Davis v. Solis
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 04/30/12. (CVA)
2012 Apr-30 AM 11:45
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ALPHA BELL DAVIS,
HILDA SOLIS, Secretary,
DEPARTMENT OF LABOR,
Civil Action Number
Plaintiff Alpha Bell Davis (“Plaintiff”) brings this civil action against Hilda
Solis, Secretary of the United States Department of Labor (“Defendant”), alleging
gender and race discrimination and retaliation. Doc. 17. Defendant filed a Motion
For Summary Judgment, docs. 13 & 14, which is fully briefed, docs. 17 & 18, and
is due to be GRANTED.
I. SUMMARY JUDGMENT STANDARD OF REVIEW
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” To
support a summary judgment motion, the parties must cite to “particular parts of
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materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations, admissions, interrogatory
answers, or other materials.” Fed. R. Civ. P. 56(c). Moreover, “Rule 56(c)
mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who 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 Corp. v. Catrett, 477 U.S. 317, 322
(1986). The moving party bears the initial burden of proving the absence of a
genuine issue of material fact. Id. at 323. The burden then shifts to the
nonmoving party, who is required to “go beyond the pleadings” to establish that
there is a “genuine issue for trial.” Id. at 324 (citation and internal quotation
marks omitted). A dispute about a material fact is genuine “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must construe the
evidence and all reasonable inferences arising from it in the light most favorable to
the non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970);
see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the
non-moving party’s favor). However, “mere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.
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England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald
Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover,
“[a] mere ‘scintilla’ of evidence supporting the opposing party’s position will not
suffice; there must be enough of a showing that the jury could reasonably find for
that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing
Anderson, 477 U.S. at 252).
II. FACTUAL BACKGROUND
The Department of Labor, Occupational Safety and Health Administration
(“OSHA”), employs Plaintiff, an African American female, as an “Industrial
Hygienist” in its Birmingham office. Doc. 15-1, at 5-6; doc. 16-10, at 2. The
events in this case are based on an evaluation Plaintiff received in 2007, when she
reported directly to Harold Ciancio (“Ciancio”), a Caucasian male, who, in turn,
reported to Plaintiff’s second level supervisor and area manager, Roberto Sanchez
(“Sanchez”), a Hispanic male. Doc. 16-1, at 9. Ciancio supervised a “response
team” comprised of two industrial hygienists (Plaintiff and Horace McCann
(“McCann”), an African American male) and three safety specialists (Carrie
Dooley (“Dooley”), an African American female; Edmund Keith (“Keith”), a
Caucasian male; and Ronald Hynes (“Hynes”), a Native American male),
collectively referred to as “Compliance Safety and Health Officers.” Doc. 15-1, at
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10; doc. 16-1, at 6-9.
The key issue of contention in this case is the rating Ciancio issued the
response team in 2007 and which Sanchez approved. Doc. 15-1, at 10-11; docs.
16-5 to 16-9. Ciancio determined the performance ratings by rating each
individual on three different elements: (1) building partnerships, (2) on-site
inspection, and (3) case management. Docs. 16-5 to 16-10. The performance
ratings, from highest to lowest, were: (1) Exemplary, (2) Highly Effective, (3)
Effective, (4) Minimally Satisfactory, and (5) Unacceptable. Doc. 16-5, at 2. To
receive an “Exemplary” rating, an employee must have exceeded the standards on
the three elements and OSHA’s Regional Office in Atlanta had to approve the
rating. Id.; doc. 16-3, at 5. For a “Highly Effective” rating, an employee needed
to exceed the standards on 50% or more of the elements, and meet the standards
for the remainder. Doc. 16-1, at 4.
In her 2007 appraisal, Plaintiff exceeded the standards for elements two and
three, and met the standards for element one – building partnerships – and
consequently received a “Highly Effective” rating. Doc. 16-5, at 4. McCann, the
other industrial hygienist on the response team, received an “Effective” rating.
Doc. 15-1, at 10; doc. 16-6, at 2. The safety specialists’ ratings slightly varied:
Dooley and Keith received “Effective” and Hynes received “Exemplary.” Doc.
