summary judgment as to
Carroll's retaliation claim.
who is a Caucasian woman, began working in 2011 as a hair
stylist on a part-time basis for Salon Del Sol. Dkt. No.
29-1, p. 3-5. Carroll was enrolled as a full-time student at
Virginia Western Community College when she began at the
salon, which allowed her to adjust work hours to accommodate
her school schedule, including providing time to complete
continuing education requirements. Dkt. No. 29-1, p. 6.
Throughout the time Carroll worked at the salon, she was
involved in a long-term relationship with an African American
man. Dkt. No. 29-1, p. 25, 6, 14.
January 2013, Denise Vetsch (“Vetsch”, previously
“Denise Latham”), who also is Caucasian and a
co-owner of the salon, assumed company level management. She
sent an email to all employees on January 21, 2013, stating
that there would be a change in management and “[f]or
those who aren't able to accept the changes as they
happen, separation is necessary.” Dkt. No. 29-4, p. 1.
This email also stated: “We are no longer going to be
hampered by hostage management and everyone will be held
accountable for their actions, even if liberation is the best
solution, regardless of talent or revenue-making
abilities.” Dkt. No. 29-4, p. 1. Carroll responded to
Vetsch's email, expressing how happy she was to work for
the salon. Dkt. No. 29-1, p. 14-5.
spring of 2013, Vetsch hired Shawn Spencer
(“Spencer”) as manager of the salon and, thus,
Carroll's immediate supervisor. Dkt. No. 29-1, p. 18-19.
Spencer, who is African American, was responsible for
enforcing the Company's policies, which included
prohibiting employees from changing their schedules numerous
times. Dkt. No. 29-2, p. 13. Spencer made several changes to
Carroll's schedule this spring, which Carroll did not
like. Dkt. No. 29-1, p. 35. Spencer also made three separate
“racial comments” which offended Carroll.
See Dkt. No. 29-1, p. 22-9. Spencer told Carroll she
“would not hire Carroll's friend [an African
American] as a front desk receptionist because the
woman's ‘long fingernails and feather earrings
would scare the white people.'” Dkt. No. 29-1, p.
22-3. Spencer stated though that she was only repeating what
her Caucasian colleague had told her about this particular
candidate. Dkt. No. 29-2, p. 7-8. Spencer also told Carroll
in the lobby of the salon that she did not understand
No. 29-1, p. 22-3. Both Carroll and Spencer were involved in
inter-racial relationships at that time. Dkt. No. 29, p. 7.
Finally, Spencer told Carroll, “something to the effect
of ‘You white girls are made for black men because
you're curvy.'” Dkt. No. 29-1, p. 28. Carroll
also alleges that Spencer made “other comments about
dating black men”, including a “very intimidating
conversation” Spencer had with “another
co-worker, Kari Bagby, about her interracial relationship
with an African American male.” Dkt. No. 36-1, p. 9.
states other hair stylists were also offended by Spencer and
her racially-charged comments. Dkt. No. 36, p. 2.
12, 2013, Carroll sent an email to Spencer and Vetsch,
expressing her concerns about Spencer's behavior. Dkt.
No. 29-5, p. 3-4. In this email, Carroll stated to Spencer:
…I cannot hear one more racial comment come out of
your mouth. The comments you make about white women dating
black men is disgusting. My child is bi-racial so I take
serious offense to that. The night you and I had the
conversation about it, I was slightly offended but you
didn't approach me as aggressively and disrespectfully as
you did another employee. When I heard that you continued
with this issue, I was appalled. But the comments didn't
stop there. You have made comments about how we ‘white
girls are curvy and made for black men'. Its very
disturbing that my manager turns everything racial. Also I
sent you an amazing front desk prospect and your comment was
that you didn't want to ‘scare the white
people' because of her finger nails and earrings.
That's absolutely absurd.
