Boarman v. Berryhill
Filing
21
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 4/2/2018. (dass, Deputy Clerk) (c/m 4/3/18-das)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SALLY BOARMAN
v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION
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Civil Case No. ELH-17-1175
MEMORANDUM OPINION
In this employment discrimination case, self-represented plaintiff Sally Boarman, an
employee of the Social Security Administration (“SSA”), filed suit against defendant Nancy A.
Berryhill, the Acting Commissioner of SSA. ECF 1.1 Plaintiff alleges that SSA retaliated
against her for filing a complaint in 1980 with the Equal Employment Opportunity Commission
(“EEOC”), by way of excluding her from subsequent projects, training, and promotions. Id. at 2.
Defendant has filed a prediscovery motion to dismiss under Fed. R. Civ. P. 12(b)(1) and
12(b)(6) or, in the alternative, for summary judgment under Rule 56. ECF 10. It is supported by a
memorandum (ECF 10-1) (collectively, the “Motion”) and multiple exhibits.2 The SSA argues,
inter alia, that most of plaintiff’s claims are barred by res judicata, and that summary judgment is
appropriate as to the one remaining claim, which concerns the failure of SSA to select plaintiff
for the position of a Social Insurance Specialist. Id. Plaintiff opposes the Motion (ECF 14; ECF
1
Plaintiff was represented by counsel during SSA’s investigation of plaintiff’s
allegations. See ECF 10-4 (Report of Investigation), at 1; ECF 10-5 (Final Agency Decision), at
1.
2
ECF 10-4, the SSA’s Report of Investigation, dated April 1, 2015, is over 250 pages in
length. The investigation was conducted between February 6, 2015, and March 30, 2015. Id. at
3.
15) (collectively, “Opposition”), and she submitted several exhibits. Defendant replied. ECF 16.
(“Reply”). Plaintiff then filed a “Motion for Leave to File Additional Exhibit” (ECF 17), which
was granted. See ECF 19 (Order); ECF 20 (exhibit).
No hearing is necessary to resolve the Motion. See Local Rule 105(6). For the reasons
that follow, I shall construe the Motion as one for summary judgment and grant it.
I. Factual and Procedural Background3
Since 1975, plaintiff has worked at SSA, in the office now known as the Office of
Quality Review. ECF 10-4 at 3. She alleges that, over thirty years ago, she filed a charge with
the EEOC regarding harassment in the workplace. ECF 1 at 2. The EEOC determined that
plaintiff’s supervisor had engaged in harassing conduct, but also found that plaintiff had not been
the subject of discrimination and did not award her any relief. Id.
During plaintiff’s long tenure at the SSA, she was not selected for various promotions.
Id. However, in July 2015, plaintiff received a promotion to GS-13, after many years as a GS12. ECF 14 at 3.
In the interim, on April 23, 2014, plaintiff applied for the position of Social Security
Specialist (the “Position”), a GS-13 position. ECF 10-4 at 1, 5. The selection official was Gary
Greene, the Division Director, who screened the candidates with Victoria Wolf, the Program
Manager. ECF 10-4 at 7. Out of more than 100 applicants, Greene and Wolf eventually selected
five finalists from their own staff, including plaintiff, along with four “external” finalists who
were also SSA employees. Id.
3
The Factual Background is derived from the exhibits submitted by the parties and from
the Complaint. Because plaintiff is pro se, I must construe her submissions liberally. See
Erickson v. Pardus, 551 U.S. 89, 94, (2007); see also Macena v. U.S. Citizenship & Immigration
Servs., TDC-14-3464, 2015 WL 6738923, at *1 (D. Md. Nov. 2, 2015).
2
Greene and Wolf did not interview the candidates from their own staff. However, for the
external finalists, they telephoned references and conducted several interviews. Id. Greene
stated that they assessed a variety of criteria, and that if candidates “had direct experience in one
of [SSA’s] field offices, that was also a point in their favor.” Id.; see also ECF 10-4 at 115-119
(Greene Affidavit). Wolf corroborated that assertion. ECF 10-4 at 9; see also ECF 10-4 at 121125 (Wolf Affidavit).
Greene and Wolf ranked plaintiff fourth of the nine finalists. Id. They believed plaintiff
to have good potential to perform well, and gave her a “bonus point because she worked for them
and knew the lay of the land.” ECF 10-4 at 8. However, she lacked field experience, which is “a
definite plus.” Id. Wolf stated: “Being able to hire someone from a field site is ideal.” Id. at 9.
Ultimately, Greene and Wolf offered the Position to one of the external candidates,
Cyndi Ikenaga, an employee of the Los Angeles satellite branch of the San Francisco field site.
