Madock v. McHugh
Filing
32
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 8/18/11. (mps, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CHRISTA M. MADOCK,
Plaintiff,
v.
Civil Action No.: ELH-10-02706
JOHN MCHUGH,
Secretary of the Army
Defendant.
MEMORANDUM OPINION
Christa Madock, plaintiff, worked as a ―Medical Technologist‖ for the United States
Army Medical Research Institute for Infectious Diseases (―USAMRIID‖) at Fort Detrick,
Maryland, beginning in 1999. Amended Complaint (―Am. Compl.,‖ ECF 27) ¶¶ 5-6. Although
Madock was diagnosed with multiple sclerosis (―MS‖) in July 2000, she continued to work in the
same capacity until March 2010, when she transferred to a new position. Id. ¶¶ 10-11. The
transfer was prompted by a change in the job description for a Medical Technologist, requiring
participation in USAMRIID‘s ―Special Immunization Program (―SIP‖).‖ Because of her illness,
Madock was medically ineligible to participate in SIP, and thus no longer qualified for that
position. Id. ¶ 27.
In September 2010, plaintiff filed suit in this court, alleging that she was the victim of
employment discrimination based on her disability (MS), and that the Army retaliated against her
for filing an Equal Employment Opportunity (―EEO‖) complaint. Her claims are founded on the
Rehabilitation Act of 1973 (the ―Rehabilitation Act‖), 29 U.S.C. § 791 et seq.1
1
This Court has subject matter jurisdiction based on 28 U.S.C. § 1331.
Defendant has filed a Motion To Dismiss, or in the Alternative, for Summary Judgment
(―Motion,‖ ECF 10), which plaintiff opposes.2 See Brief of Plaintiff Christa Madock Opposing
Motion to Dismiss or for Summary Judgment (―Opp‘n‖ or ―Opposition,‖ ECF 19). The parties
have filed numerous exhibits to support their respective positions. In particular, defendant
submitted over 800 pages of exhibits, and the Appendix attached to plaintiff‘s Opposition
consists of 657 pages. Many of the exhibits derive from plaintiff‘s EEO complaint, which led to
an evidentiary hearing.3 The issues have been fully briefed and the Court rules now pursuant to
Local Rule 105.6, no hearing being necessary.
Factual and Procedural Background4
2
In her Complaint, plaintiff alleged constructive discharge. ECF 1. By Order entered on
June 29, 2011 (ECF 26), the Court granted leave to amend the suit to add a claim of actual
discharge. By that point, however, defendant‘s Motion had been fully briefed. On July 14,
2011, defendant filed a Supplement (Deft. Supp., ECF 28), primarily to address plaintiff‘s new
averment. Plaintiff responded on July 21, 2011 (―Pl. Supp.,‖ ECF 30), and defendant filed a
reply on August 8, 2011 (Deft. Supp. Reply, ECF 31).
In her Supplement, plaintiff urges the Court to strike Defendant‘s Supplement, claiming it
is an impermissible surreply, in violation of Local Rule 105.2.a. Pl. Supp. 4. However,
plaintiff‘s Amended Complaint, filed after the Motion was ripe, raised a new theory of relief, i.e.,
actual discharge. To the extent that the parties‘ submissions can be characterized as surreplies,
the Court shall, in its discretion, allow them.
3
As discussed, infra, plaintiff filed a Formal Complaint of Discrimination with the EEO
Office. Thereafter, the Department of Defense Investigations and Resolutions Division
conducted an administrative investigation that included a two-day ―Fact Finding Conference,‖
held in April 2010, at which testimony was presented, under oath. See generally Motion Exh. 1
(transcript entitled ―Department of Defense Investigations and Resolutions Division,
Investigation in the Complaint of Christa Madock, Agency Docket No.
ARDETRICK09JUL03769: Fact Finding Conference‖). All testimony referenced herein was
presented at the Fact Finding Conference.
4
The Court must construe the facts alleged in the light most favorable to plaintiff, as the
party opposing the motion. See United States v. Diebold, 369 U.S. 654, 655 (1962); accord Scott
v. Harris, 550 U.S. 372, 380 (2007). The facts have many twists and turns, and are not presented
in chronological order. Rather, they are grouped topically, when possible.
-2-
In May 1999, plaintiff obtained a ―contingent position‖ as a ―Medical Technologist‖ in
the ―Clinical Lab‖ of USAMRIID. Am. Compl. ¶¶ 5-6. She became a permanent employee in
April 2004. Id. ¶ 13. Her duties included, inter alia, ―performing and supervising testing on
human and animal blood, urine, and other bodily fluids and tissues.‖ Memorandum in Support
of Motion to Dismiss, or in the Alternative, for Summary Judgment (―Motion Memo.,‖ ECF 101) 3; see Motion Exh. 2 (―Position Description‖ of Medical Technologist, dated June 7, 1998).
Plaintiff also acted as a ―chemistry supervisor,‖ ensuring that the Clinical Lab met the relevant
regulations and maintained its certifications and licenses. Motion Memo. 3; see Motion Exh. 1,
at 153. In addition, she was the ―Laboratory Information System administrator‖ for the Clinical
Lab‘s computer system (the ―LIS‖). Motion Exh. 1, at 20-21.
The Clinical Lab supports research on disease agents that pose ―limited risk,‖ as well as
―research involving more dangerous and exotic infectious diseases.‖ Motion Memo. 4 (citing
Motion Exh. 1, at 176). For instance, the Clinical Lab supports research ―on potentially lethal
communicable diseases for which there are vaccines or treatments,‖ which rate a ―Biosafety
Level‖ of 3. Id. When plaintiff was hired, Clinical Lab employees working with Biosafety
Level 3 substances were required to enroll in a ―Special Immunization Program,‖ consisting of
―a regimen of vaccinations that [takes] approximately eight months to complete.‖ Id.; see
Motion Exh. 1, at 178; see also Am. Compl. ¶ 7.
In addition, the Clinical Lab supports ―research on dangerous and exotic agents that pose
a high risk of life-threatening disease and for which there is no available vaccine or therapy,‖
which rate a ―Biosafety Level‖ of 4. Motion Memo. 4; see Motion Exh. 1, at 176. Employees
working with ―Biosafety Level‖ 4 substances must work in high containment laboratories,
-3-
Motion Memo. 1; Motion Exh. 1, at 153, in which they wear a protective ―blue suit‖ that is
tethered to a separate supply of oxygen. Motion Exh. 1, at 176-77. The Clinical Lab also
operates a two-bed intensive care unit (―ICU‖) in the event that a researcher is exposed to a
dangerous substance and needs to be quarantined. Id. at 177-78. Given the risks inherent in
exposure to dangerous organisms, employees supporting the ICU must also wear the ―blue suit,‖
participate in the SIP, and enroll in the Army‘s Biological Personnel Reliability Program
(―BPRP‖).5
Motion Memo. 4; see Motion Exh. 1, at 173 (Major Jorgensen, plaintiff‘s
supervisor, testified: ―[W]e would be required at the clinical laboratory to operate a biosafety
level four clinical lab in supporting a patient.‖).
When plaintiff was hired in May 1999, her job description did not require her to
participate in SIP. Am. Compl. ¶¶ 6, 8; see Motion Exh. 2. However, she ―wanted to expand
[her] training and . . . knowledge to work in [Biosafety Level 3] and [Biosafety Level 4]
laboratories.‖ Motion Exh. 1, at 73. To that end, ―shortly after‖ plaintiff was hired, she spoke
with Dr. Ellen Boudreau, then the SIP Supervisor, about participating in SIP. Id. At that time,
plaintiff was pregnant with her second child. Id. Dr. Boudreau informed plaintiff that because
plaintiff intended to breastfeed, she could not participate in SIP. Id. However, Dr. Boudreau
indicated that after plaintiff finished breastfeeding, she would be able to participate in SIP,
although it ―was not required‖ for the position. Id. at 74.
5
―The BPRP . . . requires the employee to submit to and satisfactorily complete
suitability and reliability screening and analysis.‖ Motion Exh. 19. Employees enrolled in
BPRP must also be approved by the Department of Health and Human Services and the
Department of Justice in order to ―access . . . laboratories containing biological select agents and
toxins.‖ Id.
-4-
In July 2000, plaintiff was diagnosed with MS.
Am. Compl. ¶ 10.
Dr. Boudreau
subsequently advised plaintiff that she could not participate in SIP because of her medical
condition. Id.; see Motion Exh. 1, at 26 (Plaintiff testified: ―Dr. Boudreau informed me back in
2000 that because of my MS, I could not participate in SIP because of the way that the vaccines
may affect the disease process of MS.‖). When plaintiff later became a permanent employee in
April 2004, she was not required to participate in SIP. Am. Compl. ¶¶ 12, 13.
Plaintiff testified that her MS limits her ability to walk, affects her balance, and
diminishes her endurance, particularly when she is under stress, such that she may only stand for
an hour or two at a time. Motion Exh. 1, at 12-13. Plaintiff also uses a crutch to assist her in
walking. Id. at 13. Despite her medical condition, however, plaintiff ―continued to perform her
duties and to get good performance appraisals without participating in SIP.‖ Am. Compl. ¶ 11.
Reasonable Accommodations
Major Shelley Jorgensen joined the Clinical Lab as a supervisor in September 2008.
Motion Exh. 1, at 11, 115. Colonel Sherman McCall became Major Jorgensen‘s supervisor ―a
few months later.‖ Id. at 117. According to plaintiff, ―shortly‖ after Major Jorgensen‘s arrival,
plaintiff ―made a point of going to [Major Jorgensen‘s] office‖ to inform Major Jorgensen of her
MS.6 Id. at 17-18.
As the new lab supervisor, Major Jorgensen was of the view that the Clinical Lab lacked
sufficient medical technologists eligible to work in high containment laboratories. Id. at 156-57,
166. She also thought the lab was not prepared for an accidental exposure, and was concerned
because responsibility for supporting the ICU and high containment research fell on one
6
The record reflects that plaintiff had also notified her previous supervisor. See Motion
Exh. 1, at 17.
-5-
employee. See id. at 156-57, 173-74. Nevertheless, Major Jorgensen assisted in providing
accommodations to plaintiff necessitated by her medical condition. In a Memorandum for
Record sent in April 2009,7 from Major Jorgensen to plaintiff, Jorgensen addressed two incidents
in which plaintiff had fallen while working, as well as reasonable accommodations available to
her.
See Motion Exh. 3.
The Memorandum, which plaintiff signed on April 8, 2009,
acknowledging receipt, said, in part, id.:
4. You [Ms. Madock] have expressed to me your desire to move to a more
administrative position at a future date. I approached the topic with you a week
later to inform you that I would be willing to discuss this issue with the Human
Resources Department to see what options were available to accommodate this
request. You stated that you wanted to first get our laboratory through the
College of American Pathologist‘s (CAP) inspection and would be interested in
exploring options for a position move at a future date.
5. I am willing to make reasonable accommodations for you as necessary to
ensure you have a safe work environment. You have been provided a scooter
from USAMRIID to get to your office from the security desk. We have also
installed handicap accessible push buttons at both areas of the entrance/egress at
the laboratory entrance and chemistry department. I have agreed to have your
work area assessed by medical professionals at your request . . . .
In addition, on April 7, 2009, plaintiff asked Major Jorgensen ―to be removed from
phlebotomy duties due to excessive standing.‖ This request was granted, and plaintiff was ―put
on administrative logging in of patients when . . . needed in the front room,‖ which allowed her
to be seated. Motion Exh. 6, at 3, 5; see also Motion Exh. 1, at 163. On April 20, 2009, plaintiff
submitted a Reasonable Accommodation Request Form, which acknowledged that she had been
provided a scooter; an hour on Tuesday and Thursday afternoons for physical therapy; and workrelated tasks that allowed for ―variability of sitting, standing, and walking.‖ Motion Exh. 6, at 1.
7
The typewritten date on the Memorandum is April 3, 2009, but the handwritten date
next to Major Jorgensen‘s signature is April 7, 2009.
-6-
The form also noted that Major Jorgensen would ―put in a work order to place handrails down
the hallway to allow better mobility when walking.‖ Id. at 3.
The Referral to the Employee Assistance Program8
In early April 2009, Major Jorgensen found plaintiff crying while sitting at Jorgensen‘s
computer.
Motion Exh. 1, at 120.
According to Major Jorgensen, plaintiff reported that
plaintiff‘s bank account had been emptied, ―maybe‖ by her husband, who suffered from a
―drinking problem.‖ Id. at 121. Jorgensen gave plaintiff ―some time off at lunch‖ to attend to
her affairs. Id. at 122.
On April 7, 2009, USAMRIID held suicide awareness training. Id. Major Jorgensen
attended the training with plaintiff. Id. During a movie, which Major Jorgensen later described
as ―sad,‖ she observed that plaintiff was crying. Id. The next day, April 8, 2009, Major
Jorgensen and Colonel McCall talked to Brad Nielson of the EAP office, who said that it was
incumbent upon them, as management, to ascertain whether an employee is suicidal. Id. at 123.