Dkt. No. 29-5, p. 3. Carroll also raised her concerns about
the salon accommodating her school schedule, stating that
Spencer “has been very resistant and difficult when
adjusting my schedule.
frankly, I am tired of the attitude I receive when asking her
to do her job”, adding that “Salon del Sol has
lost several great employees over the past few weeks and I
believe it is, in large part, due to Shawn.” Dkt. No.
29-5, p. 4. Carroll then stated if her concerns
“don't drastically change very soon, you will loose
me as well. I finish school in August and I cannot work, as a
full time employee, under this kind of management.”
Dkt. No. 29-5, p. 4.
13, 2013, Vetsch responded, thanking Carroll for voicing her
concerns and asking to meet in person with Spencer present as
well to discuss the issues. Vetsch also stated she thought
Spencer was doing a great job and had no intention of
terminating her. Dkt. No. 29-5, p. 3. Carroll responded the
next day, telling Vetsch: “I never said I want Shawn to
leave the company. If you thought my email said that, you
might want to read it more thoroughly.” Dkt. No. 29-5,
p. 2. Carroll also expressed concern that Spencer told other
salon employees that Carroll had sent the earlier email.
Carroll then added that she could not meet on the proposed
date, but she would be in the salon on other days. Dkt. No.
29-5, p. 2. Three days later, on June 17, Vetsch responded to
Carroll, copying Spencer, stating:
It appears you are severely disgruntled and unhappy with your
employment with SDS [Salon Del Sol]. I believe if a service
provider is unhappy with their job then they are unable to
provide our guest the level of service we require. Therefore,
I think you should liberate yourself and find another company
that will better suit your needs.
Dkt. No. 29-5, p. 2. Carroll did not resign her employment;
Vetsch terminated her on June 17, 2013. Dkt. No. 5, p. 3-4.
judgment is proper only where there is no genuine issue as to
any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. Pro. 56(a).
“A dispute is genuine if a reasonable jury could return
a verdict for the nonmoving party. A fact is material if it
might affect the outcome of the suit under the governing
law.” Jacobs v. N.C. Admin. Office of the
Courts, No. 13-2212, 2015 WL 1062673, at *4 (4th Cir.
Mar. 12, 2015) (internal citations and quotations omitted)
(citing Libertarian Party of Va. v. Judd, 718 F.3d
308, 313 (4th Cir. 2013)). “The moving party bears the
initial burden of showing the absence of an essential element
of the nonmoving party's case and that it is entitled to
judgment as a matter of law. Once the moving party satisfies
this burden, the nonmoving party then must recite specific
facts showing that there is a genuine dispute of fact which
merits a trial.” Anderson v. Kroger Ltd. P'ship
I, No. 2:11CV192, 2011 WL 5101764, at *1-2 (E.D. Va.
Oct. 26, 2011) (internal citations and quotations omitted)
(citing Honor v. Booz-Allen & Hamilton, Inc.,
383 F.3d 180, 185 (4th Cir. 2004)).
determining whether summary judgment is appropriate, the
court must view the facts, and inferences to be drawn from
those facts, in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986) (quoting United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
“The court therefore cannot weigh the evidence or make
credibility determinations.” Jacobs, 2015 WL
1062673, at *4 (citing Mercantile Peninsula Bank v.
French (In re French), 499 F.3d 345, 352 (4th Cir.
2007)). Where the record taken as a whole “could not
lead a rational trier of fact to find for the non-moving
party, disposition by summary judgment is appropriate.”
Teamsters Joint Council No. 83 v. Centra, Inc., 947
F.2d 115, 119 (4th Cir.1991) (citing Matsushita
Elec., 475 U.S. at 587, and Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-49 (1986)).
alleges that Salon Del Sol has subjected her to a racially
hostile work environment in violation of Title VII. To
establish a prima facie case, Carroll must show that
the harassment was “(1) unwelcome, (2) based on race,
(3) sufficiently severe or pervasive to alter the conditions
of employment and create an abusive atmosphere, ” and
(4) that “there is some basis” for imputing
liability upon the employer. Spriggs v. Diamond Auto
Glass, 242 F.3d 179, 183-84 (4th Cir. 2001).
