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"The plaintiff concedes in her deposition that, because the winner of the sales incentive contest was a woman, her claim of discrimination related to that contest should be restricted to race discrimination. Moreover, she has proffered no other facts that might suggest that any actionable decision of the defendants was motivated by intentional discrimination on the basis of her sex. For these reasons, the defendant's motion for summary judgment as to Count two will be GRANTED.

The defendants have also moved for summary judgment on the issue whether the plaintiff has waived her claim for damages for pain and suffering. At her deposition, counsel for the defendants questioned the plaintiff on issue of the damages alleged in this case. She specified certain economic damages only. When specifically asked whether she was alleging damages for pain and suffering in connection with her allegations of employment discrimination, the plaintiff responded: "At this time, no." Plaintiff's counsel has not directed the court to any specific record evidence following that deposition answer that would support her claim for pain and suffering. Therefore, the defendant's motion for summary judgment with respect to the plaintiff's claim for damages for pain and suffering will be GRANTED."

--District Court Judge Blake


















WGAY/WWRC RADIO, et al., Defendants.


No. CCB 94-3202.

1996 WL 1061102, *1 (D.Md. 1996)

Sept. 5, 1996.


For the Plaintiff:

Daniel F. Rinzel, Karin M. Grane, Leonard, Ralston, Stanton & Danks, Washington, DC,

For the Defendants: 

Lorence L. Kessler, Carl J. Hartmann III, New York, NY, of Counsel to the firm, Mauro Morales, McGuiness & Williams, Washington, DC, for Defendants.


BLAKE, District J.

          The plaintiff []has filed a six-Count amended complaint against her former employer, WGAY/WWRC Radio; its two corporate parents; Dennis Reese, the Sales Manager of WWRC Radio; and Mary Rankin, the Sales Manager of WGAY Radio. The amended complaint alleges the defendants discriminated against her on the basis of her race and her sex and sexually harassed her to such an extent that she ultimately was forced to resign from her position as an advertising sales executive. The first three Counts of the amended complaint allege employment discrimination in violation of 42 U.S.C. § 2000e et seq ("Title VII"). Count one alleges discrimination on the basis of race, Count two alleges discrimination on the basis of her sex, and Count three alleges she was constructively discharged as a result of sexual harassment in the workplace. Count four alleges race discrimination in violation of 42 U.S.C. § 1981. Counts five and six, alleging sex discrimination in violation of 42 U.S.C. § 1981a, and a violation of "public policy" respectively, were voluntarily dismissed by the plaintiff in an April 28, 1995 Order. The April 28 Order also dismissed defendant Rankin, from the Title VII Counts because she was not individually named in the plaintiff's EEOC charge, and therefore, the plaintiff did not exhaust her administrative remedies with respect to that defendant.

          Now pending is the defendants' motion for summary judgment on the basis of timeliness, or in the alternative, for partial summary judgment as to sex-based discrimination, constructive discharge, and certain damages. For the reasons that follow, the motion will be GRANTED IN PART AND DENIED IN PART.


          In August 1987, the sales department of WGAY/WWRC hired the plaintiff, an African-American woman, to sell local advertising time. The plaintiff alleges that when she was hired she was promised she would earn a minimum yearly salary of $50,000. The salary for this position came in the form of commissions earned from the sale of radio advertisements. The plaintiff was expected to develop business by seeking out new clients and also to continue to sell advertising time to existing clients (the names of whom were compiled on an account list). During her first year of employment the plaintiff made significantly less than $50,000.

          In July 1990, the sales department at WGAY/WWRC conducted a sales incentive competition in which the most successful account executive (as measured in dollars of advertising generated) would receive $1,000 worth of appliances from one of the station's clients. The plaintiff won the contest, but did not receive the prize because the client withdrew its offer to provide the appliances. The plaintiff was then unable to negotiate a substitute prize with the Sales Manager of the station.

          In the latter months of 1990, several accounts were taken from the plaintiff by white male members of the local and national sales teams with the acquiescence of the Local Sales Manager. In 1992, accounts exceeding $250,000 in billing were similarly reassigned to white male account executives. The reassigning of accounts continued into 1993. [*2]

          During the winter of 1992 and the spring of 1993, the sales department conducted another sales incentive contest. The two most successful account executives were to be awarded vacations to Mexico. As the contest progressed, however, the termination date for the contest, originally scheduled for April 1993, was extended for over two months. By April she was one of the two most successful account executives, and therefore would have been entitled to one of the prizes if the contest had ended on schedule. Ultimately, the plaintiff did not win one of the prizes. She alleges that she did not win because the white male general manager of the station withdrew one of the plaintiff's advertisements from broadcast, and also because the station's management allowed an account of a white male account executive, generated after the deadline of the contest, to be included in the contest totals.

          The plaintiff also alleges, during the spring of 1993, the two individual defendants, Mary Rankin and Dennis Reese, both sales managers and supervisors of the plaintiff, repeatedly called her into meetings at which they alleged, without providing specifics, she was "uncooperative, unfriendly, a liar, a cheater[,] and in need of psychological help." The plaintiff alleges without explanation that these comments were "gender biased and racially motivated."

