UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1145
RONALD L. MASON,
Plaintiff - Appellant,
versus
WYETH, INCORPORATED, d/b/a Wyeth Consumer
Healthcare,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CA-04-410-3)
Argued: January 31, 2006 Decided: May 31, 2006
Before WILKINS, Chief Judge, and MICHAEL and TRAXLER, Circuit
Judges.
Affirmed by unpublished opinion. Judge Traxler wrote the majority
opinion, in which Chief Judge Wilkins joined. Judge Michael wrote
an opinion dissenting in part and concurring in part.
ARGUED: Harris Dewey Butler, III, BUTLER, WILLIAMS & SKILLING,
P.C., Richmond, Virginia, for Appellant. Daryl Eugene Webb, Jr.,
TROUTMAN & SANDERS, L.L.P., Richmond, Virginia, for Appellee. ON
BRIEF: Laura G. Fox, Warrenton, Virginia; Tim Schulte, BUTLER,
WILLIAMS & SKILLING, P.C., Richmond, Virginia, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
TRAXLER, Circuit Judge:
Ronald L. Mason appeals the district court’s order granting
summary judgment to his employer, Wyeth, Inc., on his claims of
discrimination and retaliation under the Americans with
Disabilities Act (“ADA”), 42 U.S.C.A. § 12101 et. seq. (West 2005)
(“ADA”), and for intentional infliction of emotional distress under
Virginia law. We affirm.
I.
Mason has been hearing impaired since early childhood, with
a total hearing loss of approximately 80 percent. With hearing
aids, his ability to hear is improved between 80 and 90 percent,
and he can participate in normal conversations. However, in areas
where there is substantial background noise, Mason does not wear
his hearing aids because the noise causes him to experience
dizziness and headaches.
In November 1989, Mason was hired by Wyeth’s predecessor in
Richmond, Virginia, as an Offset Operator B in the Print Services
Department (the “Department”). Wayne Samford was manager of the
Department for the entire duration of Mason’s nearly fifteen years
of employment with Wyeth. In 1991, Mason received a promotion to
Offset Operator A and, by all accounts, was a successful employee
and highly skilled press operator who consistently received good
performance evaluations.
3
Throughout Mason’s employment, the employees in the Department
got along very well on a personal level, and there was little
turnover. When Mason was hired, there were seven employees in the
Department – Mason, Samford, Nick Paravatti (supervisor), Otis
Martin, Bill Branch, Allen Blankenship, and Rogers Jones. In the
early to mid-1990s, Paravatti resigned, Martin was promoted to
supervisor, and Ray Slaughter was transferred into the Department
to operate the photocopiers. In January 2003, the employees in the
Department consisted of six of the seven original employees (Mason,
Samford, Martin, Branch, Blankenship, and Jones), plus Slaughter,
who had been there for several years by that time. According to
Mason, he considered these men to be his primary support network,
he felt well-liked by his coworkers, and he felt that they always
treated him as a person with normal hearing.
In approximately 1998 or 1999, the employees, and particularly
Samford, began playing pranks on one another. One such prank
involved Samford sneaking up behind the other employees to startle
them, either by pinching or poking them, making hissing or loud
noises, or blowing air on their hands with an air hose. Another
involved Samford placing a toy rat in places where the employees
would encounter it. It is undisputed that the pranks and tricks
were not limited to those played by Samford on Mason. On the
contrary, Samford played the same or similar pranks on nearly every
employee in the Department. Mason also admits participating in the
4
prank-playing environment. For example, Mason admitted that he
made everybody laugh by “mooning” traffic on Interstate 95 from the
Wyeth parking lot on one occasion. He admitted placing a dead bug
on top of a candy bar on Jones’s desk to startle him, and he
admitted startling Jones on another occasion by putting a rubber
snake in his breakfast bag. According to Mason, Samford witnessed
the latter incident, got the snake from Mason, and put it in
Jones’s sandwich box to startle him again. On yet another
occasion, Mason attempted to pry open the door of a bathroom stall
occupied by Jones. Mason testified that he was unsuccessful, but
Jones realized that it was “me . . . trying to tease him,” “caught
me laughing and got me [the] next day.” J.A. 63.
Mason also has a history of mental health problems that
preceded his employment with Wyeth. In the 1980s, Mason was
diagnosed with severe depression and was hospitalized for
depression and suicidal thoughts. He has been treated by a
psychiatrist for a Schizoaffective Disorder since 1997. In
December 2002, Mason told one of his coworkers that he was
considering suicide. When Samford learned about this statement, he
discussed the matter with Mason, and relayed his concern to Betty
Allen, Samford’s immediate supervisor. Mason was placed in contact
with Wyeth’s employee health department, and referred to the
Employee Assistance Plan (“EAP”). Pursuant to the EAP, Mason was
referred to a clinical psychologist, Nancy MacConnachie. At no
5
time during this process did Mason attribute his depression and
suicidal thoughts to his employment with Wyeth, or to the prank-
playing environment in the Department.