Del Sol does not challenge that the harassment was unwelcome
and that there is some basis for imputing Spencer's
comments upon Salon Del Sol. In its reply brief, Salon Del
Sol raises for the first time an issue with the second
element, arguing that “nowhere in her Opposition Brief
does Plaintiff argue or submit evidence in support of an
argument that Ms. Spencer harassed or demeaned her [Carroll]
because she is Caucasian.” Dkt. No. 38, p. 4. To
establish that Spencer's conduct was based on a protected
trait, Carroll must show that she was targeted because
of such trait. See Smith v. First Union Nat.
Bank, 202 F.3d 234, 242-43 (4th Cir. 2000).
told Carroll she did not understand why black men date white
women and suggested “that black men only like white
women due to their curves”, and Carroll is Caucasian.
Dkt. No. 36, p. 7. Carroll argues she was harassed by Spencer
“because of [her] choice of racial - [her]
partner's race.” Dkt. No. 36, p. 6. Such comments
that explicitly reference Carroll's race and relate to
her choice in partner are evidence of animus based on race,
and it has been established that race-based discrimination
that targets Caucasian employees is actionable under Title
VII in a hostile work environment claim. See,
e.g., Bowen v. Missouri Dep't of Soc.
Servs., 311 F.3d 878, 883-84 (8th Cir.2002); Davis
v. Kansas City Hous. Auth., 822 F.Supp. 609, 615
(W.D.Mo.1993); Reed v. Airtran Airways, 531
F.Supp.2d 660, 668 (D. Md. 2008). Thus, this element has been
the third element of Carroll's prima facie case,
I find that no genuine issue of material fact exists
regarding whether the work environment at Salon Del Sol was
“sufficiently severe or pervasive to alter the
conditions of employment and create an abusive
environment.” Id. The “severe or
pervasive” element has both an objective and subjective
element. Harris v. Forklift Sys., Inc., 510 U.S. 17,
21-2, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993). To
determine whether there was an objectively hostile
environment at Salon Del Sol, the Court must consider 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; whether it unreasonably interferes with the
plaintiff's performance; and what psychological harm
resulted.” Martin v. Merck & Co., 446
F.Supp.2d 615, 629 (W.D. Va. 2006) (citing Harris,
510 U.S. at 21-3, 114 S.Ct. 367; Conner v.
Schrader-Bridgeport Int'l, Inc., 227 F.3d 179, 193
(4th Cir.2000)). This standard is “demanding” to
ensure “that Title VII does not become a ‘general
civility code.'” Faragher v. City of Boca
Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 2283-84, 141
L.Ed.2d 662 (1998) (internal citation omitted). The plaintiff
must subjectively perceive the environment to be abusive for
there to be a Title VII violation. Harris, 510 U.S.
Carroll states she experienced three instances personally
when Spencer brought up race during the few months Spencer
was her manager. Spencer's comments concerned white women
dating black men, “suggestions that black men only like
white women due to their curves, and comments that an
African-American would not be hired for the front desk
because she would ‘scare the white people.'”
Dkt. No. 36, p. 7. Carroll also alleges that co-workers
Bagby, Wohlford and Sacra were similarly offended by
Spencer's comments in their own interactions with her.
Dkt. No. 36, p. 2. Salon Del Sol, however, maintains that
Spencer's conversations with Carroll concerning
inter-racial dating were “friendly conversations”
about a “subject with which they both had
experience.” Dkt. No. 29, p. 16. Specifically, the
salon contends when Spencer made her comments about not
chose to participate in this conversation because she
“thought it would be appropriate to explain in a nice
way [Carroll's] standpoint on [the topic of white women
dating black men].” Dkt. No. 29, p. 7 (citing Dkt. No.
