Engler et al v. Harris Corporation et al

Filing 115

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 04/07/2014. (bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SUSAN ENGLER,

:

Plaintiff,

:

v.

:

HARRIS CORPORATION,

:

Defendant.

Civil Action No. GLR-11-3597

:
MEMORANDUM OPINION

Plaintiff Susan Engler (“Engler”) brings this action against
Defendant

Harris

Corporation

(“Harris”),

alleging

she

was

fired

because of her gender and in retaliation for complaining about
discrimination in the workplace, both in violation of Title VII of
the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et
seq. (2012).

Currently pending before the Court is Harris’s Motion

for Summary Judgment (ECF No. 92), Motion for Sanctions Against
Engler (ECF No. 79), and Second Motion to Compel Full and Complete
Discovery Responses from Engler (ECF No. 78).
no hearing is necessary.

The Court finds that

See Md. Loc. R. 105(6) (D.Md. 2010).

For

the reasons that follow, the Court will grant Harris’s Motion for
Summary Judgment and deny as moot Harris’s Motion for Sanctions and
Second Motion to Compel Full and Complete Discovery Responses.
I. BACKGROUND
Engler was hired by Harris on September 5, 2006, as a firstlevel contracts manager based in a satellite office of Harris’s RF
Communications Division (“RFCD”) located in Columbia, Maryland (the

“Columbia office”).

Engler was hired to support the Communications

Security Products (“CSP”) group within RFCD.
Wilson,

a

contracts
New

Rochester,

director
(the

York

located

“Rochester

at

She reported to Paul

RFCD’s

office”).

main
As

office

a

in

contracts

manager, Engler was expected to interact with customers and work
closely

with

Harris

personnel

in

developing,

administrating bid efforts and contracts.

negotiating,

and

Engler was the first and

only contracts manager to be located in the Columbia office.
During Harris’s fiscal year 2009 an anticipated expansion of
the CSP group did not materialize, and as a result of the projected
decrease in revenue Harris ultimately determined a reduction-inforce (“RIF”) was necessary.
inclusion

in

Analysis.
according

the

RIF

by

Harris considered 1,900 employees for

utilizing

a

process

known

as

Banding

The Banding Analysis organized the considered employees
to

job

function

and

assigned

scores

associated

with

specific criteria such as anticipated business needs, customer and
program

experience,

job

performance,

skill

criticality

and

versatility, technical and professional knowledge, and leadership
skills.

After the Banding Analysis determined the initial layoff

selections,

Harris

conducted

an

additional

statistical

analysis

known as Adverse Impact Analysis for the purpose of assessing and
preventing adverse impact on any protected class.
A

total

of

179

employees

across

various

Harris

offices,

including Rochester, Columbia, and Woodlake, Florida, were selected
for inclusion in the June 2009 RIF.
2

Of those employees, ninety-

seven were involuntarily released, including seventy-one men and
twenty-six women.

Engler was one of six people, four men and two

women, in the Columbia office who were included in the RIF.
Engler was one of two RFCD contracts managers considered for
inclusion in the RIF.

In addition, a male senior contracts manager

based in the Rochester office was also considered.

Harris states

several factors in selecting Engler for inclusion in the RIF over
the male senior contracts manager.

In addition, Harris asserts it

determined that as a result of the anticipated decrease in CSP
business there was no longer justification for Engler’s contracts
position in the satellite office and that Engler’s work could be
absorbed by existing employees in RFCD’s Rochester office.
Engler, however, believes she was selected for inclusion in
the RIF because she raised concerns throughout her employment about
gender

discrimination

occurring

in

the

Columbia

office

and

participated in Harris’s 2009 investigation into those allegations.
In support of her contention, Engler relies on a number of events
that occurred during the course of her employment at Harris that
she believes exemplifies continuing discriminatory and retaliatory
animus on the part of her male colleagues and Harris management.
Furthermore, Engler asserts that she was performing at a level
substantially
retained

by

higher
Harris,

than
and

the
that

male
her

Contributor” was pretextual.

3

senior

contracts

performance

rating

manager
of

“Low

On December 15, 2009, Engler filed an Intake Questionnaire
with

the

U.S.

Equal

Employment

Opportunity

Commission

(“EEOC”)

alleging she was included in the RIF because of her age and gender,
and in retaliation for participating in an internal investigation
concerning gender discrimination in the Columbia office.

The EEOC

dismissed Engler’s charge and issued a right to sue letter.

On

December 14, 2011, Engler filed this action.

On

(ECF No. 1).

August 28, 2012, the Court dismissed Engler’s age discrimination
and hostile work environment claim, leaving only her claims of
gender discrimination and retaliation.
November

12,

2013,

remaining claims.

Harris

moved

(See ECF Nos. 31, 53).

for

summary

judgment

on

On
the

Engler filed a Response in Opposition (ECF No.

109) and was granted leave to file a Corrected Opposition to Motion
for Summary Judgment (ECF No. 112).
No. 113).

Harris filed a Reply.