Dr. MacConnachie first saw Mason on January 13, 2003. By
letter dated January 22, 2003, Dr. MacConnachie advised Shirley
Hess (Wyeth’s senior manager in Human Resources) that Mason was
suffering from depression and post-traumatic stress disorder which
Dr. MacConnachie attributed to the pranks that had been played by
Samford on Mason. Dr. MacConnachie advised that “[b]ecause of his
hearing impairment, Mr. Mason’s startle response has a low
threshold and causes him great distress, breaking his concentration
on his work” and suggested that “Mason’s coworkers would benefit
from education regarding the impact of a hearing impairment on the
startle response.” J.A. 9-10. This was the first time that Mason
or anyone on his behalf requested that the prank-playing be stopped
because of the alleged effect it was having on his emotional
condition. It was also the first notice anyone at Wyeth received
of Mason’s current claim that he considered Samford’s prank-playing
(when directed at him) to be discriminatory conduct based upon his
hearing disability and that Samford’s prank-playing was the cause
of his escalating mental health problems.1
1
Mason testified that several years earlier, when the prank-playing behavior was getting started, he told Samford to stop
because it was “getting on [his] nerves,” and told Martin that
Samford should stop the pranks. J.A. 50. However, he testified
that Samford “thought I was kidding” and “didn’t think what I was
6
Upon receiving Dr. MacConnachie’s letter, Hess, Allen, and Ned
Netherwood (Senior Director of Administrative Operations in Wyeth’s
Consumer Healthcare Division in Richmond), met with Mason and
assured him that the prank-playing would stop. They then met with
Samford and Martin, separately, regarding the matter. Both men
readily admitted that the Department employees, including Mason,
joked and played pranks on one another frequently. However, they
stated that they were not aware of any negative or unusual impact
the prank-playing was having on Mason, and they denied that the
pranks were in any way directed at Mason because of his hearing
disability. Both men stated that they had no idea that Mason was
upset about the pranks, that Mason was, in fact, a participant in
the play, and that they never intended to upset him or otherwise
cause him harm. According to Allen, Samford appeared “very
surprised” that Mason was claiming that the activity had this
effect on him “since it was a situation where they all had
participated in that type of activity,” Mason “had not said
anything to them that it was bothering him,” and “he too,
participated in some of the activity.” J.A. 176. Allen testified
that she did not view the prank-playing “as singling Mr. Mason out
saying to him was serious.” J.A. 50. Mason apparently took no
further steps to stop the behavior or extricate himself from the
prank-playing environment, and makes no claim that he ever informed
management or his coworkers or supervisors that he believed the
pranks were directed at him because of his hearing disability or
that they were causing a deterioration of his mental health
condition until after he was referred to Dr. MacConnachie.
7
particularly at that point,” J.A. 178, but instructed Samford to
stop the activity in the Department.
It is undisputed that Samford played no further pranks on
Mason after that meeting. In September 2003, however, nearly seven
months later, Mason told Hess that he was having a nervous
breakdown. Although Samford had admittedly played no further
pranks on Mason, Mason claimed that Samford had continued to tease
other employees which upset him. He also claimed that Martin had
startled him on one occasion.2 Soon thereafter, Mason left
employment on short-term disability and checked into a hospital for
treatment. He never returned to active employment with Wyeth.
Prior to these events, Wyeth had begun the task of analyzing
cost-saving strategies, including ways to reduce expenses in its
Print Services Departments located throughout the company. Wyeth
hired an outside consultant firm, the McKinsey Group, to analyze
how costs could be reduced through outsourcing of various print
service functions. By early January 2003, Jim Pohlman, the
Executive Vice President located in Wyeth’s corporate headquarters
in Madison, New Jersey, informed Netherwood that offset printing
would likely be discontinued because it could be done cheaper
outside of the company. Netherwood immediately informed Samford
2
Although Mason testified that he felt like Martin made a
noise on purpose, he admitted that he did not see Martin do
anything to cause the noise and did not know if it was done
intentionally or not.
8
and Martin of the likelihood that a reduction-in-force (“RIF”)
would take place in the Department and they, in turn, informed all
employees in the Department, including Mason, of the likely RIF.
Mason testified that, although he was informed at this time of the
proposed closure, he was not worried about it. On February 14,
2003, Netherwood presented to Pohlman the options available in
Richmond under the McKinsey study and his recommendation that the
company eliminate all offset press work, equipment and associated
personnel.
A final decision to discontinue operation of the offset print
presses in Richmond, Virginia and Madison, New Jersey, was made
later that year, with the formal announcement occurring on
September 23, 2003. The offset presses were removed from the
Richmond location shortly thereafter. Because their primary job
function was to operate the now-defunct offset presses, Mason and
Blankenship were included in the RIF. The three remaining
employees in the Department (Jones, Slaughter, and Branch) were
transferred to a newly-created Copy and Mail Center, where they
continued to perform the same job functions. Because this left
only three non-management employees, the need for a manager and
supervisor of the Department was also eliminated, resulting in the
termination of Samford and Martin, effective November 30, 2003.3
3
A simultaneous RIF in the Richmond RxPO department resulted
in the termination of ten additional employees. The parties have
not indicated the number of employees terminated as a result of the
9
On September 24, 2003, Mason was informed that his position was
being eliminated. However, because Mason would turn 55 years old
in March 2004, Netherwood and Wyeth’s Assistant Vice President of
Human Resources recommended that Wyeth postpone the effective date
of Mason’s termination for six months, until April 1, 2004, so that
he would be eligible to retire and receive enhanced retirement
benefits if he returned to active employment before that date.
Mason and the others were also offered a separation program, which
included severance, outplacement, educational assistance and
benefit continuation. Mason never returned to work and continues
to receive disability benefits.
Mason filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”), alleging discrimination
and retaliation under the ADA. He then filed this action,
asserting claims for hostile work environment and retaliation under
the ADA, and for intentional infliction of emotional distress under
Virginia state law. Wyeth moved for summary judgment, which was
granted by the district court, and this appeal followed.
II.
We begin with Mason’s claim that the district court erred in
granting summary judgment on his hostile work environment claim and
reorganization at the Madison, New Jersey location.