29-1, p. 32). Indeed, Carroll states in her deposition that
the conversation was “cordial.” Dkt. No. 29-1, p.
27. The company therefore asserts that “Carroll could
have avoided either or both of the discussions, but she chose
to remain and participate”, and that the comment about
an applicant potentially “scaring” the white
people was an offhand comment that Spencer heard from another
employee and then repeated to Carroll. Dkt. No. 29, p. 16-7.
incidents, even if accepted as evidence of an unpleasant
working environment, do not permeate Salon Del Sol
“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.” Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 78, 118 S.Ct. 998,
140 L.Ed.2d 201 (1998) (quoting Harris, 510 U.S. at
21, 114 S.Ct. 367) (internal quotation marks omitted).
Carroll only alleges three incidents over the course of
several months that she personally experienced, and these
comments do not rise to the level of racial slurs or other
types of racially motivated comments that would meet this
strict standard. Carroll correctly points out that comments
do not have to be racial slurs to be actionable, but the
comments which form the basis of Carroll's hostile claim
resemble “mere offensive utterance[s]” rather
than language constituting “pure anathema” to the
recipient, and so this element is not met. See
Merck, 446 F.Supp.2d at 629 (finding that the use of the
word “nigger” in the workplace, which is
“[f]ar more than a mere offensive utterance and
constitutes pure anathema to African Americans”, did
not create a hostile work environment when considering the
totality of the circumstances). “Workplaces are not
always harmonious locales…complaints premised on
nothing more than ‘rude treatment by [coworkers], '
‘callous behavior by [one's] superiors, ' or
‘a routine difference of opinion and personality
conflict with [one's] supervisor, ' are not
actionable under Title VII.” E.E.O.C. v. Sunbelt
Rentals, Inc., 521 F.3d 306, 315-16 (4th Cir. 2008)
(internal citations omitted).
work environment claims are not limited to “the precise
behaviors…alleged to have occurred” in earlier
cases. Walker v. Mod-U-Kraf Homes, LLC, 775 F.3d
202, 209 (4th Cir. 2014). Here, however, the conduct alleged
does not rise to the same level as those hostile work
environment claims which have survived summary judgment.
See Walker, at 205 (the plaintiff's coworker
made vulgar “sex-based comments to her and other
co-workers on a near-daily basis”); Okoli v. City
of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011) (the
plaintiff's supervisor forcibly kissed her, sexually
propositioned her, and repeatedly asked her sexually charged
questions); Hoyle v. Freightliner, LLC, 650 F.3d
321, 326-27 (4th Cir. 2011) (the plaintiff's coworkers
placed sexually provocative photographs throughout the
workplace, and affixed a tampon to her key ring); see
McLaurin v. Verizon Md., Inc., No. JKB-14-4053, 2015 WL
5081622, at *4 (D.Md. Aug. 26, 2015) (holding that the
plaintiff did not allege an actionable hostile work
environment claim despite allegations that one co-worker
called the plaintiff a “bitch, ” another
co-worker “urinated in front of her, ” and a
supervisor “cursed” at her); Whittaker v.
David's Beautiful People, Inc., No. CV DKC 14-2483,
2016 WL 429963, at *5 (D. Md. Feb. 4, 2016).
some of the allegations concern incidents that were not
directed towards Carroll, but instead to her co-workers. In
her June 2014 email, Carroll seems to say that these comments
were worse than any she directly experienced. Dkt. No. 36-7,
p. 3. However, as the Fourth Circuit noted,
“second-hand harassment, although relevant, [is] less
objectionable than harassment directed at the
plaintiff.” Jennings v. Univ. of N.C. , 444
F.3d 255, 272 (4th Cir. 2006) (internal quotation marks
omitted). Viewing the evidence in the light most favorable
and considering the totality of the circumstances, the
plaintiff's allegations do not establish a sufficiently
hostile work environment on which to rest her claim.