(ECF

The Motion is now ripe for disposition.
II. DISCUSSION

A. Standard of Review
Under Federal Rule of Civil Procedure 56, the Court must grant
summary judgment if the moving party demonstrates that there is no
genuine issue as to any material fact, and that the moving party is
entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(a).

In reviewing a motion for summary judgment, the Court views
the

facts

in

a

light

most

favorable

to

the

non-moving

party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing
Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970)).
4

Once a

motion for summary judgment is properly made and supported, the
opposing party has the burden of showing that a genuine dispute
exists.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586-87 (1986).

“[T]he mere existence of some alleged

factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.”

Anderson, 477

U.S. at 247-48.
A “material fact” is a fact that might affect the outcome of a
party’s case.

Id. at 248; see also JKC Holding Co. v. Wash. Sports

Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citing HoovenLewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001)).
fact

is

considered

to

be

“material”

is

Whether a

determined

by

the

substantive law, and “[o]nly disputes over facts that might affect
the

outcome

of

the

suit

under

the

governing

preclude the entry of summary judgment.”

law

will

properly

Anderson, 477 U.S. at

248; Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001).
A “genuine” issue concerning a “material” fact arises when the
evidence

is

sufficient

to

allow

a

reasonable

verdict in the nonmoving party’s favor.

jury

to

return

a

Anderson, 477 U.S. at 248.

Rule 56(c) requires the nonmoving party to go beyond the pleadings
and

by

its

own

affidavits,

or

by

the

depositions,

answers

to

interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial.
Catrett, 477 U.S. 317, 324 (1986).
5

Celotex Corp. v.

The nonmoving party “cannot

create a genuine issue of material fact through mere speculation or
the building of one inference upon another.”

Beale v. Hardy, 769

F.2d 213, 214 (4th Cir. 1985) (quoting Barwick v. Celotex Corp.,
736 F.2d 946, 963 (4th Cir.1984).
B. Analysis
1. Gender Discrimination Under Title VII
Harris moves for summary judgment on Engler’s Title VII gender
discrimination claim, arguing that the evidence does not establish
a

prima

Harris’s
claim

facie

case

Motion

for

because

she

of

discrimination.

Summary
fails

to

Judgment

The

on

establish

Court

Engler’s
a

prima

will

grant

discrimination
facie

case

of

discrimination and further fails to produce sufficient evidence to
rebut

as

mere

pretext,

Harris’s

legitimate

and

non-retaliatory

reason for her termination.
Engler

catalogs

a

number

of

statements

occurred during her tenure at Harris.
and

events

evidence

a

discriminatory

and

events

that

She argues these statements
attitude

toward

women

at

Harris and reflect direct evidence of gender discrimination against
her.

“Direct evidence of discrimination is evidence which, if

believed, would prove the existence of a fact without any inference
or presumptions.”

See O’Connor v. Consol. Coin Caterers Corp., 56

F.3d 542, 548 (4th Cir. 1995) (quoting Bodenheimer v. PPG Indus.,
Inc., 5 F.3d 955, 958 (5th Cir. 1993)) (internal quotation marks
omitted), rev’d on other grounds, 517 U.S. 308 (1996).

Here, the

isolated and ambiguous statements and events Engler catalogs are
6

too abstract to establish direct evidence of gender discrimination
and retaliation.

Thus, the Court will analyze Engler’s claims

under the proof scheme articulated in McDonnell Douglas Corporation
v.

Green,

411

U.S.

Logistics

Mgmt.,

(employing

the

792

Inc.,

(1973).
354

McDonnell

See

F.3d

277,

Douglas

Hill

v.

284-86

Lockheed
(4th

framework

to

Martin

Cir.

2004)

analyze

a

discrimination claim based principally on circumstantial evidence).
Under

the

McDonnell

Douglas

standard,

Engler

establish a prima facie case of discrimination.
she

meets

this

burden,

Harris

can

rebut

must

first

Id. at 285.

the

If

presumption

of

discrimination raised by Engler’s prima facie case by establishing
a legitimate, nondiscriminatory reason for her termination.
If

Harris

succeeds

in

doing

so,

Engler

must

then

“prove

Id.
by

a

preponderance of the evidence that the legitimate reasons offered
by [Harris] were not its true reasons, but were a pretext for
discrimination.”

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 253 (1981).

Engler “bears the ultimate burden of proving that

[Harris] intentionally discriminated against her.”

Evans v. Techs.

Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996) (citing
Burdine, 450 U.S. at 253).
a. Engler has failed to establish a prima facie case of
gender discrimination
Engler

has

not

established

discrimination in the RIF context.

a

prima

facie

case

for

gender

To do so, she must show that:

1) she was protected under Title VII, 2) she was selected
from a larger group of candidates, 3) she was performing
7

at a level substantially equivalent to the lowest level
of that in the group retained, and 4) the process of
selection produced a residual work force that contained
some unprotected persons who were performing at a level
lower than that at which the plaintiff was performing.
Corti v. Storage Tech. Corp., 304 F.3d 336, 341 n.6 (4th Cir.
2002).