          On June 3, 1993, the plaintiff resigned from her position as account executive. She alleges her resignation resulted from sexual harassment and a hostile work environment at the station. Specifically, the plaintiff maintains that the management of the station actively created this environment by treating women and minorities differently from the way it treated white men, and also passively tolerated offensive comments and jokes by the employees. In support of this constructive discharge claim, the plaintiff alleges the management and staff of the station "constantly" made lewd and demeaning comments of a sexual and racial nature during meetings of the sales staff. In addition, the plaintiff alleges four specific instances when offensive jokes or comments relating to sex or race were made either to her directly or in her presence. Finally, the plaintiff's constructive discharge and sexual harassment claim mentions "physical conduct of a sexual nature" as one of the reasons the plaintiff left her job. The plaintiff has not produced any evidence related to a charge of physical conduct nor has she supplemented her allegations with greater specificity.

          On March 15, 1994, the plaintiff went to the Baltimore office of the Equal Employment Opportunity Commission ("EEOC"), was interviewed by Carolyn Mackey (an EEOC employee), and filled out an intake questionnaire. See Defs'. Motion for Summary Judgment, App., Ex. C. In that questionnaire, the plaintiff alleged only that past and present managers of the radio station discriminated against her by taking income-generating advertising accounts from her. However, the interview covered a broader range of allegations, but, because the statute of limitations appeared to have run on several of the plaintiff's specific complaints, the plaintiff and Mackey discussed whether the plaintiff should consult with her attorney prior to filing a formal, verified charge of discrimination with the EEOC. Mackey avers that the plaintiff then left the office with the intention of meeting with counsel and remarking that she would initiate the next contact with the EEOC regarding the filing of a complaint after she spoke with her attorney. As a result, the EEOC did not initiate an investigation of the plaintiff's allegations at that time. In May 1994, the plaintiff telephoned Mackey about the status of her charge of discrimination. Mackey informed her that she had not filed a sworn, formal charge of discrimination at the March 15 interview because she had stated that she desired first to consult with her attorney. The plaintiff then requested that Mackey draft a formal "Charge of Discrimination" for her to sign. Mackey did so, and the plaintiff signed and swore to it on July 27, 1994. [*3]

          The verified Charge of Discrimination form set forth allegations relating to the sales incentive contest in the spring of 1993, and sexual harassment by the "Local Sales Manager" in May 1993. [FN1] It also states that the plaintiff's complaints to the General Manager about the alleged harassment were ignored.


          In their motion for summary judgment, the defendants argue that the plaintiff's Title VII claims should be dismissed because she did not timely file her verified charge of discrimination within the statutory limitations period, or, in the alternative for summary judgment as to Count two (sex discrimination) and Count three (sexual harassment and constructive discharge). Finally, the defendants move for summary judgment on the plaintiff's alleged damages for pain and suffering.


          Rule 56(c) of the Federal Rules of Civil Procedure provides:

[Summary judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The Supreme Court has clarified that this does not mean any factual dispute will defeat the motion:

By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The only facts that are properly considered "material" are those that might affect the outcome of the case under the governing law. Id. at 249-50, 106 S.Ct. at 2511. If the evidence favoring the non-moving party is "merely colorable, or is not significantly probative, summary judgment may be granted." Id.

          To determine whether a genuine issue of material fact exists, all facts and all reasonable inferences drawn therefrom are construed in favor of the non- moving party. However, the non-moving party may not rest on its pleadings, but must show that specific, material facts exist to create a genuine, triable issue. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir.1996).

          The Supreme Court has explained that the Rule 56(c) standard mirrors the standard for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). The Court has stated that "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511; see also Shaw v.. Stroud, 13 F.3d 791, 798 (4th Cir.), cert. denied, 513 U.S. 813, 115 S.Ct. 67, 130 L.Ed.2d 24 (1994); Catawba Indian Tribe v. South Carolina, 978 F.2d 1334, 1339 (4th Cir.1992), cert. denied, 507 U.S. 972, 113 S.Ct. 1415, 122 L.Ed.2d 785 (1993). "The party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of [its] pleading, but must set forth specific facts showing that there is a genuine issue for trial." Rivanna Trawlers Unlimited v.. Thompson Trawlers, Inc., 840 F.2d 236, 240 (4th Cir.1988). While the court must "view the facts and draw reasonable inferences in a light most favorable to the nonmoving party," Shaw, 13 F.3d at 798, it also must abide by its affirmative obligation to ensure that factually unsupported claims and defenses do not proceed to trial. See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987) (citing Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2553). "[A] defendant ... should not be required to undergo the considerable expense of preparing for and participating in a trial" unless the plaintiff has produced "evidence on which a jury might rely" in support of the claims alleged. E.F. Hutton Mortgage Corp. v. Equitable Bank, N.A., 678 F.Supp. 567, 573 (D.Md.1988). The district court is required to enter judgment against a party who, "after adequate time for discovery ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial [and t]he moving party is 'entitled to judgment as a matter of law." ' Id. at 323, 106 S.Ct. at 2552. [*4]


          The defendants argue that they are entitled to summary judgment on the plaintiff's Title VII claims (Counts one through three) because the events which gave rise to them occurred more than 300 days prior to her filing of a verified administrative charge with the EEOC. [FN2] This argument was raised, briefed, and decided attendant to the defendants' motion to dismiss earlier in this case. At that stage of the litigation, the case was before Judge Williams. Ruling on the motion to dismiss, he issued the above-mentioned April 28 Order which dismissed Counts five and six and dismissed defendant Rankin from the Title VII Counts. In that Order, Judge Williams denied the defendants' motion to dismiss the plaintiff's entire Title VII case holding that the July 27, 1994 Charge of Discrimination form was a curative amendment of her initial questionnaire which satisfied the statutory verification requirements. See Philbin v. General Elec. Capital Auto Lease, Inc. ., 929 F.2d 321, 323-24 (7th Cir.1991) (holding valid EEOC regulation permitting amendment of unverified charge with subsequent oath or affirmation); see also Whitekiller v. Campbell Soup, Inc., 925 F.Supp. 614, 616 (D.Minn.1996) ("The courts are unanimous that [the EEOC regulation] is valid and allows amendment of an unverified charge to relate back to the original filing date.") (collecting cases).