10
in determining that Mason had failed to plead a separate
“reasonable accommodation” claim under the ADA.
A.
“The ADA prohibits discrimination only against a ‘qualified
individual with a disability,’ and defines such a person as ‘an
individual with a disability who, with or without reasonable
accommodation, can perform the essential functions’ of his job.”
Fox v. General Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001)
(internal citations omitted) (quoting
42 U.S.C.A. § 12112(a) and
§ 12111(8)).
In his amended complaint, Mason set forth three specifically
enumerated counts: Count One, labeled “Americans with Disabilities
Act (Hostile Work Environment)”; Count Two, labeled “Americans with
Disabilities Act (Retaliation)”; and Count Three, labeled
“Intentional Infliction of Emotional Distress.” J.A. 134-136.
Wyeth moved for summary judgment as to all three counts.
During the summary judgment proceedings before the district
court, a controversy arose regarding whether Mason had stated a
“reasonable accommodation” claim under § 12112(a), separate and
apart from his claim of a “hostile work environment.”
Specifically, Mason argued that he had and, in particular, claimed
that Wyeth had violated the ADA by failing to provide him with a
TTY-adapted telephone and by failing to provide either sign
11
language interpreters or written summaries of semi-annual meetings
to ensure that he was aware of new information. The district court
ruled that Mason had failed to plead a separate “reasonable
accommodation” claim in his amended complaint, and granted summary
judgment as to Mason’s “hostile work environment” claim. We agree.
As an initial premise, we note that Mason clearly failed to
set forth a separately stated count for an alleged failure to
provide reasonable accommodations for his hearing disability. He
does not claim otherwise on appeal. Rather, he asserts that he
should be allowed to pursue such a claim because it was
sufficiently stated in the paragraphs leading up to the enumerated
counts, which, in turn, were incorporated by reference into his
first count for hostile work environment. In these paragraphs,
Mason set forth factual allegations regarding the prank-playing
environment, followed by allegations that “[o]ther acts . . .
contributed to the hostile environment/harassment,” J.A. 130,
including Wyeth’s failure to provide “reasonable accommodation in
the form of an interpreter” or “written summaries of the department
meetings, so he could learn what topics had been discussed,” J.A.
131. Mason also alleged that Wyeth had “further discriminated
against Mason when it gave him a lower performance evaluation
because of his difficulties in answering the telephone at work.
The telephone at the printing department was not a TTY-adapted
12
telephone, and Defendant continuously ignored Mason’s requests for
accommodation in this and other regards.” J.A. 131.
We disagree with Mason’s view that these background
allegations were sufficient to state a separate count for
reasonable accommodation. Mason structured his amended complaint
to allege, via clearly delineated headings, three specific,
enumerated counts. At best, a fair reading of the amended
complaint should have placed Wyeth on notice that Mason considered
these supposed failures to be a part of his claim that the work
environment was hostile to him because of his hearing disability,
and therefore something to be considered in conjunction with
Samford’s prank-playing. But it did not fairly place Wyeth on
notice that Mason was claiming that such accommodations would have
allowed him to “perform the essential functions” of his job,” 42
U.S.C.A. § 12111(8), and that he intended to pursue a separate
count for failure to accommodate.
Even if the amended complaint had sufficiently placed Wyeth on
notice of a reasonable accommodation claim, however, it would not
affect Wyeth’s entitlement to summary judgment on the ADA count.
Prior to the filing of the motion for summary judgment, the parties
conducted discovery and Mason was given ample opportunity to
produce evidence in support of any such claim. Yet, Mason has
failed to support his allegations that he requested and was denied
the specified accommodations with sufficient evidence, and has
13
failed to demonstrate that he was unable to perform the essential
functions of his job without them.
With regard to Mason’s alleged request for a sign-language
interpreter, Mason testified that, within a year or two of coming
to work, he realized that he was having trouble hearing in the
semi-annual meetings and he “hint[ed] . . . to Otis and Wayne” that
he needed an interpreter. J.A. 92. According to Mason, he was
encouraged to sit in the front of the meetings and turn his hearing
aids up. Mason testified that he heeded this advice, but still
encountered too much background noise to hear well. Mason admits
that he only “hinted” of the need for an interpreter on this one
occasion, and he apparently told no one that the suggested
resolution was unsatisfactory. Rather, Mason testified that he did
not believe he needed to say anything else, that Wyeth should have
“immediately” provided an interpreter in response to his hint, and
that he “just gave up.” J.A. 94.4 Such evidence is plainly
insufficient to support a finding that Wyeth failed to make a
reasonable accommodation under the ADA.
Mason’s testimony regarding his difficulties with the
telephone and its alleged impact on his job is a similarly
insufficient basis upon which to ground a reasonable accommodation
4
There is no admissible evidence that Mason ever requested
written summaries of the meetings, as alleged in his complaint.
He did not claim that he did in his testimony, and the only mention
of the alleged request in the record is a hearsay statement
recorded by Dr. MacConnachie in her letter to Wyeth.
14
claim. Mason testified that Samford informed him on one occasion
that Mason was not taking telephone messages accurately, prompting
him to request “something like a sound booster” for the telephone.
J.A. 96.5 Mason testified that the only accommodation he requested
was this “volume enhancer or amplifier on the telephone” and
admitted that this “was done and that [it] helped” him. J.A. 97.
He later testified, without elaboration, that he also “asked [Betty
Allen] about TTY, and they never provided it.” J.A. 98. However,
because Mason has also failed to come forward with any evidence
that a TTY-adapted telephone was required for him to perform his
essential job functions, we need not resolve any conflict in
Mason’s testimony in this regard. To the extent any evidence on
the matter was produced, it indicates that Mason was performing his
job duties, including answering the telephone, satisfactorily with
the accommodation provided.