also alleges that she was subject to retaliation when she
complained to Vetsch about Spencer's behavior and was
subsequently terminated. To establish a prima facie
case of retaliation, the plaintiff must show that (1) she
engaged in activity protected under Title VII; (2) the
defendant subsequently took an adverse, retaliatory action
against the plaintiff, or the plaintiff was subjected to
severe or pervasive retaliatory harassment; and (3) the
protected activity and the adverse action were causally
connected. See Tinsley v. First Union Nat'l
Bank, 155 F.3d 435, 443 (4th Cir. 1998). Retaliation
cases, like other discrimination cases, may be proven through
either direct evidence of retaliation or through the
burden-shifting analysis set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973). The McDonnell Douglas framework
applies in retaliation cases “where a plaintiff does
not present sufficient direct or circumstantial evidence
showing that an adverse employment action was motivated by
intentional discrimination aimed at the plaintiff's
protected characteristic(s)”, as is the case here.
Guessous v. Fairview Prop. Investments, LLC, 828
F.3d 208, 216 (4th Cir. 2016). Under McDonnell
Douglas, once the plaintiff establishes a prima
facie case of retaliation, the burden of
production, not persuasion, shifts to the defendant
to offer a legitimate, non-discriminatory reason for its
actions. Once such a reason is shown, the burden shifts back
to the plaintiff to show that the offered reason is merely a
pretext for discrimination. See Beall v. Abbott
Labs., 130 F.3d 614, 619 (4th Cir. 1997), overruled
on other grounds by Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106
Del Sol first argues that Carroll cannot prove she engaged in
protected activity when she complained to Vetsch about
Spencer's comments because Spencer's comments did not
give rise to a racially hostile work environment. Dkt. No.
29, p. 19. A plaintiff may prevail on a retaliation action
even if the underlying discrimination claim fails.
See, e.g., Ross v. Comm. Satellite
Corp., 759 F.2d 355, 357 n. 1 (4th Cir.1985) (“An
underlying discrimination charge need not be meritorious for
a plaintiff to prevail on a claim of retaliation for
opposition to perceived discrimination.”).
“Although the retaliation claimant does not have to
show that the underlying discrimination claim was meritorious
to prevail on a related retaliation claim, he must show that
he subjectively (that is, in good faith) believed
that his employer violated [Title VII], and that his belief
was objectively reasonable in light of the
facts.” Johnson v. Mechanics & Farmers
Bank, 309 Fed.App'x 675, 685 (4th Cir.2009) (per
hostile work environment complaint then does not need to
succeed for her to prevail on her retaliation claim. Instead,
to satisfy the protected activity element, Carroll must
demonstrate that she subjectively believed she was
complaining about conduct that violates Title VII, and that
belief must be objectively reasonable. See Jordan v. Alt.
Res. Corp., 458 F.3d 332, 338-39 (4th Cir.2006);
EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 406-07
(4th Cir.2005); see also Clark County Sch. Dist. v.
Breeden, 532 U.S. 268, 121 S.Ct. 1508, 149 L.Ed.2d 509
(2001) (per curiam) (resolving the objective reasonableness
of Title VII plaintiff's beliefs through the summary
judgment process, thereby making the issue a question of
the facts in the light most favorable to the non-moving
party, it seems clear that Carroll believed she was opposing
an unlawful employment practice. As the record indicates,
Carroll sent Vetsch an email indicating she was
“disgusted” by Spencer's racial comments and
disturbed in how her supervisor “turns everything
racial.” Dkt. No. 36-7, p. 3. In Whittaker v.
David's Beautiful People, Inc., 2016 WL 429963 (D.
