Martin v. Bolden

Filing 13

MEMORANDUM. Signed by Judge William M Nickerson on 10/12/2016. (c/m 10/12/16)(krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
HERMAN N. MARTIN

*
*
*
v.
* Civil Action No. WMN-15-3987
*
CHARLES F. BOLDEN,
*
ADMINISTRATOR OF THE NATIONAL *
AERONAUTICS AND SPACE
*
ADMINISTRATION
*
*
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
MEMORANDUM
Plaintiff Herman Martin is employed as a Contract
Specialist in the Procurement Operations Division of the NASA
Goddard Space Flight Center.

Proceeding pro se, Plaintiff filed

this action on December 30, 2015, complaining that his
supervisor, Maria McNamee, gave him an unfair performance rating
of “needs improvement” for the May 2012 to April 2013 appraisal
period and that she was motivated by race, color, gender, and
age discrimination.

Plaintiff is an African American male and

was 57 years old when he received this performance review.

He

brings his claims under Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e et seq. and the Age Discrimination in
Employment Act of 1967, 29 U.S.C. §§ 621 et seq.
Defendant has filed a motion to dismiss the Complaint, or
in the alternative, for summary judgment, under Rules 12(b)(1),
12(b)(6), and 56 of the Federal Rules of Civil Procedure, on a

number of grounds.

ECF No. 8.

First, Defendant argues that,

because Plaintiff raised only a racial discrimination claim in
the administrative review process, he has failed to exhaust his
administrative remedies as to any claims of color, gender, or
age discrimination and, thus, this Court is without jurisdiction
to hear those claims.

Second, Defendant asserts that the

allegations in the Complaint cannot establish a prima facie case
of racial discrimination because the only action taken against
him – the “needs improvement” performance evaluation – does not
rise to the level of an “adverse employment action.”

Defendant

also suggests that Plaintiff’s prima facie case fails because he
cannot show that he was performing his job satisfactorily or
that members outside Plaintiff’s protected class were treated
any differently.

Finally, Defendant argues that it has

proffered a legitimate, non-pretextual reason for the action
taken.
In opposing the motion, Plaintiff limited his response,
almost exclusively, to presenting the reasons why he believes
that McNamee’s performance evaluation of Plaintiff was unfair.
Plaintiff offered no response regarding his failure to exhaust
his administrative remedies as to his color, gender, and age
claims.

He also offered no direct argument as to how an unfair

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performance review qualifies as an adverse employment action.1
For the reasons that follow, the Court will grant Defendant’s
motion to dismiss.
Defendant’s exhaustion argument challenges this Court’s
jurisdiction to hear Plaintiff’s color, gender, and age claims.
In considering a motion to dismiss for lack of jurisdiction
under Rule 12(b)(1), a court may consider evidence outside the
pleadings in deciding whether it has jurisdiction.

Chesapeake

Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F. Supp.
2d 602, 611 (D. Md. 2011).

Here, the outside evidence that the

Court must consider is Plaintiff’s submissions in the
administrative proceedings.

Reviewing that evidence, the Court

finds that Plaintiff has not exhausted his administrative
remedies as to his color, gender, or age discrimination claims.
Before filing a lawsuit under Title VII or under the ADEA,
a plaintiff must timely pursue and exhaust all available
administrative remedies.

See 42 U.S.C. § 2000e-16(c) (Title

VII’s exhaustion requirement; 29 U.S.C. § 626(d) (ADEA’s
exhaustion requirement).

The performance evaluation to which

Plaintiff takes issue was dated July 9, 2013, and Plaintiff
filed a timely administrative complaint of discrimination with
1

The Court notes that Plaintiff attempted to file a “Reply to
Defendant’s Reply,” ECF No. 12-1, that was returned to him with
the instruction that “[p]ermission of the Court is required to
file a surreply.” ECF No. 12. Plaintiff never sought that
permission.
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NASA’s Office of Diversity and Equal Opportunity on August 27,
2013.

In that administrative complaint, however, Plaintiff

stated that the “needs improvement” review “was given because of
my race to deny career and promotional opportunities.”
8-4 at 1 (emphasis added).

ECF No.

In the portion of the complaint that

asked for the “Reason Why You Believe You Were Discriminated
Against,” Plaintiff wrote “African American” in the space
“Because of Race” but left blank the spaces following “Because
of Age,” “Because of Color,” and “Because of Sex.”

