Vicino v. State of Maryland Department of Natural Resources et al
MEMORANDUM AND ORDER denying 21 Motion of defendant for Summary Judgment. Signed by Judge James K. Bredar on 11/8/13. (jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MEGAN E. VICINO,
STATE OF MARYLAND,
DEPARTMENT OF NATURAL
RESOURCES, et al.
CIVIL NO. JKB-12-2790
MEMORANDUM AND ORDER
Megan E. Vicino (“Plaintiff”) brought this suit against the Maryland Department of
Natural Resources (“DNR”) alleging employment discrimination on the basis of sex and
retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil
Rights Act of 1991. See 42 U.S.C. §§ 2000e et seq. Plaintiff also brought this suit against her
former supervisor David Powell (“Powell”) to recover damages stemming from his alleged
employment discrimination on the basis of sex. See 42 U.S.C. § 1983. Now pending before the
Court is Defendants’ motion for summary judgment. (ECF No. 21.) The Court has considered
the motion, Plaintiff’s response in opposition (ECF No. 23), and Defendants’ reply thereto (ECF
No. 24). No hearing is required, Local Rule 105.6 (D. Md. 2011). The motion will be DENIED.
I. Factual Background1
Plaintiff was hired by DNR to work as a probationary2 park ranger at Seneca Creek State
Park and began working on July 1, 2009. (Am. Compl. ECF No. 7, ¶ 8; Defs.’ Mot. Summ. J.,
Ex. 2, Dep. Vicino 18:8—22:7, March 27, 2013, ECF No. 21-4.)
supervisor at Seneca Creek was Sergeant David Powell, the assistant park manager, who
reported to Kim Lloyd, the Park Manager.
(Id. Ex. 2, Dep. Vicino 22:4-9.)
hierarchical structure of DNR, Ms. Lloyd reported to the Regional Manager, Daryl Anthony,
who reported to the Deputy Superintendent, Lieutenant Colonel Christopher Bushman, who
reported to the Superintendent, Nita Settina. Ms. Settina is the DNR official who formally hired
Plaintiff and who possessed the formal decisionmaking authority to terminate Plaintiff. (Id. Ex.
4, Dep. Settina 7:15—8:8, 31:11-13, Feb. 27, 2013, ECF No. 21-6.)
At the time of her hire, Plaintiff was the second of two full-time rangers assigned to
Seneca Creek, the other being Ranger Chris Czarra. (Id. Ex. 1, Dep. Powell 12:20—13:3,
March 26, 2013, ECF No. 21-3.) Plaintiff and Ranger Czarra were assigned to the same office,
but they were not, however, assigned identical workspaces.
Ranger Czarra’s work station
included a large L-shaped desk with two overhead storage areas and a file cabinet. (Pl.’s Opp’n,
Ex. 3, Dep. Linnemann 17:9-15, Feb. 26, 2013, ECF No. 23-5.)
Plaintiff’s work station
consisted of a corner computer cabinet with no storage or drawer space. (Id. Dep. Linnemann
19:16-19.) Only after Plaintiff requested improvements to her work space did Sgt. Powell grant
her use of two drawers in a file cabinet ordinarily reserved for volunteer rangers. (Id. Ex. 1, Dep.
The facts and the inferences to be drawn therefrom are taken in the light most favorable to the party opposing the
motion for summary judgment, Plaintiff. Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225,
230 (4th Cir. 2008).
DNR policy requires all new park rangers to undergo a one-year probationary evaluation period, at the end of
which, DNR decides whether or not to retain each ranger as a classified employee. (Defs.’ Mot. Summ. J., Ex. 4,
Dep. Settina 7:7-14, Feb. 27, 2013, ECF No. 21-6.)
Powell 80:14—81:4; Id. Ex. 11, Decl. Vicino ¶ 3, ECF No. 23-13.) Without any notice to
Plaintiff, however, Sgt. Powell later removed the drawers he had given to Plaintiff because he
did not want to “ruffle feathers” with the volunteer rangers. (Id. Ex. 1, Dep. Powell 81:2-4.)
Plaintiff’s initial responsibilities as a ranger included managing the daily operations of
the park, overseeing seasonal rangers, checking people in and out of the rental pavilion, and
directing traffic. (Id. Ex. 2, Dep. Vicino 24:12-18.) In October 2009, Sgt. Powell divided the
responsibilities of hiring and supervising the park’s seasonal staff between Plaintiff and Ranger
Czarra. (Defs.’ Mot. Summ. J., Ex. 9, Powell Mem., ECF No. 21-11.) Plaintiff was also put in
charge of recruiting and maintaining contact with park volunteers. (Id.)
Both Sgt. Powell and Plaintiff found it difficult to communicate with each other. Sgt.
Powell stated that there was a “trend” in conversations with Plaintiff such that it was often
difficult getting information from her.
(Pl.’s Opp’n, Ex. 1, Dep. Powell 49:18—50:5.)
Conversely, Plaintiff notes that several female park employees agree that Sgt. Powell does not
communicate well with female subordinates and cannot develop the same level of camaraderie
with women that he has with male counterparts. (Id. Ex. 3, Dep. Linnemann 39:19—40-10; Id.
Ex. 18, Dep. Diep 17:17-22, Mar. 1, 2013, ECF No. 23-20; Id. Ex. 2, Dep. Vicino 119:11—
120:7.) Plaintiff notes further that when she asked Sgt. Powell questions he would not give her
direct answers and often answered her with a question or would give contradicting information.