Md. Feb. 4, 2016), the district court similarly found that
although the underlying complaint did not give rise to a
hostile work environment claim, the plaintiff's protest
to her employer did constitute protected activity in the
context of the plaintiff's retaliation claim. The
Whittaker court relied on Fourth Circuit case law
holding “that an employee's complaint constitutes
protected activity when the employer understood, or should
have understood, that the plaintiff was opposing
discriminatory conduct.” 2016 WL 429963, at *6 (citing
Burgess v. Bowen, 466 F.App'x 272, 282
(4th Cir. 2012) (citing, inter alia, EEOC
Compliance Manual § 8-II.B.2 (2006) (“[A] protest
is protected opposition if the complaint would reasonably
have been interpreted as opposition to employment
discrimination.”))); see also Strothers v. City of
Laurel, Md., No. PWG-14-3594, 2015 WL 4578051, at *10
(D. Md. July 27, 2015) (denying a motion to dismiss a
retaliation claim because the plaintiff complained about
“harassment, ” which was sufficient to put
employer on notice that she was complaining about
court explained in Whittaker that the Fourth Circuit
has “expanded the scope of what constitutes a protected
activity…[and] [a]s Judge Grimm noted recently, this
‘broad[er] reading of Title VII extends its protection
to an employee who reasonably fears that she is being
subjected to unfavorable treatment based on her [protected
status], even where, as here, that treatment does not rise to
the level of creating a hostile work environment.'”
2016 WL 429963, at *6-7 (citing Young v. Giant Food
Stores, LLC, 108 F.Supp.3d 301, 316-17 (D. Md. 2015)).
In Young, the court found the plaintiff's
protests were a protected activity even when they were not a
plausible hostile work environment claim when the plaintiff
“subjectively perceived that she was being
discriminated against and identified objective ways in which
she was exposed to less favorable treatment” on the
basis of her sex. 108 F.Supp.3d at 316. It was clear such
protests were not general workplace grievances. Id.
Similarly, Carroll's email to Vetsch clearly indicates
she was complaining about racial discrimination in addition
to other workplace grievances. Thus, Carroll has sufficiently
shown that she engaged in a protected activity even if the
underlying conduct about which she complained did not create
a hostile work environment.
Del Sol also argues that Carroll has not demonstrated that
her complaints to Vetsch about Spencer's racial comments
were “the but-for cause of her termination” when
making her prima facie case. Dkt. No. 38, p. 10. In
Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S.Ct.
2517, 2528-33, 186 L.Ed.2d 503 (2013), the Supreme Court held
that “Title VII retaliation claims require proof that
the desire to retaliate was the but-for cause of the
challenged employment action” requiring a plaintiff to
prove that “the unlawful retaliation would not have
occurred in the absence of the alleged wrongful actions or
actions of the employer.” Id. The Supreme
Court rejected the “mixed motive” theory of
liability in which “a retaliation plaintiff only needed
to show that his or her ‘employer was motivated to take
the adverse employment action by both permissible and
forbidden reasons'” in cases involving direct
evidence of retaliation. Foster v. Univ. of Maryland-E.
Shore, 787 F.3d 243, 249 (4th Cir. 2015).
correctly notes that Salon Del Sol relies on an incorrect
legal standard when arguing that the heightened causation
standard from Nassar applies at this stage.
Nassar involved a claim based on direct evidence of
retaliatory animus, but Carroll relies on the McDonnell
Douglas burden-shifting approach. The Fourth Circuit
held in Foster v. Univ. of Maryland-E. Shore that
“the McDonnell Douglas framework has long
demanded proof at the pretext stage that retaliation was a
but-for cause of a challenged adverse employment action.
Nassar does not alter the legal standard for
adjudicating a McDonnell Douglas retaliation
claim.” 787 F.3d 243, 252 (4th Cir. 2015). A
retaliation claim under McDonnell Douglas requires
that a plaintiff “establish ‘both that the
[employer's] reason was false and that [retaliation] was
the real reason for the challenged conduct.'” 787
F.3d at 252. The plaintiff “bears the ‘ultimate
burden of persuading the court that [he] has been the victim
of intentional [retaliation].'” Id.