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16-7; doc. 16-8. Thus, Hynes is the only response team member who rated higher
than Plaintiff, but Plaintiff received the highest rating for industrial hygienists.
Doc. 16-9, at 2. As a result of the appraisals, Hynes received a $4,375.00 bonus
and Plaintiff received $3,005.00. Doc. 16-3, at 4. Plaintiff challenged Hynes’
rating and bonus with the Equal Employment Opportunity Commission on
December 30, 2007, alleging race and gender discrimination and retaliation. Doc.
16-12, at 2. After receiving her right-to-sue, Plaintiff filed this lawsuit.
Plaintiff contends that Defendant discriminated against her on the basis of
race and gender by (1) rating her “Highly Effective” instead of “Exemplary,” doc.
1; doc. 15-1, at 14, and (2) treating her less favorably than similarly situated nonAfrican American male employees concerning assignments, doc. 17, at 6-7.
Additionally, Plaintiff contends Defendant issued her the “Highly Effective”
rating, in retaliation for Plaintiff submitting an affidavit in another employee’s
discrimination complaint in April 2006. Doc. 15-1, at 20-21. The court addresses
each contention below.
Race and Gender Discrimination Claims
The court applies the burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), for Plaintiff’s race and gender
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discrimination claims since this is a circumstantial evidence case. Under that
framework, Plaintiff must first create an inference of discrimination by
establishing a prima facie case. Burke-Fowler v. Orange Cnty., Fla., 447 F.3d
1319, 1323 (11th Cir. 2006) (citation omitted). If Plaintiff satisfies her initial
burden, “then the defendant must show a legitimate, non-discriminatory reason for
its employment action.” Id. (citation omitted). “If it does so, then the plaintiff
must prove that the reason provided by the defendant is a pretext for unlawful
discrimination.” Id. (citation omitted). However, “[t]he ultimate burden of
persuading the trier of fact that the defendant intentionally discriminated against
the plaintiff remains at all times with the plaintiff.” Springer v. Convergys
Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1347 (11th Cir. 2007) (citation
Defendant’s Alleged Discrimination by Rating Plaintiff
“Highly Effective” and not “Exemplary.”
Plaintiff challenges the “Highly Effective” rating Defendant issued her and
contends that “Defendant’s failure to award an ‘Exemplary’ rating to [her] was a
pretext for unlawful race [and] gender discrimination.” Doc. 1, at 4; see also doc.
17, at 6-7. Specifically, Plaintiff asserts that her inability to receive an
“Exemplary” rating is due to Ciancio’s assignment of “(1) Hurricane and Safety
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initiatives and (2) Fatalities to males and non-minority members.” Doc. 17, at 6-7.
As a threshold matter, the court notes that Plaintiff’s disagreement with her
“Highly Effective” rating does not automatically trigger a discrimination finding
because courts must be “careful not to allow . . . plaintiffs simply to litigate
whether they are, in fact, good employees.” Alvarez v. Royal Atl. Developers, Inc.,
610 F.3d 1253, 1266 (11th Cir. 2010). Stated differently, this court’s role is not to
evaluate employee performance and to determine whether an employer correctly
assessed its employees’ abilities. After all, the employer interacts with the
employees year round and is in far better a position than a court to assess their
performance. Instead, as the Eleventh Circuit has repeatedly stated, “[t]he
question to be resolved is not the wisdom or accuracy of [the employer’s]
conclusion . . . or whether the decision to [give Plaintiff a ‘Highly Effective’
rating] was prudent or fair. Instead, our sole concern is whether unlawful
discriminatory animus motivated the decision.” Alvarez, 610 F.3d at 1266.
Based on the evidence before this court, the court finds that Plaintiff failed
to establish that discriminatory animus factored in her rating. To the contrary,
Defendant had legitimate, non-discriminatory reasons for rating Plaintiff “Highly
Effective.” Specifically, Defendant contends that Plaintiff did not earn an
“Exemplary” rating for 2007 because she (1) struggled with completing her
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weekly OSHA 31 reports in a timely manner; (2) had the least number of health
samples of the industrial hygienists at the Birmingham office; (3) declined an offer
by Sanchez to attend the agency’s National Emphasis Program; (4) performed
fewer safety inspections during 2007 than Ronald Hynes; and (5) and did not
volunteer to assist with the inventory of equipment. Doc. 16-3, at 5-7; doc. 16-5.