(Id. Ex. 2, Dep. Vicino 119:11—121:6.) When Ranger Czarra would ask Sgt. Powell questions,
Sgt. Powell would give Ranger Czarra direct answers. (Id. Dep. Vicino 120:4—121:6.) Sgt.
Powell also frequently rejected Plaintiff’s suggestions relating to recruiting volunteers without
providing explanation or any instruction. (Id. Dep. Vicino 63:11—64:12.)
Beginning October 19, 2009, Plaintiff and Ranger Czarra attended ranger school. (Id.
Dep. Vicino 34:3-6.) Plaintiff received passing scores in all respects, although there were two
incidents at ranger school reflecting negatively upon Plaintiff. (Id. Ex. 13, Ranger School
Scores, ECF No. 23-15.) In the first incident, Plaintiff hurt her ankle while walking in the dark
without a flashlight. (Id. Ex. 2, Dep. Vicino 35:19—36:10.) When Plaintiff was asked to make
an incident report regarding the injury, the facts in her report did not match her original story.
(Id. Ex. 10, Dep. Lloyd 53:17—54:3.) Plaintiff originally reported that she did not have a flash
light when she fell and hurt her ankle, however, in her written report Plaintiff stated that she did
have her flashlight but was merely not shining it at her feet. (Id. Ex. 28, DNR 689, ECF No. 2330.) In the second incident, Plaintiff discovered that Ranger Czarra left a set of keys in the door
of an unattended truck. (Defs.’ Mot. Summ. J., Ex. 6, Dep. Lloyd 67:12-18.) Plaintiff reported
the issue to the ranger school deans rather than to Ranger Czarra, whereupon, the deans took the
opportunity to simulate the theft and vandalism of a DNR vehicle. (Id. Dep. Lloyd 68:4-18.)
Following the incident, however, the deans informed Plaintiff that her initial response should
have been to return the keys to Ranger Czarra and her actions had not reflected the teamwork
expected among park rangers. (Id. Dep. Lloyd 68:19—70:8; Id. Ex. 4, Dep. Settina 13:1-9.)
Ranger school dean Angie Hummer reported these incidents to Ms. Lloyd. (Id. Ex. 6, Dep.
Lloyd 53:9—54:10, 66:10—67:11.) Ms. Lloyd later discussed the two incidents with Colonel
Bushman and Ms. Settina while driving together from the ranger school graduation ceremony.
(Id. Ex. 4, Dep. Settina 9:9-19.) Both Bushman and Settina expressed concern about Plaintiff
based on these incidents and Ms. Settina even inquired as to whether they should consider
termination at that point. (Id. Dep. Settina 15:12-21; Id. Ex. 5, Dep. Bushman 30:7-15, Feb. 27,
2013, ECF No. 21-7.)
Ms. Lloyd, however, advised that they should give Plaintiff the
opportunity to return to Seneca Creek. (Id. Ex. 4, Dep. Settina 15:12-21.)
When Plaintiff returned from ranger school, she met with Sgt. Powell and Ms. Lloyd. At
that meeting Sgt. Powell and Ms. Lloyd expressed that Plaintiff was not meeting expectations
with regard to recruiting volunteers and she needed to improve her efforts to bring in more
volunteers. (Pl.’s Opp’n, Ex. 2, Dep. Vicino 63:1—64-12.) In December, Plaintiff again met
with Sgt. Powell and Ms. Lloyd, this time for her mid-cycle evaluation. (Id. Dep. Vicino
66:11—67:4.) Once again, Plaintiff was told that she needed to increase her efforts with respect
to recruiting and maintaining contact with volunteers. (Id. Dep. Vicino 69:3—71:19.) Plaintiff
received an overall rating of “meets standards” in her mid-cycle evaluation.3 (Defs.’ Mot.
Summ. J., Ex. 16, Vicino Evaluation 3, ECF No 21-18.)
Part of Plaintiff’s duties included supervising boat center and concession seasonal
employees, but Plaintiff also interacted with and assisted other seasonal employees, such as
contact station employee Hadona Diep.4 (Id. Ex. 9, Powell Mem. 2; Pl.’s Opp’n, Ex. 2, Dep.
Vicino 153:3—155:2.) On April 27, 2010, Ms. Diep reported to Plaintiff that she felt she was
being sexually harassed by Sgt. Powell. (Id. Dep. Vicino 156:22—157:10.) Prior to Ms. Diep’s
mid-April start date at Seneca Creek, she had two issues involving Sgt. Powell. There was a
scheduling mistake relating to Ms. Diep’s first weekend of work and an issue with the raise Ms.
Diep was entitled to as a returning seasonal employee. (Id. Ex. 18, Dep. Diep 16:16—17:9.) Sgt.
Plaintiff received a numerical score of 1.95, falling within the “meets standards” range of 1.75-2.74. (Defs.’ Mot.
Summ. J., Ex. 16, Vicino Evaluation 3, ECF No. 21-18.)
Plaintiff recruited Ms. Diep to return to Seneca Creek for a second summer to work at the park’s boat center. (Pl.’s
Opp’n, Ex. 18, Dep. Diep 13:2-8.) Ms. Diep was reassigned, however, to the park’s contact station because Sgt.
Powell and Ms. Lloyd shared the belief that young females could handle the “close confines” of the contact station
better than male employees. (Id. Ex. 1, Dep. Powell 99:9—100:6; Id. Ex. 10, Dep. Lloyd 105:12-20.) A male
employee, Johnell Brunson, was reassigned from the contact station to take Ms. Diep’s position at the boat center.