          Judge Williams' Order is the law of the case. While the law of the case doctrine is "an amorphous concept," Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983), its central theme is clear. That is, "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Id. That is not to say that Judge Williams' ruling may not be disturbed under any circumstances: the doctrine limits this court's discretion to depart from the ruling, not its power to do so. Id. For instance, "it is not improper for a court to depart from a prior holding if convinced that it is clearly erroneous and would work a manifest injustice." Id.; Edwards v. Johnston County Health Dep't, 885 F.2d 1215, 1218, n. 10 (4th Cir.1989). Indeed, "whether rulings by one district judge become binding as 'law of the case' upon subsequent district judges is not a matter of rigid legal rule, but more a matter of proper judicial administration which can vary with the circumstances." Hill v. BASF Wyandotte Corp., 696 F.2d 287, 290 n. 3 (4th Cir.1982).

          Whether the plaintiff's charge of discrimination was timely was decided by Judge Williams on a motion to dismiss. The same issue is currently before the court on the defendant's motion for summary judgment. However, the defendants have advanced no new legal arguments and no new facts that convince this court that Judge Williams' prior ruling was clearly erroneous or would work a manifest injustice. In support of the instant motion, the defendants have submitted an affidavit from Mackey concerning the events surrounding the intake interview and the charge of discrimination. Nowhere in Mackey's affidavit does it state that the plaintiff instructed her not to initiate administrative proceedings while she discussed matters with her attorney. Mackey attests: [*5]

"[a]t no time during my interview did Ms. [] and I discuss the fact that the completion of the Intake Questionnaire, Form 283, or the subsequent interview, or any other aspect of the administrative process would be set in motion merely by the completion of the Intake Questionnaire, Form 283."

Defs'. Mot. for Summ. Jdgmt., App. Ex. C, ¶ 4. However, she does not indicate that the plaintiff believed she did anything less than file a charge of discrimination. Indeed, Mackey attests that the plaintiff filled out an intake form, discussed her case with Mackey, and then, presumably believing she had filed a proper charge of discrimination, called Mackey in May to inquire about the status of her case. Finally, the defendants assert:

Plaintiff further represented to the Court that she had recently spoken to the EEOC, and that the agency assured her that it would be filing an affidavit in this case--in support of Plaintiff's proffer. On the basis of that assertion of record, the Court declined to dismiss the action at that time. However, no such affidavit was ever provided by the Plaintiff.

Def's Mot. for Summ. Jdgmt. at 3. There is no suggestion in Judge Williams' Opinion that his ruling on this issue was in any way the result of any such representation by the plaintiff. Rather, the Opinion explicitly relies on Philbin which relied on the EEOC regulation. For these reasons, the defendants' motion will be denied on the timeliness issue. [FN3]


          The defendants have moved for summary judgment on Count three of the amended complaint. Count three contains the plaintiff's claim that she was constructively discharged by means of the maintenance of a work environment "which was hostile to females by virtue of the verbal and physical conduct of a sexual nature." Complaint ¶ 67. A plaintiff must prove the following four elements to maintain a claim of unlawful discharge because of the employee's sex:

(1) plaintiff is a member of a protected class; (2) plaintiff was qualified for the job and performed the job satisfactorily; (3) in spite of plaintiff's qualifications and performance, plaintiff was ...discharged; and (4) the position remained open to similarly qualified applicants after plaintiff's dismissal.

Carter v. Ball, 33 F.3d 450, 458-59 (4th Cir.1994). The discharge required as the third element may be actual or constructive through the acts or omissions of the employer. The doctrine of constructive discharge is a judicially created response to the inability of plaintiffs (suing under Title VII prior to the 1991 amendments) to recover for emotional distress or even medical expenses. Chambers v. American Trans Air, Inc., 17 F.3d 998, 1005 (7th Cir.1994). Under the constructive discharge doctrine, a plaintiff may resign, and sue for reinstatement and back pay as if she had been fired. Id. The constructive discharge plaintiff must show more than unpleasant working conditions and a resignation to recover. The purpose of the doctrine is limited. The Fourth Circuit repeatedly has explained that the doctrine [*6]

protects an employee from a calculated effort to pressure him into resignation through the imposition of unreasonably harsh conditions, in excess of those faced by his co-workers. The employee is not, however, guaranteed a working environment free of stress. Dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to resign.

Carter v. Ball, 33 F.3d at 459 (internal quotation marks and citations omitted).