Id.

The scope of the plaintiff's right to file a federal
lawsuit is determined by the charge's contents.

See Bryant v.

Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002). “Only
those discrimination claims stated in the initial charge, those
reasonably related to the original complaint, and those
developed by reasonable investigation of the original complaint
may be maintained in a subsequent Title VII lawsuit.”

Evans v.

Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir.
1996).

Therefore, if a plaintiff’s charge alleges

discrimination on one basis, such as race, and the formal
litigation claim alleges discrimination on additional bases,
such as color, gender, or age, claims based on those additional
bases will be barred.

See id.; Bryant, 288 F.3d at 132-33.

The

fact that an EEOC charge is filed pro se does not “automatically
extend [the plaintiff] the right to a broad interpretation of
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the charge.”

Byington v. NBRS Fin. Bank, 903 F. Supp. 2d 342,

349–350 (D. Md. 2012).

Again, the Court notes that Plaintiff

has made no argument that he has exhausted these additional
claims.
Defendant’s remaining arguments to dismiss the Complaint
are made pursuant to Rule 12(b)(6).2

Courts have interpreted the

rule to require “sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

To

survive a motion to dismiss under Rule 12(b)(6), a complaint
does not need to present detailed allegations, but must contain
“more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
U.S. at 555.

Twombly, 550

“Factual allegations must be enough to raise a

right to relief above the speculative level on the assumption
that all of the complaint's allegations are true.”

Id.

In

other words, “in evaluating a Rule 12(b)(6) motion to dismiss, a
2

Defendant prays, in the alternative, that it be granted summary
judgment on Plaintiff’s claims under Rule 56. Addressing
Defendant’s arguments that Plaintiff was not satisfactorily
performing his job when he received the performance review and
that Defendant had a legitimate non-pretextual reason for the
review would require the Court to consider evidence outside of
the complaint and to convert the motion to one for summary
judgment. Because the Court finds that the Complaint fails to
state a claim for other reasons, it need not consider that
evidence or those arguments and will treat the motion as a
motion to dismiss.
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court accepts all well-pled facts as true and construes these
facts in the light most favorable to the plaintiff in weighing
the legal sufficiency of the complaint.”

Nemet Chevrolet, Ltd.

v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009)
(citations omitted).

Furthermore, while “courts traditionally

view civil rights complaints, particularly those brought pro se,
with ‘special judicial solicitude,’” that “does not transform
the court into an advocate.

Only those questions which are

squarely presented to a court may properly be addressed.”
Weller v. Dept. of Soc. Services for City of Baltimore, 901 F.2d
387, 390-91 (4th Cir. 1990).
Because Plaintiff has not presented any direct evidence of
discrimination,3 he must prove his claim of racial discrimination
under the now familiar burden shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Under

that framework, a plaintiff must first establish that: (1) he is
3

Plaintiff references an October 1978 meeting that addressed a
“caustic” racial environment, but does not explain what the
“racial issue” at issue might have been. ECF No. 1-1 at 2.
This incident, whatever it was, happened too long ago to be
relevant. Plaintiff also mentions in his Opposition a racial
discrimination class action that was filed against Defendant.
ECF No. 10 at 3. Again, there is no connection made between
this class action and Plaintiff. Defendant explains in its
Reply that this is a reference to a 1993 class action brought by
African-American scientists and engineers. ECF No. 11 at 10.
In his Complaint, Plaintiff also makes generalized references to
“white supremacy” and “racial bigotry [that] originated with the
introduction of the African slave trade,” ECF No. 1 at 6 and ECF
No. 1-1 at 1, but identifies no statement of any employee of
Defendant reflecting that bigotry.
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a member of a protected class; (2) he was performing his job
satisfactorily at the time he suffered an adverse employment
action; (3) he was subjected to adverse employment action; and
(4) similarly situated employees outside of his protected class
received more favorable treatment.

Coleman v. Maryland Court of

Appeals, 626 F.3d 187, 190 (4th Cir. 2010).

If a plaintiff

meets that initial burden, the burden shifts to the defendant to
articulate a legitimate non-discriminatory reason for its
employment action.

If the employer proffers such an

explanation, the burden returns to the plaintiff to show that
the proffered reason is pretextual.