(Id. Dep. Lloyd 104:19—105:8.) The record before the Court does not precisely define what the contact station is,
however, for purposes of this motion the Court presumes that the contact station is a small building located at the
park’s entrance where park employees interact with patrons as they enter the park.
Powell corrected both of these issues, although he started repeatedly making comments to Ms.
Diep such as “since you got a double raise you have to work double hard or harder” and since
she had already taken a weekend off she was going to be his for the rest of the summer. (Id.
Dep. Diep 35:2-5; Id. Ex. 2, Dep. Vicino 165:11-15.) Sgt. Powell would also stare at Ms. Diep
for extended periods of time, to the point where Ms. Diep would feel uncomfortable. (Id. Ex. 18,
Dep. Diep 39:7—40:5.) On April 27, Ms. Diep reported to Plaintiff that Sgt. Powell acted
inappropriately around her and the other young female employees and Sgt. Powell’s treatment of
her had reached the point where she felt she was being sexually harassed by Sgt. Powell. (Id.
Dep. Diep 18:12—19:21.)
On April 29, 2010, Plaintiff contacted Ms. Lloyd by email, stating “[w]hen you have a
few minutes, I need to talk about something privately.” (Id. Ex. 23, Vicino Email, ECF No.
23-25.) Later that same day, Plaintiff went to Ms. Lloyd’s office to talk about Ms. Diep’s
complaint. (Id. Ex. 2, Dep. Vicino 165:16—166:4.) The parties disagree as to the actual subject
matter of the April 29th conversation between Plaintiff and Ms. Lloyd. Plaintiff maintains that
she informed Ms. Lloyd that Ms. Diep reported that she was being sexually harassed by Sgt.
(Id. Dep. Vicino 165:20—167:19.)
Ms. Lloyd, however, maintains that the
conversation pertained to Sgt. Powell’s harassment of Ms. Diep regarding the scheduling mistake
that occurred several weeks prior. (Defs.’ Mot. Summ. J., Ex. 6, Dep. Lloyd 118:4—119:10.)
On May 12, 2010, Ms. Lloyd attended a managers meeting with Ms. Settina. (Id. Dep.
Lloyd 170:6-17; Id. Ex. 5, Dep. Bushman 25:5-19.)
Ms. Lloyd reported that Plaintiff’s
performance was declining and that Plaintiff was unable to complete the tasks fundamental to the
park ranger position.
(Id. Ex 4, Dep. Settina 24:13—25:3.)
Based upon Ms. Lloyd’s
recommendation, Ms. Settina agreed they should consider terminating Plaintiff on probation.
(Id. Ex. 6, Dep. Lloyd 170:6—171:4.) On May 18, 2010, Ms. Settina and Colonel Bushman
discussed, via email, the possibility of terminating Plaintiff at the end of her probationary period.
(Pl.’s Opp’n, Ex. 21, DNR 576, ECF No. 23-23.) Colonel Bushman was surprised that Ms.
Lloyd recommended Plaintiff’s termination to Ms. Settina.
Colonel Bushman had
discussed Plaintiff with Ms. Lloyd on several occasions and although Ms. Lloyd expressed that
Plaintiff had not developed into a “top-notch ranger,” Ms. Lloyd also stated that she did not feel
Plaintiff should be terminated on probation. (Id.) The two agreed to monitor the situation and
take a “hard look” before making a decision regarding Plaintiff. (Id.)
On June 7, 2010, Plaintiff participated in her year-end evaluation with Ms. Lloyd and Sgt.
Powell. (Id. Ex. 2, Dep. Vicino 107:6-17.) Plaintiff’s rating on her end-cycle evaluation
dropped from what it was at her mid-cycle evaluation into the “needs improvement” range.5 (Id.
Ex. 16, Vicino Evaluation 4, ECF No. 23-17.) Sgt. Powell prepared a report detailing his
evaluation comments regarding Plaintiff. (Id. Ex. 22, Powell Evaluation Comments, ECF 21-4.)
Plaintiff also prepared a written rebuttal to her evaluation and sent copies to Sgt. Powell and Ms.
Lloyd. (Id. Ex. 24, Vicino Evaluation Rebuttal, ECF No. 21-25.) Following Plaintiff’s rebuttal,
a meeting was convened to discuss Plaintiff’s employment future. (Id. Ex. 5, Dep. Bushman
52:13—53:18.) Ms. Lloyd, Major Anthony, and Colonel Bushman all attended this meeting.
(Id. Dep. Bushman 51:16—52:12.) There is a factual dispute as to whether Ms. Settina attended
the meeting. (Id. Dep. Bushman 52:16-19, 67:8-16.) During the meeting, Colonel Bushman
asked Ms. Lloyd to prepare an additional performance rebuttal addressing Plaintiff’s comments.
(Id. Dep. Bushman 55:3—56:5; Id. Ex. 24, Lloyd Performance Rebuttal, ECF No. 21-26.)
Colonel Bushman also requested that ranger school dean Angie Hummer prepare a report
Plaintiff received a numerical score of 1.65, falling within the “needs improvement” range of 0.75-1.74. (Defs.’