It is undisputed that Engler satisfies the first two prongs

of her gender discrimination claim: as a woman, she is a member of
a protected class under Title VII, see 42 U.S.C. § 2000e–2(a), and
she was selected for inclusion in the RIF from a larger group of
candidates.

Thus, the Court focuses on the final two elements of

the claim.
Harris argues Engler cannot establish a prima facie case of
gender discrimination because she was not performing at a level
substantially equivalent to the lowest level of those in the group
retained.

It also argues it did not retain similarly situated,

poorer performing male employees in the same position.

Further,

even if Engler can establish a prima facie case, Harris argues it
has

established

a

legitimate,

nondiscriminatory

reason

for

terminating Engler under the RIF, and Engler has not offered any
evidence

sufficient

to

establish

that

Harris’s

reasons

for

terminating her were a pretext for a discriminatory purpose.

The

Court agrees.
i. Engler cannot establish that she was performing
at a level substantially equivalent to the lowest
level of that in the group retained
Engler has failed to put forth admissible evidence sufficient
to

support

an

inference

that

she
8

was

performing

at

a

level

substantially equivalent to the lowest level of the employees who
were not selected for inclusion in the RIF.

During Engler’s first

two years of service with Harris she was generally a good performer
and received a “High Contributor” performance rating, which is the
highest rating a Harris employee can receive.
2009,

however,

although

incomplete,

Her assessment for

indicates

she

would

have

received a “Low Contributor” rating, which is the lowest rating a
Harris employee can receive. Engler contends the “Low Contributor”
rating

is

a

pretext

for

discrimination.

In

support

of

her

contention, Engler first argues because her Employee Action Form
notates that she is eligible for rehire, Harris could not have been
dissatisfied with her performance.

Second, Engler suggests that a

June 20, 2009 email between Human Resources staff Cathy Powers,
Elizabeth

Skrainar,

and

Esther

Lumague,

discussing

the

need

to

understand Engler’s rating drop from “High Contributor” to “Low
Contributor,” evidences a pretext for discrimination.
With respect to Engler’s Employee Action Form, “[t]he question
in [the RIF] context is not . . . whether [members of the group]
were meeting performance expectations, but whether the particular
employees were selected for inclusion on the list for discharge
[for discriminatory purposes]”.

Mitchell v. Data Gen. Corp., 12

F.3d 1310, 1315 (4th Cir. 1993).

Designating Engler as eligible

for rehire may in fact demonstrate satisfactory performance, but
mere satisfactory performance is not material here.
must

present

evidence

of

her

performance
9

Rather, Engler

relative

to

how

the

remaining employees performed.
alteration

of

the

typical

See id. (discussing the need for

discrimination

elements

in

the

RIF

context).
With respect to Engler’s performance rating, because Engler
argues

her

“Low

Contributor”

performance

rating

was

false

and

pretextual, Engler’s declining performance in the months preceding
the RIF is discussed in more detail below.
finds

that

Engler

sufficient

to

has

support

something

better

establish

that

than
she

failed
an

put

inference

low

was

to

Ultimately, the Court

forth
that

contributor.

performing

at

admissible
her

performance

Thus,
a

evidence

Engler

level

was

cannot

substantially

equivalent to the lowest level of the employees who remained.
ii. Engler cannot establish that male employees
retained by Harris were performing at a lower
level than her
Engler has failed to put forth admissible evidence sufficient
to support an inference that male employees who were not selected
for inclusion in the RIF were performing at a lower level than she
was.

Engler was one of two RFCD contracts managers considered for

inclusion

in

contracts

the

manager

considered.

RIF.
based

In
in

addition
the

to

Engler,

Rochester

a

office

male
was

senior
also

The senior contracts manager held a position one level

senior to Engler and had twelve more years of service with Harris
than Engler.

His performance was rated overall as a “Successful

Contributor,” and he received an overall score of sixty-five on the

10

Banding Analysis.

Engler’s performance was rated overall as a “Low

Contributor,” and she received an overall score of thirty.
Engler argues Harris’s Banding Analysis process, resulting in
the senior contracts manager receiving a more favorable retention
score, was unfair, subjective, and artificial.

The Court addresses

Engler’s supposition with respect to the Banding Analysis in more
detail below but does not find any reason to discredit the process.
Thus,

Engler

cannot

establish

that,

despite

receiving

higher

performance scores, the male senior contracts manager really was
performing at a level below her.
Further, Engler argues Harris assigned her remaining workload
to a less qualified younger male, identified only as Mr. White, who
had very little experience as a contracts manager.

In support of

her argument, Engler asserts she later learned that her previous
supervisor

closely

supervised

Mr.

White

because

qualified for the contracts manager position.

he

was

not

(Pl.’s Corrected

Opp’n Def.’s Mot. Summ. J. [“Opp’n”] 44, ECF No. 112).

Unsupported

speculation that the contracts compliance manager was under close
supervision, however, is not sufficient to support an inference
that he was performing at a lower level than she was at the time of
the RIF.
Lastly, Engler argues Harris could have transferred her to an
open contracts manager position created by a newly acquired company
instead of including her in the RIF.