Significantly, Plaintiff failed to rebut each of these articulated reasons, and instead
focused on the alleged discriminatory assignment of Hurricane and Safety
Initiatives, and Fatalities to males and non-minorities, and, in particular, the rating
Defendant issued to Hynes. Doc. 17, at 6-7. Plaintiff’s failure to rebut these
contentions is fatal because “[i]n order to avoid summary judgment, a plaintiff
must produce sufficient evidence for a reasonable factfinder to conclude that each
of the employer’s proffered nondiscriminatory reasons is pretextual.” Chapman v.
AI Transport, 229 F.3d 1012, 1037 (11th Cir. 2000) (emphasis added) (citing
Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997)).
Again, this court is not a super personnel board that questions the wisdom
of an employer’s assessment about its employees abilities. Alvarez, 610 F.3d at
1266. Stated differently, it is simply not this court’s role to evaluate the
performance of employees in order to ascertain whether the employer rated each
accurately. Therefore, as it relates to Plaintiff’s contention that she performed at
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the “Exemplary” level in 2007, she failed to meet her burden of establishing that
discriminatory animus impacted or influenced the rating she received. In short,
“the fact that [Plaintiff] thinks more highly of her performance is beside the point.
The inquiry into pretext centers on the employer’s beliefs, not the employee’s
beliefs and, to be blunt about it, not on reality as it exits outside of the decision
maker’s head.” Alverez, 610 F.3d at 1266.
Plaintiff Failed to Establish that Defendant Rated Her
Lower Than Hynes for Discriminatory Reasons.
As stated previously, Plaintiff’s primary focus for her discrimination claims
is on the rating Defendant issued Hynes. Specifically, Plaintiff contends that her
“inability to receive an ‘exemplary’ rating is due to” unequal assignments – Hynes
received 5 fatalities assignments, whereas, Plaintiff only received one. Doc. 17, at
6-7. The court will treat Plaintiff’s contentions about Hynes’ rating jointly with
her second contention that Defendant discriminated against her by giving her less
favorable assignments than similarly situated non-African American male
employees. As it relates to both contentions, Hynes is the only individual that
Plaintiff contends is a proper comparator. Doc. 1, at 3; doc. 17, at 5. Therefore, to
succeed on her claims, Plaintiff must show that she is similarly situated to Hynes.
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Plaintiff Cannot Establish a Prima Facie Case of Race
and Gender Discrimination.
To establish a prima facie case of disparate treatment, Plaintiff must show:
(1) membership in a protected class; (2) that she is qualified for the position; (3)
that she suffered an adverse employment action; and (4) that Defendant treated her
less favorably than a similarly-situated individual outside her protected class.
Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003). “To show that
employees are similarly situated, the plaintiff must show the ‘employees are
similarly situated in all relevant respects.’” Knight v. Baptist Hosp. of Miami, Inc.,
330 F.3d 1313, 1316 (11th Cir. 2003) (citation omitted). “The comparator must be
nearly identical to the plaintiff to prevent courts from second-guessing a
reasonable decision by the employer.” Wilson v. B/E Aerospace, Inc., 376 F.3d
1079, 1091 (11th Cir. 2004) (citation omitted). In other words, to prevail on her
race and gender discrimination claims, Plaintiff must, at a minimum, show that she
and Hynes are similarly situated.