          To maintain a claim for constructive discharge, "a plaintiff must show that his or her employer deliberately ma[de] an employee's working conditions intolerable and thereby force[d] him to quit his job." Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1350 (4th Cir.1995) (internal quotation marks and citation omitted) (emphasis and alterations in original). "A plaintiff alleging constructive discharge must therefore prove two elements: deliberateness of the employer's action, and intolerability of the working conditions." Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir.1985).

          An employer acts deliberately for the purposes of a constructive discharge claim if its actions "were intended by the employer as an effort to force the employee to quit." Id. (internal quotation marks and citation omitted). In this Circuit, at least where the plaintiff's constructive discharge claim arises from alleged sexual advances or sexual assault by the defendant, a plaintiff must show that her resignation was, at a minimum, the reasonably foreseeable consequence of the defendant's conduct. Cavalier Hotel, 48 F.3d at 1353-57. But see Bristow, 770 F.2d at 1255 ("Our decisions require proof of the employer's specific intent to force an employee to leave.") (emphasis supplied). This proof requirement may be satisfied with circumstantial evidence such as evidence of "a failure to act in the face of known intolerable conditions." Cavalier Hotel, 48 F.3d at 1354 (internal quotation marks and citation omitted).

          "[I]ntolerability ... is assessed by the objective standard of whether a reasonable person in the employee's position would have felt compelled to resign--that is, whether he would have had no choice but to resign." Blistein v. St. John's College, 74 F.3d 1459, 1468 (4th Cir.1996) (internal quotation marks and citation omitted) (emphasis in original). The Seventh Circuit has observed that not all intolerable working environments will sustain a constructive discharge claim under Title VII. In order to support a constructive discharge, the employment conditions leading to the resignation must be "intolerable in a discriminatory way." To be actionable under Title VII, the intolerable conditions must have something to do with the plaintiff's protected status, in this case, her sex. See Chambers, 17 F.3d at 1005-06; see also Brown v. Eckerd Drugs, Inc., 663 F.2d 1268, 1272 (4th Cir.1981) ( "In order to make out a prima facie case of constructive discharge, the plaintiff must show by a preponderance of the evidence that she was forced to quit her employment by intolerable working conditions imposed on her by her employer, who was motivated in such imposition by racial or sex bias."), vacated on other grounds, 457 U.S. 1128, 102 S.Ct. 2952, 73 L.Ed.2d 1345 (1982). [*7]

          Finally, a factor to be considered in a constructive discharge case is whether the employee attempted to air her grievances with supervisors or other management prior to resigning. [FN4] See, e.g. Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir.1993) (noting in a constructive discharge case that the plaintiff "attempted to complain about [racist comments] on only one occasion.... [but] did not mention that the supervisor used ethnic slurs."); Levendos v. Stern Entertainment, Inc., 909 F.2d 747, 751 (3d Cir.1990) ("We hold that although notice to executive management is a factor to be considered in a claim of constructive discharge, a requirement of notice is not a sine qua non."); cf. Dennis v. County of Fairfax, 55 F.3d 151, 156 (4th Cir.1995) (in a case brought under 42 U.S.C. § 1981 and Title VII, concluding that "where an employer implements timely and adequate corrective measures after harassing conduct has come to its attention, vicarious liability should be barred regardless of the specific motivation for the wrongdoing or the particular cause of action."); Cavalier Hotel, 48 F.3d at 1354 (stating that the defendant's intent to discharge the plaintiff may be proved by "inference" such as the employer's failure "to act in the face of known intolerable conditions") (internal quotation marks and citation omitted) (emphasis supplied).

          In her opposition memorandum the plaintiff cites the following incidents which she maintains resulted in her constructive discharge:

WGAY/W[W]RC's failure to provide her with a workable account list, the transferring of accounts from [] to white male account executives, the magnitude of the accounts transferred, the failure to provide a prize for [] winning a sales incentive contest, the failure to award [] one of the top two prizes in a sales incentive contest, not having AM agency accounts when AM account executives were permitted to have FM agency accounts and other FM account executives were permitted to have AM agency accounts, the kissing and hugging by Reese, derogatory statements made concerning race and gender by managers and co-workers, and Reese's statements to [] at the company- sponsored social event.

Opposition at p. 14-15 (footnote and citations omitted).

          The plaintiff has alleged that discriminatory treatment on the basis of sex forced her to resign. In evaluating whether she has made a prima facie case, the question is whether she has presented a preponderance of evidence showing that the defendants made a "deliberate effort ... to force the [plaintiff] to quit," Johnson v. Shalala, 991 F.2d 126, 131 (4th Cir.1993), and that the effort to force her to resign was motivated by sex bias. See Eckerd Drugs, 663 F.2d at 1272. The plaintiff does not offer any direct evidence of an intention by the defendants to force her to resign because of her sex, so she must attempt to prove the defendants intent by inference and circumstantial evidence. See Carter, 33 F.3d at 459. [FN5] [*8]

          As evidence of the defendant's intent to force her to retire because of her sex, the plaintiff first cites to the radio station's failure to provide her with a "workable account list." The plaintiff directs the court to paragraph thirteen of the complaint which alleges that the account list which was given to the plaintiff in 1987 when she was hired "contained names of agencies that were out of business or did not advertise on the radio." Apart from the allegations in her complaint, the plaintiff cites to no evidence in the record which documents the extent to which her account list was inadequate or that her list was inferior to those of male account executives.