5
In his amended complaint, and in arguments before us, Mason
characterizes this comment on Samford’s part as a lower performance
appraisal which resulted from Wyeth’s failure to provide a
reasonable accommodation. Mason alleged that he “disagreed with
the lower performance evaluation and initially refused to sign it,”
that he “was told by Samford that if he did not sign the evaluation
he would not get a pay raise,” and that he “asked for a copy of the
evaluation, [but] his request was denied.” J.A. 131. Mason has
produced no evidence in support of these additional allegations and
his own testimony does not support them. Indeed, there is no
evidence of a written evaluation regarding Mason’s telephone
abilities at all, and the only written evidence regarding Mason’s
performance evaluations is overwhelmingly positive. To the extent
we could view Samford’s comment as a lower performance appraisal,
however, it obviously did not result from Wyeth’s failure to
provide a TTY telephone, as it preceded Mason’s request for the
voice amplifier that was provided.
15
In sum, we agree that Mason’s amended complaint failed to
allege a separate claim for “failure to accommodate” under the ADA
and, therefore, affirm the district court’s ruling. We also hold
that, even if Mason had sufficiently stated such a claim, Wyeth
remained entitled to summary judgment because Mason’s evidence is
plainly insufficient to support his claim that the accommodations
were requested and denied, or that they were necessary for him to
perform his essential job functions.
B.
We next turn to Mason’s claim that Samford’s prank-playing
amounted to a hostile work environment in violation of the ADA.
The ADA prohibits employers from “discriminat[ing] against a
qualified individual with a disability because of the disability of
such individual in regard to [the] terms, conditions, and
privileges of employment.” 42 U.S.C.A. § 12112(a) (emphasis
added). In order to establish such a claim for discrimination
based upon a work environment that is hostile to one’s disability,
the plaintiff must prove that “(1) he is a qualified individual
with a disability; (2) he was subjected to unwelcome harassment;
(3) the harassment was based on his disability; (4) the harassment
was sufficiently severe or pervasive to alter a term, condition, or
privilege of employment; and (5) some factual basis exists to
16
impute liability for the harassment to the employer.” Fox, 247
F.3d at 177.
We agree with the district court’s determination that Mason
failed to create a genuine issue of material fact which could
satisfy the third element, i.e., that Samford discriminated against
Mason “because of” Mason’s hearing disability.6
The critical issue for consideration in the “because of”
inquiry is whether a disabled plaintiff has been “exposed to
disadvantageous terms or conditions of employment to which [non-
disabled employees] are not exposed.” Ocheltree v. Scollon
Productions, Inc., 335 F.3d 325, 331 (4th Cir. 2003) (en banc)
(internal quotation marks omitted) (addressing the “because of”
inquiry in the context of a Title VII sex discrimination case).
Here, it is undisputed that the employees in the Department had
worked together for a long period of time and were close friends as
well as coworkers. While Samford may have led the pack in the
prank-playing shenanigans that developed among the men, it is
undisputed that Samford was not the only participant, nor was Mason
his sole target. Samford played these exact pranks on most, if not
all, of Mason’s coworkers, and all of the employees participated in
6
We express no opinion as to whether the prank-playing could
be viewed as sufficiently severe or pervasive to alter a term,
condition, or privilege of employment. Because Mason failed to
demonstrate that any alleged discrimination occurred “because of”
his hearing disability, it is unnecessary for us to reach the
alternative holding of the district court on the fourth element.
17
the prank-playing in some fashion and degree. Mason admits this
and, while he attempts to downplay the extent and degree of his
involvement, he admits that he engaged in similar horseplay. And,
like Samford, Mason viewed his antics as innocent and, for the most
part, welcomed by his targets. In short, the work environment in
the Department was permeated with the perhaps sophomoric and
juvenile behavior of its employees.
Unable to show that Samford singled him out from his coworkers
for the pranks, Mason instead claims that it was sufficient to
produce evidence that he was the primary target of Samford’s prank-
playing antics. According to Mason, he felt like he was Samford’s
primary target, and he believes this is because he was easy to
sneak up on and has a low-threshold startle response. Because
these characteristics resulted from his hearing impairment, Mason
asserts that one may infer that Samford’s prank-playing, when
directed at him, amounted to discrimination against him because of
the hearing disability in violation of the ADA.
We are unpersuaded. First, Mason has produced insufficient
admissible evidence from which one could conclude that he was even
the “primary” target of Samford’s prank-playing, as opposed to only
one of several “favorites” in the Department.7 Second, while Mason
7
Mason testified that he believed he was the primary target,
that Slaughter was second, and that Blankenship was third.
Slaughter testified that he felt like he was Samford’s primary
target, and that Samford played more pranks on him than on Mason.
The testimony of the employees in the Department supports both
18
presented lay testimony regarding his supposed “exaggerated” or
“low threshold” startle response, he has not designated and
produced expert testimony to support a causal connection between
the degree of his startle response and his hearing disability, or
evidence that his startle response was really all that different
from that of Samford’s other primary targets.