Defendant contends that Plaintiff cannot establish a prima facie case
because, as an industrial hygienist, she holds a different position and has different
job requirements than Hynes, a safety specialist. Doc. 14, at 17 & 19.1 Plaintiff
An industrial hygienists, in part, “provides advisory services to private employers and
less experienced employees within the agency . . .[,] generally promotes industrial practices that
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disagrees and contends that “Defendant’s argument . . . that Mr. Hynes is not a
proper comparator . . . . is without merit.”2 Doc. 17, at 5. Rather, Plaintiff
maintains that all response team members work under the same performance
standards, a fact she claims Ciancio confirmed when he stated, “Neither [group]
are [sic] held in higher responsibility then [sic] the other; unless they are assigned
that specifically from their Team Leader or the Area Director.” Doc. 16-1, at 6;
doc. 17, at 6. However, that both groups are held to the same performance
standards does not mean they perform identical duties. In fact, the evidence
presented to this court shows that industrial hygienists and safety specialists
perform different duties. Doc. 16-4, at 4 & 8. Moreover, Plaintiff’s own
are consistent with the goals and principles of industrial hygiene . . .[,] and conducts inspections
of worksites to observe work practices and environmental conditions for hazards to health and
safety, and to detect recognized health hazards.” Doc. 16-4, at 4. Whereas, a safety specialist, in
part “conducts inspections and accident investigations within assigned geographic boundaries of
establishments . . . .The incumbent determines compliance with published standards, identifies
hazardous conditions or practices, proposes citations and monetary penalties, and provides
technical assistance to employers and employees to achieve safe working environment . . . .
Plans, schedules and conducts inspections and accident investigations in establishments and
worksites where there is a strong probability of encountering hazardous work processes and
materials . . . .” Id., at 8.
Plaintiff asserts that Hynes is a Native American male and so “[t]here is no dispute that
Mr. Hynes is of a different race and gender.” Doc. 17, at 6. Additionally, Hynes received an
“Exemplary” rating whereas Plaintiff received “Highly Effective, ” thus, “[t]he ratings
explanations show that a jury is in the best position to determine that [Plaintiff] was the victim of
discrimination.” Id., at 6. However, the fact that Hynes is a different race and gender and
received a higher performance rating does not automatically make him a valid comparator.
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testimony belies her assertion that she considered Hynes a comparator:
Regarding your complaint where you allege that you were
discriminated against in fiscal year 2007 performance appraisal, is
Mr. Hynes the person, the comparator that you allege was treated
differently than you?
That was not my comparator at the time, no.
Doc. 15-1, at 13-14. While obviously Plaintiff may not have meant that she did
not consider Hynes a proper comparator “at the time” because he performed
different tasks, her testimony is significant nonetheless on the issue of whether she
and Hynes are similarly situated in all relevant respects.
In the final analysis, the law is clear that “[t]he comparators must perform
jobs similar to the plaintiff’s. Thus, the plaintiff must show that, in her job, she
shared the same type of tasks as the comparators.” Cooper v. Southern Co., 390
F.3d 695, 725 (11th Cir. 2004) (overruled on other grounds). Here, Hynes is not a
proper comparator since he and Plaintiff had different responsibilities and
positions, – a fact which even Plaintiff acknowledges. See doc. 16-4, at 4-11; doc.
15-1, at 13-14. Therefore, Plaintiff’s reliance on Hynes to prove her claims is
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Defendant’s Alleged Discrimination Concerning Work
Assignments and Performance Standards.
Plaintiff contends also that Ciancio’s discriminatory assignments prohibited
Plaintiff “from achieving the statistical comparative numbers and allow[ed] males
to advance further within the department and up the Government’s pay scale
ladder.” Doc. 17, at 7. Allegedly, “an obvious disparity exists regarding
assignments that would allow [Plaintiff], and other African-American females, to
achieve greater success.” Id. Furthermore, Plaintiff contends “that there was
gender and racial bias in the Agency based on the positions that suppose – that we
occupy.” Doc. 15-1, at 16. Finally, Plaintiff maintains that her “inability to
receive an ‘exemplary’ rating [was] due to Mr. Ciancio’s assignment of (1)
Hurricane and Safety initiative and (2) Fatalities to males and non-minority
members.” Doc. 17, at 6-7. However, despite making this contention, Plaintiff
failed to specifically allege an additional comparator besides Hynes to support her
contentions. Therefore, to the extent Plaintiff is referring to other employees, her
claim fails due to her failure to provide the necessary supporting evidence.
Moreover, the gender claim fails also because both teams, including Hynes’
team, have African American female members, which undermines Plaintiff’s
contention of discriminatory assignments “based on the positions . . . that we
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occupy.” Doc. 15-1, at 16. Furthermore, as it relates to Plaintiff’s own team,
Ciancio rated Plaintiff higher than Plaintiff’s male counterpart, McCann.
