Maria Dufau v. Sylvia Burwell
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:15-cv-00528-RWT Copies to all parties and the district court/agency. .. [16-1535]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MARIA L. DUFAU,
Plaintiff - Appellant,
THOMAS E. PRICE, Secretary, U.S. Department of Health and Human Services,
Defendant - Appellee.
Amicus Supporting Appellant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Roger W. Titus, Senior District Judge. (8:15-cv-00528-RWT)
Submitted: June 28, 2017
Decided: July 27, 2017
Before WILKINSON and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Affirmed by unpublished per curiam opinion.
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Michael L. Vogelsang, Jr., R. Scott Oswald, EMPLOYMENT LAW GROUP, PC,
Washington, D.C., for Appellant. Rod J. Rosenstein, United States Attorney, Alex S.
Gordon, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. Debra A.
D’Agostino, THE FEDERAL PRACTICE GROUP, Washington, D.C.; Alan R. Kabat,
BERNABEI & KABAT, PLLC, Washington, D.C., for Amicus Curiae.
Unpublished opinions are not binding precedent in this circuit.
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Maria Dufau, an employee at the National Institutes of Health (“NIH”), brought
this action against the Secretary of Health and Human Services (“Defendant”), in which
she raised age discrimination, hostile work environment, and retaliation claims pursuant
to the Age Discrimination in Employment Act, 29 U.S.C.A. §§ 621-634 (West 2012 &
Supp. 2017). Dufau, a 78-year-old scientist with an impressive career at NIH, alleged
that Defendant improperly (1) reduced and then capped her laboratory budget, (2) gave
her laboratory and work low rankings following site visits in 2008 and 2012, (3) stated at
a meeting in 2009 or 2010 that “the biological clock is ticking,” implying that older
scientists at NIH would eventually die and free up positions for younger scientists, (4)
proposed moving her laboratory to a small and dilapidated space not suitable for her
work, (5) reduced her laboratory staff, (6) gave her a poor performance review, and
(7) retaliated against her after she filed complaints alleging discrimination.
Defendant filed a motion to dismiss or, in the alternative, a motion for summary
judgment. Defendant attached to its motion and reply an administrative record from its
internal review regarding Dufau’s complaints. Dufau opposed the motion and filed a
Fed. R. Civ. P. 56(d) motion and affidavit for discovery. The district court held a hearing
on the motions and concluded that Dufau failed to state a prima facie case as to each of
her claims. Consequently, the district court denied Dufau’s motion for discovery and
granted Defendant’s motion for summary judgment. We affirm.
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“We review the district court’s grant of summary judgment de novo, viewing the
facts and the reasonable inferences therefrom in the light most favorable to the
nonmoving party.” Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011). Summary
judgment is appropriate when “‘there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law,’ based on the ‘materials in the record,
including depositions, documents, electronically stored information, affidavits or
declarations, stipulations . . . , admissions, interrogatory answers, or other materials.’”
Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 433 (4th Cir. 2013) (quoting Fed.
R. Civ. P. 56(a), (c)). Accordingly, a “plaintiff may avert summary judgment . . . by
presenting direct . . . evidence that raises a genuine issue of material fact” regarding an
employer’s improper motives for an adverse action, or “a plaintiff may proceed under
[the McDonnell Douglas 1] pretext framework, under which the employee, after
establishing a prima facie case of discrimination, demonstrates that the employer’s
proffered permissible reason for taking an adverse employment action is actually a
pretext for discrimination.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318
(4th Cir. 2005) (internal quotation marks omitted).
Regarding her age discrimination and retaliation claims, we agree with the district
court that Dufau did not establish a prima facie case of discrimination because she
alleged no adverse employment action. See Adams v. Anne Arundel Cty. Pub. Schs., 789
F.3d 422, 430 (4th Cir. 2015) (noting that prima facie cases of discrimination and
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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retaliation require adverse employment action).
“An adverse action is one that
constitutes a significant change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.” Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir.
2011) (internal quotation marks omitted).
