By Joshua P. Bussen

Today, in Rome v. Development Alternatives, Inc., the Fourth Circuit affirmed the grant of summary judgment on a retaliation claim brought under Title VII. The plaintiff claimed, in the District Court of Maryland, that she had been constructively discharged by Development Alternatives, Inc., (“DAI”) after complaining about improper conduct by another employee. In granting summary judgment for the defendant, the district court held that the plaintiff, Heather Rome, had failed to present sufficient evidence to establish a prima facie case of retaliation.

Rome worked for DAI in its Venezuelan office attempting to promote democracy. While in the United States in 2008 Rome complained about one of her coworkers to DAI management. DAI responded by: issuing the coworker a warning, sponsoring team-building exercises, and sending a mentor to the Venezuelan office. Later that year Rome left work on approved leave; she would not return. Rome complained that she had to undergo surgery and was unable to come back to work. DAI told Rome that it would help her to find a position at any office she liked in the company once she was able. Eventually Rome stopped answering DAI’s calls. DAI allowed her to retain her benefits until March 2009, at which time it finally concluded that she had abandoned her employment.

Title VII of the Civil Rights act prohibits “employer retaliation on account of an employee’s having opposed, complained of, or sought remedies for, unlawful workplace discrimination.” 42 U.S.C. § 2000e–3(a). In the lower court, Rome did not present direct evidence of retaliation, therefore the district court reviewed her claim under the well know “burden-shifting framework.” Under this framework, if the plaintiff shows that “(1) she engaged in a protected activity; (2) her employer acted adversely against her; and (3) the protected activity was causally connected to the adverse action,” the burden shifts to the employer to “present a legitimate non-retaliatory reason for the alleged adverse action.” If the employer is then successful in meeting its burden, the employee has a chance to show that the proffered reason is a mere pretext. Further, “constructive discharge” takes place when a defendant employer, motivated by unlawful bias, subjects an employee to intolerable working conditions.

Rome was successful in arguing that she had engaged in a protected activity by reporting her coworker, however, the circuit court found that she had not suffered an adverse action. It further found that she had failed to produce evidence tending to prove pretext. DAI was very accommodating in offering to help Rome, she just never came back to work. On this basis, the Fourth Circuit affirmed the lower court’s grant of summary judgment for DAI.

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