Therefore, Carroll's e-mail protest to Vetsch does not
need to be the sole or “the but-for cause” of her
termination in order to pass this stage, as Salon Del Sol
suggests. “[T]he causation standards for establishing a
prima facie retaliation case and proving pretext are
not identical. Rather, the burden for establishing causation
at the prima facie stage is ‘less
onerous.'” Foster, 787 F.3d 243 at 251
(citing Williams v. Cerberonics, Inc., 871 F.2d 452,
457 (4th Cir.1989)). Carroll's protest must be the real
reason she was terminated, but this analysis is conducted at
the pretext stage under McDonnell Douglas.
causal connection for purposes of demonstrating a prima
facie case [under McDonnell Douglas] exists
where the employer takes adverse employment against an
employee shortly after learning of the protected
activity.” Pepper v. Precision Valve Corp.,
526 F.App'x 335, 337 (4th Cir. 2013) (internal
citations omitted). Here, Carroll sent an email to Vetsch
raising her concerns on June 12, 2013 and then was terminated
by her on June 17, 2013. The Fourth Circuit has held that a
ten-week period between a protected activity and adverse
employment action “gives rise to a sufficient inference
of causation.” King v. Rumsfeld, 328 F.3d 145,
151, 151 n.5 (4th Cir. 2003). Accordingly,
Plaintiff has shown a causal relation sufficient to establish
a prima facie case of retaliation.
Legitimate, Non-Retaliatory Reason for Termination
Del Sol argues that even if Carroll made a prima
facie showing of retaliation, the salon had a legitimate
reason to terminate Carroll; namely for
“insubordination and negative attitude toward
management and Company policies.” Dkt. No. 29, p. 20.
Salon Del Sol asserts that “Carroll's emails did
more than complain about Spencer's comments; it issued a
list of demands to the Company's owner, including a
demand to change Spencer's ‘fake personality',
a demand to fix Spencer's unwillingness to do as Carroll
instructed, and a demand to eliminate Spencer's
‘resistance' to changing Carroll's
schedule.” Dkt. No. 29, p. 20. Indeed, Carroll's
June 12 email does list these other work-related grievances,
with Carroll stating she will leave if “these things
don't drastically change very soon.” Dkt. No. 29-5,
p. 4. After Vetsch responded to this June 12 email trying to
arrange a time to meet to discuss these issues and expressing
her faith in Spencer, Carroll replied on June 14, stating:
“I never said I want Shawn to leave the company. If you
thought my email said that, you might want to read it more
thoroughly.” Dkt. No. 29-5, p. 2. She added at the end:
“Unfortunately, my schedule doesn't allow for a
meeting on Tuesday due to school. However I will be in the
salon Thursday Friday and Saturday.” Dkt. No. 29-5, p.
2. It was this email Vetsch responded to when effectively
terminating Carroll. See Dkt. No. 29-5, p. 1. As
Vetsch stated in her deposition, nothing in Carroll's
June 12 email struck her as “racially hostile or
racially harassing” behavior on the part of Spencer,
and “it was ultimately my [Vetsch's] decision to
liberate her [Carroll], to let her go, because of her
disgruntledness with the company and being unhappy with our
company management style.” Dkt. No. 29-3, p. 5-6. Thus,
Salon Del Sol has met its burden in providing a legitimate
reason for Carroll's termination: Carroll's tone and
list of work-place demands.
the McDonnell Douglas framework, once Defendants
offer a legitimate, non-retaliatory reason for their actions,
the burden shifts back to Plaintiff to show “by a
preponderance of the evidence that the employer's reason
is false and that [retaliation] was the real reason for the
decision.” Fordyce v. Prince George's Cnty.