Mot. Summ. J., Ex. 16, Vicino Evaluation 4, ECF No. 21-18.)
detailing Plaintiff’s incidents at ranger school. (Id. Ex. 5, Dep. Bushman 53:5-7.) All of the
reports outlined above were presented to Ms. Settina and based on the reports and prior
discussions with Ms. Lloyd and Colonel Bushman, Ms. Settina made the decision to terminate
Plaintiff. (Id. Ex. 4, Dep. Settina 31:11—32:2.) On June 18, 2010, Plaintiff met with Ms. Lloyd
and Major Anthony at which time Major Anthony gave Plaintiff the option to resign or be
terminated. (Id. Ex. 2, Dep. Vicino 135:14-22.) On June 21, 2010, Plaintiff signed a letter of
resignation. (Id. Dep. Vicino 138:14—139:10.) On June 22, 2010, Plaintiff filed an Internal
Equal Employment Opportunity Complaint (“EEO Complaint”). (Id. Ex. 28, Internal EEO
Complaint, ECF No. 21-30.)
Additional facts will be addressed later in the opinion.
II. Standard for Summary Judgment
“The court shall grant summary judgment 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.” Fed.
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to
current Rule 56(a)). The burden is on the moving party to demonstrate the absence of any
genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If
sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing
the motion, then a genuine dispute of material fact is presented and summary judgment should be
denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the “mere
existence of a scintilla of evidence in support of the [opposing party’s] position” is insufficient to
defeat a motion for summary judgment. Id. at 252. The facts themselves, and the inferences to
be drawn from the underlying facts, must be viewed in the light most favorable to the opposing
party, Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir.
2008), who may not rest upon the mere allegations or denials of his pleading but instead must, by
affidavit or other evidentiary showing, set out specific facts showing a genuine dispute for trial,
Fed. R. Civ. P. 56(c)(1). Supporting and opposing affidavits are to be made on personal
knowledge, contain such facts as would be admissible in evidence, and show affirmatively the
competence of the affiant to testify to the matters stated in the affidavit. Rule 56(c)(4).
A. Sex-Based Discrimination – Counts One and Three
Counts One and Three, brought under Title VII (42 U.S.C. § 2000e et seq.) and 42
U.S.C. § 1983, respectively, are analyzed identically on their merits. Thus, where the focus is on
sex-based discrimination with respect to the terms and conditions of employment, ultimately
resulting in termination, evaluation of the evidence is the same regardless of whether the claim is
brought under Title VII or under 42 U.S.C. § 1983. Beardsley v. Webb, 30 F.3d 524, 529 (4th
Cir. 1994) (citing Boutros v. Canton Regional Transit Auth., 997 F.2d 198, 202-03 (6th Cir.
1993); Trautvetter v. Quick, 916 F.2d 1140, 1149 (7th Cir. 1990)).
Title VII makes it “an unlawful employment practice for an employer … to discharge …
or otherwise to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s … sex.” 42 U.S.C.
§ 2000e-2(a)(1) (emphasis added). A plaintiff may avert summary judgment and establish a
claim of sex based discrimination through two avenues of proof.
First, a plaintiff may
demonstrate, through direct or circumstantial evidence, that discrimination motivated the
employer’s adverse employment decision. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354
F.3d 277, 284 (4th Cir. 2004). Plaintiffs are not required, however, to demonstrate that the
prohibited characteristic was the sole motivating factor. Id. Title VII provides that an “unlawful
employment practice is established when a complaining party demonstrates that … sex … was a
motivating factor for any employment practice, even though other factors also motivated the
practice.” Id. § 2000e-2(m) (emphasis added). Accordingly, a plaintiff demonstrates a “mixedmotive” discrimination claim, through direct or circumstantial evidence, by showing that the
employer’s adverse employment action was motivated by both permissible and discriminatory
reasons. Id.; Hill, 354 F.3d at 284. However, an employer may effectively limit the remedies
available to an employee where the employer can show it would have made the same decision in
the absence of the discriminatory motivation. Hill, 354 F.3d at 284. “On a claim in which an
individual proves a violation under § 2000e-2(m)” and the employer “demonstrates that [it]
would have taken the same action in the absence of the impermissible motivating factor, the
court … may grant declaratory relief, injunctive relief, and attorney’s fees and costs
demonstrated to be directly attributable only to the pursuit of a claim under § 2000e-2(m)” and
“shall not award damages or issue an order requiring any admission, reinstatement, hiring,
promotion or payment.” 42 U.S.C. § 2000e-5(g)(2)(B) (emphasis added).
Alternatively, a plaintiff may proceed by establishing a prima facie case of discrimination
under the McDonnell Douglas “pretext” framework. Hill, 354 F.3d at 285 (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 798, 807 (1973)). Under the McDonnell Douglas framework,
a plaintiff must first establish a prima facie case by showing (1) she is a member of a protected
class; (2) she suffered adverse employment action; (3) she was performing her job duties at a
level that met her employer’s legitimate expectations at the time of the adverse employment
action; and (4) the position remained open or was filled by similarly qualified applicants outside
of the protected class. Id. If a prima facie case is made, the burden shifts to the employer to
articulate a legitimate nondiscriminatory reason for the adverse employment action. Id. If the
employer meets this burden, the McDonnell Douglas framework and its presumptions disappear,
and the “sole remaining issue is discrimination vel non.” Id. (citations omitted). In other words,
the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the
employer’s stated reasons were not its true reasons, but were in fact a pretext for discrimination.