In the end, however, we hold that Mason cannot prevail on his
hostile work environment claim under the ADA based upon such a
multi-layer approach of imputing a discriminatory motive to
Samford. In order to establish a claim under the ADA, Mason was
required to present evidence upon which a jury could rest a
determination that Samford discriminated against Mason because of
his hearing disability. That is what the ADA and other such anti-
discrimination laws are intended to prevent -- discrimination
against an employee because of the protected trait at issue. They
viewpoints, as well as the possibility that Blankenship was at
least Samford’s third favorite target. Of course, all such
rankings are too subjective and generalized to be of much
assistance to Mason. They are necessarily based upon the
subjective impressions of the employees and the frequency with
which they were in position to observe the behavior. The
employees, including Mason, do agree on one thing; Samford played
the most pranks on Slaughter, Blankenship, and Mason because they
were accessible and had “funnier” reactions, in contrast to Branch,
Jones and Martin, who, either because they were not as accessible
in their work stations or had little or no reaction to the pranks,
had fewer pranks played upon them. We find Mason’s subjective and
self-serving declaration that he was “first” simply too thin a reed
upon which to rest the claim that he was “singled out” from the
others and subjected to “disadvantageous terms or conditions of
employment to which” his nondisabled coworkers were not exposed.
Ocheltree, 335 F.3d at 331 (internal quotation marks omitted).
19
do not intended to guarantee “refinement and sophistication in the
workplace.” Cf. Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 773
(4th Cir. 1997). Nor are they intended to subject an employer to
liability because the mutual prank-playing of friends and coworkers
in the workplace gets out of hand and inadvertently offends or
harms one who happens to a disability.
In this case, there is no evidence that Samford was ever
motivated to discriminate against Mason because Mason was hearing
impaired. Mason does not claim that he alone was singled out. He
readily acknowledged that Samford “d[id] it all the time. I’m not
the only person . . . . He does it to all the others.” J.A. 49.
He also admitted that Samford never said anything that caused him
to believe that he was being teased “because [he was] hearing
impaired,” J.A. 69, and testified that Samford “never made fun of
[his] hearing,” J.A. 70. He, and the others in the Department,
viewed Samford’s pranks as “just . . . a joke.” J.A. 47, 50. When
specifically asked to identify the people at work who he believed
were motivated to tease him or play tricks on him because of his
hearing impairment, Mason denied that he was teased because of his
hearing impairment. Rather, he believed that he was teased because
he was a “good all around role model and offset pressman.” J.A.
66. According to Mason, “[t]hey just like[d] to pick on me”
because “I was [a] swell of a guy.” J.A. 66.
20
Indeed, Mason testified that he did not consider the prank-
playing to be harassment based upon his hearing disability until
his medical providers told him otherwise. Mason testified that he
“didn’t look at it that way because of [his] hearing disability,
but [his] doctor look[ed] at it that way and told [him].” J.A. 55.
He was also told in “the group meetings when [he] was in the
hospital . . . that [it] is harassment, that [he] didn’t know. And
[he] just held it as a joke, and no one told me it was
harassment. . . . J.A. 47. As a result, Mason came to believe that
Samford’s pranks were “harassment,” not because he believed Samford
held any discriminatory animus towards him or his disability, but
because his medical providers told him that Samford was so
motivated.8
In sum, Mason makes no claim that Samford was directly
motivated by a discriminatory animus towards him. Samford denies
any such animus or motivation, and there is no other testimony or
evidence that would allow such an inference. Mason cannot prevail
because he failed to present sufficient evidence to establish that
8
Even if the opinions of the medical providers had been
offered as expert testimony, an opinion that Samford’s pranks were
discriminatory in nature would not be the proper subject of a
medical opinion. We note, however, that the medical providers
appear to have been under the incorrect impression that the only
harassing conduct taking place was that of Samford playing “sneaky”
tricks on Mason. Mason does not make that claim, and it is not
supported by the evidence.
21
Samford subjected him to a discriminatory, hostile work environment
because of his hearing disability.
C. Retaliation
Mason’s next claim is that he was terminated by Wyeth in
retaliation for his complaints about Samford’s prank-playing, also
in violation of the ADA. See 42 U.S.C.A. § 12203 (providing that
“[n]o person shall discriminate against any individual because such
individual has opposed any act or practice made unlawful by this
chapter or because such individual made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this chapter”).
To establish a prima facie case of retaliation, Mason was
required to present evidence that (1) he “engaged in conduct
protected by the ADA;” (2) he “suffered an adverse action
subsequent to engaging in the protected conduct;” and (3) “there
was a causal link between the protected activity and the adverse
action.” Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205,
216 (4th Cir. 2002). Although Mason was not required to establish
that the opposed conduct was actually an ADA violation, he must at
a minimum establish a reasonable, good faith belief that the
opposed conduct violated the ADA. See
id.
Mason cannot prevail on his retaliation claim because he
failed to create a genuine issue of material fact that he was
22
terminated as a result of his complaints, rather than as part of
the scheduled RIF. As noted earlier, Wyeth began studying ways to
reduce expenses in its Print Services Departments in early 2002
and, by early January 2003, its consultant had completed its study
in this regard. The Richmond and Madison print departments were
targeted for closure, and a RIF and reorganization were formally
announced in September. The offset presses were removed and, Mason
and Blankenship, whose primary job functions were to operate those
offset presses, were terminated, along with a number of additional
employees.
In light of this undisputed evidence, the district court held
that Mason had failed to create a genuine issue of material fact
that Wyeth’s stated reason for terminating Mason was pretextual, or
that the termination was otherwise imposed as retaliation for
Mason’s complaints of Samford’s prank-playing antics. We agree,
and affirm the district court’s grant of summary judgment on this
claim for the same reason.
III.
Lastly, we turn to Mason’s claim that he presented sufficient
evidence that Samford’s pranks amounted to intentional infliction
of emotional distress under Virginia law. We disagree.