ECF 10-4 at 7. Ikenaga had good references, “the ability to do the job . . . on day one,” and she
was a “subject expert/program expert” who also had managerial experience. Id. at 8.
Greene emailed plaintiff on August 28, 2014, to inform her that she had not been selected
for the Position. ECF 10-4 at 51. Plaintiff contacted the EEOC office on September 15, 2014, to
initiate a pre-complaint. ECF 10-4 at 23. She alleged that she had been discriminated against
based on her race (white), age (70), and sex (female), and had been retaliated against for her
prior EEOC activity. Id. After mediation failed, plaintiff filed a formal EEOC charge on
December 31, 2014. ECF 10-4 at 13-14. SSA issued a Final Agency Decision on January 27,
2017, finding that SSA did not discriminate against plaintiff based on race, sex, or age and did
not retaliate for her prior complaints. ECF 10-5.
3
On December 29, 2014, about a month before the Final Agency Decision was issued,
plaintiff filed a lawsuit in this Court, alleging that she had been subjected to retaliation for over
thirty years as a result of her EEOC complaint in 1980. See Boarman v. Colvin, GLR-14-4028
(“Lawsuit I”), ECF 1.4 On October 28, 2015, United States District Judge George L. Russell, III
granted SSA’s motion to dismiss Lawsuit I, with prejudice, stating: “Because Boarman alleges
the EEOC ruled on her charge over thirty years ago, Boarman did not file the instant retaliation
claim within the ninety-day limitations period.” Lawsuit I, ECF 14 at 2. Plaintiff filed a motion
for reconsideration (id., ECF 16), but that motion was denied. Id., ECF 17. It does not appear
that plaintiff appealed the dismissal of Lawsuit I.5
Much of the evidence plaintiff submits to this Court confirms her contention that she was
a good, well-respected employee whose ideas have been valuable to her office over the course of
her long career. ECF 14-3; ECF 14-5; ECF 17. SSA does not dispute this view, and seems to
agree that plaintiff was a very good candidate for the Position, although she was not ultimately
selected. ECF 10-4 at 8.
It is from this procedural posture that plaintiff filed the pending action in this Court on
April 28, 2017. See ECF 1. In the instant action, both in her Complaint and in her Opposition to
the Motion, plaintiff focuses exclusively on her retaliation claim. ECF 1, ECF 14.
Even
4
Among other things, a court may “properly take judicial notice of its own records.”
Anderson v. Fed. Deposit Ins. Corp., 918 F.2d 1139, 1141 n.1 (4th Cir. 1990). The court may
also take judicial notice of matters of public record. See, e.g., Goldfarb v. Mayor & City Council
of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015).
5
To the extent plaintiff seeks reconsideration of Judge Russell’s 2015 ruling under
Federal Rules of Civil Procedure 59(e) or 60(b), based on new evidence or any other grounds,
she would have to file an appropriate motion in that case for Judge Russell’s consideration. His
ruling cannot be challenged in this separately filed case.
4
construing her Complaint liberally, it is clear that plaintiff has not asserted claims of race, age, or
sex discrimination in this Court.
Defendant has moved to dismiss or, in the alternative, for summary judgment on two
grounds: (1) most of plaintiff’s claims are barred by res judicata because they were decided by
Judge Russell in Lawsuit I; and (2) plaintiff’s claim regarding her non-selection for the position
of Social Security Insurance Specialist in 2014 lacks merit. ECF 10-1. I agree with both
contentions.
II.
Legal Standards
As noted, defendant has moved to dismiss or, in the alternative, for summary judgment.
ECF 10. A motion styled in the alternative, to dismiss or for summary judgment, implicates the
court’s discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See Kensington Vol.
Fire Dept., Inc. v. Montgomery Cty., 788 F. Supp. 2d 431, 436-37 (D. Md. 2011).
Generally, a court “is not to consider matters outside the pleadings or resolve factual
disputes when ruling on a motion to dismiss.” Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th
Cir. 2007). However, under Rule 12(b)(6), a court has discretion to consider matters outside of
the pleadings, pursuant to Rule 12(d). If the court does so, “the motion must be treated as one for
summary judgment under Rule 56,” and “[a]ll parties must be given a reasonable opportunity to
present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). But when, as here,
the movant expressly captions its motion “in the alternative,” as one for summary judgment, and
submits matters outside the pleadings for the court’s consideration, the parties are deemed to be
on notice that conversion under Rule 12(d) may occur; the court “does not have an obligation to
notify parties of the obvious.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th
Cir. 1998).
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A district judge has “complete discretion to determine whether or not to accept the
submission of any material beyond the pleadings that is offered in conjunction with a Rule
12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not
consider it.” 5C Alan Wright & Arthur Miller et al., Federal Practice & Procedure § 1366 (3d
ed.). This discretion “should be exercised with great caution and attention to the parties’
procedural rights.” Id. In general, courts are guided by whether consideration of extraneous
material “is likely to facilitate the disposition of the action,” and “whether discovery prior to the
utilization of the summary judgment procedure” is necessary. Id.