Later that day, Colonel McCall and Major Jorgensen met with plaintiff. Id. Colonel McCall
allegedly informed plaintiff that ―he believed she was at risk for suicide,‖ and ―advised her to
seek counseling.‖ Am. Compl. ¶¶ 16-17. Plaintiff declined to do so. Id. ¶ 18. Jorgensen and
McCall also gave plaintiff a Memorandum for Record, documenting their concerns. See Motion
Exh. 7. It noted, in part: ―You seem stressed and overwhelmed at work and this has manifested
itself in the form of outbursts, crying, problems task organizing and meeting deadlines.‖ Id.
8
―The U.S. Army Employee Assistance Program . . . provides confidential, appropriate
and timely problem-assessment services, as well as referral and follow-up services to health care
providers when appropriate. . . . EAP is available for those seeking help with life management
issues, emotional problems, behavioral health issues and job related problems that affect job
performance.‖ Motion Memo. 9 n.1 (quoting http://www.detrick.army.mil/asap/eap.cfm).
-7-
Plaintiff refused to sign the Memorandum, however. Motion Exh. 1, at 80. According to
plaintiff, after she declined EAP counseling, Colonel McCall ―became distant and curt to her.‖
Opp‘n 4 (citing Opp‘n App‘x 3).
At the Fact Finding Conference held with respect to plaintiff‘s EEO complaint, plaintiff
testified that she was ―humiliated and upset‖ by the meeting concerning the EAP. Motion Exh.
1, at 67. Colonel McCall testified that he would have been ―grossly negligent‖ had he not asked
plaintiff whether she felt suicidal. Id. at 239. He explained that it was his responsibility, ―as a
physician and as a supervisor,‖ to consider the possibility, but maintained that when plaintiff
denied feeling suicidal, he and Jorgensen ―let it drop.‖ Id. He elaborated, id:
[Plaintiff] might be at risk for suicide. . . . MS patients have over a two percent
lifetime risk of suicides, over twice the population risk.
On top of that, she‘s had a lot of life events, to our understanding, in terms
of financial problems and family problems and job problems last year that in
various studies have been found to be associated with between a fifth and a third
of suicides.
On July 28 2009, plaintiff contacted the EEO office, complaining of a ―hostile work
environment.‖ See Motion Exh. 9. She claimed it ―first started‖ at the time of the EAP referral
involving Major Jorgensen and Colonel McCall.9 Id.; see Motion Memo. 11.
Plaintiff’s Performance Appraisal
Plaintiff avers: ―Performance at USAMRIID [is] graded A, B, C, F. ‗A‘ was the highest
grade. ‗F‘ was failing.‖ Am. Compl. ¶ 19. Each employee has both a ―rater‖ and a ―senior
rater,‖ who jointly determine an employee‘s rating, based on weighted components that total
9
Plaintiff testified that she asked the EEO office to wait on the filing of her formal
complaint, ―until after [her] performance appraisal.‖ Motion Exh. 1, at 91-92. The EEO
complaint, discussed infra, was filed on November 1, 2009.
-8-
100. A rating between 85 – 100 scores an ―A‖; a rating between 70 – 84 scores a ―B‖; a rating
between 50 – 69 amounts to a ―C‖; and a score below 49 is an ―F.‖ Until 2009, plaintiff, with
one exception, had always earned an ―A.‖10 The performance appraisal form also has a section
for management to note changes to an employee‘s base pay and a bonus. Prior to the 2008-2009
performance period, with one exception, the performance appraisals did not reflect any change in
plaintiff‘s base pay, nor was there any indication that plaintiff ever received a bonus.
As noted, the Clinical Lab underwent a change in leadership beginning with the 2008 –
2009 period, when Major Jorgensen and Colonel McCall became supervisors of the Clinical Lab.
During this period, Jorgensen and McCall were plaintiff‘s rater and senior rater, respectively.
Motion Exh. 1, at 202.
10
Plaintiff‘s ratings at USAMRIID, leading up to the 2008 to 2009 period, were as follows:
1999 – 2000 (rater: Captain Cheryl Moore, senior rater: Colonel Arthur Anderson):
―A,‖ 84/100 (45/50 technical competence). No change in pay noted. Opp‘n App‘x 31.
2000 – 2001 (rater: Captain Cheryl Moore, senior rater: Colonel Arthur Anderson):
―A,‖ 90/100 (45/50 technical competence). No change in pay noted. Id. at 30.
2001 – 2002 (rater: Captain Tenaya Gilman, senior rater: Colonel Arthur Anderson):
―A,‖ 86/100 (47/50 technical competence). No change in pay noted. Id. at 29.
2002 – 2003 (rater: Captain Tenaya Gilman, senior rater: Colonel Arthur Anderson):
―B,‖ 84/100 (45/50 technical competence). No change in pay noted. Id. at 28.
2003 – 2004 (rater: Captain Tenaya Gilman, senior rater: Colonel Arthur Anderson):
―A,‖ 87/100 (45/50 technical competence). Plaintiff received a base pay increase. Id. at
27.
2004 – 2005 (rater: Captain Jeffrey Brown, senior rater: Colonel Phillip Pittman): ―A,‖
95/100 (50/50 technical competence). No change in pay noted. Id. at 26.
2005 – 2006 (rater: Captain Jeffrey Brown, senior rater: Colonel Phillip Pittman): ―A,‖
90/100 (47/50 technical competence). No change in pay noted. Id. at 25.
2006 – 2007 (rater: Captain Dianne Wilson, senior rater: Colonel Phillip Pittman): ―A,‖
93/100 (48/50 technical competence). No change in pay noted. Id. at 24.
2007 – 2008 (rater: Captain Dianne Kittrell, senior rater: Colonel Phillip Pittman): ―A,‖
95/100 (49/50 technical competence). No change in pay noted. Id. at 23.
-9-
On June 30, 2009, Major Jorgensen met with Colonel McCall regarding plaintiff‘s
upcoming 2008 – 2009 performance appraisal. Id. at 201. According to Major Jorgensen,
Colonel McCall ―was actually pretty adamant that he wanted to give [plaintiff] a failing grade.
He wanted to give her an F,‖ based on her ―working relationships, communication problems,
passive-aggressive behavior,‖ and the ―LIS system not meeting his standards.‖ Id. at 201-03.
Major Jorgensen further testified that both she and Colonel McCall had noticed a ―progression‖
in plaintiff‘s MS and, at the meeting of June 30, 2009, Colonel McCall indicated that ―he felt that
[plaintiff‘s] MS had progressed to a cognitive dysfunction disorder.‖ Id. at 203-04.
Colonel McCall testified that, ―at various times after various incidents,‖ both he and
Major Jorgensen wanted to give plaintiff an ―F.‖ Id. at 287. He admitted that they discussed
plaintiff‘s MS, but claimed it was in the context of her deteriorating job performance. Id. at 288.
The following testimony from the Fact Finding Conference is relevant, id. at 287-92:
[PLAINTIFF‘S COUNSEL]: Did you discuss that Ms. Madock might have or
probably had intermittent explosive disorder?
[COLONEL MCCALL]: I don‘t recall. I might have.
[PLAINTIFF‘S COUNSEL]: Did you discuss with [Major Jorgensen] in
connection with giving [plaintiff] a rating of F that she was suffering from MS
cognitive dysfunction[?]
[COLONEL MCCALL]: We were concerned about the apparent deterioration of
job performance . . . [T]here was a slippage. An inability to meet deadlines,
failure to get [Standard Operating Procedures] revised, failure to certify tests in
the LIS, leaving for a four-day holiday, all kinds of things. And we theorized
what -- and a lot of these observations were coming from Major Jorgensen.
[Plaintiff] appears to be disorganized. Her desk is a mess. She‘s not getting me
the QA on time, on and on. And again, you keep wanting to give her the benefit
of the doubt. She just doesn‘t care or what is it?
- 10 -
But again, if it were -- anyone that did the same things would have had the
same problem as far as an evaluation was concerned. In that sense, the disease
was irrelevant.
[PLAINTIFF‘S COUNSEL]: . . . Did you say to Major Jorgensen that Christa
Madock‘s MS cognitive dysfunction was a reason to give her an F?
[COLONEL MCCALL]: No.
***
[PLAINTIFF‘S COUNSEL]: . . . [D]id you say to Major Jorgensen that Ms.
Madock‘s MS cognitive dysfunction was causing problems with her performance,
in sum and substance?
[COLONEL MCCALL]: I probably raised it as a possibility. I didn‘t say that
was the case. It‘s a speculation. I‘m not her doctor.
Also on June 30, 2009, Major Jorgensen met with plaintiff about her upcoming
performance appraisal. Am. Compl. ¶ 19. Jorgensen allegedly informed Ms. Madock that her
performance rating would be ―no less than a ‗B.‘‖ Id. ¶ 20.11 They also discussed plaintiff‘s
interpersonal relationships. Motion Exh. 1, at 86 (Plaintiff testified about the meeting, stating:
―[W]e discussed how well I had done. [Jorgensen] again said that my technical competency was
very good. My interpersonal relationships were not so good and that I needed to work on that. I
agreed with [Major Jorgensen] that I sometimes have difficulty with interpersonal
relationships.‖).
However, after another meeting,12 Major Jorgensen and Colonel McCall compromised on
giving plaintiff a rating of ―C,‖ or ―Successful.‖ Opp‘n App‘x 39; see Am. Compl. ¶ 21 (―Some
time between the June 30, 2009 meeting and [August 4, 2009, the date of plaintiff‘s performance
11
Although not material, Major Jorgensen testified that she ―never promised [plaintiff] a
B rating.‖ Motion Exh. 1, at 144. She claimed only to have promised to notify plaintiff, in
writing, if her rating was lower than a B. Id.
12
I could not locate the date of this meeting in the record.
- 11 -
appraisal] MAJ Jorgensen met with COL McCall to discuss Ms. Madock.‖). On August 4, 2009,
plaintiff received her performance appraisal, a ―C‖ score of 55/100, and a Memorandum for
Record (―Performance Memorandum‖) authored by Jorgensen, dated August 4, 2009.
See
Motion Exh. 10; Opp‘n App‘x 39.13 The Performance Memorandum stated, in part:
I am deeply concerned about [your] duty performance issues and I need to inform
you that fraudulent reporting . . ., insubordination, passive-aggressive behavior,
and creating a hostile work environment will not be tolerated in this laboratory. I
am also concerned about your organizational skills and inabilities to task organize
projects and have them completed in a timely manner.
Further, the Performance Memorandum said: ―Any future misconduct may result in more severe
disciplinary action that could lead to removal.‖ Id.
In a Memorandum for Record dated August 10, 2009, plaintiff responded to the
Performance Memorandum. Motion Exh. 12. She disputed several of the allegations (―There
are no allegations of insubordination‖; ―I do my best to respond to you and others politely‖; ―I
have been on time [with quality assurance] since April‖), but admitted to others (―[M]y
submission of [a survey] with [Major Jorgensen‘s] name on it was an error, not fraud‖; ―If you
mean raising my voice . . ., I regret those incidents‖; ―I apologized to SPC [Shanele] Moore for
13
The Performance Memorandum (Motion Exh. 10) cited the following concerns:
Technical competence: plaintiff was strictly controlling the LIS and not providing
training to others; she failed to meet quality control deadlines; and she was disorganized
in managing her workflow and easily overwhelmed.
Working relationships: plaintiff raised her voice at two quality control meetings (March
6 and April 1, 2009); on April 14, 2009, she used profanity in a verbal altercation with
another Clinical Lab employee, Shanele Moore; plaintiff intended to disclose information
during an inspection that would have discredited the Clinical Lab; and she reported a
perceived non-compliance to an outside inspector without first informing management.
Communications: plaintiff electronically signed Major Jorgensen‘s name as having
―reviewed‖ a survey, without Major Jorgensen‘s permission; and she exceeded the
normal turnaround time period for certain projects.
- 12 -
my harsh remark . . . . I regret having spoken inappropriately‖14). Id. Then, on August 19, 2009,
plaintiff submitted a Request for Reconsideration of her performance appraisal. Motion Exh. 14.
By memorandum dated September 8, 2009, Major Jorgensen declined to change plaintiff‘s rating
of ―C.‖ Motion Exh. 15. In accordance with applicable procedure,15 on September 23, 2009,
plaintiff appealed that denial to Colonel McCall. Motion Exh. 16.