The tort of intentional infliction of emotional distress
requires that the plaintiff prove (1) that “the wrongdoer’s conduct
23
was intentional or reckless;” (2) that “the conduct was outrageous
and intolerable;” (3) that “there was a causal connection between
the wrongdoer’s conduct and the emotional distress;” and (4) that
“the emotional distress was severe.” See Harris v. Kreutzer, 624
S.E.2d 24, 33 (Va. 2006). “Because of the risks inherent in torts
where injury to the mind or emotions is claimed, . . . such torts
[are] not favored in the law.” Ruth v. Fletcher,
377 S.E.2d 412,
415 (Va. 1989) (internal quotation marks omitted). Indeed, in
establishing the requisite “outrageousness” of the conduct, it is
not enough to show that the defendant “acted with an intent which
is tortious or even criminal.” Harris,
624 S.E.2d at 33 (internal
quotation marks omitted). Rather, liability may be “found only
where the conduct has been so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a
civilized community.”
Id. (internal quotation marks omitted).
Mason claims that Samford’s pranks rose to this level, in
large part because he was an especially susceptible and vulnerable
target. Like the district court, we are unpersuaded. Viewing the
evidence in the light most favorable to Mason, the conduct at
issue, while perhaps inappropriate for the work environment,
amounted to little more than sophomoric pranks between good friends
and coworkers. As such, it falls far short of the requisite
outrageous and atrocious behavior necessary to pursue a claim for
24
intentional infliction of emotional distress. Accordingly, we
affirm the district court’s grant of summary judgment as to this
count as well.
IV.
For the foregoing reasons, we affirm the district court’s
grant of summary judgment in its entirety.
AFFIRMED
25
MICHAEL, Circuit Judge, dissenting in part and concurring in
part:
I respectfully dissent from the majority’s decision in
part II.B to affirm summary judgment for Wyeth, Inc. on Ronald
Mason’s hostile work environment claim under the Americans with
Disabilities Act (ADA). The majority erroneously concludes that
Mason’s claim fails because Wyeth’s manager Wayne Samford did not
harass Mason because of his deafness. When the facts are taken,
as they must be, in the light most favorable to Mason, they
reveal that Samford relentlessly took advantage of Mason’s
deafness in playing pranks on him to provoke his extreme “startle
reaction.” Far from being mere horseplay, these incessant pranks
ultimately led to a deterioration in Mason’s mental health and
made his work environment a hostile one.
I.
In 1989 Ronald Mason began working as an offset printer
operator in the print services department of A.H. Robins Company,
Inc., a Richmond, Virginia, concern that later became part of
Wyeth. Samford and Otis Martin were Mason’s supervisors during
most of Mason’s employment, including the period relevant to this
case. Mason, who is deaf, was a highly skilled employee. He did
not usually wear hearing aids at work because using them in the
noisy work environment caused dizziness and headaches.
26
Although Mason’s coworkers liked him and treated him
like a “normal hearing person” in many ways, they were generally
clueless about and indifferent to his disability. J.A. 42. As
Mason put it, “They don’t understand about my hearing
disability.” Id. Mason’s managers likewise were indifferent to
his deafness. For example, Mason requested a sign language
interpreter early in his employment so that he could follow the
discussion and participate in group meetings, but Samford and
Martin never provided one. Mason explained to Samford and Martin
that he “[could not] understand a word” at the meetings. J.A.
92. Mason specifically said to them, “I need [an] interpreter,”
and asked, “Can someone see . . . about getting an interpreter?”
J.A. 92, 94. Samford and Martin just responded, “Turn your
hearing aid up. Get up in front.” J.A. 92. As a result of this
indifference, Mason did not have access to the same workplace
information that his hearing coworkers did. Whenever Mason wore
his hearing aids at work, Samford would expect Mason to function
at all times as “a hearing person,” but Mason obviously could
not. J.A. 44. For instance, even when wearing his hearing aids,
Mason could not understand voices on the telephone because his
hearing aids distorted the sound. Disregarding this problem,
Samford criticized Mason for not taking phone messages correctly.
At times Mason’s coworkers would speak to Mason in a belittling
way about his disability, saying, “You hear what you want to
27
hear.” J.A. 42. This accusation, Mason insisted, was not true.
In addition, one coworker, Ray Slaughter, mocked Mason’s impaired
speech.
In 1998 or 1999 Samford began playing pranks on Mason
that were both cruel-hearted and discriminatory because they
exploited Mason’s deafness. As often as two or three times a
week, Samford would sneak up behind and pinch Mason while making
a hissing noise or blowing air from an air hose onto Mason’s
hand. As Mason described the incidents:
I hear the sound, psst, and he touch me like a
snakebite, yes, but I didn’t hear him approach me,
behind me. I can’t hear him . . . . My job is focus
on work. If I hear, I will turn around. I would
prevent it. The advantage is I can’t hear him, and
it’s so easy for him — I was so target, easy to be
attacked, because I jump. I jump my legs. And he
laughed, think it’s funny, because I overreacted.
J.A. 49-50. In addition, Samford would often hide a rubber rat
in the work area to shock Mason. Mason estimates that Samford
scared him with the rat at least twenty-five times in one year.
Samford used the rat on occasion to scare other print shop
employees, but Mason was his most frequent prey.
Although Samford played pranks on other employees,
Mason was Samford’s “number one target” because Mason’s
disability made it easy for Samford to sneak up behind him and
provoke a severe startle reaction. J.A. 55. Mason explained,
“[M]y nerve is very jumpy. And anybody touch me, I jump . . .