          The plaintiff then alleges that the defendant repeatedly transferred lucrative advertising accounts to white male account executives. [FN6] She testified that while accounts were frequently reassigned within the station, she believed that no one was as adversely affected as she. See [] Dep. p. 112, lines 12- 18. In support of her claim that the transfer of accounts is evidence of the defendant's alleged intention to force her to resign because of her sex, the plaintiff points to an incident where Mr. Eury informed the plaintiff that one of her accounts had been transferred to a white male account executive. The plaintiff alleges that, after she complained, Mr. Eury initially was dismissive, and later, after he saw that she was upset by the incident and his reaction to it, he told her "I am sorry, []. I will make it up to you. I will get you another account or a nice guy to marry." The plaintiff also reports that, after she complained on two separate occasions that accounts had been transferred from her to white males, Mr. Eury and defendant Mary Rankin stated to her that the account executives to whom those accounts were transferred were married and had families, and therefore needed the commission income more than her. This explanation proffered by the plaintiff provides no evidence of a sex-based animus on the part of the defendants. If anything, it is evidence that the defendants may have discriminated on the basis of marital status and family size, or on the basis of a perception of the financial situation of the account executive. While the comment by Mr. Eury regarding finding the plaintiff someone to marry is clearly inappropriate, standing by itself, the comment is insufficient to justify the denial of summary judgment. Ultimately, the plaintiff does not explain how the transfer of her accounts differs from standard practice at the station in a way that would give rise to an inference that the defendants intended to force her to resign because of her sex.

          The plaintiff also points to the defendant's failure to provide a prize for her when she won the sales incentive contest in July 1990. Again, the plaintiff only directs the court's attention to allegations in her complaint. Moreover, the complaint acknowledges that the reason she did not receive a prize is that the client who had agreed to donate the prize "backed out at the last moment." The complaint then alleges that the station never made an effort to arrange for a substitute prize for the plaintiff. It also claims that Mr. Eury, the white male Local Sales Manager, refused to accept a substitute prize, negotiated by the plaintiff, which would require the station to air four sixty-second commercials in exchange for a substitute prize provided by the client. She also alleges that another reason for her constructive discharge was the station's actions in connection with another sales incentive contest in which she was not awarded a prize to which she believed she was entitled. The plaintiff concedes, however, that because the prize in question was awarded to a white woman, this second sales incentive contest is not an example of discrimination on the basis of sex. See [] Dep. pp. 271-72. Therefore, this incident is not probative of the defendant's alleged intent to force the plaintiff to resign because of her sex. [FN7] [*9]

          As further support for her constructive discharge claim, the plaintiff proffers the following reason: "not having AM agency accounts when AM account executives were permitted to have FM agency accounts and other FM account executives were permitted to have AM agency accounts." Opposition, p. 15. No citation to any part of the record is made for this allegation. Moreover this falls short of being a specific, material fact that would create a triable issue.

          The plaintiff next alleges that both management and co-workers made derogatory statements concerning race and gender. In support of this allegation, her one citation to evidence outside of her complaint is her deposition testimony regarding an alleged statement by Dick Rakovan. [FN8] According to the plaintiff's deposition testimony, Mr. Rakovan smoked in the offices of the radio station in violation of a county ordinance. When the plaintiff informed him that she has a lung condition, he allegedly replied: "Oh, is that like sickle cell anemia?", an apparent reference to the plaintiff's race. The other specific comments cited by the plaintiff in support of her claim relate to her sex. [FN9] She also refers the court's attention to the comment made by Mr. Eury about finding her someone to marry and a similar comment made in December 1992 by John Meyers, an account executive at the station, asking when she planned to become pregnant so that her accounts would be assigned to others. The comment was made in the presence of Eric Jennings, a manager at the station, who immediately told Mr. Meyers that the comment was inappropriate. [] Dep., p. 188-89. The plaintiff does not allege that Mr. Meyers made any inappropriate or offensive comments after this.

          The plaintiff has attested that the defendants Reese and Rankin and unnamed account executives frequently made inappropriate and offensive comments at the mandatory staff meetings at the station. More specifically, she describes the use of expletives by Reese and Rankin, sexual innuendo, and off-color humor at the meetings. [] Dep., pp. 190-192. Apart from saying "That is not funny" at the meetings, however, the plaintiff denies complaining to anyone at the meetings or to any managers at the station superior to Reese and Rankin. Her explanation for not doing so is that she felt her complaints would be futile because this alleged behavior pervaded the environment at the station. See [] Dep. at 193. This explanation does not advance her claim of constructive discharge. First, to the extent that prior notice is relevant to a constructive discharge claim, failure to complain internally because of a generalized fear of futility is insufficient. See Shealy v. Winston, 929 F.2d 1009, 1012-13 (4th Cir.1991) (plaintiff not constructively discharged where decision to retire was based on uninvestigated speculation about future working conditions); see also West, 54 F.3d at 498 ("Part of an employee's obligation to be reasonable is an obligation not to assume the worst and not to jump to conclusions too fast.") (internal quotation marks and citation omitted) (emphasis in original). Second, allegations that an offensive atmosphere pervaded the workplace may support a cause of action for a hostile work environment claim, but are not probative of an employer's directed intent to force an employee to resign under a constructive discharge theory. See Bristow, 770 F.2d at 1255 ("Where ... all employees are treated identically, no particular employee can claim that difficult working conditions signify the employer's intent to force that individual to resign."). [*10]

          Finally, the plaintiff alleges that the defendant Reese made inappropriate physical and verbal overtures to her of a sexual nature. Specifically, she alleges

Dennis [Reese] was known as a hugger and squeezer. He would come around and squeeze us and kiss our heads and hug us--'us' meaning women in the sales department. I never dressed to invite this behavior from him, I never asked him, I never reciprocated. He is just known as being that way.