Summary judgment ordinarily is inappropriate “where the parties have not had an
opportunity for reasonable discovery.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637
F.3d 435, 448-49 (4th Cir. 2011); see Putney v. Likin, 656 Fed. Appx. 632, 638-640 (4th Cir.
2016) (per curiam); McCray v. Maryland Dep’t of Transp., 741 F.3d 480, 483 (4th Cir. 2014).
However, “the party opposing summary judgment ‘cannot complain that summary judgment was
granted without discovery unless that party has made an attempt to oppose the motion on the
grounds that more time was needed for discovery.’” Harrods Ltd. v. Sixty Internet Domain
Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80
F.3d 954, 961 (4th Cir. 1996)); see also Dave & Buster’s, Inc. v. White Flint Mall, LLP, 616 Fed.
Appx. 552, 561 (4th Cir. 2015).
To raise adequately the issue that discovery is needed, the nonmovant typically must file
an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why, “for
specified reasons, it cannot present facts essential to justify its opposition,” without needed
discovery. Fed. R. Civ. P. 56(d); see Harrods, 302 F.3d at 244-45 (discussing the affidavit
requirement of former Rule 56(f)). If a nonmoving party believes that further discovery is
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necessary before consideration of summary judgment, the party who fails to file a Rule 56(d)
affidavit does so at her peril, because “‘the failure to file an affidavit ... is itself sufficient
grounds to reject a claim that the opportunity for discovery was inadequate.’” Harrods, 302 F.3d
at 244 (quoting Evans, 80 F.3d at 961); see also Dave & Buster’s, Inc., 616 Fed. Appx. at 561.
But, the nonmoving party’s failure to file a Rule 56(d) affidavit does not obligate a court to issue
a summary judgment ruling that is obviously premature.
Although the Fourth Circuit has placed “‘great weight’” on the Rule 56(d) affidavit, and
has said that a mere “‘reference to Rule 56(f) [now Rule 56(d)] and the need for additional
discovery in a memorandum of law in opposition to a motion for summary judgment is not an
adequate substitute for [an] affidavit,’” the appellate court has “not always insisted” on a Rule
56(d) affidavit. Harrods, 302 F.3d at 244 (quoting Evans, 80 F.3d at 961). According to the
Fourth Circuit, the failure to file an affidavit may be excused “if the nonmoving party has
adequately informed the district court that the motion is pre-mature and that more discovery is
necessary,” and the “nonmoving party’s objections before the district court ‘served as the
functional equivalent of an affidavit.’” Id. at 244-45 (quoting First Chicago Int’l v. United
Exchange Co., LTD, 836 F.2d 1375, 1380-81 (D.C. Cir. 1988)).
This case has a long history, both administratively and in federal court. Notably, plaintiff
has not filed an affidavit under Rule 56(d) opposing prediscovery summary judgment, nor has
she suggested that she would be prejudiced in the absence of discovery. Moreover, plaintiff does
not dispute the authenticity of the exhibits attached to defendant’s motion. Indeed, plaintiff
attached seven of her own exhibits to her Opposition (ECF 14-1 to ECF 14-7), filed an additional
exhibit by way of motion (ECF 17), and filed an errata sheet to replace one exhibit with a new
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version. ECF 15.6 Therefore, I am satisfied that it is appropriate to address plaintiff’s claims in
the context of summary judgment, as it will facilitate resolution of this case.
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is
appropriate only “if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S.
317, 322-24 (1986); see also Iraq Middle Mkt. Dev. Found. v. Harmoosh, 848 F.3d 235, 238 (4th
Cir. 2017) (“A court can grant summary judgment only if, viewing the evidence in the light most
favorable to the non-moving party, the case presents no genuine issues of material fact and the
moving party demonstrates entitlement to judgment as a matter of law.”). The nonmoving party
must demonstrate that there are disputes of material fact so as to preclude the award of summary
judgment as a matter of law. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 585-86 (1986).
The Supreme Court has clarified that not every factual dispute will defeat a summary
judgment motion. “By its very terms, this standard provides that the 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 v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). A
fact is “material” if it “might affect the outcome of the suit under the governing law.” Id. at 248.
There is a genuine issue as to material fact “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.; see Sharif v. United Airlines, Inc., 841 F.3d 199,
6
In fact, while it is not entirely clear, plaintiff’s Opposition may include her own
“request for summary judgment,” although her filing was not captioned or docketed as such. She
said, ECF 14 at 6: “Plaintiff Declares a Legitimate, Retaliation Discriminatory Reason for her
Non-Selection, and Requests Summary Judgment in Favor of Plaintiff.” To the extent plaintiff
intended to move for summary judgment, that motion would be denied for the reasons discussed
herein.