Consequently, Plaintiff has no credible basis to contend that Ciancio treated her
less favorably than McCann because of gender or race, for that matter, since
McCann is also African American. Finally, in response to Plaintiff’s contention
that “Management has used the assignment of Fatalities and the Hurricane and
Safety initiatives to . . . deny the women and minority members” a prominent
position, Ciancio stated that “[a]ll compliance officers are given an opportunity to
volunteer for any duty especially for Hurricane and Safety Initiatives” and that
Plaintiff failed to volunteer even when Ciancio personally solicited Plaintiff to do
so. Doc. 16-1, at 5. Plaintiff’s failure to refute this contention supports Ciancio’s
contention that he treated Plaintiff no differently from the other members of the
team. Accordingly, Plaintiff’s prima facie case fails for her discriminatory
Plaintiff Failed to Produce Evidence that Defendant’s Proffered
Reason for Her “Highly Effective” rating was Pretextual.
Alternatively, even if Plaintiff can establish a prima facie case, her
discrimination claims still fail because she cannot show that the articulated reason
for her “Highly Effective” rating is pretextual. To establish pretext, Plaintiff
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“must demonstrate ‘such weakness, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for
its action that a reasonable factfinder could find them unworthy of credence.’”
Sampath v. Immucor, Inc., 271 F. App’x 955, 960 (11th Cir. 2008) (citing Combs
v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)). As stated
previously, Defendant articulated non-discriminatory reasons for Plaintiff’s
“Highly Effective” rating, which Plaintiff never addressed. See supra at (A)(1).
Moreover, Defendant also presented unrebutted evidence in support of the rating it
issued Hynes: (1) Hynes assisted in training personnel in the field and within the
office on construction inspections and construction methods; (2) conducted over
30 inspections as part of the “Swept up in Safety” special emphasis program; (3)
conducted 17 interventions with employers; (4) completed the Department of
Labor’s Learn2 University training course; assisted the Area Director in
processing case files during the absence of a Team Leader; (5) expeditiously
processed complaints as duty officer, helping the agency exceed it goals; (6)
volunteered as a duty officer in another employee’s absence or if the assigned
employee was overloaded with work, even if it meant adjusting his own schedule
and changing his plans; (7) accurately gathered, built, enforced, recommended and
researched all required information for all case files and investigative work
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conducted; and (8) completed all forms accurately and timely. Doc. 16-3, at 6-7;
doc. 16-9. These articulated reasons rebut Plaintiff’s contentions that unlawful
discriminatory animus motivated the ratings decisions. To the contrary, they show
that Defendant had a business reason for rating Hynes as “Exemplary” and
Plaintiff as “Highly Effective.” While Plaintiff obviously disagrees with the
ratings, it is simply not this court’s role “to second-guess the business judgment of
employers.” See Combs, 106 F.3d at 1543. Finally, the court notes that although
Plaintiff alleges gender and race discrimination, she received a higher performance
rating than three males, one of whom, Keith, is a Caucasian male – the very gender
and race Plaintiff contends Defendant favors. Doc. 16-8, at 2. In other words, the
facts do not support Plaintiff’s contentions. In the final analysis, Plaintiff fails to
show that discriminatory animus motivated Defendant’s decision to rate her as
“Highly Effective.” Therefore, summary judgment is due on her race and gender
Finally, Plaintiff alleges that Defendant retaliated against her by issuing her
a “Highly Effective” rating, instead of “Exemplary,” because she “participated in
. . . protected activity by submitting an affidavit [in April 2006] and speaking with
an EEO investigator regarding a pending complaint of discrimination” filed by
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another employee. Doc. 1, at 5; see generally doc. 15-1, at 19-20. Specifically,
Plaintiff contends “the only potential action Sanchez and Ciancio can take against
an ‘Exemplary’ employee is to knock her back to ‘Highly Effective’ and such an
action can only be taken when the yearly evaluations come around.” Doc. 17, at 9.