On November 20, 2009, via a ―special‖ performance appraisal, Jorgensen and McCall
gave plaintiff a ―B,‖ in which plaintiff scored a total of 71 out of a possible 100. Opp‘n App‘x
75. Then, by memorandum dated November 25, 2009, McCall informed plaintiff that the Judge
Advocate General (―JAG‖) had instructed him16 that no further administrative action would be
14
This remark refers to an altercation between plaintiff and Specialist Moore, another
employee at the Clinical Lab. A microbiologist at the lab, Edward Selby, wrote a Memorandum
for Record memorializing this incident. Motion Exh. 8. He stated, id.:
There was a brief conversation at the doorway [of the room he and plaintiff were
in] between [Specialist] Moore and Christa which I did not pay attention to.
I . . . heard Christa say that she had to retrieve something out of the filing cabinet
which was located behind the door. She had to shut the door to access the
cabinet. When she shut the door she gave it a little extra push and was clearly
frustrated. She then said that ―I would not have to be doing this if she did her
f***ing job. A few minutes later . . . Moore appeared again at the doorway and
informed me that she was in the doorway the entire time and did not appreciate
the door being slammed on her or what Christa had said.
15
The procedure for Requests for Reconsideration is set forth in ―Policy 11,‖ entitled the
Laboratory Personnel management Demonstration Project Reconsideration Process, discussed
infra. See Opp‘n App‘x 157.
16
At the Fact Finding Conference, Colonel McCall testified that he had not been told
directly by JAG, but rather, ―the instruction came via the personnel department,‖ i.e., Ms.
Merriman. Motion Exh. 1, at 293. Ms. Merriman later indicated that suspending the
reconsideration process in light of an EEO complaint was ―the way it‘s supposed to go.‖ Id. at
464. She testified: ―JAG, Mr. Jeff Miller, sent me an e-mail, which I believe I forwarded [to
Colonel McCall], saying we need to cease and desist the reconsideration route because it‘s part
of the EEO complaint. But if she had not made it part of EEO, we would have gone on with the
reconsideration process.‖ Id. at 462-63.
- 13 -
taken ―via the PDP administrative reconsideration process on [her] appeal, since it [had since
become] the subject of a formal EEO complaint.‖ Motion Exh. 17.
The Change in Plaintiff’s Position Description
As noted, Major Jorgensen was concerned about the Clinical Lab‘s ability to support high
containment (i.e., Biosafety Level 4) research. Motion Exh. 1, at 156-57. She was concerned
because only one out of the four civilians working at the Clinical Lab was qualified to work in
the ICU, which she regarded as an unfair burden on that individual. Id. at 173-74. She also
testified that two of the Medical Technologists, plaintiff and Linda Hildebrand, had different job
descriptions. Id. at 154-55. In particular, Hildebrand was required to participate in SIP, while
plaintiff was not. Id. at 155; see id. at 678-79 (Hildebrand testified: ―[SIP] was always in my
job description.‖). Major Jorgensen sought to remedy these matters by requiring all four civilian
employees to enroll both in SIP and in BPRP. Id. at 158. By e-mail, she notified the employees
of the change in position description. Id. at 209. Jorgensen maintained that her decision ―did not
have to do with anybody‘s disability.‖ Id. at 159. Rather, she claimed that the decision was
based ―solely on mission need.‖ Id.
On August 6, 2009, plaintiff received an e-mail from Major Jorgensen stating that,
effective September 4, 2009, the Medical Technologist job description would require
participation in SIP. Motion Exh. 18. On August 19, 2009, plaintiff submitted a Reasonable
Accommodation Request, seeking to ―be accommodated by taking on duties from the other three
[civilian employees] who could be vaccinated.‖ Motion Exh. 21, at 2; Motion Exh. 1, at 25
(plaintiff testified that she requested that she ―not be required to perform -- or to participate in
SIP, and therefore, not also work in the biocontainment suites BL3 and BL4‖).
- 14 -
By
Memorandum for Record dated September 10, 2009, Jorgensen told plaintiff to obtain an
updated ―Certificate of Medical Examination,‖ Opp‘n App‘x 61, which she did on September 25,
2009.
The examining physician confirmed that plaintiff was unable to participate in SIP.
Motion Exh. 20.
On November 1, 2009, plaintiff filed a Formal Complaint of Discrimination with the
EEO Office, alleging on the form that she had been discriminated against because of her
―physical disability,‖ which she identified as MS. Motion Exh. 24. She complained, inter alia,
about the change in her position description, the Performance Memorandum, and the referral to
the EAP, which she believed were part of Major Jorgensen and Colonel McCall‘s ―campaign to
force [her] out of [her] position.‖ Id. at 2.17
By memorandum dated November 16, 2009, Major Jorgensen wrote to plaintiff, stating:
―[Y]ou do not meet the medical requirements of this position.
Specifically, you cannot
participate in SIP and you cannot wear BSL4 personal protective equipment (PPE) which is
mission essential to performing the duties of this position.‖
Opp‘n App‘x 70.
Also by
memorandum dated November 16, 2009, Major Jorgensen denied plaintiff‘s Reasonable
Accommodation Request, stating: ―I am denying your request due to the fact that this is a
mission
essential
requirement. . . . [Y]ou
may
be
offered
an
alternate
Reasonable
Accommodation in the form of a Reassignment.‖ Id. at 72.
The position description change meant, in effect, that plaintiff no longer met the
requirements for her job position. Motion Memo. 13. Plaintiff testified: ―I was [able to perform
the essential functions of a Medical Technologist], until the change in my position description.‖
17
On August 19, 2009, plaintiff added allegations to her EEO complaint, although it had
not yet been filed. See Motion Exh. 9.
- 15 -
Motion Exh. 1, at 20. Notably, Plaintiff conceded that all of the civilian employees were treated
equally with regard to the SIP requirement. She testified: ―In relation [t]o the SIP, I would say
no, no one was treated differently.‖ Id. at 269.
Plaintiff’s Reassignment
On December 2, 2009, plaintiff met with Jennifer Merriman, Chief of the Human
Resources Office at USAMRIID, regarding her Reasonable Accommodation Request of August
19, 2009, which Major Jorgensen had denied on November 16, 2009. Motion Memo. 14; see
Motion Exh. 22. According to a Memorandum of Record dated December 3, 2009, authored by
Ms. Merriman and signed by plaintiff, the two discussed whether plaintiff was ―willing to be
reassigned to a vacant position.‖ Motion Exh. 22, at 1. Plaintiff responded that she was,
provided that she was allowed to evaluate available positions. Id.
Plaintiff established the following criteria for the positions she was willing to consider:
(1) she would not take a pay cut (i.e., the position had to be within her current grade and pay
band); (2) the position would not require sitting or standing for more than two hours at a time;
(3) preferably, the job would not be located more than ten miles from Frederick, MD (the Fort
Detrick area) or forty miles from her residence (Smithsburg, Maryland); and (4) she would be
willing to accept a hospital lab position as long as it involved ―administrative type lab work.‖ Id.
at 1-2. Ms. Merriman testified that members of her office, as well as plaintiff, searched for jobs
for plaintiff that fit the criteria set by plaintiff. Motion Exh. 1, at 469. Further, she testified that
she and plaintiff had ―weekly‖ conversations about the job search. Id. at 473. Ms. Merriman
opined that she and her staff went ―out of [their] way‖ to accommodate plaintiff. Id. at 470.
- 16 -
In a letter dated December 9, 2009, Jeffrey Miller, an ―Agency Labor Counselor‖ with
JAG, wrote to plaintiff‘s counsel regarding plaintiff‘s Reasonable Accommodation Request and
the ongoing search for a suitable reassignment position (the ―Miller letter‖). Opp‘n App‘x 79.
He stated, id. (emphasis added):
Management is looking for possible jobs that would meet your client‘s criteria
and which she would qualify for consideration.
Management has expressed concern to me that your client may not be
aware that if they cannot find such a job within these parameters, that could
trigger processing of a possible proposal to remove her from her position due to
inability to perform critical elements of her current position. No such proposed
removal has taken place at this point, but it is a possibility.
By letter dated January 12, 2010, plaintiff‘s counsel wrote to Angelea V. Anderson,
whom he believed was investigating plaintiff‘s EEO complaint, and copied Miller on the letter.
Opp‘n App‘x 169-73. The letter stated, in part, id.:
Mr. Miller‘s . . . statements [referring to the ―possibility‖ of her ―removal‖
because of her ―inability to perform critical elements‖ of her position] threaten to
terminate Ms. Madock from her position in January 2010 unless she finds another
job. Termination in this economic environment would leave Ms. Madock without
the means to support her family.
***
. . . Each time the Army makes the situation worse by setting termination
deadlines or blocking job search attempts it adds to Ms. Madock‘s damages,
including emotional distress damages. Please consider whether the Army might
be better served by putting Ms. Madock‘s ―B‖ performance appraisal in effect and
by keeping her in the job she does well until this matter can be resolved.
Ms. Merriman testified that she personally contacted a lab at Fort Detrick to locate the
position that plaintiff ultimately accepted. Motion Exh. 1, at 469-70. Effective March 28, 2010,
plaintiff was reassigned to the position of ―Quality Assurance Scientist‖ at the U.S. Army
- 17 -
Medical Materiel Development Activity.18 Motion Exh. 23. Notably, the position has the same
salary, grade/level, and pay band as plaintiff‘s prior position with USAMRIID. See id.
The Administrative Investigation
As noted, plaintiff filed her formal EEO complaint on November 1, 2009. Thereafter, the
Department of Defense Investigations and Resolutions Division conducted an administrative
investigation of the complaint, which included a two-day Fact Finding Conference.
See
generally Motion Exh. 1. The investigator received evidence and sworn testimony from fifteen
witnesses, including plaintiff. 19 Through counsel, plaintiff had the opportunity to question all of
the witnesses and to present evidence and arguments. The investigator issued her Report of
Investigation on June 4, 2010, in which she found in favor of the employer with respect to
plaintiff‘s performance rating; position description change; and referral to the EAP.
See
generally Motion Exh. 25. On August 31, 2010, the Army issued a final decision with respect to
plaintiff‘s EEO complaint, finding that plaintiff was not the victim of discrimination based on
her disability. Motion Exh. 26, at 14.
This suit followed. Although plaintiff‘s Amended Complaint does not contain separate
―Counts,‖ see FED. R. CIV. P. 10(b) (―If doing so would promote clarity, each claim founded on a
separate transaction or occurrence . . . must be stated in a separate count or defense.‖), the
parties‘ submissions have made clear that plaintiff asserts two claims under the Rehabilitation
Act, 29 U.S.C. § 791 et seq.: (1) multiple acts of discrimination because of her MS, including a
change in plaintiff‘s job description that she avers culminated in her actual or constructive
18
In her Declaration, dated March 9, 2011, plaintiff avers that she had to apply for that
position, which she believed was open to other candidates. Opp‘n App‘x 7.
19
Major Jorgensen, who was in Iraq, was interviewed telephonically.
- 18 -
discharge, and (2) retaliation for the filing of plaintiff‘s EEO complaint, manifested by the failure
to consider plaintiff‘s administrative appeal of her performance review. 20
Additional facts will be included in the discussion, as relevant.
Discussion
I.
As indicated, defendant has moved to dismiss or, in the alternative, for summary
judgment. When deciding a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the Court considers the complaint, as well as documents attached to it. Sec’y of
State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007) (―We may
consider documents attached to the complaint, as well as those attached to the motion to dismiss,
so long as they are integral to the complaint and authentic . . . .‖ (citation omitted)). FED. R. CIV.
P. 12(d) provides that, if ―matters outside the pleadings are presented to and not excluded by the
court‖ in connection with a Rule 12(b)(6) motion, ―the motion must be treated as one for
summary judgment under Rule 56,‖ and ―[a]ll parties must be given a reasonable opportunity to
present all the material that is pertinent to the motion.‖
The Court is mindful that this case is in the early stage of litigation. Ordinarily, summary
judgment is inappropriate if ―the parties have not had an opportunity for reasonable discovery.‖
E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011).
However, ―the party opposing summary judgment ‗cannot complain that summary judgment was
granted without discovery unless that party has made an attempt to oppose the motion on the
20
As will be discussed in more detail, infra, plaintiff claims that the EAP referral and her
negative performance review constituted discrimination, and that the change in her position
description constituted constructive or actual discharge from employment.
- 19 -
grounds that more time was needed for discovery.‘‖ Harrods Ltd. v. Sixty Internet Domain
Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80
F.3d 954, 961 (4th Cir. 1996)). To raise adequately the issue that discovery is needed, the nonmovant must file an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)).
Failure to file a Rule 56(d) affidavit ―is itself sufficient grounds to reject a claim that the
opportunity for discovery was inadequate.‖ Evans, 80 F.3d at 961. But see Harrods Ltd., 302
F.3d at 244 (―[I]n some cases courts have held that summary judgment was premature even when
the opposing party failed to file a [Rule 56(d)] affidavit.‖).
Notably, ―Rule 56(d) affidavits cannot simply demand discovery for the sake of
discovery.‖ Young v. UPS, No. DKC-08-2586, 2011 U.S. Dist. LEXIS 14266, at *62 (D. Md.