The position she refers to

was filled by a male junior contracts manager three months prior to
11

the RIF.

Based on Engler’s assessment of the junior contracts

manager’s work, Engler asserts that he was also performing at a
level below her.
concerning
workers,

her

qualifications

however,

performing

at

Unsubstantiated allegations and bald assertions

a

fail

to

higher

and

create

level.

the
an

shortcomings
inference

See

Evans,

80

of

her

co-

that

Engler

was

F.3d

at

960-61.

(explaining that an employee’s personal assessment that she is more
qualified for a position is not relevant and does not raise a
genuine dispute of fact).
Engler has failed to put forth any evidence that similarly
situated male employees retained by Harris  were performing at a
lower level than she was.

Thus, Engler cannot establish a prima

facie case of gender discrimination.

Accordingly, even in viewing

the evidence in the light most favorable to her, Engler has failed
to present evidence sufficient to permit a reasonable jury to find
that her termination was the product of gender discrimination.
b. Harris has put forward a neutral justification for
Engler’s termination that Engler has failed to show
is pretextual
Assuming arguendo that Engler can establish a prima facie case
of

discriminatory

nondiscriminatory

termination,
reason

for

Harris

articulated

Engler’s

a

legitimate,

termination:

Harris’s

business needs dictated that Engler’s position be eliminated, and
Engler’s declining performance in the months immediately preceding
the RIF.

12

“[Harris] is not required to persuade [the Court] that the
proffered

reason

motivation

for

[for

[its]

Engler’s
decision.

termination]
[It]

must

was

merely

the

actual

articulate

a

justification that is legally sufficient to justify a judgment in
its favor.”

Mereish v. Walker, 359 F.3d 330, 335 (4th Cir. 2004)

(citation omitted) (quoting Burdine, 450 U.S. at 254-55) (internal
quotation marks omitted).

Moreover, “when an employer articulates

a reason for discharging the plaintiff not forbidden by law, it is
not [the Court’s] province to decide whether the reason was wise,
fair, or even correct . . . .”

DeJarnette v. Corning Inc., 133

F.3d 293, 299 (4th Cir. 1998) (quoting Giannopoulos v. Brach &
Brock Confections, Inc., 109 F.3d 406, 410-11 (7th Cir. 1997)).
Here, the CSP group, for which Engler was hired to provide support,
was experiencing a downward trend in project revenue and profit.
As a result of the decline, Harris ultimately determined a RIF was
necessary

and

there

was

no

longer

justification

for

Engler’s

position in the satellite office.
The

Court

concludes

that

Harris’s

stated

reasons

that

it

terminated Engler due to her declining performance in the months
immediately

preceding

the

RIF

coupled

with

their

decision

to

eliminate her position constitutes a legitimate, nondiscriminatory
reason for her termination.

Thus, the burden shifts to Engler to

offer evidence that the articulated reason for her termination is
pretextual.

13

“[Engler] can meet [her] burden of proving pretext either by
showing that [Harris’s] explanation is ‘unworthy of credence’ or by
offering

other

forms

of

circumstantial

probative of [gender] discrimination.”
(citing Burdine, 450 U.S. at 256).

evidence

sufficiently

Mereish, 359 F.3d at 336

Engler argues Harris’s Banding

Analysis was unfair, subjective, and artificial, and that her “Low
Contributor” performance rating was false and pretextual because it
was

inconsistent

with

her

previous

ratings

and

because

her

performance review was in the process of completion but had not
been finalized at the time of the RIF.

Finally, Engler argues

there is a lack of factual support for Harris’s assertion that it
was experiencing financial difficulties at the time of the RIF.
Engler’s attempt to show pretext by arguing Harris’s Banding
Analysis

was

performance
recognized

unfair,
and

as

subjective,

relative

valid,

employment decision.”

and

employee

artificial

fails.

qualifications

non-discriminatory

bases

Evans, 80 F.3d at 960.

for

are
any

“Job
widely
adverse

The Fourth Circuit

has previously approved of a ranking system examining a set of
“functional

competencies

against

evaluated.”

Anderson v. Westinghouse Savannah River Co., 406 F.3d

248, 266-67 (4th Cir. 2005).

which

all

applicants

must

be

While Harris’s objective factors were

subjectively employed, “the mere fact that subjective criteria are
involved in the reason articulated by an employer does not prevent
according it sufficient rebuttal weight to dispel the inference of
discrimination . . . .”

Page v. Bolger, 645 F.2d 227, 230 (4th
14

Cir.

1981)

(citing

McDonnell

Douglas

Corp.,

411

U.S.

at

801).

Engler offers no evidence to establish that the Banding Analysis
was not consistently employed as to all employees considered for
the RIF.

Thus, the Court cannot find any reason to discredit the

application

of

Harris’s

terminate Engler.
695

(D.Md.