A mere “poor performance evaluation is
actionable only where the employer subsequently uses the evaluation as a basis to
detrimentally alter the terms or conditions of the recipient’s employment. An evaluation
merely causing a loss of prestige or status is not actionable.” James v. Booz–Allen &
Hamilton, Inc., 368 F.3d 371, 377 (4th Cir. 2004) (citations and internal quotation marks
Here, Dufau did not explain whether she was able to continue with the same
experiments in her laboratory or publish her results at the same rate. She did not claim
that Defendant failed to promote her, reduced her pay, or reassigned her to a different
project. Dufau complained that her work might suffer if Defendant moved her laboratory
to a different location, but the move never occurred. Thus, Dufau’s forecast of evidence
failed to establish a prima facie case of age discrimination or retaliation that could
survive summary judgment.
We further agree with the district court that the facts alleged did not show that
Defendant created a hostile work environment based on Dufau’s age or retaliation for her
complaints. See Causey v. Balog, 162 F.3d 795, 801 (4th Cir. 1998) (setting forth prima
facie case). “In determining whether an actionable hostile work environment claim
exists, we look to all the circumstances,” and, “[p]rovided that an act contributing to the
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claim occurs within the filing period, the entire time period of the hostile environment
may be considered by a court for the purposes of determining liability.” Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 116-17 (2002). “A hostile environment exists
when the workplace is permeated with discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment.” Boyer-Liberto v. Fontainebleau Corp., 786
F.3d 264, 277 (4th Cir. 2015) (en banc) (alteration and internal quotation marks omitted).
Among the factors a court should consider are “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.” Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333 (4th Cir. 2003)
(internal quotation marks omitted).
Here, with regard to her timely filed claims, Dufau did not allege that Defendant
made vulgar or insensitive remarks based on her age or her protected complaints. The
lone statement that the “biological clock is ticking” at a meeting approximately eight
years ago is not enough to establish an abusive working environment. Even though
Defendant limited Dufau’s laboratory budget and staff, this did not alter the conditions of
her employment or create an abusive working environment.
Thus, Dufau failed to
establish a prima facie case for a hostile work environment claim.
We further conclude that the district court did not abuse its discretion when it
denied Dufau’s Rule 56(d) motion for discovery. See Ingle ex rel. Estate of Ingle v.
Yelton, 439 F.3d 191, 195 (4th Cir. 2006) (stating standard of review). As a general rule,
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summary judgment is appropriate only “after adequate time for discovery.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[S]ummary judgment [must] be refused
where the nonmoving party has not had the opportunity to discover information that is
essential to [her] opposition.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5
(1986). If a party opposing a motion for summary judgment shows by affidavit that, for
specified reasons, it cannot present facts essential to justify its position without discovery,
a district court may defer consideration of the motion for summary judgment, deny the
motion for summary judgment, or “issue any other appropriate order.” Fed. R. Civ. P.
56(d) ; see Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244-45 (4th Cir.
2002) (discussing affidavit requirement of former Rule 56(f)). Relief under Rule 56(d) is
“broadly favored and should be liberally granted in order to protect non-moving parties
from premature summary judgment motions.” McCray v. Md. Dep’t of Transp., 741 F.3d
480, 484 (4th Cir. 2014) (internal quotation marks omitted). Yet such requests for
discovery should be denied “if the additional evidence sought for discovery would not
have by itself created a genuine issue of material fact sufficient to defeat summary
judgment.” Ingle, 439 F.3d at 195 (internal quotation marks omitted).
In this case, Dufau stated broadly in her Rule 56(d) motion that “[f]ederal
employees have a right to a trial anew following the administrative process,” “facts have
been omitted or not yet developed pertaining to the substance” of her claims, and
discovery would allow her to establish Defendant’s unlawful employment actions. (J.A.
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206). 2 While Dufau identified in an affidavit the discovery materials she sought, her
blanket assertion that discovery would be beneficial does not fulfill the requirement that a
Rule 56(d) motion identify which facts are relevant to opposing a motion for summary
judgment, and, particularly needed in this case, Dufau did not explain how discovery
might lead to showing the existence of an adverse employment action or a hostile work
Accordingly, we affirm the district court’s grant of summary judgment to
Defendant. We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
“J.A.” refers to the joint appendix filed by the parties on appeal.
We are cognizant of the concerns Dufau and Amicus raise regarding whether an
administrative record may supplant discovery. Here, we need not decide that issue as the
district court apparently did not rely on the administrative record in lieu of discovery
when it concluded that Dufau failed to state a prima facie case of age discrimination,
retaliation, and hostile work environment.
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