Feb. 14, 2011); see Merchant v. Prince George’s Cnty. Md., No. 10-1268, 2011 U.S. App.
LEXIS 12574, at *3 (4th Cir. June 21, 2011) (unpublished) (―[N]onspecific requests for
discovery in [an] opposition memorandum did not serve as a ‗functional equivalent‘ of a Rule
56(d) affidavit . . . .‖); Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995) (noting that the
non-movant ―‗may not simply assert in its brief that discovery was necessary‘‖ (citation
omitted)). The affidavit must explain why, ―for specified reasons, [the non-movant] cannot
present facts essential to justify its opposition,‖ unless needed discovery is permitted. FED. R.
CIV. P. 56(d). So, ―to justify a denial of summary judgment on the grounds that additional
discovery is necessary, the facts identified in a Rule 56 affidavit must be ‗essential to [the]
opposition.‘‖ Scott v. Nuvell Fin. Servs., LLC, No. JFM-09-3110, 2011 U.S. Dist. LEXIS 61044,
at *11 (D. Md. June 7, 2011) (alteration in original) (citation omitted). See generally Harrods,
302 F.3d at 244-45 (discussing affidavit requirement of former Rule 56(f)).
- 20 -
Moreover, even if a Rule 56(d) request for additional discovery has been made, it is
properly denied ―where the additional evidence sought for discovery would not have by itself
created a genuine issue of material fact sufficient to defeat summary judgment.‖ Strag v. Bd. of
Trs., Craven Cmty. Coll., 55 F.3d 943, 953 (4th Cir. 1995); see Amirmokri v. Abraham, 437 F.
Supp. 2d 414, 420 (D. Md. 2006) (―A Rule 56[(d)] motion for additional discovery is properly
denied when the additional evidence sought to be discovered would not create a genuine issue of
material fact sufficient to defeat summary judgment.‖); see also Young, 2011 U.S. Dist. LEXIS
14266, at *63 (plaintiff‘s Rule 56(d) request ―must be denied, as the additional requested
discovery would not create a genuine dispute of fact sufficient to defeat summary judgment‖).
Plaintiff‘s counsel has submitted a Rule 56 affidavit.
Opp‘n App‘x 99-102.21
He
contends that additional discovery is needed, largely to explore the thought processes and
rationale with respect to the conduct of Major Jorgensen and Colonel McCall. Id. at 101.
Plaintiff‘s attorney also seeks information about the meetings between Jorgensen and McCall, as
well as the ―sum and substance of COL McCall‘s discussion with JAG about Ms. Madock‘s
request for reconsideration of the ‗C‘ performance appraisal.‖
Id.
In addition, he seeks
information about the chain of command at the U.S. Army Medical Materiel Development
Activity and USAMRIID, and information relative to the reassignment process. Id. at 102.
Plaintiff‘s discovery request seems to overlook the voluminous record in this case,
spawned by the administrative proceedings concerning plaintiff‘s EEO complaint. Indeed, the
parties have collectively submitted about 1500 pages of exhibits, including testimony from the
central participants, all of whom were questioned by plaintiff‘s counsel, under oath.
21
The affidavit refers to Rule 56(f), the former iteration of Rule 56(d).
- 21 -
The
transcript of the fact-finding conference alone amounts to 715 pages. There is, quite simply, a
―‗wealth of information . . . already available to the court.‘‖22 Amirmokri, 437 F. Supp. 2d at 420
(citation omitted).
Moreover, the evidence that plaintiff‘s counsel now seeks to discover will not create a
genuine issue of material fact. Most of the discovery sought by plaintiff‘s counsel concerns his
suggestion that the conduct of plaintiff‘s supervisors was a pretext to mask their discriminatory
intentions.
He has failed to explain why the 715-page transcript from the fact-finding
conference, at which pretext was heavily discussed, is insufficient. In any event, the issue of
pretext is not relevant, because, as I conclude, plaintiff cannot establish an adverse employment
action. See Amirmokri, 437 F. Supp. 2d at 420 (―The law is clear that to prevail on either [a
discrimination or retaliation] theory of recovery, Plaintiff must first establish that he suffered
some adverse employment action.‖).
As to counsel‘s request for information about the chain of command within the Army, he
claims this information is pertinent to whether she was terminated. However, information about
the chain of command cannot alter the fact that, after her transfer, plaintiff retained the same
employer, i.e., the Army at Fort Detrick. Nor is there any basis for plaintiff‘s counsel‘s request
for the ―sum and substance of COL McCall‘s discussion with JAG about Ms. Madock‘s request
for reconsideration.‖ Opp‘n App‘x 101. At the Fact Finding Conference, Colonel McCall
22
In her Opposition, plaintiff objects because the voluminous material submitted by
defendant was not authenticated, pursuant to FED. R. EVID. 902, by an affidavit or declaration.
Yet, much of plaintiff‘s Appendix is duplicative of defendant‘s exhibits. Nevertheless, in
connection with defendant‘s Reply, defendant filed various declarations authenticating
defendant‘s exhibits. See Reply Exhs. 28-33. Moreover, the Army and the Department of
Defense regulations, see Motion Exhs. 11, 27, do not require authentication under FED. R. EVID.
902.
- 22 -
testified that he did not speak with JAG.
Rather, Ms. Merriman told him to ―terminate‖
plaintiff‘s administrative appeal requesting reconsideration of her performance appraisal, based
on a conversation she had with JAG. Motion Exh. 1, at 293.
In sum, given the extensive record in this case, I am readily satisfied that there is no merit
to plaintiff‘s request for further discovery. I will also construe the Motion as one for summary
judgment. See, e.g., Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 260-61 (4th Cir.
1998) (holding that a district court‘s conversion of a motion to dismiss into one for summary
judgment, under similar circumstances, was not an abuse of discretion).
Under Rule 56(a), summary judgment is properly granted only ―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.‖ See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citing former FED. R.
CIV. P. 56(c)).
When this burden is met, the non-moving party then bears the burden of
demonstrating that there are disputes of material fact so as to preclude the entry of judgment as a
matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To
meet this burden, the party opposing summary judgment must ―do more than simply show that
there is some metaphysical doubt as to the material facts.‖ Id.; see also In re Apex Express
Corp., 190 F.3d 624, 633 (4th Cir. 1999).
A fact is ―material‖ if it ―might affect the outcome of the suit under the governing law.‖
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). There is a genuine issue as to
material fact ―if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.‖ Id. In resolving a summary judgment motion, the court must view the facts,
including reasonable inferences to be drawn from them, in the light most favorable to the non-
- 23 -
moving party. See Matsushita Elec. Indus. Co., 475 U.S. at 587; Dennis v. Columbia Colleton
Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). ―A party opposing a properly supported
motion for summary judgment ‗may not rest upon the mere allegations or denials of [its]
pleadings,‘ but rather must ‗set forth specific facts‘‖ showing that there is a triable issue.
Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former
FED. R. CIV. P. 56(e)), cert. denied, 541 U.S. 1042 (2004); see Celotex Corp., 477 U.S. at 32224.
The ―judge‘s function‖ in reviewing a motion for summary judgment is not ―to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.‖ Anderson, 477 U.S. at 249. If ―the evidence is such that a reasonable jury could return
a verdict‖ for the non-moving party, there is a dispute of material fact that precludes summary
judgment. Id. at 248.
II. Statutory Scheme
Plaintiff has brought suit under the Rehabilitation Act, 29 U.S.C. § 791 et seq., which
governs disability discrimination in federal employment. Although the Rehabilitation Act does
not expressly provide for a private right of action, it is well established that private parties may
sue to enforce it. Pandazides v. Va. Bd. of Educ., 13 F.3d 823, 828 (4th Cir. 1994); Davis v. Se.
Cmty. Coll., 574 F.2d 1158, 1159 (4th Cir. 1978), rev’d on other grounds, 442 U.S. 397 (1979).
The standards used to determine whether a federal employer has discriminated under the
Rehabilitation Act are those set forth under the Americans with Disabilities Act (―ADA‖), 42
U.S.C. § 12111 et seq. The Rehabilitation Act incorporates the ADA‘s anti-retaliation provision.
See 42 U.S.C. § 12203(a).
Thus, in addition to protecting federal employees against
- 24 -
discrimination on the basis of disability, the Rehabilitation Act bars retaliation against employees
who have ―opposed any act or practice made unlawful by [the ADA or the Rehabilitation Act] or
because such individual made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing.‖ 42 U.S.C. § 12203(a).
To establish discrimination under the Rehabilitation Act, based on her medical disability,
plaintiff must show that: (1) she is disabled; (2) she was otherwise qualified for the employment
in question; and (3) she suffered an adverse employment action on the basis of the disability.
Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005);23
23
In ¶ 3 of her Amended Complaint, plaintiff asserts: ―This court has jurisdiction under
29 U.S.C. § 791 and § 794(a)‖ (§ 501 and § 504 of the Rehabilitation Act, respectively).
Curiously, in a subsequent submission (ECF 30), filed July 21, 2011, plaintiff states: ―Ms.
Madock sued under 29 U.S.C. § 791 (not 794).‖
Section 504 (29 U.S.C. § 794) prohibits programs and activities that receive federal funds
from discriminating against an individual ―solely by reason of‖ that individual‘s disability. In
contrast, § 501 (29 U.S.C. § 791) requires federal agencies to implement programs to facilitate
the hiring, placement, and advancement of disabled individuals. Although it does not expressly
prohibit disability discrimination by the federal government, the Supreme Court has interpreted it
as doing so. See Lane v. Pena, 518 U.S. 187, 193 (1996).
But, it is far from settled whether § 501 is the exclusive avenue for employment
discrimination claims brought by federal employees. See Figueroa v. Geithner, 711 F. Supp. 2d
562, 569 n.7 (D. Md. 2010). The Fourth Circuit has assumed, without deciding, that a disabled
federal employee can bring suit against a federal agency under both § 504 (29 U.S.C. § 794) and
§ 501 (29 U.S.C. § 791) of the Rehabilitation Act. See Little v. Fed. Bureau Investigation, 1 F.3d
255 (4th Cir. 1993); see also Nasiatka v. Johnson, No. RDB-03-900, 2003 U.S. Dist. LEXIS
27125, at *17 (D. Md. Oct. 9, 2003) (suit against the Secretary of the Navy under § 501 and
§ 504).
It is also ―far from settled‖ whether § 501 and § 504 employ the same standard in
evaluating causation. Dank v. Shinseki, 374 F. App‘x 396, 399 (4th Cir. 2010) (unpublished).
On the one hand, § 504‘s causation standard provides: ―No otherwise qualified individual with a
disability . . . shall, solely by reason of her or his disability, be excluded from the participation in,
be denied the benefits of, or be subjected to discrimination . . . .‖ 29 U.S.C. § 794(a) (emphasis
added). On the other hand, as noted, § 501 has no express prohibition on discrimination. Rather,
29 U.S.C. § 791(g) states, in part:
- 25 -
see also Hooven-Lewis v. Caldera, 249 F.3d 259, 268 (2001) (―[T]he general rule is that no
covered entity shall discriminate against a qualified individual with a disability because of the
disability.‖).
III. Methods of Proof
In general, there are ―two avenues‖ at trial by which a plaintiff may prove intentional
employment discrimination or retaliation. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354
F.3d 277, 284 (4th Cir. 2004).
The first is to offer ―‗direct or indirect‘‖ evidence of
discrimination, under ―‗ordinary principles of proof.‘‖ Burns v. AAF-McQuay, Inc., 96 F.3d 728,
731 (4th Cir. 1996) (citation omitted), cert. denied, 520 U.S. 1116 (1997). ―To avoid summary
judgment‖ when proceeding under ordinary principles of proof, ―‗the plaintiff must produce
direct evidence of a stated purpose to discriminate and/or [indirect] evidence of sufficient
(…footnote continued)
The standards used to determine whether this section has been violated in a
complaint alleging nonaffirmative action employment discrimination under this
section shall be the standards applied under title I of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections
501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42
U.S.C. 12201-12204 and 12210), as such sections relate to employment.
Thus, under the plain reading of the statute, § 501 incorporates the ADA standard for
causation. But, the ADA‘s standard for causation is more lenient than that of § 504, in that the
―solely by reason of‖ limitation does not apply. Baird ex rel. Baird v. Rose, 192 F.3d 462, 469
(4th Cir. 1999). The significance, if any, to a federal employee‘s decision to proceed under
§ 501 or § 504 is that different standards of causation may apply. Here, in the supplemental
filings, the parties dispute the appropriate standard. See Deft. Supp. 2 (employing the ―solely by
reason of‖ standard); Pl. Supp. 2 (disputing same); Deft. Supp. Reply 4 (―[T]he United States
maintains that the ‗solely‘ standard applies to disability discrimination asserted by federal
employees. The Court need not resolve the applicable standard in the present case, however,
because the plaintiff did not suffer intentional discrimination under any standard.‖).