[] Dep. p. 195, lines 16-21. The plaintiff concedes that she never told Reese to stop this behavior and she never complained to management at the station about it. She alleges that she feared retaliation from Reese, but was unable to identify a reason for this fear other than the allegedly hostile atmosphere which was pervasive at the station. This explanation is unhelpful for the reasons stated above. Moreover, by the plaintiff's own admission, women in the sales department generally were the objects of Reese's behavior. It was not directed towards her specifically. The plaintiff cites to a specific incident where Reese allegedly made a lewd comment to her at a company- sponsored social event. [] Dep., p. 202. However, here as well, the plaintiff acknowledges that Reese "just kept going, and after that, I was told that he went into a lounge where another account executive was, and he made a lewd comment to her and her date." Id., p. 203. Although Reese's behavior as alleged is to be condemned, there is no competent record evidence that the management at the station knew or should have known enough about Reese's conduct so that their inaction could be seen as evidence of their deliberate efforts to force the plaintiff to retire. [FN10] See Blistein, 74 F.3d at 1468; see also Paroline v. Unisys Corp., 879 F.2d 100, 114 (4th Cir.1989) (Wilkinson J., concurring in part and dissenting in part) ("The fact that all employees were treated identically rebuts any inference that the treatment of the plaintiff was done 'with the intention of forcing him to resign. Certainly ...[the employer] did not wish to force all of its employees to resign." ') (alteration in original) (quoting Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir.1981), adopted, 900 F.2d 27 (1990) (en banc). This is particularly true where she denies making any effort to ask Reese directly to stop, or to inform upper management of his behavior. [FN11] In Paroline, it was held that the defendant was entitled to summary judgment on a claim of constructive discharge. In that case, the defendant corporation had received a number of complaints about the individual defendant, Edgar Moore, well before the plaintiff began to work there. The complaints alleged that he "had made sexually suggestive remarks to and had engaged in unwelcome touching of female clerical workers." Paroline, 879 F.2d at 103. In addition, other men in the office also "allegedly engaged in improper sexual comments and touching of female employees." Id. The complaints were received by managers of the company who warned the men generally and Moore specifically not to engage in behavior that could be construed as sexual harassment. At the plaintiff's job interview Moore asked the plaintiff what she would do if she were exposed to sexual harassment in the workplace.

One of the corporation's managers was at the interview and found the comment inappropriate, but did not say anything to Moore. Shortly after the plaintiff began working, Moore began making sexually suggestive remarks to the plaintiff, and on one occasion, began rubbing his hands on her back as she worked and persisted even after she indicated that he should stop. The incident that directly preceded the lawsuit involved Moore giving the plaintiff a ride home during a snowstorm when she had no other transportation. During the ride to her home and after arriving, Moore made comments she interpreted to be sexual innuendos, kissed her repeatedly, attempted to hold her hand, and rubbed his hands up and down her back. He only left after the plaintiff urged him repeatedly to do so. After initiating a formal investigation, the company warned Moore that he would be fired if there were any recurrences or retaliation, directed him to seek counseling and to limit contact with female employees to official business, and terminated his access to a secure Department of Defense-regulated facility at the urging of the plaintiff. The company gave the plaintiff two weeks off work and asked her not to leave the company. Shortly thereafter, the plaintiff resigned, apparently believing the measures insufficient. The en banc panel, adopting Judge Wilkinson's dissent, affirmed the district court's award of summary judgment to the defendant corporation. Judge Wilkinson emphasized that, in cases where the defendant's discriminatory intent is to be gleaned from inaction, the inaction must be directed at the plaintiff, and a generalized inaction is not probative of an intention to have the plaintiff resign. Finally, the opinion noted that the plaintiff did not give the defendant's remedial measures an opportunity to work although in the brief time the plaintiff remained on the job after the incident, Moore apparently refrained from his objectionable activity. [*11]

          The plaintiff in this case alleges several setbacks and unpleasant conditions at the radio station. However, she has not proffered evidence sufficient to establish that a reasonable person in her position would have found the working conditions at the radio station so intolerable that they would feel "compelled to resign." Blistein, 74 F.3d at 1468. Nor has she identified a dispute of material fact regarding the intent of the defendants to force her to resign because of her sex. For these reasons, the defendant's motion for summary judgment on Count three will be GRANTED.