2012)

Banding

Analysis

to

its

decision

to

See Sagar v. Oracle Corp., 914 F.Supp.2d 688,
(“It

is

well

established

that

‘in

employment

discrimination cases involving a reduction in force, it is not the
court’s duty to second guess the business judgment of defendant’s
employees and managers’ or the manner in which the reduction in
force is carried out. (quoting Conkwright v. Westinghouse Elec.
Corp., 739 F.Supp. 1006, 1017–18 (D.Md. 1990), aff’d, 933 F.2d 231
(4th Cir. 1991))), aff’d, 523 F.App’x 999 (4th Cir. 2013), cert.
denied, 134 S.Ct. 485 (2013).
Engler’s disagreement with her low rank is also insufficient
to discredit Harris’s rating system and similarly fails to support
a pretextual inference.

The only support Engler offers for her

assertion that her rating as a low contributor was influenced by
gender discrimination is that her rating at the time of the RIF was
inconsistent with her previous ranking, and her 2009 performance
was not yet completed at the time of the RIF.

Engler’s supposition

is refuted by the record.
Engler’s declining performance in the months preceding the RIF
is well documented in various email communications.

For example,

in late 2008 Harris management began to express concerns about
15

Engler’s performance and her seemingly unwillingness to work in
partnership with the project managers in her division.

(See Def.’s

Mot. Summ. J. [“Mot. Summ. J.”] Ex. 3 [“Decl. Paul Wilson”], at 7,
9-10,

ECF

No.

92-5);

(Mot.

Summ.

J.

Ex.

2

[“Decl.

Richard

Rzepkowski”], at 20-25, ECF No. 92-4); (Mot. Summ. J. Ex. 5 [“Decl.
Esther Lumague”], at 10, ECF No. 92-7).
complained
another

about

employee

Engler
was

not

able

In May 2009, a coworker

completing
to

(Decl. Paul Wilson at 12-13).

a

complete

task

the

efficiently

same

task

when

quickly.

There are also two communications

evincing Engler’s confrontational and argumentative demeanor with a
co-worker and a customer.

(See Mot. Summ. J. Ex. 6 [“Decl. John

Willingham”], at 16, 31, ECF No. 92-8).
Engler
occurred,

does

only

not

that

dispute

that

management’s

the

events

assessment

of

recounted
those

above

events

reflecting negatively on her performance was pretextual.

as

Engler

attached to her Opposition an affidavit providing her alternate
interpretation
employee’s
perception.

of

each

performance,

circumstance.
however,

is

The
based

assessment
on

the

of

an

employer’s

Evans, 80 F.3d at 960-61 (“It is the perception of the

decision maker which is relevant, not the self-assessment of the
plaintiff.” (quoting Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir.
1980) (internal quotation marks omitted))).
that

these

management.

events

occurred

Unsubstantiated

and

assessed

assertions

16

were

It’s only relevant
negatively

concerning

by

Engler’s

personal assessment of her performance fail to raise an inference
of discrimination or create a dispute of material fact.1
Even if the Court did conclude there existed a contested issue
of fact with respect to Engler’s performance rating, the contested
fact

is

not

material

because

Engler

has

failed

to

put

forth

admissible evidence sufficient to support an inference that the
elimination of her position was pretextual.
Evans

Co.,

51

F.3d

64,

69

(7th

Cir.

1995)

See Russell v. Acme(explaining

that

a

plaintiff cannot avoid summary judgment if at least one reason for
the

employee’s

termination

stands

unquestioned).

There

is

substantial support in the record to support Harris’s claim that
the elimination of Engler’s position was motivated by the decline
of the CSP business she was hired to support.
During

the

fiscal

year

2009,

RFCD

reported

a

thirty-seven

percent drop in sales for the first three quarters of the year.
(See Mot. Summ. J. Ex. 7, at 2, ECF No. 92-9).
January

2009

and

March

2009

income

A comparison of the

statements

demonstrate

that

between those two months RFCD decreased its projected revenue for

1
Engler sets forth these assertions in her own affidavit
attached as Exhibit K to her Opposition.
(Opp’n Ex. K, ECF No.
112-12).
Engler may not, however, withstand summary judgment by
offering a conclusory, self-serving affidavit that is without
corroboration.
See Nat’l Enters., Inc. v. Barnes, 201 F.3d 331,
335 (4th Cir. 2000) (“[S]elf-serving affidavit[s are] not enough to
defeat [Defendant’s] motion for summary judgment.”); see also
Mercer v. Arc of Prince Georges Cnty., Inc., 532 F. App’x 392, 397
(4th Cir. 2013) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S.
871, 888 (1990)) (explaining that the object of Rule 56 is not to
replace conclusory allegations of the complaint or answer with
conclusory allegations of an affidavit).

17

the upcoming fiscal year by nearly $200 million. (Decl. Richard
Rzepkowski at 27, 29).

Further, the May 2009 income statement

reflected a $230 million reduction in expected revenue from U.S.
Department

of

investment

and

Defense
operating

contracts
expenses,

and

planned

and

noted

reductions
that

significant

restructuring was necessary for the upcoming fiscal year.
31).

in

(Id. at

Further,

the

record

demonstrates

Engler

was

aware

economic difficulties facing RFCD during this time.

of

the

(See Decl.