See St. Mary’s Honor Ctr.

v. Hicks, 509 U.S. 502, 507-08 (1993).
Here, Defendant’s primary challenge to Plaintiff’s ability
to establish a prima facie case of racial discrimination is that
Plaintiff failed to allege that he suffered what courts would
recognize as an adverse employment action under Title VII.

“An

adverse employment action is a discriminatory act which
‘adversely affect[s] the terms, conditions, or benefits of the
plaintiff's employment.’”

Holland v. Washington Homes, Inc.,

487 F.3d 208, 219 (4th Cir. 2007).

Inquiry into the adverse

nature of an employer’s action typically focuses on whether the
employee has suffered discharge, demotion, decrease in pay or
benefits, loss of job title or supervisory responsibility, or
reduced opportunities for promotion.
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Boone v. Goldin, 178 F.3d

253, 255 (4th Cir. 1999).

Although something less than an

“ultimate employment decision” may constitute an adverse
employment action, Title VII does not remedy everything that
makes an employee unhappy.

See Settle v. Baltimore County, 34

F. Supp. 2d 969, 989 (D. Md. 1999).
In his Complaint, the only action that Plaintiff alleges
was taken against him was McNamee’s performance review for the
May 2012 to April 2013 appraisal period.

“[A] poor performance

rating does not in itself constitute an adverse employment
action.”
2003).

Jeffers v. Thompson, 264 F. Supp. 2d 314, 330 (D. Md.

“‘Rather, it is a mediate step, which, if relied upon

for a true adverse employment action (e.g., discharge, demotion,
etc.) becomes relevant evidence.’”

Id. (quoting Settle, 34 F.

Supp. 2d at 1010); see also, Allen v. Rumsfeld, 273 F. Supp. 2d
695, 706 (D. Md. 2003) (observing that low performance
evaluations, reprimands, and counseling and communication card
entries were not adverse employment actions).

While Plaintiff

avers that the purpose of the evaluation was “to destroy [his]
promotional and employment opportunities[, t]he result being a
significant loss of future income,” Compl. at 6, he does not
allege that he has actually been deprived of any such potential
opportunity.

In his Opposition he elaborates slightly on this

allegation, positing that “[p]erformance appraisals are used by
potential employees and consultants when making hiring
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decisions, salary offers, and post Government employments [sic]
consulting assignments.

Therefore, this evaluation has caused

significant financial harm to [Plaintiff].”

ECF No. 10 at 5.

The Court notes that Plaintiff filed this action almost two
and one half years after the challenged performance review and
yet he identifies no subsequent adverse employment action that
was influenced by that review.

The allegation of the loss of

some generalized potential occupational opportunities, like that
suggested in Plaintiff’s Opposition, is a “quintessential
conclusory allegation” and fails to satisfy the requirements of
Twombly-Iqbal.

Hinton v. Virginia Union Univ., Civ. No. 15-569,

2016 WL 2621967, at *11 n.12 and n.13. (E.D. Va. May 5, 2016).
The Complaint also fails to provide any support for the
fourth element of the prima facie case, i.e., that similarly
situated employees outside of Plaintiff’s protected class
received more favorable treatment.

The Complaint says

absolutely nothing about how any other employees were treated.
In his Opposition, Plaintiff does suggest that other employees,
“who also submitted late entries or had missing data,” did not
receive “needs to improve” on their performance reviews, ECF No.
10 at 7, but does not allege that these employees were outside
of his protected class.
The gist of Plaintiff’s Complaint and argument is that he
received a performance review that he believes was unfair and,
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because he is African-American, the review must have been
discriminatory.

After alleging that McNamee left out positive

aspects of his performance “in order to fabricate a ‘needs to
improve’ evaluation,” he boldly posits “[c]learly, this was
racial pretext, since [Plaintiff] is an African American male.”
ECF No. 1 at 6.

He jumps to a similar conclusion in his

Opposition, stating that the Rules of Civil Procedure require
that this case be adjudicated by a jury “using prima facie
evidence based on Mr. Martin’s member [sic] of a protected
group.”

ECF No. 10 at 5.

Alleging membership in a protected

class alone, however, does not establish a prima facie case of
discrimination.
For all of these reasons, Defendant’s motion to dismiss
will be granted.

A separate order will issue.

____________/s/___________________
William M. Nickerson
Senior United States District Judge

DATED: October 12, 2016 

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