28
because the deaf people, if you tap behind deaf people, what
happen? It causes deaf people to startle. Deaf people prefer
people come around in front where they can see, see you. I’m the
same way.” J.A. 68-69. Samford tormented Mason because he
(Samford) was amused by Mason’s reactions; Samford admits they
made him laugh. Mason’s reactions also made Mason’s coworkers
laugh. According to Mason, Samford was motivated to scare Mason
primarily because of Mason’s startle reactions.
[A]s being a hearing-impaired person, other than normal
hearing person, you can hear him coming, and you don’t
usually scare as much as they are. When you’re
impaired person, it’s like I’m almost deaf and I’m
working on machine and it’s just — all my mind is
staying on machine. When unexpected startle or — I
mean, I’m telling you, it scared the shit out of me,
because there’s a lot to do with hearing disability.
It just made me — heart pounding, scaring. My face
turned white, and I jump. Nobody jumps like I do. It
scares me to shit. And Wayne [Samford] likes that, my
action of being scared. He thinks it’s funny. . . .
[H]e kept on and on and on and on and on, never
stopped.
J.A. 67-68.
Mason’s coworkers confirmed that Samford targeted Mason
with harassing conduct because of his disability. Mason’s
coworker Judith Kounnas reported that Mason was an easier target
for pranks than other employees because he could not hear.
Mason’s coworkers also confirmed that print shop employees did
not reciprocate with pranks on Samford. See, e.g., J.A. at 251
29
(coworker Roger Jones stating, “You don’t usually play tricks on
the boss.”).
“[M]ore than once, maybe several times,” Mason pleaded
with Samford to stop his “shit,” explaining to Samford that his
pranks were “getting on [Mason’s] nerves.” J.A. 50. Read in
context, Mason’s statement about his frayed nerves conveys more
than mere annoyance: Samford’s pranks were affecting Mason’s
nervous condition. (Samford was aware of Mason’s condition and
knew that Mason took medication to “calm [his] nerves.” J.A.
69.) Samford ignored Mason’s requests, however, forcing Mason to
seek help from another person in management, Otis Martin. Mason
reported Samford’s harassment to Martin two times. He
specifically asked Martin if he “would . . . tell [Samford] to
stop.” J.A. 47. Martin seemed to feel sorry for Mason; he told
Mason that he knew Samford’s conduct was wrong and that he would
“see what he [could] do.” J.A. 79-80. But nothing was done, and
Samford’s harassment persisted.
Samford’s pranks caused Mason to suffer great anxiety
and physical distress. Although Mason took additional medication
to alleviate his anxiety, his job performance began to suffer.
Mason would often lose his concentration and have trouble
focusing and handling his tools. His work slowed. The
harassment even caused Mason to incur minor physical injury at
work. On occasion Samford’s conduct would cause Mason to lose
30
his balance and skin his knuckles. Once Mason fell over and hurt
his back.
In late 2002 Mason’s anxiety became so severe that he
began to contemplate suicide. He was referred to a psychologist,
Dr. Nancy MacConnachie, who diagnosed him with post-traumatic
stress disorder. In January 2003 Dr. MacConnachie wrote a letter
to Shirley Hess in Wyeth’s Human Resources Department. Dr.
MacConnachie cited Samford’s conduct as a source of Mason’s
emotional deterioration and emphasized that it was necessary to
put an immediate stop to the “apparently discriminatory behavior
in [Mason’s] work place.” J.A. 10. Hess responded about three
weeks later by holding separate meetings with Mason, Martin, and
Samford about the harassing conduct. At the meeting with Mason,
held on February 13, 2003, Mason cried and explained why he was
scared and depressed as a result of the pranks. Samford and
Martin confirmed that the incidents had occurred.
II.
To establish a hostile work environment claim under the
ADA, Mason must establish that (1) he is a qualified individual
with a disability; (2) he was subjected to unwelcome harassment;
(3) the harassment was based on (or because of) his disability;
(4) the harassment was sufficiently severe or pervasive to alter
31
a term, condition, or privilege of employment; and (5) some
factual basis exists to impute liability to the employer. Fox v.
General Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001). The
majority errs in concluding that Mason does not proffer
sufficient facts to establish the third element, that he was
harassed because of his disability.
A.
The majority contends that Mason was not harassed on
account of his disability because Samford was not the only person
in the print department who played pranks and because Samford
played many of the same pranks on Mason’s non-disabled coworkers.
This contention suffers from two fatal flaws. First, Mason has
produced sufficient evidence to allow a reasonable jury to
conclude that he was the primary target of Samford’s harassment.
Mason testified that he was subjected to pranks more frequently
than others in the department. Mason also testified that we was
the “number one target” for Samford’s pranks because he was easy
to sneak up on and because his startle reaction was extreme.
Mason’s coworker, Judith Kounnas, corroborated this account.
Even Samford’s testimony, taken as a whole, would allow a jury to
infer that he targeted Mason: Samford surprised Mason with his
pranks more often than any other employee because he found
Mason’s extreme startle reaction amusing. Moreover, the type of
32
pranks Samford played specifically exploited Mason’s inability to
hear and his exaggerated startle reaction. It is true, as the
majority notes, that some of Mason’s coworkers testified that
Samford did not target Mason more frequently than other
employees. This testimony simply reveals the presence of a
genuine issue of material fact as to whether Mason was the
primary target of Samford’s harassment; it does not defeat in
summary judgment proceedings Mason’s evidence that he was the
number one target.