Paul Wilson at 7, 15) (emails from Mr. Wilson discussing earnings
shortfalls and cost reduction activity); (Hamrick Dep. 88:1 – 89:9,
Sept. 26, 2013) (testifying to discussions she had with Engler with
regard to potential layoffs); (Decl. John Willingham at 5, 7, 9,
32) (recognizing the financial shortfalls in RFCD business and the
possibility of a RIF).
As a result of these economic challenges, Harris ultimately
determined there was no longer justification for Engler’s contracts
position in the Columbia office.

(Decl. Esther Lumague at 5, 19).

Harris employees located in the Rochester office absorbed Engler’s
duties, and no contracts manager has been hired or assigned to the
Columbia office since the RIF.
It is not the “function of this [C]ourt to second guess the
wisdom of business decisions.”

E.E.O.C. v. Clay Printing Co., 955

F.2d 936, 946 (4th Cir. 1992).

Harris is free to make its business

decisions, including reducing and reorganizing its work force, so
18

long as it does not discriminate in doing so.

See id. (recognizing

the importance of giving an employer the autonomy to make business
decisions); see also

Birkbeck v. Marvel Lighting Corp., 30 F.3d

507, 513 (4th Cir. 1994) (“[Title VII] was not intended to obstruct
the

ability

adjustments
Engler’s

of
in

a
the

contentions,

commercial
face
the

of

enterprise

undisputed

make

necessary

challenges.”).

economic

to

Despite

evidence

indicates

that

Harris’s determination that Engler’s workload could be absorbed by
existing employees in RFCD’s main office in Rochester reflected
existing business realities, not gender discrimination.
Engler has failed to meet her burden of creating a material
dispute with regard to whether Harris’s stated reasons for her
termination were pretext for discrimination.

Accordingly, summary

judgment in favor of Harris with respect to Engler’s discrimination
claim is appropriate.
2. Engler Fails to Establish a Claim of Retaliation
In addition to her claim of sex discrimination, Engler further
contends Harris retaliated against her by including her in the RIF
as a result of her complaints about gender discrimination in the
Columbia office.
Judgment

on

The Court will grant Harris’s Motion for Summary

Engler’s

retaliation

claim

because

she

fails

to

establish causation between her complaints of gender discrimination
and

her

termination

and

further

fails

to

produce

sufficient

evidence to rebut as mere pretext Harris’s legitimate and nonretaliatory reason for her termination.
19

To state a prima facie case of retaliation, Engler must show
“(1) that [s]he engaged in a protected activity; (2) [Harris] acted
adversely

against

[her];

and

(3)

the

protected

activity

was

causally connected to the adverse action.”

Holland v. Wash. Homes,

Inc., 487 F.3d 208, 218 (4th Cir. 2007).

It is undisputed that

Engler engaged in a protected activity by complaining about the
disparate

treatment

of

women

in

the

Columbia

office,

and

that

Harris acted adversely against her by terminating her employment.
The

parties,

however,

dispute

whether

the

third

element

is

satisfied.
To

establish

a

causal

connection,

Engler

must

show

Harris

terminated her “because [she] engaged in a protected activity.”
Id.

(quoting

Dowe

v.

Total

Action

Against

Poverty

in

Roanoke

Valley, 145 F.3d 653, 657 (4th Cir. 1998)) (internal quotation
marks

omitted).

Furthermore,

the

Supreme

Court

of

the

United

States recently clarified that claims of retaliation are evaluated
under a “but-for” causation standard, and not under the “motivating
factor” standard used to evaluate Title VII discriminatory claims.
See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533
(2013) (“Title VII retaliation claims must be proved according to
traditional

principles

of

but-for

causation,

causation test stated in § 2000e–2(m).”).

not

the

lessened

Under the “but-for”

causation standard, Engler must establish that her complaints of
gender discrimination were the but-for cause of her termination.
See id. at 2534 (“[A] plaintiff making a retaliation claim under §
20

2000e–3(a) must establish that his or her protected activity was a
but-for cause of the alleged adverse action by the employer.”).
Harris argues Engler’s retaliation claim fails as a matter of
law given the seven months between Engler’s disparate treatment
complaints to her supervisors and her inclusion in the RIF.

“The

cases that accept mere temporal proximity between an employer’s
knowledge of protected activity and an adverse employment action as
sufficient evidence of causality to establish a prima facie case
uniformly hold that the temporal proximity must be ‘very close.’”
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citing
O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir.
2001)).

“In

cases

where

‘temporal

proximity

between

protected

activity and allegedly retaliatory conduct is missing, [however,]
courts may look to the intervening period for other evidence of
retaliatory

animus.’

Specifically,

evidence

of

recurring

retaliatory animus during the intervening period can be sufficient
to satisfy the element of causation.”

Lettieri v. Equant Inc., 478

F.3d 640, 650 (4th Cir. 2007) (citation omitted) (quoting Farrell
v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000)).
Here, Engler does not rely on temporal proximity to establish
causation;

rather,

she

relies

on

continuing

discriminatory

and

retaliatory animus during the course of her employment at Harris.
Thus,

to

survive

summary

judgment,

Engler

must

produce

circumstantial evidence sufficient to raise a genuine dispute as to
the existence of recurring retaliatory animus and establish a nexus
21

between recurring retaliatory animus and her termination.