          The defendants also have moved for summary judgment on Count two of the plaintiff's complaint alleging sex discrimination. As noted above, the date of the plaintiff's amended charge of discrimination was March 15, 1994. The EEOC has jurisdiction to entertain complaints of discrimination that occurred up to 300 days prior to the complaint. See 42 U.S.C. § 2000e-5(e)(1). Where a charge is not properly pending before the EEOC, it may not issue a right-to-sue letter for that claim. Consequently, a federal court does not have jurisdiction over that claim because a right-to-sue letter is a jurisdictional prerequisite to suit under Title VII. See Davis v. North Carolina Dep't of Correction, 48 F.3d 134, 140 (4th Cir.1995); see also Nealon v. Stone, 958 F.2d 584, 590 (4th Cir.1992) ("[T]he scope of a Title VII lawsuit may extend to any kind of discrimination like or related to allegations contained in the charge and growing out of such allegations during the pendency of the case before the Commission.") (internal quotation marks and citations omitted). Therefore, this court has no jurisdiction to entertain allegations of discrimination which occurred prior to Wednesday, May 19, 1993.

          In her unsworn initial intake questionnaire, the plaintiff alleged only that past and present managers at the radio station had discriminated against her by transferring income-generating accounts from her. In her sworn charge of discrimination dated July 27, 1994, she alleges discrimination on the basis of race and sex in connection with the sales incentive contest in the spring of 1993. She also states that Reese's alleged lewd comment to her in May 1993 constituted sexual harassment and was a contributing factor to a hostile work environment. [FN12]

          The plaintiff concedes in her deposition that, because the winner of the sales incentive contest was a woman, her claim of discrimination related to that contest should be restricted to race discrimination. Moreover, she has proffered no other facts that might suggest that any actionable decision of the defendants was motivated by intentional discrimination on the basis of her sex. For these reasons, the defendant's motion for summary judgment as to Count two will be GRANTED.


          The defendants have also moved for summary judgment on the issue whether the plaintiff has waived her claim for damages for pain and suffering. At her deposition, counsel for the defendants questioned the plaintiff on issue of the damages alleged in this case. She specified certain economic damages only. When specifically asked whether she was alleging damages for pain and suffering in connection with her allegations of employment discrimination, the plaintiff responded: "At this time, no." Plaintiff's counsel has not directed the court to any specific record evidence following that deposition answer that would support her claim for pain and suffering. Therefore, the defendant's motion for summary judgment with respect to the plaintiff's claim for damages for pain and suffering will be GRANTED. [*12]


          The plaintiff initiated this litigation with a six-count complaint. She has voluntarily dismissed Counts five and six, and this memorandum and order grants summary judgment to the defendants on Counts two and three. The only remaining claims allege intentional discrimination on the basis of race in Count one (Title VII) and Count four (42 U.S.C. § 1981). Because this court is aware of no facts in the record that would give rise to a permissible inference of actionable intentional discrimination based on race, it will sua sponte consider summary judgment on the plaintiff's claims contained in Counts one and four. The plaintiff shall have ten days within which to oppose this motion or have judgment entered against her on all claims.

          A separate order follows.



[1]   FN1. The plaintiff has been less than consistent in her representations as to whom the title "Local Sales Manager" refers. Carolyn Mackey, the EEOC employee who conducted the plaintiff's intake interview, attests that her notes accurately identify the defendant Dennis Reese as the Local Sales Manager. Moreover, an incident of alleged sexual harassment is attributed to Reese in Mackey's notes, however, there is no date indicated for the incident. In her Amended Complaint, however, Reese is identified as the "Sales Manager" of WWRC-Radio for all times relevant to the action, Complaint ¶ 10, and Richard Eury is identified as the "Local Sales Manager" at all relevant times, id. ¶ 18. The amended complaint alleges specific instances of comments of a sexual nature by both Eury, id. ¶ 25, and Reese, id. ¶ 42. Count III of the amended complaint, which sets forth the plaintiff's sexual harassment and constructive discharge claim, alleges generally she was harassed by "managerial officials" at "various times." Id. ¶ 66. The plaintiff has resolved this ambiguity for present purposes by attesting in an attachment to her opposition that her reference to the "Local Sales Manager" in her charge was a reference to Dennis Reese.

[2]  FN2. A would-be civil plaintiff has 300 days from the date of the alleged unlawful employment practice to file a claim with the EEOC. 42 U.S.C. § 2000e-5(e)(1). For a charge to be a valid, formal claim, it must be verified, that is, sworn to under oath or affirmation. Id. § 2000e-5(b).

[3]  FN3. The defendants go to great lengths in their memoranda to discuss whether the plaintiff should be entitled to the "equitable" remedy of "tolling" the statute of limitation for filing a charge with the EEOC. The facts of this case do not present an issue of tolling or equitable relief. What is at issue is the applicability of the EEOC regulation permitting the relation back of technical amendments of charges of discrimination. See 29 C.F.R. § 1601.12(b). This regulation contains no "clean hands" prerequisite to its application.

[4]  FN4. The Seventh Circuit has established a requirement that a would- be constructive discharge plaintiff "seek legal redress while remaining in his or her job unless confronted with an aggravated situation beyond ordinary discrimination." Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 677 (7th Cir.1993) (internal quotation marks and citations omitted); see also West v. Marion Merrell Dow, Inc., 54 F.3d 493, 498 (8th Cir.1995) ( "An employee who quits without giving her employer a reasonable chance to work out a problem is not constructively discharged.").