In the Court‘s view, the resolution of plaintiff‘s Rehabilitation Act claim does not turn on
which causation standard applies. Thus, the Court need not decide whether plaintiff has, in fact
filed suit under both § 501 and § 504, or merely under § 501.
- 26 -
probative force to reflect a genuine issue of material fact.‘‖ Rhoads v. FDIC, 257 F.3d 373, 391
(4th Cir. 2001) (alteration in original) (citations omitted) (internal quotation marks omitted), cert.
denied, 535 U.S. 933 (2002).
Where the plaintiff has not presented any direct evidence of discrimination or retaliation,
the burden-shifting approach under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
applies.24 See Laber v. Harvey, 348 F.3d 404, 432 (4th Cir. 2006). Under what is popularly
known as the McDonnell Douglas proof scheme, the plaintiff must first establish a ―prima facie
case‖ of discrimination or retaliation. Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289,
294 (4th Cir. 2010). Although the precise formulation of the required prima facie showing will
vary in ―different factual situations,‖ McDonnell Douglas, 411 U.S. at 802 n.13, the plaintiff is
generally required to show that the employer took adverse action against an employee who was
qualified for employment, ―under circumstances which give rise to an inference of unlawful
discrimination‖ or retaliation.
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981).25
24
McDonnell Douglas involved a claim of racial discrimination in hiring under Title VII
of the Civil Rights Act of 1964. However, the burden-shifting methodology it endorsed has been
adapted for use in cases of disability discrimination. See, e.g., Raytheon Co. v. Hernandez, 540
U.S. 44, 49-50 & n.3 (2003) (applying McDonnell Douglas framework to claim of disability
discrimination in employment under ADA); Hooven-Lewis, supra, 249 F.3d at 266-68 (applying
McDonnell Douglas framework to federal employee‘s claim of disability discrimination in
employment under the Rehabilitation Act).
25
In McDonnell Douglas, the prima facie case of racial discrimination in hiring was
formulated as follows, 411 U.S. at 802:
(i) that [the plaintiff] belongs to a racial minority; (ii) that he applied and was
qualified for a job for which the employer was seeking applicants; (iii) that,
despite his qualifications, he was rejected; and (iv) that, after his rejection, the
position remained open and the employer continued to seek applicants from
persons of complainant‘s qualifications.
- 27 -
The purpose of the prima facie case requirement is to assist the plaintiff in surmounting
two common ―evidentiary obstacles‖: (1) ―‗direct evidence . . . is likely to be unavailable‘‖; and
(2) ―‗the employer has the best access to the reasons that prompted him to fire, reject, discipline
or refuse to promote‘‖ the employee. Smith v. Univ. of N.C. at Chapel Hill, 632 F.2d 316, 334
(4th Cir. 1980) (quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir. 1979)); see also
Price Waterhouse v. Hopkins, 490 U.S. 228, 271 (1989) (O‘Connor, J., concurring) (―[T]he
entire purpose of the McDonnell Douglas prima facie case is to compensate for the fact that
direct evidence of intentional discrimination is hard to come by.‖).
The McDonnell Douglas proof scheme was created to resolve ―the proper order and
nature of proof‖ of discrimination or retaliation at trial, in the absence of direct evidence.
McDonnell Douglas, 411 U.S. at 793; see St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 521
(1993) (stating that the McDonnell Douglas scheme is ―a procedural device, designed only to
establish an order of proof and production‖ (emphasis omitted)). The plaintiff is not required to
present direct evidence of discriminatory or retaliatory intent in the prima facie case, nor is the
plaintiff required to ―exclude every hypothetical reason for the defendant‘s action toward him.‖
Sledge v. J.P. Stevens & Co., 585 F.2d 625, 643 (4th Cir. 1978), cert. denied, 440 U.S. 981
(1979). Of course, ―the McDonnell Douglas test is inapplicable where the plaintiff presents
direct evidence of discrimination‖ or retaliation. Trans World Airlines, Inc. v. Thurston, 469
U.S. 111, 121 (1985).
If the plaintiff establishes a prima facie case, by a preponderance of the evidence, ―a
presumption of illegal discrimination [or retaliation] arises, and the burden of production shifts to
the employer‖ to produce evidence of a legitimate, non-discriminatory [or non-retaliatory] reason
- 28 -
for its adverse employment action. Hoyle v. Freightliner, LLC, ___ F.3d ___, No. 09-2024, 2011
WL 1206658, at *11 (4th Cir. Apr. 1, 2011). ―If the defendant carries this burden of production,
the presumption raised by the prima facie case is rebutted.‖ Burdine, 450 U.S. at 255. In that
circumstance, ―the McDonnell Douglas framework—with its presumptions and burdens—is no
longer relevant,‖ and ―simply drops out of the picture.‖ St. Mary’s Honor Ctr., 509 U.S. at 51011. Put another way, if the employer produces evidence that could persuade a fact finder that it
had a legitimate, non-discriminatory or non-retaliatory reason for its actions, ―the defendant has
done everything that would be required of [it] if the plaintiff had properly made out a prima facie
case,‖ and therefore, ―whether the plaintiff really did so is no longer relevant.‖ U.S. Postal Serv.
Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983).
When the defendant meets its burden, the plaintiff must then prove, by a preponderance
of the evidence, ―that the proffered reason was not the true reason for the employment decision,‖
and that the plaintiff ―has been the victim of intentional discrimination‖ or retaliation. Burdine,
450 U.S. at 256.
Under the McDonnell Douglas approach, the ―ultimate burden of
persuasion . . . never ‗shifts‘ from the plaintiff‖ to prove intentional unlawful discrimination or
retaliation. Williams v. Cerberonics, Inc., 871 F.2d 452, 456 n.2 (4th Cir. 1989) (citation
omitted). Conversely, if a plaintiff proves a prima facie case, and the defendant submits no
evidence of any legitimate basis for its actions, the court or fact finder may ―infer discriminatory
[or retaliatory] animus because experience has proved that in the absence of any other
explanation it is more likely than not that those actions were bottomed on impermissible
considerations.‖ Furnco Const. Corp. v. Waters, 438 U.S. 567, 579-80 (1978). If the defendant
fails to meet the burden of producing ―evidence which, taken as true, would permit the
- 29 -
conclusion that there was a nondiscriminatory [or non-retaliatory] reason for the adverse action,‖
and the plaintiff has proved a prima facie case, ―the court must award judgment to the plaintiff as
a matter of law,‖ St. Mary’s Honor Ctr., 509 U.S. at 509. This is because a legal presumption of
intentional discrimination has been established. Id. at 510 n.3.26
IV. Disability Discrimination
Referring to the elements of a claim under the Rehabilitation Act, discussed supra,
defendant does not dispute that plaintiff has a medical disability (MS) and is an ―otherwise
qualified‖ individual. Therefore, I will proceed to the question of whether plaintiff has shown
that she suffered an adverse employment action. It is this issue that the parties rigorously debate.
In her Amended Complaint, plaintiff alleges that the following acts constituted
discriminatory, adverse employment actions because of her MS: the referral to the EAP (¶ 17);
the circumstances of her negative performance appraisal (¶ 25); and the addition of SIP as a
26
In St. Mary’s Honor Center, the Supreme Court concluded that, where the employer
meets its burden of producing evidence of legitimate reasons for its adverse action, but the factfinder disbelieves all of the employer‘s proffered reasons, judgment for the plaintiff is permitted,
but not mandatory, in that situation. The Court explained:
The factfinder‘s disbelief of the reasons put forward by the defendant (particularly
if disbelief is accompanied by a suspicion of mendacity) may, together with the
elements of the prima facie case, suffice to show intentional discrimination.
Thus, rejection of the defendant‘s proffered reasons will permit the trier of fact to
infer the ultimate fact of intentional discrimination, and . . . upon such rejection,
―[n]o additional proof of discrimination is required. . . .‖ But . . . holding that
rejection of the defendant‘s proffered reasons compels judgment for the plaintiff
disregards the fundamental principle . . . that a presumption does not shift the
burden of proof, and ignores our repeated admonition that the . . . plaintiff at all
times bears the ―ultimate burden of persuasion.‖
509 U.S. at 511 (footnote omitted) (citations omitted).
- 30 -
requirement for her position, which she further alleges amounted to an actual or constructive
discharge (¶¶ 27-28).27
―An adverse employment action is a discriminatory act that ‗adversely affect[s] the terms,
conditions, or benefits of the plaintiff‘s employment.‘‖ Holland v. Wash. Homes, Inc., 487 F.3d
208, 219 (4th Cir. 2007) (alteration in original) (quoting James v. Booz-Allen & Hamilton, Inc.,
368 F.3d 371, 375 (4th Cir.), cert. denied, 543 U.S. 959 (2004)), cert. denied, 552 U.S. 1102
Typically, an adverse employment action has been found in cases of ―discharge,
(2008).
demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, or reduced
opportunities for promotion.‖ Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999); see also
James, 368 F.3d at 376.
Both actual and constructive discharge are considered adverse employment actions. See,
e.g., James, 368 F.3d at 378.28 In addition, ―conduct ‗short of ultimate employment decisions
can constitute adverse employment action‘, [but] there . . . must be a ‗tangible effect on the terms
and conditions of employment.‘‖ Geist v. Gill/Kardash P’ship, LLC, 671 F. Supp. 2d 729, 737
n.6 (D. Md. 2009) (quoting James, 368 F.3d at 371, 377). However, reprimands, warnings, and
poor performance evaluations, by themselves, ordinarily do not to rise to the level of an adverse
employment action. See Amirmokri, supra, 437 F. Supp. 2d at 423 (letter of reprimand not
adverse employment action); Jeffers v. Thompson, 264 F. Supp. 2d 314, 330 (D. Md. 2003)
(―Like a reprimand, a poor performance rating does not in itself constitute an adverse
27
Although most of the argument focuses on the change in plaintiff‘s job description, the
EAP referral and plaintiff‘s negative performance review are mentioned in the ―Disability
Discrimination‖ section of plaintiff‘s Amended Complaint. I will evaluate separately the various
incidents alleged in the Amended Complaint (i.e., the EAP referral; the performance appraisal,
and the SIP requirement).
28
The concepts of ―actual discharge‖ and ―constructive discharge‖ are discussed, infra.
- 31 -
employment action. ‗Rather, it is a mediate step, which, if relied upon for a true adverse
employment action (e.g., discharge, demotion, etc.) becomes relevant evidence.‘‖ (citations
omitted)). The salient ―question is whether there was a change in the terms or conditions of [the
plaintiff‘s] employment which had a ‗significant detrimental effect‘ on [her] opportunities for
promotion or professional development.‖ James, 368 F.3d at 376 (quoting Boone, 178 F.3d at
256); see, e.g., Prince-Garrison v. Md. Dep’t of Health & Mental Hygiene, 317 F. App‘x 351,
353 (4th Cir. 2009) (unpublished) (―The other actions complained of by [the employees], such as
her employer‘s failure to provide her with office supplies, reprimands for insubordination,
meetings with supervisors, and directions to attend counseling, do not constitute adverse
employment actions.‖); Toulan v. DAP Prods., No. CCB-05-2254, 2007 U.S. Dist. LEXIS 4087,
at *14 (D. Md. Jan. 17, 2007) (noting that attendance warning and negative performance
evaluation, although causing ―subjective discomfort,‖ did not ―result[] in a tangible consequence
to any aspect of [plaintiff‘s] career‖), aff’d, 271 F. App‘x 312 (4th Cir. 2008); Allen v. Rumsfeld,
273 F. Supp. 2d 695, 706 (D. Md. 2003) (―Plaintiff‘s low performance evaluations, reprimands,
and counseling and communication card entries did not affect the terms, conditions, or benefits
of her employment. . . . Plaintiff lost no pay and maintained the same position . . . .‖ (citations
omitted)).29
29
Toulan, Jeffers, and Allen involved retaliation claims, which also require an adverse
employment action. As will be discussed, infra, the standard for an adverse employment action
in a retaliation claim is less onerous than the standard in a discrimination claim. Toulan, 2007
U.S. Dist. LEXIS 4087, at *26; accord Grice v. Balt. Cnty., Md., No. JFM 07-1701, 2008 U.S.
Dist. LEXIS 91114, at *22 (D. Md. Nov. 5, 2008) (―The Supreme Court recently explained that
the standard for showing an adverse employment action in the retaliation context is less
strenuous than in the substantive discrimination context.‖), aff’d, 354 F. App‘x 742 (4th Cir.
2009). It follows that if a challenged action does not satisfy the retaliation standard, it will not
meet the standard for discrimination.