Id. A plaintiff meets the burden of demonstrating pretext by showing that the employer’s
proffered explanation is “unworthy of credence” or by offering circumstantial evidence
sufficiently probative of the issue of discrimination. Price v. Thompson, 380 F.3d 209, 212 (4th
Cir. 2004). A plaintiff’s burden to demonstrate pretext merges with the ultimate burden of
demonstrating discrimination by a preponderance of the evidence. Hill, 354 F.3d at 285.
In the present case, Plaintiff’s response in opposition argues that her supervisor’s
discriminatory animus towards her was the motivation behind her termination.6 (Pl.’s Opp’n
29-30, ECF No. 23.) To demonstrate that discrimination motivated the adverse employment
action, a complaining party must show that a protected trait, such as sex, actually played a role in
the employer’s decision making process and had a determinative influence on the outcome.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141 (2000). Title VII states that
“[i]t shall be an unlawful employment practice for an employer … to discharge … or otherwise
discriminate against any individual … because of such individual’s sex.” 42 U.S.C. § 2000e2(a)(1) (emphasis added). Title VII further defines “employer” as “a person engaged in an
industry affecting commerce … and any agent of such a person.”
42 U.S.C. § 2000e(b)
(emphasis added). Thus, agency principles guide courts when deciding whether or not to make
an employer vicariously liable for the discriminatory acts and motivations of an employee. Hill,
354 F.3d at 287; Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754 (1998). Under prior Fourth
It is unclear from Plaintiff’s response in opposition whether she is proceeding on a sole-motivation basis or a
mixed-motive basis. However, that issue need not be resolved at the present stage; it may be addressed at trial.
Circuit precedent, the person allegedly acting pursuant to a discriminatory animus need not be
the “formal decisionmaker” to attach liability to an employer for an adverse employment action,
so long as the plaintiff demonstrates that the subordinate was the one “principally responsible” or
the “actual decisionmaker” behind the action. Hill, 354 F.3d at 288 (citing Reeves, 530 U.S. at
151-52). In sum, the Hill opinion held that Title VII does not allow a “biased subordinate who
has no supervisory or disciplinary authority and who does not make the final or formal
employment decision to become a decision maker simply because he had a substantial influence
on the ultimate decision or because he has played … even a significant [role] in the adverse
Id. at 291.
A plaintiff must show “sufficient evidence that the
subordinate employee possessed such authority as to be viewed as the one principally
responsible for the decision or the actual decisionmaker for the employer.” Id.
The Fourth Circuit’s decision in Hill, however, does not end the analysis for claims that
discrimination motivated an adverse employment action.
The Supreme Court recently
considered when an employer may be held liable for the discriminatory animus of an employee
who influenced but did not make the ultimate employment decision. See Staub v. Proctor
Hospital, 131 S. Ct. 1186, 1189 (2011). In Staub, the Court found that federal torts, like the one
included in the Uniformed Services Employment and Reemployment Rights Act (“USERRA”),7
should be interpreted giving consideration to the background of general tort law.
The claim in Staub was brought under USERRA, which the Court acknowledged contained language very similar
to that giving rise to causes of action for discrimination under Title VII. 131 S. Ct. at 1191. The Court compared
§ 4311(c) of USERRA, which states “[a]n employer shall be considered to have engaged in [a prohibited action] …
if the person’s membership [in the armed services] … was a motivating factor in the employer’s action, unless the
employer can prove that the action would have been taken in the absence of such membership,” with
§§ 2000e-2(a) & (m) of Title VII, which prohibit adverse employment actions “because of” race, color, religion, sex
or national origin and actions where race, color, religion, sex or national origin was one of several motivating
factors. Id. (emphasis added). Nothing in the Staub opinion, however, indicates that its analysis of the nexus
between a subordinate’s discriminatory animus and an employer’s adverse employment action should be restricted
to mixed-motive cases and made inapplicable to sole-motive cases.
Accordingly, the Court held that “if a supervisor performs an act motivated by [discriminatory]
animus that is intended by the supervisor to cause an adverse employment action, and if that act
is a proximate cause of the ultimate employment action, then the employer is liable.” Id. at
1194. The Court further clarified that “intent” requires that “the actor desires to cause [the]
consequences of his act, or that he believes that the consequences are substantially certain to
result from it.” Id. at 1194 n.3 (citing Restatement (Second) Torts § 8A). Similarly, proximate
cause should be considered with regard to traditional tort principles, and requires “only ‘some
direct relation between the injury asserted and the injurious conduct alleged,’ and excludes only
those ‘links that are too remote, purely contingent, or indirect.’” Id. at 1192 (citations omitted).
The Fourth Circuit considered Staub, in Young v. United Parcel Service, and indicated
approval of Staub’s application to the Title VII context. 707 F.3d 437, 449 (4th Cir. 2013). In
Young, the Court analyzed whether discriminatory comments made by a division manager to
Young constituted direct evidence of corporate animus toward pregnant women, but found no
evidence that the division manager possessed sufficient authority to make decisions regarding
Young’s employment nor did he seek to influence the party who did. Id. In view of the Fourth
Circuit’s application of Staub to Title VII cases in Young, this Court finds that a complaining
party may demonstrate that discrimination motivated an adverse employment action if (1) the
individual with the discriminatory animus “possessed such authority as to be viewed as the one
principally responsible for the [adverse employment] decision or the actual decisionmaker for the
employer,” under Hill; or (2) the subordinate with discriminatory animus intended to influence
the person with decisionmaking authority and was a proximate cause of the ultimate adverse
employment action, under Staub. See id.; accord Ridgell v. Colvin, Civ. No. DKC-10-3280,
2013 WL 952253, *12 (D. Md. Mar. 11, 2013).
In the instant case, Plaintiff has offered direct and circumstantial evidence of
discriminatory animus resulting in her termination. She has also offered evidence that the
Defendants’ proffered reasons for her termination were pretextual, pursuant to the McDonnell
Douglas burden-shifting framework. Seeing as Plaintiff may avert summary judgment under
either of these theories, the Court finds that summary judgment is not appropriate as to Counts
One and Three.