Engler

points to a number of isolated incidents over the course of her
employment

from

which

she

asks

the

Court

to

infer

that

Harris

harbored discriminatory and retaliatory animus culminating in her
inclusion in the RIF.2

The evidence Engler catalogs, however, is

insufficient

a

to

create

genuine

issue

of

material

fact

with

respect to causation.
Engler

alleges

sometime

in

the

fall

of

2007,

Paul

Greco,

Contracts Vice President-1, commented to Mr. Wilson that he was
“very impressed with Ms. Engler’s judgment and was happy that she
is not one of those women who can’t work with men.”
Mot. Summ. J., at 7, ECF No. 109).

(Pl.’s Opp’n

Engler contends this statement

is reflective of the derogatory attitude toward women at Harris.
“[T]o prove discriminatory animus, the derogatory remark cannot be
stray

or

isolated

and

unless

the

remarks

upon

which

plaintiff

relies were related to the employment decision in question, they
cannot

be

Recreation

evidence
Club,

180

of

discrimination.”

F.3d

598,

608

(4th

Brinkley
Cir.

v.

1999)

Harbour
(quoting

2

Harris argues the allegedly discriminatory instances that
occurred prior to February 18, 2009, are time barred under the
Supreme
Court’s
precedent
in
National
Railroad
Passenger
Corporation v. Morgan and are therefore inadmissible.
See Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (holding
that only those acts occurring within 300 days of the filing of a
charge with the EEOC are actionable under Title VII).
Because
prior discriminatory acts can be considered as background evidence
in support of Engler’s timely retaliation claim, the Court will
consider these instances for the purpose of determining whether
there is sufficient circumstantial evidence to raise a genuine
dispute as to the existence of recurring retaliatory animus
sufficient to satisfy the element of causation. See id. 

22

McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 686 (7th Cir.
1991)) (internal quotation marks and alteration omitted), overruled
on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90
(2003).

Here, the remark was an isolated event that occurred two

years prior to her termination.

It is plain that there was no

nexus between the remark and Engler’s inclusion in the RIF.
Also in the fall of 2007, Engler organized two meetings of a
group called “Women in Business,” which supported women employees
in

the

Columbia

office.

Engler

admits

that

at

the

time

she

initiated the Women in Business meetings Harris was supportive of
the group and even paid for the group’s first meeting.

(Decl. Paul

Wilson at 3; Engler Dep. 234:4–238:3, Sept. 20, 2013, ECF No. 926).

Engler

further

contends,

however,

that

as

a

result

of

spearheading this group, Cortlin Davidson, Human Resources Manager,
wrote a memorandum in which he accused Engler of starting the Women
in

Business

allegations

group
among

to

the

incite

female

harassment

employees

in

and
the

discrimination

Columbia

office.

Engler’s basis for her belief that such a memorandum exists stems
from

an

April

2009

meeting

purportedly read from it.

in

which

Harris’s

legal

counsel

The memorandum, however, has not been

admitted into evidence, and the mere possibility of the existence
of

this

memorandum

is

insufficient

to

create

an

inference

of

discriminatory animus.3

3
Engler argues Harris deliberately carried out an incomplete
document search and withheld communications that support her

23

In August 2008, Engler met with Mr. Wilson, on behalf of a
group of women at the Columbia office, to complain about being
treated in a derogatory and disrespectful manner.
that

after

Mr.

Wilson

relayed

her

concerns

to

Engler contends
Dana

Mehnert,

President, RFCD, Rochester, Wilson began acting in a hostile manner
and told Engler he could only protect her but not the other women
in

the

Columbia

office.

This

infers,

however,

that

Engler’s

supervisor, Mr. Wilson, was attempting to give her better treatment
than

her

peers

and,

therefore,

is

insufficient

to

create

an

inference of discriminatory animus.
Engler asserts that she was forced to move her office and give
her office furniture to a male, senior programs manager in October
2008.

The office moves occurred to accommodate the arrival of the

new engineering director at the Columbia office.
Rzepkowski at 7-15).

(Decl. Richard

Engler was one of five employees, three male

and two female, moved during the office rearrangement.
was

moved

closer

to

other

employees

her

job

Id.

required

Engler
close

collaboration with and the move was arranged in coordination with
her supervisor, who believed moving her office would facilitate

claims.
Engler does not seek sanctions; rather, she attempts to
create a dispute of material fact through the inference that Harris
is withholding evidence detrimental to its defense. Other than her
own affidavit, Engler provides no other affidavits, deposition
testimony, or any other admissible evidence for the Court to
consider in support of her discovery violation allegation.
See
supra note 1. Further, she failed to move for an order compelling
production or for an order compelling inspection under Federal Rule
of Civil Procedure 37(a)(3)-(4). Thus, the Court declines to find
a dispute of material fact on this basis.

24

teamwork and increase efficiency.

(Id. at 17).

admissible evidence to the contrary.