- 32 -
As indicated, ―[a] ‗downgrade of a performance evaluation could effect [sic] a term,
condition, or benefit of employment‘ if it has a tangible effect on the terms or conditions of
employment.‖ James, 368 F.3d at 377 (quoting Von Guten v. Maryland, 243 F.3d 858, 867 (4th
Cir. 2001)). Therefore, a performance evaluation will be actionable ―‗where the employer
subsequently uses the evaluation as a basis to detrimentally alter the terms or conditions of the
recipient‘s employment.‘‖ James, 368 F.3d at 377 (quoting Spears v. Mo. Dep’t of Corr. &
Human Res., 210 F.3d 850, 854 (8th Cir. 2000)). However, a poor performance evaluation that
―merely caus[es] a loss of prestige or status‖ is not actionable. James, 368 F.3d at 377.
Plaintiff’s Referral to the EAP
Plaintiff contends that Colonel McCall ―accused Ms. Madock of being a suicide risk
because of his prejudice against people with MS.‖ Opp‘n 4. It is evident, however, that the
meeting at which Major Jorgensen and Colonel McCall discussed EAP counseling with plaintiff
did not constitute an adverse employment action. The matter may have embarrassed, angered, or
offended plaintiff, but it did not have any tangible effect on the terms, conditions, or benefits of
her employment. Neither Colonel McCall‘s alleged curtness nor plaintiff‘s speculation that the
matter was inspired by a secret desire on McCall‘s part to remove her from her position can be
characterized as an adverse employment action.
Plaintiff’s Performance Appraisal
Plaintiff contends that her performance appraisal of ―C,‖ and the circumstances
surrounding that appraisal, constituted occasions in which her supervisors, Colonel McCall and
Major Jorgensen, discriminated against her because of her MS. See Am. Compl. ¶ 5 (―COL
McCall and MAJ Jorgensen compromised by giving Ms. Madock a ‗C‘ with no pay raise, a
- 33 -
written warning, and by changing her job description to require SIP so she would be forced
out.‖); see also Opp‘n 21 (―Ms. Madock‘s evidence will show her alleged performance failures
were similarly contrived by management to justify disability discrimination.‖). Further, she
claims that her performance rating of ―C‖ caused the loss of a pay raise that plaintiff would have
obtained had she received a ―B‖ rating. Opp‘n App‘x 3. In her Declaration, submitted by
plaintiff in the Appendix to her Opposition, she avers: ―The appraisal notified me I would not
receive a pay raise which I would have received with a ‗B.‘‖ Opp‘n App‘x 3. However, there is
nothing in the record that indicates that plaintiff‘s performance evaluation was, in fact, linked to
a negative action with regard to her salary.30 Nor has plaintiff attempted to explain the manner in
which pay raises were awarded.
Plaintiff‘s exhibits include the Laboratory Personnel Management Demonstration Project
(the ―Demonstration Project‖), 63 Fed. Reg. 10440 (Mar. 3, 1998), which was implemented by
the Office of Personnel Management ―to achieve the best workforce for the Medical Research &
Materiel Command (MRMC) mission, adjust the workforce for change, and improve workforce
quality‖ at Fort Detrick. See Opp‘n App‘x 104-27.31 Relevant to this case, the Demonstration
Project sets forth guidelines linking performance to pay and ―simplifying paperwork and the
processing of classification and other personnel actions.‖ Id. at 10443.
30
The performance appraisal indicated that plaintiff would receive ―0‖ increase or bonus.
See Opp‘n App‘x 38. Plaintiff‘s prior performance appraisals, with one exception, left that
section blank. Moreover, the appraisal itself does not indicate that, if plaintiff had received a
―B,‖ she would have obtained a pay raise or a bonus.
31
The parties have not discussed the Demonstration Project in the context of pay raises,
but the Court has endeavored to glean the process from the exhibits. The Demonstration Project
is just over fifteen pages of three-columned, single-spaced text.
- 34 -
The Demonstration Project indicates that covered employees, such as plaintiff, are
categorized into ―discrete pay bands (levels) corresponding to recognized advancement within
the occupations.‖ Id. at 10445. ―Each occupational family will be divided into three to five pay
bands,‖ each of which covers a salary range.32 Id. Plaintiff‘s position description, see Motion
Exh. 19 (also available at Opp‘n App‘x 62-65), and the personnel file relating to her
reassignment, see Motion Exh. 23 (also available at Opp‘n App‘x 85), reflect that, as a Medical
Technologist, plaintiff‘s ―occupational family‖ was that of ―Engineers & Scientists.‖ See also 63
Fed. Reg. 10446.
According to the Demonstration Project, the Engineers & Scientists
occupational family has five pay bands. 63 Fed. Reg. 10446. Plaintiff‘s Medical Technologist
position was in pay band II. See Motion Exhs. 19, 23.33
In addition to streamlining compensation categories, the Demonstration Project also
addresses promotions. ―A promotion is the movement of an employee to a higher pay band
within the same occupational family or to a pay band in a different occupational family which
results in an increase in the employee‘s salary.‖ 63 Fed. Reg. 14446. Notably, ―[p]romotions
will be processed under competitive procedures in accordance with merit principles and
requirements.‖ Id.
―To be promoted competitively or noncompetitively from one band to the
next, an employee must meet the minimum qualifications for the job and have a current
performance rating of ‗B‘ or better . . . .‖ Id. at 10447.
32
At the time of the Demonstration Project‘s implementation, salaries were categorized
into ―grades.‖ Id. at 10445. The various ―pay bands‖ implemented by the Demonstration Project
―cover[ed] the same pay range [at the time] covered by one or more grades.‖ Id. The
Demonstration Project further indicated that ―[a] salary overlap, similar to the current overlap
between GS grades, [would] be maintained.‖ Id.
33
Pay band II, within the Engineers & Scientists occupational family, has a salary range
that corresponds to GS grades 5 – 12. 63 Fed. Reg. 10446.
- 35 -
The Demonstration Project also provides for upward movement within a pay band‘s
salary range. However, such an upward salary adjustment is ―not considered‖ a promotion. Id.
at 14446. ―Progression within a pay band is based upon performance pay increases.‖ Id. In
turn, performance pay increases are dependent on the performance appraisal process, and the
Demonstration Project establishes the various weighted elements (e.g., technical competence,
working relationships, communications) that make up a performance appraisal score. Id. at
10460-61. It provides that employees receiving a score of ―B‖ or higher ―will be eligible to
receive performance-based pay increases and/or bonuses‖; employees rated ―C‖ or higher will
receive an annual general increase (also referred to as the ―cost-of-living allowance‖); and
employees rated ―F‖ will not receive the general increase. Id. at 10440, 10448.
Of particular import to this case, plaintiff‘s reassignment personnel file states that she
was ―at the full performance level or band‖ at the time of her reassignment. Motion Exh. 23
(emphasis added). Thus, at the time of her transfer, it appears that plaintiff had reached the
maximum level of pay in what was then her pay band. She has not shown that she was entitled
to be promoted to a higher pay band as long as she remained a Medical Technologist.34 See
Allen, supra, 273 F. Supp. 2d at 706 (―Even though Plaintiff‘s . . . performance evaluation
resulted in Plaintiff falling in the ‗not promotable‘ range, there is no evidence that a promotion
arose for which Plaintiff was passed over because of her ‗not promotable‘ status.‖). To the
extent that plaintiff was entitled to any ―raise,‖ it was the ―annual general increase,‖ which the
Demonstration Project provides she would have been entitled to receive even with a ―C‖ rating.
34
As I have set forth in the facts, plaintiff‘s performance evaluations, see Opp‘n App‘x
23-31, generally do not indicate (with one exception in 2004) that she ever received a
performance-based pay increase.
- 36 -
Pulley v. KPMG Consulting, Inc., 348 F. Supp. 2d 388 (D. Md. 2004), aff’d, 183 F.
App‘x 387 (4th Cir. 2006), is instructive. There, an employee alleging race discrimination had
received a poor performance evaluation, and claimed that it resulted in his ineligibility for a pay
raise. Id. at 395 & n.3. The court noted that plaintiff had shown no evidence, other than his own
affidavit, of any ineligibility for ―an annual salary increase or bonus‖ as a result of the
performance review. Id. at 395 n.3. Judge Titus said: ―A performance review which has no
effect on Plaintiff‘s compensation or promotion cannot be considered an adverse employment
action.‖ Id. at 395. Concluding, inter alia, that ―[n]either the poor evaluation rating, nor the
placement on a [Performance Improvement Plan] constitute adverse employment actions,‖ the
court granted summary judgment to the defendant. Id. at 394.
In another summary judgment case, Jackson v. Maryland, 171 F. Supp. 2d 532 (D. Md.
2001), the court considered a retaliation claim in which the alleged adverse employment action
was a poor performance evaluation that ―denied [plaintiff] a promotion and an accompanying
raise.‖ Id. at 545. Judge Motz stated: ―[A] poor evaluation by itself, even one that seems
suspicious due to its departure from previous evaluations, is not an adverse action that
establishes a prima facie case of retaliation, and there is nothing in the record that indicates that
this performance evaluation was linked to a missed opportunity for promotion.‖ Id. (citation
omitted).
This case is akin to Pulley and Jackson. Plaintiff has not provided any evidence that she
did not receive the ―annual general increase,‖ nor has she provided any evidence, besides her
bald assertion in her Declaration, see Opp‘n App‘x 3, that, but for her appraisal grade of ―C,‖ she
would have received a performance-based pay increase.
- 37 -
And, the evidence that she has
provided, such as the Demonstration Project, see Opp‘n App‘x 104-27, and the update to her
personnel file upon her reassignment, see id. at 85, seem to indicate that plaintiff had reached the
maximum level of pay in her band, and therefore was not entitled to any performance-based
raise, regardless of her grade on the performance appraisal. Rather, she was eligible for the
―annual general increase,‖ even with a grade of ―C.‖ Put simply, there is nothing in the record to
suggest that plaintiff‘s poor performance appraisal was used ―‗as a basis to detrimentally alter the
terms or conditions of [her] employment.‘‖ James, 368 F.3d at 378 (citation omitted). It follows
that plaintiff‘s performance appraisal did not amount to an adverse employment action, and thus
cannot form the basis of a discrimination claim.
The Change in Job Description
As noted, plaintiff avers that the addition of SIP to her job description was fueled by
discriminatory intent and constituted a constructive or actual discharge, i.e., an adverse
employment action. Am. Compl. ¶ 27. Defendant contends that plaintiff did not suffer an
adverse employment action, because she was neither constructively nor actually discharged. To
the contrary, asserts defendant, Madock remains an Army employee.
As to the claim of actual discharge, defendant asserts that such a claim must fail, because
―plaintiff admits in her complaint that she never left employment with the Army.‖ Deft. Supp. 3.
Defendant points out that plaintiff ―remained in her position as a Medical Technologist for nearly
eight months until she accepted a reassignment to a Quality Assurance Scientist position, with no
loss of pay or grade.‖ Reply in Support of Motion to Dismiss or in the Alternative, for Summary
Judgment (―Reply,‖ ECF 25) 2. Thus, defendant insists that plaintiff has failed to show that her
―reassignment had any detrimental effect.‖ Id. at 3.
- 38 -
With regard to plaintiff‘s claim of constructive discharge, defendant asserts that plaintiff
has not shown that a reasonable person in her position would have felt compelled to resign, i.e.,
that the working conditions were objectively intolerable. Motion Memo. 19; Reply 7. Rather,
―[a]fter it was confirmed that the plaintiff was medically ineligible to participate in SIP, the
Army notified her that it would provide a reassignment as a reasonable accommodation.‖ Reply
8.
Defendant contends that plaintiff‘s reassignment, with no loss in grade or pay, is not
actionable. Id.; Motion Memo. 20.
In addition, defendant contends that plaintiff has not shown any deliberate attempt by
defendant to force plaintiff to quit, nor has she shown that the SIP requirement was pretextual.
Reply 4; Motion Memo. 18; Deft. Supp. Reply 5. Defendant explains that the SIP change was
instituted for reasons unrelated to plaintiff, i.e., a concern as to vulnerability in the mission,
which Major Jorgensen had recognized a year prior to implementing the SIP requirement. Reply
6.
Noting that the Army did not single out plaintiff with regard to the SIP requirement,
defendant points out that SIP was a universal requirement for all of the civilians working in the
Clinical Lab. Reply 4; see Motion Exh. 1, at 269 (As noted, plaintiff testified: ―In relation [t]o
the SIP, I would say no, no one was treated differently.‖).35 Moreover, defendant contends that
the Army went to great lengths to retain plaintiff, through reasonable accommodations. Motion
Memo. 19.
35
Curiously, despite this testimony, plaintiff argues in her Opposition: ―[W]hen MAJ
Jorgensen changed job descriptions on August 6, 2009 to require SIP, Ms. Madock was the only
person affected.‖ Pl. Supp. 4. Defendant observes, correctly, that plaintiff‘s own admissions are
binding. Deft. Supp. Reply 5 (citing Lightner v. City of Wilmington, 545 F.3d 260, 264 (4th Cir.