Genuine issues of material fact exist as to the animus, intent, and proximate cause
elements of the Staub standard. First, viewing the facts in the light most favorable to Plaintiff, a
reasonable jury could conclude that Sgt. Powell’s conduct as Plaintiff’s supervisor was
motivated by a gender-based animus. Sgt. Powell made little to no preparations for Plaintiff’s
arrival as a ranger and assigned her a workstation that was clearly inferior to her male
counterpart’s. (Pl.’s Opp’n, Ex. 3, Dep. Linnemann 17:9-15, 19:16-19.) Sgt. Powell was
reluctant to provide any guidance to Plaintiff, contrary to his treatment of the male ranger, and
regularly rejected Plaintiff’s suggestions without providing a basis or explanation. (Id. Ex. 2,
Dep. Vicino 63:11—64:12.) Further, there is evidence that Sgt. Powell does not relate well to
women and, in fact, DNR’s Equal Opportunity Employment (“EEO”) Officer, Richard Allen, has
stated that Sgt. Powell is “no boy scout” and works for DNR “with arrogance” relating to his
poor and “gruff” treatment of women. (Id. Ex. 3, Dep. Linnemann 39:19—40-10; Id. Ex. 7, Dep.
Allen 34:2—35:9, Feb. 27, 2013, ECF No. 23-9.)
Moreover, Sgt. Powell’s evaluation
comments, which primarily denigrated Plaintiff, might also be viewed as motivated by this same
Second, a reasonable jury could also conclude that Plaintiff’s end-cycle evaluation and
Sgt. Powell’s evaluation comments were intended by Sgt. Powell to cause Plaintiff’s termination.
Sgt. Powell’s and Ms. Lloyd’s end-cycle evaluation degraded Plaintiff’s rating as a ranger from
“meets standards” to “needs improvement.” (Id. Ex. 15, Vicino Evaluation 2.) Ms. Settina
acknowledged that she is unaware of any ranger who was retained after receiving a “needs
improvement” rating on an end-cycle evaluation. (Defs.’ Mot. Summ. J., Ex. 4, Dep. Settina
41:1-22.) It is a reasonable inference that Sgt. Powell sought to reinforce this low rating by
providing evaluation comments that justified a score to precipitate Plaintiff’s dismissal.
Moreover, a reasonable jury might similarly find that Sgt. Powell’s actions as Plaintiff’s
supervisor reflected his intent that Plaintiff ultimately leave Seneca Creek or be terminated
Finally, as to causation, there is also evidence supporting the notion that Sgt. Powell’s
discriminatory actions were a proximate cause of Plaintiff’s termination. It is unclear from the
record what weight Ms. Settina gave Plaintiff’s end-cycle evaluation and Sgt. Powell’s
evaluation comments when making her ultimate decision to terminate Plaintiff, but the facts do
reflect that these reports were generated as part of the record supporting the decision to terminate
Plaintiff. (Id. Ex. 1, Dep. Powell 127:6-21.) Plaintiff’s primary contention, however, is that Sgt.
Powell’s discriminatory animus is reflected in his hostile training and supervision of Plaintiff and
that many of the deficiencies that formed the basis of Plaintiff’s termination were caused by Sgt.
Powell. Considering the evidence in the light most favorable to Plaintiff, a reasonable jury might
find that some or all of the deficiencies considered by Ms. Settina were the result of Sgt.
Powell’s reticent training and supervision. It is difficult to find evidence showing that Sgt.
Powell gave Plaintiff clear or thoughtful guidance as a ranger.
Further, Ms. Settina
acknowledged she was aware that a strained relationship existed between Plaintiff and Sgt.
Powell prior to making her decision to terminate Plaintiff. (Id. Ex. 4, Dep. Settina 31:6-10.)
Proximate cause only requires a “direct relation between the injury asserted and the injurious
conduct alleged,’ and excludes only those ‘links that are too remote, purely contingent, or
indirect.’” See Staub, 131 S. Ct. at 1192. Ultimately, this Court is not convinced that as a matter
of law Sgt. Powell’s evaluation and conduct as Plaintiff’s supervisor cannot be considered a
causal factor in Ms. Settina’s decision to terminate Plaintiff.
Accordingly, the motion for
summary judgment as to Counts One and Three shall be denied.
B. Retaliation – Count Two
Count Two asserts that DNR violated Title VII when it terminated Plaintiff in retaliation
for her reporting Sgt. Powell’s sexual harassment of Hadona Diep. Title VII states that “[i]t shall
be an unlawful employment practice for an employer to discriminate against any of his
employees … because [the employee] has opposed any practice made an unlawful employment
practice by this subchapter.” 42 U.S.C. § 2000e-3(a). Claims of retaliation are governed by the
same proof schemes applicable to Title VII discrimination claims, except that proof of retaliation
requires but-for causation; the mixed-motive analysis is inapplicable to retaliation claims. EEOC
v. Navy Fed. Credit Union, 424 F.3d 397, 405-06 (4th Cir. 2005); Thompson v. Potomac Electric
Power Co., 312 F.3d 645, 650 (4th Cir. 2002). In University of Texas Southwestern Medical
Center v. Nassar, the Supreme Court recently clarified that Title VII does not permit retaliation
claims to be proved based on any showing other than but-for causation. 133 S. Ct. 2517, 2528
(2013) (finding no meaningful difference between the texts of the retaliation provision of Title
VII and the Age Discrimination in Employment Act (“ADEA”) and holding, therefore, that Title
VII retaliation claims, like claims brought under ADEA, require but-for causation) (citing Gross
v. FBL Financial Services, Inc., 577 U.S. 167, 176 (2009)).