[5]  FN5. As noted above, in Cavalier Hotel the court only required that the plaintiff show that the plaintiff's resignation was reasonably foreseeable from the defendant's sexual harassment and sexual assault. See Cavalier Hotel, 48 F.3d at 1355. In that case, the individual defendant repeatedly sexually assaulted the plaintiff. The Fourth Circuit affirmedher jury verdict for constructive discharge rejecting the argument that the defendant was not liable for constructive discharge because the abusive defendant would have preferred the plaintiff remain at work so that "he could continue to perpetrate and execute his lascivious acts on her." Id. (internal quotation marks omitted). There is no indication in cases decided after Cavalier Hotel that this "reasonable foreseeability" standard (which differs from other pronouncements in this Circuit requiring a showing of deliberate intention) is applicable in cases not involving the kind of sexual harassment or assault involved in that case. See Blistein, 74 F.3d at 1468 ("Typically, [a] constructive discharge occurs when an employer deliberately makes an employee's working conditions intolerable and thereby forces him to quit his job.") (internal quotation marks and citation omitted) (alteration in original) (emphasis supplied).

[6]  FN6. As support for this allegation, the plaintiff merely directs the court's attention to specific paragraphs in her complaint. As noted above, when opposing a motion for summary judgment, the non-moving party may not merely rest on allegations in her complaint, but must show, through the production of evidence, that specific facts exist to create a triable issue. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (summary judgment motion may "be opposed by any of the kinds of evidentiary materials listed in Rule 56(c) except the mere pleadings themselves ") (emphasis supplied); Hinkle, 81 F.3d at 421. Moreover, Rule 56 requires the non-movant to "designate" the specific facts that create an issue for trial. Jones v. Sheehan, Young & Culp, P.C., 82 F.3d 1334, 1338 (5th Cir.1996). While the plaintiff has supplied her own affidavit (which does not mention the transfer of accounts) and hundreds of pages of transcript from her deposition, it is "highly questionable whether this Court has the obligation to [comb through her] transcript for possible support for that claim." White v. Dial Corp., 882 F.Supp. 701, 708 (N.D.Ill.1994); accord Jones, 82 F.3d at 1338.

[7]  FN7. The day after the plaintiff resigned her position at the radio station, she took a pre-employment drug test for her subsequent employer, WRC-TV, an NBC television affiliate in Washington, DC. There is documentary and testimonial evidence in the record indicating that late in May 1993, the plaintiff told her interviewers at WRC that she did not wish to start her new job until the second week of June 1993 because she wanted to collect her winnings in a contest at the radio station. Such evidence seriously undermines her claim that the alleged discrimination in the conduct of the contest led to her involuntary resignation from the station.

[8]  FN8. The portion of the deposition cited by the plaintiff does not indicate the identity of Mr. Rakovan. From the context it appears he was an employee at the radio station.

[9] FN9. The plaintiff cites only to the complaint as evidence for these statements.

[10]  FN10. There is no competent record evidence showing that Reese "had [any] authority to hire, fire, promote [or] discipline" the plaintiff. See Cavalier Hotel, 48 F.3d at 1352. In fact the plaintiff stated in her deposition that Reese was not her supervisor. See infra note 10. Therefore it is doubtful that the "reasonable foreseeability" standard applies in this case. Assuming that it did, however, it can not reasonably be said that the plaintiff's resignation was a reasonably foreseeable consequence of any inaction of the management of the station based on what they knew or should have known. See Cavalier Hotel, 48 F.3d at 1355. Furthermore, because the plaintiff's only allegation of Reese's supervisory authority over her was that she "felt" he could control her destiny at the station, see infra note 10, he can not be deemed an "employer" for Title VII purposes, and, therefore, can not be liable for constructive discharge. See Paroline, 879 F.2d at 104.

[11]  FN11. In an affidavit supporting her opposition to the instant motion, the plaintiff attests that Reese was one of her supervisors. [] Aff. ¶ 14. This flatly contradicts her deposition testimony in which she stated, in the context of her explanation of Reese's complained-of behavior: "While he wasn't my immediate supervisor, he could control my destiny at the station, I felt." [] dep. p. 196, lines 14-15; see also id. p. 172 ("Q. Did Dennis Reese also do a performance appraisal for you? A. No, he did not. I reported predominately to Mary. I conferred with Dennis for certain activities only pertaining to WRC Radio, but Mary was my immediate supervisor."). A court need not consider affidavits in clear conflict with the affiant's adequately developed prior deposition testimony. See Rohrbough v. Wyeth Labs.,, Inc., 916 F.2d 970, 974-76 (4th Cir.1990); Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir.1984). Moreover, in her affidavit, the plaintiff baldly asserts that Reese was her supervisor in contradiction of her deposition testimony. Nowhere does she allege any specific facts showing that he exercised significant control over her hiring, firing, or conditions of employment; that he had significant input into such personnel decisions; or even that the company approved or acquiesced in any supervisory control he exercised over the plaintiff. See Paroline, 879 F.2d at 104; see also Fed R. Civ. P. 56(e) (affidavit of opponent of a motion for summary judgment "must set forth specific facts showing that there is a genuine issue for trial") (emphasis supplied); Evans v. Technologies Applications & Service Co., 80 F.3d 954, 962 (4th Cir.1996) ("[S]ummary judgment affidavits cannot be conclusory."). In this context, given the plaintiff's deposition testimony and the defendant's denial of Reese's supervisory role, the plaintiff's assertion in her deposition is, in essence, a conclusion of law rather than a statement of specific fact as required by Rule 56(e).

[12]  FN12. The plaintiff apparently raised these issues in her original intake interview in March 1994 as they are reflected in the notes of her interviewer.