2008)).
- 39 -
In response, plaintiff asserts that she has adequately shown an adverse employment
action. Opp‘n 12. She contends: ―If requiring Ms. Madock to participate in SIP was not clear
enough for actual discharge it was certainly ‗constructive discharge.[‘]‖ Id. at 16. In her view,
the addition of SIP to her position description had the effect of terminating her, and ―[t]he fact
that the Army took steps to limit the harm . . . does not change the fact that it fired Ms. Madock
in August, 2009.‖ Id. at 13. Plaintiff argues, id. at 20:
If quitting is an element of constructive discharge, Ms. Madock arguably quit.
She began looking for another job. When she found [the new job] she told her
bosses she was leaving. If she had gone to work for Frederick Memorial Hospital,
there would be no question that she quit. The Army argues that because she
found a job in another Army unit she did not quit.
With regard to deliberateness in forcing plaintiff out of her position, plaintiff contends
that the change in position requirements, adding SIP, was made for the purpose of disqualifying
plaintiff from her position. Id. at 18. According to plaintiff, the timing of Major Jorgensen‘s
decision to change the Medical Technologist position description suggests deliberateness, and it
is of no moment that Major Jorgensen did not use the words, ―You‘re fired.‖ Id.
Finally, plaintiff disagrees with defendant‘s assertion that a reasonable person would not
have felt compelled to resign. She asserts that the SIP requirement was tantamount to asking her
to do the impossible, i.e., receive injections that might harm or kill her. Id. at 19. Claiming that
such conditions were intolerable, she argues: ―MAJ Jorgensen might as well have asked Ms.
Madock to tie feathers to her arms and fly around the base.‖ Id.
At this juncture, it is helpful to review briefly the pertinent facts as to the SIP
requirement.
- 40 -
As discussed previously, Major Jorgensen joined the Clinical Lab on September 1, 2008.
Motion Exh. 1, at 114-15. Upon her arrival, Larry Sullivan, a civilian ―Medical Technician,‖ was
the only person who was able to work in Biosafety Level 3 and 4 containment. Id. at 156-57.
Linda Hildebrand and the plaintiff, both of whom were Medical Technologists, were not required
to do so. Id. at 156-57; see also id. at 319. Because Sullivan was the only civilian employee
who was eligible to work in the containment suites, he sometimes had to work successive
weekends. Id. at 157, 318-19.
Jorgensen was ―extremely concerned‖ that only one civilian employee was able to work
in the ICU. Id. at 174 (Jorgensen testified: ―[W]e would have to be observing a patient [in
quarantine] for up to 21 days, and Larry [Sullivan] couldn‘t do it by himself.‖).
Indeed,
Jorgensen testified that she ―did lose a lot of sleep‖ over the deficiency in staff. Id. at 154. In
her view, it was necessary for all the staff members to enroll in SIP and BPRP so that they would
be eligible to support the ICU. Id. at 158-59, 174. Further, Jorgensen found that Hildebrand‘s
position description required her to be enrolled in SIP, whereas plaintiff‘s position description,
stating ―immunizations required,‖ apparently did not include SIP.36
Id. at 155. In Major
Jorgensen‘s view, because Hildebrand and the plaintiff were both Medical Technologists at the
same level, their position descriptions should have been identical. Id. For these reasons, Major
Jorgensen revised the position descriptions of her civilian employees so that they all included the
SIP enrollment requirement. Id. at 158-59.
36
Major Jorgensen testified: ―I started asking . . . what does ‗immunizations required‘
mean? Does that mean special immunizations?‖ Motion Exh. 1, at 155. As noted, it is
undisputed that SIP was not a job requirement for plaintiff until 2009, when the change in
position description was adopted.
- 41 -
On August 6, 2009, Major Jorgensen informed the plaintiff and other civilian employees
of the revised position requirements, which became effective on September 4, 2009. Motion
Exh. 18; see also Motion Exh. 1 at 209-10; Motion Exh. 19. Major Jorgensen also directed
Hildebrand to re-enroll in SIP. Motion Exh. 1, at 158. Because of her MS, however, plaintiff
was medically ineligible to participate in SIP.
As noted, an employee may prove an adverse employment action by showing actual or
constructive discharge. No specific words or acts are required in order to show an actual
discharge, however. Thus, an employer does not need to use the words ―fired,‖ ―discharged,‖ or
―terminated‖ in order for a plaintiff to establish a discharge. See Honor v. Booz-Allen &
Hamilton, Inc., 383 F.3d 180, 185 (4th Cir. 2004); EEOC v. Serv. News Co., 898 F.2d 958, 962
(4th Cir. 1990). Rather, ―an actual discharge occurs when the employer, by words or acts,
manifests a clear intention to dispense with an employee‘s services.‖ Payne v. Crane Co., 560
F.2d 198, 199 (5th Cir. 1977); accord EEOC v. Marion Motel Assoc., No. 91-2070, 1992 U.S.
App. LEXIS 9589, at *13 (4th Cir. May 5, 1992) (unpublished). But, ―a plaintiff may not resign
and later claim he was actually discharged if he did not think at the time of his resignation that
his termination was inevitable.‖ Alba v. Merrill Lynch & Co., 198 F. App‘x 288, 293 n.3 (4th
Cir. 2006) (unpublished) (citing Serv. News Co., 898 F.2d at 960-62).
It is clear that plaintiff was not actually discharged.
To be sure, the Miller letter
acknowledged the ―possibility‖ of her termination. Opp‘n App‘x 79. However, no termination
ever occurred; the record reflects that Madock continued to work as a Medical Technologist,
despite the August 2009 change in the position description, requiring enrollment in SIP. She
remained in that position for more than seven months, until she found a suitable reassignment.
- 42 -
In her Opposition, at 13, plaintiff admits: ―Despite being fired, Ms. Madock continued to work
for USAMRIID as a Medical Technologist . . . .‖
The question remains whether the circumstances of plaintiff‘s reassignment to the
position of Quality Assurance Scientist constituted an adverse employment action, such as a
constructive discharge. As indicated, reassignments may, in some circumstances, amount to
adverse employment actions. In the case of a reassignment, the plaintiff must ―‗show that the
reassignment had some significant detrimental effect.‘‖ James, 368 F.3d at 376 (quoting Boone,
supra, 178 F.3d at 256). But, ―‗[t]he mere fact that a new job assignment is less appealing to the
employee . . . does not constitute adverse employment action.‘‖
Holland, 487 F.3d at 219
(quoting James, 368 F.3d at 376). ―‗Absent any decrease in compensation, job title, level of
responsibility, or opportunity for promotion, reassignment to a new position commensurate with
one‘s salary level does not constitute an adverse employment action even if the new job does
cause some modest stress not present in the old position.‘‖ James, 368 F.3d at 376 (quoting
Boone, 178 F.3d at 256-67); see also Edmonson v. Potter, 118 F. App‘x 726, 729 (4th Cir. 2004)
(―A transfer in duties or reassignment that does not result in any decrease in salary, benefits, or
rank cannot constitute an adverse employment action necessary to state a prima facie case of
discrimination.‖).
―A constructive discharge involves both an employee‘s decision to leave and
precipitating conduct . . . .‖ Pa. State Police v. Suders, 542 U.S. 129, 148 (2004). ―To establish
constructive discharge, a plaintiff must be able to show that [her] former employer ‗deliberately
made an employee‘s working conditions intolerable, and thereby forced [her] to quit.‘‖ James,
368 F.3d at 378); McCain v. Waste Mgmt., Inc., 115 F. Supp. 2d 568, 574 (4th Cir. 2000) (―To
- 43 -
advance a claim for ‗constructive discharge,‘ the plaintiff must establish: (1) the employer
deliberately made an effort to force the employee to quit; and (2) that the working conditions
were intolerable.‖ (citing Munday v. Waste Mgmt. of N. Am., 126 F.3d 239, 244 (4th Cir. 1997),
cert. denied, 522 U.S. 1116 (1998)); see also Lyons v. Peake, No. WDQ-08-2532, 2009 U.S.
Dist. LEXIS 69894, at *10 (D. Md. Aug. 19, 2009) (holding no constructive discharge where
plaintiff was fired and did not resign on his own). ―Plaintiff must therefore demonstrate: (1) that
the employer‘s actions were deliberate, and (2) that working conditions were intolerable.‖ Heiko
v. Colombo Sav. Bank, 434 F.3d 249, 262 (4th Cir.), cert. denied, 548 U.S. 941 (2006); see
Honor, 383 F.3d at 186-87.
With regard to tolerability, courts look objectively at the working conditions. Matvia v.
Bald Head Island Mgmt., Inc., 259 F.3d 261, 272 (4th Cir. 2001); see Heiko, 434 F.3d at 262
(―Whether an employment environment is intolerable is determined from the objective
perspective of a reasonable person.‖).
For instance, ―mere ‗dissatisfaction with work
assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions
are not so intolerable as to compel a reasonable person to resign.‘‖ James, 368 F.3d at 378
(quoting Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994)); accord Heiko, 434 F.3d at 262; see
Williams v. Giant Food, Inc., 370 F.3d 423, 434 (4th Cir. 2004). ―Even a ‗slight decrease in pay
coupled with some loss of supervisory responsibilities, is insufficient evidence of constructive
discharge.‘‖ James, 368 F.3d at 378 (quoting Carter, 33 F.3d at 459)).
With regard to deliberateness, ―[a]n employer‘s actions are deliberate only if they ‗were
intended by the employer as an effort to force the plaintiff to quit.‘‖ Heiko, 434 F.3d at 262
(quoting Matvia, 259 F.3d at 272). ―Where, however, all employees are treated identically, no
- 44 -
particular employee can claim that difficult working conditions signify the employer‘s intent to
force that individual to resign.‖ EEOC v. Clay Printing Co., 955 F.2d 936, 944 (4th Cir. 1992)
(citation omitted).
The Fourth Circuit has recognized that the ―traditional standard of constructive
discharge . . . does not neatly translate to the context of the Rehabilitation Act.‖ Johnson v.
Shalala, 991 F.2d 126, 131 (4th Cir. 1993), cert. denied, 513 U.S. 806 (1994). This is because
―the Rehabilitation Act demands more of the federal government than simple equality of
treatment--the government must affirmatively take steps to accommodate employees with
handicaps, unless accommodation would impose undue hardship on the government.‖ Id. That
is to say, ―[t]reating disabled workers the same as workers without a disability falls short of
satisfying the requirements of the Rehabilitation Act.‖ Id. In effect, ―[t]his duty of affirmative
accommodation complicates the application of a standard requiring evidence of differential
treatment to establish deliberate intent to discharge.‖ Id.
Thus, a ―complete failure to accommodate, in the face of repeated requests, might suffice
as evidence to show the deliberateness necessary for constructive discharge.‖ Id. at 132. But,
not every claim of failure to accommodate constitutes a claim for constructive discharge. Id. at
131. Rather, the plaintiff must still ―present some evidence that the employer intentionally
sought to drive her from her position.‖ Id. at 132. Notably, a mere ―lack of flexibility or
magnanimity on the part of . . . supervisors,‖ without more, does not translate to ―deliberate
intent.‖ Id.
In Bennett v. Charles County Public Schools, No. AW-04-1501, 2006 U.S. Dist. LEXIS
96719 (D. Md. May 23, 2006) (unpublished), aff’d, 223 F. App‘x 203 (4th Cir. 2007), the
- 45 -
plaintiff was notified that his position would be eliminated due to the closing of the facility at
which he was employed. Id. at *2. The plaintiff obtained a transfer, but to a position below his
qualifications. Id. Unhappy with his reassignment, the plaintiff brought a race discrimination
case based on his removal (and demotion) from his original position. Id. at *3.
In the context of the defendant‘s motion for summary judgment, the court rejected the
plaintiff‘s constructive discharge claim, ―as a matter of law.‖ Id. at *11. It reasoned, id. at *12:
Here, the record shows that after Plaintiff was informed that the wastewater
operator position would be eliminated, Plaintiff was permitted to remain in that
position for over a year, and then transferred into the only open position for which
he was qualified. . . . Upon his transfer, Plaintiff was guaranteed to receive his old
salary for a period of two years. In addition, Defendant accommodated Plaintiff‘s
request to adjust the hours of his shift. Thus, rather than attempting to force
Plaintiff to resign, it appears that Defendant was making every effort to retain
Plaintiff as an employee.
Here, the record is replete with evidence that, prior to the change in plaintiff‘s job
description, the Army made multiple accommodations for plaintiff‘s benefit. For example, the
Army provided plaintiff with a scooter; installed handicap accessible push buttons at areas of
egress; removed her from phlebotomy duties, upon her request; installed handrails along the
hallway; and provided her with time for physical therapy.