Requiring but-for causation,
however, is not to say that retaliation claims are only actionable if the employer’s retaliatory
action was the “so-called ‘ultimate employment decision.” Burlington Northern & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 67 (2006) (internal citation omitted). Rather, claims of retaliation are
actionable so long as “a reasonable employee would have found the challenged action materially
adverse,” meaning “it well might have ‘dissuaded a reasonable worker from making or
supporting a charge of discrimination.’” Id. at 67-68 (citations omitted).
Under the McDonnell Douglas methodology, a plaintiff may establish a prima facie case
of retaliation by proving three elements: (1) she engaged in a protected activity; (2) her employer
acted adversely against her; and (3) a causal connection existed between the protected activity
and the asserted adverse action. Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011);
Thompson, 312 F.3d at 650. If a prima facie case is shown, the burden shifts to the employer to
articulate a legitimate non-retaliatory reason for the adverse employment action. Hoyle, 650
F.3d at 337; E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d 397, 407 (4th Cir. 2005). If the
employer meets this burden, the burden shifts back to the plaintiff to prove by a preponderance
of the evidence that the employer’s stated reasons were not its true reasons, but were in fact a
pretext for retaliation. Hoyle, 650 F.3d at 337. A plaintiff meets the burden of demonstrating
pretext by showing that the employer’s proffered explanation is “unworthy of credence” or by
offering circumstantial evidence sufficiently probative of the issue of retaliation. Price, 380 F.3d
Here, as to the first element of a prima facie case, there is a factual dispute whether
Plaintiff engaged in a protected activity when she spoke to Ms. Lloyd about Sgt. Powell’s
“harassment” of Hadona Diep. Viewing the facts in the light most favorable to Plaintiff, the
Court is satisfied that a reasonable jury could determine that Plaintiff discussed “sexual
harassment” with Ms. Lloyd and thereby engaged in a protected activity.
Second, it is
undisputed that DNR took an adverse action against Plaintiff when it terminated her. Finally,
there is a causal link between Plaintiff’s protected activity and the adverse action. For purposes
of demonstrating a prima facie case, a causal nexus exists where the employer takes the adverse
action “shortly after learning of the protected activity.” Price, 380 F.3d at 213. Here, Plaintiff
was terminated less than two months after engaging in a protected activity with her employer.
This short time interval satisfies the requisite causal link. See Carter v. Ball, 33 F.3d 450, 460
(4th Cir. 1994) (finding a four-month period satisfied the causal nexus for a prima facie case of
retaliation); see also, e.g., Romeo v. APS Healthcare Bethesda, Inc., 876 F. Supp. 2d 577, 588-89
(D. Md. 2012) (finding a two-month interval sufficed to show the “little proof” required to
establish causation for a prima facie case of retaliation); Kline v. Certainteed Corp., 205 F. Supp.
2d 468, 474-75 (D. Md. 2002) (finding a plaintiff established the causal element of a prima facie
case where she had been terminated within two months of filing EEOC charges). Accordingly,
the Court will assume that Plaintiff has established the causal element of a prima facie case.8
DNR has rebutted Plaintiff’s prima facie case of retaliation by presenting evidence that
Plaintiff was terminated for legitimate non-retaliatory reasons. DNR points to Plaintiff’s midcycle and end-cycle evaluation, indicating that Plaintiff failed to appropriately prioritize work
and complete assignments accurately and on time, Plaintiff did not keep commitments and
follow up with customer requests, and Plaintiff failed to exercise appropriate judgment. (Defs.’
Mot. Summ. J., Ex. 16, Vicino Evaluation 2.) Further, DNR points to reports created by Ms.
DNR’s motion argues the causal element of a prima facie case is missing in this case because it is not clear from
the evidence that Ms. Settina was aware of the protected activity, and therefore, could not have terminated Plaintiff
in retaliation for that protected act. (Defs.’ Mot. Summ. J. 31-33, ECF No. 21-1.) Plaintiff, however, has raised a
factual dispute as to whether Ms. Settina attended a managers meeting where the alleged protected activity was
discussed; in that same meeting Colonel Bushman even asked Ms. Lloyd to prepare a report providing additional
clarification on the subject. (Pl.’s Opp’n, Ex. 22, Dep. Bushman 52:3-19, 67:8-16.) This factual dispute, alone, may
not suffice to demonstrate pretext; it is sufficient, however, to satisfy the “little proof” required to show the causal
element of a prima facie case. See Dea v. Washington Suburban Sanitary Comission, 11 F. App’x 352, 364 (4th Cir.
Lloyd, Sgt. Powell, and Angie Hummer that detail Plaintiff’s deficiencies as a ranger, including
poor judgment, teamwork, and communication skills. Accordingly, DNR has articulated a
legitimate basis for the adverse employment action, and thus, Plaintiff bears the burden of
demonstrating that DNR’s stated reasons for termination are in fact pretext for retaliation.