I recognize that some of Mason’s deposition testimony,
when read out of context, may appear to undermine his claim. For
instance, he testified that he knew Samford targeted other
employees with pranks, that he understood Samford’s actions to be
a “joke,” and that his coworkers treated him as a “normal hearing
person.” J.A. 42, 50. Again, these statements are not fatal on
summary judgement, where all reasonable inferences must be drawn
in Mason’s favor. See Laber v. Harvey, 438 F.3d 404, 415 (4th
Cir. 2006) (en banc). To illustrate, Mason’s statement that
Samford’s pranks were a “joke,” when read in context, can be
understood to mean that he did not realize at the time that
Samford’s pranks were unlawful. See J.A. 50 (Mason testifying
that “no one told [him] it was wrong,” and explaining that he
went to Martin for “help” in trying to get Samford to stop his
pranks). Likewise, Mason’s statement that his coworkers treated
33
him as a “normal hearing person,” when read in the context of
Samford’s failure to provide a sign language interpreter and
other employees’ accusations that Mason “hear[s] what [he]
want[s] to hear,” show insensitivity to his disability. These
statements therefore do not negate Mason’s argument that
Samford’s conduct was subjectively and objectively offensive.
The majority, in concluding that Mason was not harassed
because of his disability, relies on evidence that Samford also
played pranks on Mason’s non-disabled coworkers. A disabled
employee, however, can be abused in ways that cannot be explained
without reference to his disability, notwithstanding that non-
disabled employees are exposed to the same treatment. Cf.
Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 332 (4th Cir.
2003) (en banc). Thus, even though other employees took offense
at Samford’s pranks, a jury could reasonably find that Samford
engaged in this conduct largely because he “enjoyed watching and
laughing at the reactions of the only [deaf person] in the
[workplace].”
Id. Tellingly, most if not all of Samford’s
pranks specifically exploited Mason’s inability to hear.
Evidence that Mason’s coworkers mocked his impaired speech and
that his supervisors ignored his requests for disability
accommodations demonstrates general workplace hostility to the
presence of a person with a disability. This general hostility
34
supports Mason’s claim that he was harassed because of his
deafness.
The majority attempts to paint Samford’s conduct toward
Mason as mere “prank-playing shenanigans” that permeated the work
environment and that Mason himself even instigated at times.
Ante at 16. To this end, the majority emphasizes the few,
isolated jokes Mason played with his coworkers over his fourteen-
year tenure with Wyeth. On one occasion, Mason placed a fake
snake on Roger Jones’s lunch bag. On another occasion, Mason
placed a dead bug on top of a candy bar on Jones’s desk. (Jones
liked the bug because it kept people from stealing his candy, and
so he left it on his desk for years.) Mason also once tried to
unlock the bathroom door when Jones was using the bathroom, a
joke that Jones reciprocated the next day. Finally, Mason
testified that once, outside of work, he “mooned” traffic on I-
95, although he did not drop his undershorts. Mason’s isolated
pranks differ from Samford’s persistent, abusive conduct in many
ways. Most important, when Jones asked Mason not to scare him
with the fake snake anymore, Mason stopped. Mason was thus
willing to modify his conduct in response to his coworker’s
request. In contrast, Samford persisted with his harassment even
though Mason repeatedly complained to Samford and Martin about
Samford’s conduct. Mason’s pranks also differed from Samford’s
because Mason did not specifically exploit his coworkers’
35
physical disabilities. Additionally, Mason’s pranks were
reciprocal. Mason played a few jokes on Jones (whom he did not
supervise), and in return Jones played a few jokes on him. In
contrast, most print shop employees testified that no one played
jokes on the boss, Samford. As Jones explained, “You don’t
usually play tricks on the boss. . . . I don’t know how [Samford]
would take it.” J.A. 251. The majority simply fails to make the
case that Mason’s conduct can be equated with Samford’s.
In sum, the summary judgment record, viewed in the
light most favorable to Mason, reveals that he was harassed
because of his disability.
B.
The next issue is whether the district court erred in
concluding that Samford’s conduct was not sufficiently severe or
pervasive to constitute an objectively hostile or abusive work
environment. The court did err. Factors relevant to whether the
environment is objectively hostile include “the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.” Fox, 247 F.3d at 178. Each of these factors
weighs in favor of a determination that Samford’s conduct helped
36
create an objectively hostile or abusive work environment.
Mason’s account of his experience at work, supported by Dr.
MacConnachie and his treating physician, shows that Samford’s
harassing conduct was constant, physically invasive, humiliating,
and emotionally harmful and that it interfered with Mason’s job
performance.
Mason described in clear detail the feelings of anxiety
and panic that Samford’s pranks made him experience and how these
reactions were specifically connected to his disability. He
explained why it was especially frightening for him, as a deaf
person, to be startled by a pinch or blast of air from a hose
from someone he could not possibly hear approaching from behind.
He also described how the anxiety caused him to make mistakes at
work, incur minor injuries, and generally “slow[] . . . down.”
J.A. 90. Samford’s conduct could perhaps be characterized as
horseplay if directed only at hearing employees, but it is
plainly abusive and offensive when directed at someone who cannot
hear. Samford’s insistence upon continuing the pranks despite
Mason’s repeated requests that he stop (which included an
explanation of how the pranks affected his nervous condition)
makes Samford’s conduct even more abusive and offensive.
III.
37
There are genuine issues of material fact as to (1)
whether Mason was harassed because of his disability and (2)
whether Samford’s conduct was sufficiently severe or pervasive to
constitute an objectively hostile work environment. Accordingly,
I believe that Mason is entitled to a trial on his hostile work
environment claim. Because I would reverse the district court’s
grant of summary judgment to Wyeth on this claim, I dissent in
part from the majority opinion. However, I concur in the
majority’s determination that Wyeth is entitled to summary
judgment on Mason’s reasonable accommodation, retaliation, and
state tort claims.
38