Engler offers no

Thus, the office move is

insufficient to create an inference of discriminatory animus.
Engler
manager,

contends

Mr.

Cates,

that

in

instructed

November
his

2008

a

subordinates

senior
to

program

complain

to

Engler’s supervisor if she did not turn around requests in the time
specified.

Engler has no personal knowledge of this instruction,

outside

what

of

she

was

attendance at the meeting.

told

by

her

co-workers

(Engler Dep. 44:2–49:1).

that

were

in

Nonetheless,

completing job tasks within a specified deadline is a necessary
workplace
gender.

construct

to

ensure

productivity

and

is

unrelated

to

Engler provided no admissible evidence indicating that

males in the organization were given more flexibility with respect
to their assignments.
Next, Engler contends Mr. Cates’s statement that she was there
to “do what you are told and nothing more” is reflective of the
derogatory attitude toward women at Harris.

(Engler Dep. 50:2-5).

This statement, however, is not discriminatory on its face, as it
could have been made in reference to any male or female employee.
Nor is it placed in any discriminatory context.
Engler further contends Mr. Cates raised spurious complaints
about her arriving late to work, being unavailable to answer emails
while traveling on business, and having difficulties dealing with
other employees and customers, all in an attempt to create pretext
for Engler’s low performance rating.
25

Even if Mr. Cates’s behavior

is reflective of discriminatory animus, however, Engler provides no
admissible

evidence

indicating

that

Mr.

Cates

selecting individuals for inclusion in the RIF.

was

involved

in

See Hill, 354 F.3d

at 288-89 (citing Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S.

133,

151-52

(2000))

(explaining

that

the

plaintiff

must

present sufficient evidence to establish that the person allegedly
acting

under

responsible

a

for

discriminatory
the

contested

animus

employment

must

be

principally

decision).

Thus,

any

discriminatory animus on the part of Mr. Cares is insufficient
evidence of causality.
Engler contends that because of her gender, Harris refused to
provide her with adequate administrative assistance to help manage
her workload and prevent her from having to work excessive hours.
She

further

support

contends

because

two

that
male

she

was

managers

unable

to

dominated

receive

the

administrative

support available to the employee at the Columbia office.
employed

only

two

administrative

assistants

to

adequate

support

Harris
all

50

employees in the Columbia office, and no employee had exclusive
access to any one assistant.
was

in

high

demand,

and

As a result, administrative support

tasks

were

handled

Harris’s business needs and priorities.

in

accordance

with

All employees had equal

access to administrative assistance based on the criticality of the
project they were working on.
15, ECF No. 92-3).

(See Def.’s Mot. Summ. J. Ex. 1, ¶

Engler had the same access to administrative

support as other employees in the Columbia office.
26

Thus, the lack

of administrative support is irrelevant and insufficient to create
an inference of discriminatory and retaliatory animus.
Finally, Engler contends in April or May 2009, Mr. Wilson
invited her to dinner to determine whether she wanted to remain at
Harris given her complaints concerning the poor working environment
for women at the Columbia office.

Engler indicated that she was

interested in staying at Harris but she expected Mr. Wilson to
support her charge to improve the working conditions for women.
(See Engler Dep. 99:18–100:3).

In response, Mr. Wilson purportedly

told Engler that the working conditions for women were unlikely to
improve because management will “do what they do because they can
and they can get away with it, so you gave me my answer.”
100:4-6).

(Id. at

Engler surmises that Mr. Wilson then recommended her for

the RIF because he concluded from the dinner conversation that she
would continue to complain about the poor working environment for
women at the Columbia office.

(Id. at 105:6–107:13).

Engler’s

mere belief that Mr. Wilson recommended her to be included in the
RIF is unsupported by the record, irrelevant, and insufficient to
establish causality.
Engler has failed to carry her burden to establish a genuine
dispute of material fact sufficient to permit the inference that
her termination would not have occurred “but-for” her complaints
about gender discrimination in the Columbia office.

Even assuming

arguendo Engler could establish a prima facie case of retaliation,
the point becomes moot because she cannot sufficiently demonstrate
27

pretext for the same reasons she could not make that showing with
respect

to

her

gender

discrimination

claim.

She

presented

no

evidence that Harris fired her in retaliation as opposed to the
elimination of her position as dictated by Harris’s business needs,
coupled with her declining performance in the months immediately
preceding

the

RIF.

Accordingly,

the

Court

will

grant

summary

judgment in favor of Harris with respect to Engler’s retaliation
claim.
IV. CONCLUSION
For

the

reasons

given

above,

Harris’s

Motion

for

Summary

Judgment (ECF No. 92) is GRANTED, and Harris’s Motion for Sanctions
(ECF

No.

79)

and

Second

Motion

to

Compel

Full

and

Discovery Responses (ECF No. 78) are DENIED as MOOT.4

Complete

A separate

Order will follow.
Entered this 7th day of April, 2014

/s/
_____________________________
George L. Russell, III
United States District Judge

4
As a result of the Court
Harris, the case will be closed.
are moot.

28

granting judgment in favor of
Thus, Harris’s pending motions