Here, Plaintiff has raised circumstantial evidence probative of the issue of retaliation.
See Price, 380 F.3d at 212. In late January, 2010, Ms. Lloyd emailed Plaintiff stating that while
Plaintiff was lacking in the confidence needed for the job, Plaintiff was “still well within the
learning curve.” (Defs.’ Mot. Summ. J., Ex. 18, DNR 178, ECF No. 21-20.) Further, Ms. Lloyd
told Colonel Bushman on multiple occasions that Plaintiff was “much improved” and that she
did not feel DNR needed to consider terminating Plaintiff on probation. (Id. Ex. 19, DNR 576,
ECF No. 21-21.) The evidence suggests, however, an apparent change in Ms. Lloyd’s opinion
closely following Plaintiff’s protected activity. The protected activity occurred on April 29,
2010. On May 12, 2010, less than two weeks after speaking with Plaintiff, Ms. Lloyd, for the
first time, advocated to Ms. Settina that Plaintiff be terminated. (Id. Ex. 4, Dep Settina 24:10—
25:3.) Moreover, Ms. Lloyd spoke a second time with Ms. Settina to reconcile the fact that
Colonel Bushman had reported that his conversations with Ms. Lloyd indicated that Plaintiff
should not be in danger of termination. (Id. Dep. Settina 25:4—26:9.) For a second time, Ms.
Lloyd advocated to Ms. Settina that Plaintiff be terminated. (Id. Dep. Settina 26:14-21.) A
managers meeting was also convened to consider Plaintiff’s future with DNR, where again, Ms.
Lloyd had a central role in the discussions. Plaintiff’s alleged protected activity was discussed at
this meeting and Colonel Bushman even asked Ms. Lloyd to prepare a report clarifying the issue.
(Id. Ex. 5, Dep. Bushman 52:3-15.) Further, there is a factual dispute as to whether Ms. Settina
was present for that discussion.
(Id. Dep. Bushman 52:3-19, 67:8-16.)
Ms. Settina has
acknowledged that she was aware that Plaintiff and Sgt. Powell had a strained relationship prior
to making her decision to terminate Plaintiff. (Id. Ex. 4, Dep. Settina 31:6-10.)
It is also probative to the issue of pretext that many of the documents relevant to
Plaintiff’s termination were compiled after the protected activity.
evaluation, Sgt. Powell’s evaluation comments, Ms. Lloyd’s performance rebuttal, and Angie
Hummer’s report explaining Plaintiff’s incidents at ranger school were all generated within the
two months following Plaintiff’s protected activity but before her termination. Accordingly,
criticisms in these documents that were not raised prior to the protected activity or that contradict
statements made prior to the protected activity create a reasonable inference that they may have
been manufactured as a pretext for dismissal.9 Plaintiff’s end-cycle evaluation scores dropped
from “meets standards” to “needs improvement” in four separate categories, which dropped
Plaintiff’s overall end-cycle score into the “needs improvement” range. (Pl.’s Opp’n, Ex. 15,
Vicino Evaluation 2.) In October 2009, Ms. Lloyd cautioned Ms. Settina against terminating
Plaintiff based on the ranger school incidents because ranger school is a unique and stressful
environment. (Defs.’ Mot. Summ. J., Ex. 4. Dep. Settina 15:12-21.) In June 2010, however, Ms.
Lloyd and Colonel Bushman asked Angie Hummer to prepare a report for Ms. Settina detailing
Plaintiff’s incidents at ranger school. (Pl.’s Opp’n, Ex. 22, Dep. Bushman 52:20—53:7.) Ms.
Lloyd even asked Ms. Hummer to edit her original report to reflect the appropriate level of
counseling the two incidents required. (Id. Ex. 28, DNR 689, ECF No. 23-30; Id. Ex. 30, DNR
177, ECF No. 23-32.)
Cf. Jyachosky v. Winter, 343 F. App’x 871, 876 (4th Cir. 2009) (unpublished) (per curiam) (finding that documents
created contemporaneously with the plaintiff’s problems as an employee demonstrate that the problems were not
manufactured after her dismissal to serve as pretext); Romeo v. APS Healthcare Bethesda, Inc., 876 F. Supp. 2d 577,
590 (D. Md. 2012) (finding criticisms that served as a basis for the plaintiff’s dismissal did not raise an inference
that they were manufactured as pretext for retaliation where those criticisms were made prior to the protected
Ultimately, Plaintiff’s retaliation claim may well lose before a jury.
indicates that Plaintiff was never considered a “top notch” ranger and many of her deficiencies,
including managing volunteers and prioritizing her workload, persisted throughout her entire
term as a probationary ranger. However, the evidence has generated a factual record sufficient
(barely) to permit a reasonable jury to conclude that, but for Plaintiff’s protected activity, Ms.
Lloyd would not have taken steps to advocate for Plaintiff’s dismissal and some or all of the
reports generated as a record supporting Plaintiff’s termination would have differed. While
Plaintiff’s evidence is largely circumstantial, it is sufficient to generate a jury question as to
pretext, and accordingly, summary judgment is not appropriate on this claim.
For the foregoing reasons, Defendant has not shown it is entitled to summary judgment.
Accordingly, the motion (ECF No. 21) is DENIED.
DATED this 8th day of November, 2013.
BY THE COURT:
James K. Bredar
United States District Judge
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