Md., 43 F.Supp.3d 537, at 549- 50 (D.Md. 2014) (citation
and internal quotation marks omitted). In evaluating pretext,
the court does not “decide whether the reason was wise,
fair, or even correct, ultimately, so long as it truly was
the reason for the [action].” Hawkins v. PepsiCo,
Inc., 203 F.3d 274, 279 (4th Cir.2000).
argues that this Court “cannot make a determination as
a matter of law that the fact that Carroll complained of
racial harassment was not the straw that broke the
camel's back when Salon Del Sol admits that it
terminated Carroll for the very email that includes those
[complaints about racial comments] complaints.” Dkt.
No. 36, p. 15. Carroll then cites to the deposition of Steven
Storer, who helped run the day to day operations of Salon Del
Sol, including “a little bit of accounting”,
“a little bit of HR”; “a little bit of
inventory procurement” in support of this claim. Dkt.
No. 36-19, p. 2. In his deposition, Storer discussed his view
on how this claim relates to an Equal Employment Opportunity
Commission (“EEOC”) claim that was filed and
discussed how Salon Del Sol may have shredded some documents.
Dkt. No. 36-19, p. 8-9. Carroll then argues that Storer's
testimony stating “the racial aspect” was part of
the problem with Carroll (Dkt. No. 36-19, p. 15-16), in
conjunction with Salon Del Sol's alleged destruction of
documents, admission that they terminated Carroll as a result
of her emails, and evidence that Carroll was not otherwise a
“disruptive” employee, is sufficient to provide
evidence of pretext. See Dkt. No. 36, p. 15-24.
Indeed, Spencer does state in her deposition that Carroll
“seemed passionate about her work. Her clients loved
her haircuts. She was very good at haircuts and they would
all rave about her.” Dkt. No. 36-11, p. 2. Thus, there
are indications Carroll was otherwise a good employee.
this evidence, Carroll has created a genuine issue of
material fact for trial as to whether Salon Del Sol
retaliated against her because of her complaints concerning
Spencer's racial comments. It is not clear whether
Carroll's complaints about Spencer's racial comments
or Carroll's complaints about management resulted in her
termination when Carroll otherwise was an undisruptive
employee, seemed well-liked, and had earlier expressed her
happiness at working in the salon.
the record as a whole and drawing all inferences in the light
most favorable to Carroll, no genuine issues of material fact
exist as to Carroll's hostile work environment claim but
genuine issues of material fact do exist as to Salon Del
Sol's motivation in firing Carroll in her retaliation
claim and accordingly, Salon Del Sol's Motion for Summary
Judgment (Dkt. No. 28) is GRANTED in part and DENIED in part.
Clerk is directed to send copies of this Memorandum Opinion
and accompanying Order to all counsel of record.
 This case is before me by consent
under 28 U.S.C. § 636(c).
 Defendant, in its reply brief, asked
the Court to strike two declarations, but did not file a
separate motion. Dkt. No. 38, p. 3-4. The drafters of the
2010 amendments to Rule 56 of the Federal Rules of Civil
Procedure have stated: “Subdivision (c)(2) provides
that a party may object that material cited to support or
dispute a fact cannot be presented in a form that would be
admissible in evidence. The objection functions much as an
objection at trial, adjusted for the pretrial
setting…There is no need to make a separate motion to
strike.” Fed. R. Civ. Pro. 56. Thus, I will handle the
motion to strike here. Defendant moved to strike parts of two
declarations from former employees, Whitney Wohlford and
Lauren Sacra, to the extent they contained hearsay and
conclusory statements. Dkt. No. 38, p. 3; see also
Dkt. No. 36-4; Dkt. No. 36-5. Defendant also objected to the
use of the declarations given that Wohlford's and
Sacra's depositions “were cancelled by Plaintiff
without notice to Defendant” and so these witnesses
were not available for cross-examination. Dkt. No. 38, p. 3.
I find that these declarations do not contain inadmissible
hearsay or inadmissible conclusory accusations, and Defendant
had fair opportunity to depose these witnesses but chose not
to. Thus, these declarations are admissible for purposes of