“To establish a claim of retaliation . . . , a plaintiff must prove that [s]he
engaged in statutorily protected activity, [s]he suffered a materially adverse action,
and there was some causal relation between the two events.” Goldsmith v. Bagby
Elevator Co., Inc., 513 F.3d 1261, 1277 (11th Cir. 2008). A plaintiff proves her
claim if she provides sufficient evidence that her employer had knowledge of the
protected expression and “that there was a close temporal proximity between this
awareness and the adverse . . . action.” Higdon v. Jackson, 393 F.3d 1211, 1220
(11th Cir. 2004). Therefore, in order to succeed on her retaliation claim, Plaintiff
must show that Ciancio and Sanchez knew that Plaintiff engaged in protected
activity, i.e., submitted an affidavit in an EEO investigation, and issued her the
“Highly Effective” rating within a close temporal proximity thereafter.
Plaintiff Fails to Show Ciancio and Sanchez Knew That
Plaintiff Participated in a Protected Activity.
When asked what facts, if any, Plaintiff has to contradict Sanchez’s or
Ciancio’s contention that they had no knowledge of Plaintiff’s involvement in
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McCann’s EEO matter, doc. 16-1, at 9; doc. 16-2, at 8, Plaintiff responded that the
request for an affidavit was “sent via the e-mail, which is, in my experience, since
filing this, a perfect medium for the Agency to monitor what’s sent on there.
That’s number 1. Number 2. It was common knowledge throughout the office that
people were being requested by the investigator to make statements.” Doc. 15-1, at
20. Plaintiff contends further that although Ciancio and Sanchez never asked her
whether she provided a statement to the investigator, her participation was
common knowledge nonetheless because other individuals asked her about it. Id.
These contentions, however, are insufficient to establish that Ciancio and
Sanchez knew about Plaintiff’s affidavit for several reasons. First, an investigator
sending an email to ask for information does not mean that Ciancio and Sanchez
knew which specific employees agreed to provide an affidavit to the investigator
or that those who did, in fact, provided an affidavit favorable to McCann. Second,
that some individuals asked Plaintiff if she submitted an affidavit is insufficient to
impute knowledge of Plaintiff’s participation to Ciancio and Sanchez, especially
since the employees who asked Plaintiff may have decided not to disclose
Plaintiff’s participation to anyone. Critically, Plaintiff has no evidence that these
employees, in fact, relayed this information to Ciancio and Sanchez. In the final
analysis, outside of Plaintiff’s contention that her participation was purportedly
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“common knowledge,” – the determination of which, is speculative at best –, she
has no credible basis to establish that the “common knowledge” extended to
Ciancio and Sanchez. Accordingly, Plaintiff failed to establish the causal
connection between her protected activity and the adverse employment action.
There is Not a Close Temporal Proximity Between the Affidavit
and the “Highly Effective” Rating.
Additionally, Plaintiff’s retaliation claim fails because eighteen months
lapsed between the alleged protected activity in April 2006 and the October 2007
performance evaluation. “The cases that accept mere temporal proximity between
an employer’s knowledge of protected activity and an adverse employment action
as sufficient evidence of causality to establish a prima facie case uniformly hold
that the temporal proximity must be ‘very close.’” Clark Cnty. Sch. Dist. v.
Breeden, 532 U.S. 268, 273 (2001) (holding action taken 20 months later suggests,
by itself, no causality at all). Here, even ignoring that Plaintiff failed to establish
that Ciancio and Sanchez knew about her affidavit, the eighteen months between
the affidavit and the purported adverse employment action is too great a time lapse
for Plaintiff to satisfy the close temporal proximity requirement. Therefore,
summary judgment is also due on the retaliation claim.3
Summary judgment is also warranted for the same reasons as Plaintiff’s discrimination
claims – i.e. Defendant articulated legitimate, non-retaliatory reasons for the rating, which
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Based on the record before it, no evidentiary basis exists for the court to
find that Plaintiff can establish a prima facie case for any of her claims, or
alternatively, that Plaintiff can show that Defendant’s proffered reasons for her
“Highly Effective” rating are pretextual. Because there are no genuine issues of
disputed fact, Defendant’s motion for summary judgment is due to be
GRANTED. The court will issue a separate order granting the motion and
dismissing this case.
DONE this 30th day of April, 2012.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
Plaintiff failed to rebut. See supra A(1) and A(2).
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