It is true that the change in the position description for Medical Technologist meant that
Madock was no longer qualified for that position. But, as noted, after the SIP requirement was
adopted, Madock continued to work at the Clinical Lab, while Human Resources searched for a
new position within the parameters that plaintiff established.37 Plaintiff eventually transferred to
a new position, Quality Assurance Scientist, on terms that did not differ materially from her prior
37
Apart from plaintiff‘s assertion that she believes that the position was open to other
candidates and that she had to apply for it, Opp‘n App‘x 7, there is no proof that plaintiff actually
had to compete for the position.
- 46 -
position. To the contrary, plaintiff‘s new position pays the exact same salary ($85,060.00) as her
prior position. Motion Exh. 23. She is also at the same grade/level (02), and has the same pay
plan (DB) and pay basis (PA) as she had in her former position as a Medical Technologist. Id.
Given the circumstances of plaintiff‘s reassignment, coupled with the multiple accommodations
the Army made for plaintiff prior to the change in job description, it is evident that the Army
made ―every effort to retain‖ plaintiff as an employee, with the same status. Bennett, 2006 U.S.
Dist. LEXIS 96719, at *12.
Put simply, neither the circumstances leading to plaintiff‘s reassignment nor the actual
reassignment constitute an actual or constructive discharge, or an adverse employment action.
Because plaintiff cannot establish a prima facie case of employment discrimination on the basis
of disability, the Court will grant summary judgment to the defendant on this claim.38
IV.
In addition to her claim of discrimination, plaintiff alleges that Colonel McCall‘s ―refusal
to act‖ on the appeal of her performance appraisal constituted retaliation for her filing of an EEO
complaint. Am. Compl. ¶ 33.39
38
In the context of pretext and proving discriminatory animus, plaintiff has also
discussed other incidents, such as Colonel McCall‘s statement, in his EEO Counselor
Questionnaire, that plaintiff ―should be medically retired,‖ and his criticism of plaintiff‘s
handling of HIV test results in the LIS. See Opp‘n 6, 11. However, because plaintiff has not
established a prima facie case, the Court need not examine these incidents as proof of pretext,
nor does the Court need to evaluate the propriety of Major Jorgensen‘s decision to require all the
civilian employees to participate in SIP. See Opp‘n 18 (observing that the former Clinical Lab
director did not believe it was necessary for all civilian employees to participate in SIP).
39
As noted in the discussion of the facts, on August 19, 2009, plaintiff appealed her ―C‖
rating via the performance appraisal reconsideration process. On November 25, 2009, Colonel
McCall terminated her appeal, informing plaintiff that no further administrative action would be
taken because plaintiff‘s performance appraisal was the subject of the EEO complaint that she
filed on November 1, 2009.
- 47 -
The elements of a prima facie claim of retaliation under the Rehabilitation Act are: ―‗(1)
plaintiff engaged in protected activity, such as filing an EEO complaint; (2) the employer took
adverse employment action against plaintiff; and (3) a causal connection existed between the
protected activity and the adverse action.‘‖ Hooven-Lewis, supra, 249 F.3d at 274 (quoting
Causey v. Balog, 162 F.3d 795, 803 (4th Cir. 1998)); see Perry v. Computer Scis. Corp., No. 102195, 2011 U.S. App. LEXIS 9564, at *2-3 (4th Cir. 2011) (unpublished); Laber v. Harvey, 438
F.3d 404, 432 (4th Cir. 2006).
An EEO complaint need not be ―formal‖ to qualify as ―protected activity.‖ HoovenLewis, 249 F.3d at 273. Rather, ―informal contacts with the EEO and informal complaints are
also protected activities if the accused person or entity knew about them.‖ Id. In any event, the
parties do not dispute that plaintiff‘s EEO complaint constituted protected activity.
Nevertheless, defendant contends: ―The plaintiff cannot demonstrate that the suspended
appeal was an adverse employment action. Under Army grievance rules, an employee may not
litigate a grievance in more than one forum.‖ Motion Memo. 22. In support of his position,
defendant cites Exhibit 27 to the Motion, Department of Defense (―DoD‖) Policy ―Subchapter
711: Administrative Grievance System‖ (―Subchapter 711‖ or ―SC771‖), dated December 1996.
Relying on Exhibit 27, he asserts: ―A deciding official may cancel or temporarily suspend a
grievance if the employee raises the same matter under another formal dispute resolution
process.‖ Id. at 23. According to defendant, Colonel McCall‘s decision to suspend plaintiff‘s
appeal of her performance appraisal complied with Subchapter 711. Id. Further, defendant
asserts that suspension of the appeal would not ―dissuade a reasonable worker from making or
supporting a charge of discrimination.‖ Id.
- 48 -
Plaintiff counters that the memorandum of November 25, 2009, in which Colonel McCall
suspended her appeal, ―admits‖ retaliation. Opp‘n 25. Citing the Demonstration Project and
other internal Army documents, she contends that Subchapter 771 was inapplicable, and that she
was not limited to presenting her grievance in one forum. Id. at 25-26. Plaintiff asserts:
―Reconsideration is a privilege of employment Ms. Madock was denied because of her
discrimination charge.‖ Id. at 27. Further, she argues: ―Ms. Madock could not make her claim
(that the ‗C‘ Performance Evaluation did not match her written evaluation) in her EEO
administrative proceeding.‖ Id. at 26-27.
With her Opposition, plaintiff included the Army‘s Medical Research and Materiel
Command ―Personnel Demonstration Project Training Manual‖ (the ―Training Manual‖), dated
March 2007. See Opp‘n App‘x 129. It provides a basic overview of the performance guidelines
outlined in the Demonstration Project (discussed, supra). Relevant to the grievance process, the
Training Manual provides, id. at 153 (italics added):
Reconsideration Process: Employees who are dissatisfied with their performance
appraisals and cannot resolve the problem informally may request formal
reconsideration. The formal request for reconsideration should be submitted in
the form of a grievance, first to the rater, then to the senior rater, then to the
Commander/Director, and finally to the [Personnel Management Board] if
necessary. Other existing grievance and appeal procedures may be used as
necessary.
The Demonstration Project states: ―Employees covered by the project will be evaluated
under a performance evaluation system that affords grievance rights comparable to those
currently. The [Medical Research & Materiel Command] will maintain the substantive and
procedural appeal rights currently afforded when taking action for misconduct and poor
performance.‖ 63 Fed. Reg. 10440, 10449 (Mar. 3, 1998).
- 49 -
Plaintiff also relies on a document dated September 1999, known as ―Policy No. 11,‖
titled: ―Laboratory Personnel Management Demonstration Project: Reconsideration Process‖
(―Policy 11‖).40 Opp‘n App‘x 157. Policy 11 provides that, upon receiving a performance
appraisal, an employee will ―[a]ccept and sign performance rating as written,‖ or ―[c]ontest [the]
rating,‖ in which case the employee ―may choose to follow the procedures outlined herein for
reconsideration.‖ Id. Policy 11 also outlines the steps and time frame for managerial responses
that an employee can expect upon seeking reconsideration. Id.
Of import, Policy 11, the Training Manual, and the Demonstration Project do not explain
the effect, if any, on an appeal of a performance appraisal that has also become the subject of an
EEO complaint. As noted, the appeal or reconsideration process takes ―the form of a grievance.‖
Id. at 153.
Defendant has submitted Subchapter 771 from the DoD‘s ―Civilian Personnel
Management System‖ (―CPMS‖).
The CPMS is set forth in a multi-volume manual, and
establishes policy and uniform procedures for civilian personnel management in the DoD,
including the Army.41 Subchapter 771 pertains to employee grievance rights.42 Subchapter 771
40
Policy 11 was enclosed with the Performance Memorandum of August 4, 2009, from
Major Jorgensen to plaintiff.
41
The CPMS is available online at http://www.dtic.mil/whs/directives/corres/html/
CPM_table2.html
42
Motion Exh. 27 sets forth the stated purpose of SC771:
This Subchapter establishes the Department of Defense (DoD) Administrative
Grievance System (AGS) under 5 CFR 771 (reference (a)). It states DoD AGS
policy under DoD Directive 1400.25 (reference (b)).
It also assigns
responsibilities and prescribes requirements for the DoD AGS under which DoD
activities can internally review employee disputes involving working conditions
within the control of DoD management. The DoD AGS applies to all DoD
- 50 -
provides that ―[a]ny employment matter may be grieved under the [administrative grievance
system],‖ except for several enumerated items, including the following:
SC771.4.2.2.2. Any matter covered by a negotiated grievance procedure or
subject to formal review and adjudication by the Merit Systems Protection Board
(MSPB), the Office of Personnel Management (OPM), the Federal Labor
Relations Authority (FLRA), or the Equal Employment Opportunity Commission
(EEOC); or any matter that the employee files under another review or
reconsideration procedure, or dispute resolution process within the Department of
Defense . . . .
Further, Subchapter 771 provides, in relevant part, id.:
SC771.4.6.2.5. Wherever possible, the deciding official should rule on the merits
of a grievance. However, the deciding official may cancel or temporarily suspend
a grievance, or the appropriate portion of a grievance, if:
***
SC771.4.6.2.5.2. The grievant or grievance is excluded from coverage;
***
SC771.4.6.2.5.5. The grievant raises the same matters under another formal
dispute resolution process.
As noted, supra, the standard to establish an adverse employment action in a retaliation
claim is less ―strenuous‖ than the standard in a discrimination claim. Toulan, supra, 2007 U.S.
Dist. LEXIS 4087, at *26. The adverse employment action in a retaliation case need not affect
an employee‘s ―terms or conditions of employment.‖ Burlington N. & Santa Fe Ry. v. White,
548 U.S. 53, 70 (2006).43 Rather, ―a plaintiff must show that a reasonable employee would have
(…footnote continued)
Components except the National Security Agency and the Defense Intelligence
Agency.
43
The Court assumes, arguendo, that the less stringent Burlington Northern standard
applies to claims brought by federal employees. See, e.g., Pueschel v. Peters, 340 F. App‘x 858,
861 n.4 (4th Cir. 2009) (unpublished); Wells v. Gates, 336 F. App‘x 378, 383 n.5 (4th Cir. 2009)
- 51 -
found the challenged action materially adverse, ‗which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge of discrimination.‘‖ Id. at
67.
To illustrate, the Supreme Court has described ―[a] supervisor‘s refusal to invite an
employee to lunch‖ as a trivial, non-materially adverse action, but has said that ―excluding an
employee from a weekly training lunch that contributes significantly to the employee‘s
professional advancement,‖ is conduct that ―might well‖ be materially adverse. Id. at 69.
Colonel McCall explicitly stated that he was suspending reconsideration of plaintiff‘s
performance because of her EEO complaint. The record supports that the Army‘s actions were
conducted in accordance with the Army‘s own policies, notably Subchapter 771, which appears
to govern the circumstances of this case.44 Thus, even assuming that McCall‘s decision
amounted to a materially adverse action, defendant has demonstrated a legitimate, nonretaliatory reason for his actions.
Plaintiff has not challenged Subchapter 771 as a facially retaliatory policy.45 Rather, she
argues that it does not apply here. ―An employer may enforce generally applicable employment
(…footnote continued)
(unpublished); Moore v. Leavitt, 258 F. App‘x 585, 586 (4th Cir. 2007) (unpublished); Parsons
v. Wynne, 221 F. App‘x 197, 198 (4th Cir. 2007); Brockman v. Snow, 217 F. App‘x 201, 206 (4th
Cir. 2007) (unpublished).
44
To the extent that plaintiff suggests that the suspension deprived her of an opportunity
to ―argue that her review did not match her written evaluation in the Reconsideration Process,‖
Opp‘n 27, that assertion is disingenuous. Plaintiff‘s Formal Complaint of Discrimination clearly
identified her 2009 performance appraisal and the Performance Memorandum. Motion Exh. 24.
Construing her EEO charge liberally would suggest that the circumstances incident to the
subsequent reconsideration process would also be investigated, and the record reflects that it
was.
45
Other courts have encountered similar policies in regard to other federal agencies. See,
e.g., Ward v. Kempthorne, No. 2:08CV1DAK, 2008 U.S. Dist. LEXIS 60881, at *6 (C.D. Utah
- 52 -
policies against its employees without creating a cause of action for retaliation.‖ Wells v. Gates,
336 F. App‘x 378, 385 (4th Cir. 2009) (unpublished) (collecting cases). Defendant‘s suspension
of plaintiff‘s performance appraisal grievance, pursuant to Subchapter 771, was not actionable.
Accordingly, with regard to plaintiff‘s retaliation claim, the Court will grant summary
judgment to the defendant.
A separate Order consistent with this Opinion will follow.
Date: August 18, 2011
/s/
Ellen Lipton Hollander
United States District Judge
(…footnote continued)
Aug. 8, 2008) (Department of Interior policy); Williams v. Sec’y of Navy, 853 F. Supp. 66, 68
(E.D.N.Y. 1994) (Navy policy).
- 53 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?