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2014 (4th Cir. 2016); Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016); Libertarian Party of
Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013). On the other hand, summary judgment is
appropriate if the evidence “is so one-sided that one party must prevail as a matter of law.”
Anderson, 477 U.S. at 252. And, “the mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff.” Id.
Notably, “[a] party opposing a properly supported motion for summary judgment ‘may
not rest upon the mere allegations or denials of [her] pleadings,’ but rather must ‘set forth
specific facts showing that there is a genuine issue for trial.’” Bouchat v. Baltimore Ravens
Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed. R. Civ. P. 56(e)),
cert. denied, 541 U.S. 1042 (May 17, 2004); see also Celotex, 477 U.S. at 322-24. As indicated,
the court must view all of the facts, including any reasonable inferences to be drawn, in the light
most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 587;
accord Roland v. United States Citizenship & Immigration Servs., 850 F.3d 625, 628 (4th Cir.
2017); FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013).
The district court’s “function” is not “to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249;
accord Guessous v. Fairview Prop. Inv., LLC, 828 F.3d 208, 216 (4th Cir. 2016). Thus, in
considering a summary judgment motion, the court may not make credibility determinations.
Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015);
Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007). Where there is
conflicting evidence, such as competing affidavits, summary judgment ordinarily is not
appropriate, because it is the function of the fact-finder to resolve factual disputes, including
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matters of witness credibility. See Black & Decker Corp. v. United States, 436 F.3d 431, 442 (4th
Cir. 2006); Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002).
However, to defeat summary judgment, conflicting evidence must give rise to a genuine
dispute of material fact. Anderson, 477 U.S. at 247-48. If “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party,” then a dispute of material fact precludes
summary judgment. Id. at 248; see Sharif v. United Airlines, Inc., 841 F.3d 199, 204 (4th Cir.
2016). Conversely, summary judgment is appropriate if the evidence “is so one-sided that one
party must prevail as a matter of law.” Anderson, 477 U.S. at 252. And, “the mere existence of a
scintilla of evidence in support of the [movant’s] position will be insufficient; there must be
evidence on which the jury could reasonably find for the [movant].” Id.
III.
Discussion
A. Res Judicata
Defendant contends that all of plaintiff’s claims that were or could have been brought in
Lawsuit I are barred by res judicata. Res judicata, or claim preclusion, is a judicial doctrine by
which “a final judgment on the merits bars further claims by parties or their privies based on the
same cause of action.” Montana v. United States, 440 U.S. 147, 153 (1979) (citation omitted).
The doctrine is intended to preclude parties from “contesting matters that they have had a full
and fair opportunity to litigate,” thereby conserving judicial resources and minimizing the
possibility of inconsistent decisions. Id. at 153-54. Notably, in entertaining the Motion on the
ground of res judicata, I may take judicial notice of facts from a prior judicial proceeding when,
as here, there are no disputed issues of fact. Andrews v. Daw, 201 F.3d 521, 524 n.1 (4th Cir.
2000).
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Res judicata applies when the following three elements are present: “‘(1) a final judgment
on the merits in an earlier suit, (2) an identity of the cause of action in both the earlier and the
later suit, and (3) an identity of parties or their privies in the two suits.’” Young-Henderson v.
Spartanberg Area Mental Health Ctr., 945 F.2d 770, 773 (4th Cir. 1991) (quoting Nash Cty. Bd.
of Educ. v. Biltmore Co., 640 F.2d 484, 486 (4th Cir. 1981)). Res judicata prevents a plaintiff
from asserting any claims that were or could have been advanced in the earlier case. See Allen v.
McCurry, 449 U.S. 90, 94 (1980).
Defendant contends that res judicata bars plaintiff’s claims because this Court has already
issued a final decision on the merits on her claims regarding alleged retaliatory conduct in
Lawsuit I. ECF 10-1 at 10-13. Although the parties are in agreement as to the underlying facts,
plaintiff asserts that Lawsuit I was not decided on the merits because Judge Russell did not have
the benefit of the witness statement she now proffers, and because he dismissed the case on the
procedural grounds of untimeliness before reaching the substance of her claims. ECF 14 at 5-6.
Defendant is correct that all three elements required for claim preclusion have been met.
First, plaintiff’s 2014 claim was decided by a final judgment on the merits. See 14-4028-GLR,
ECF 14.
To be sure, Judge Russell did not resolve the substantive claim in Lawsuit I, which
generally alleged retaliation over the course of thirty years. However, under Rule 41(b) of the
Federal Rules of Civil Procedure, unless ordered otherwise, an involuntary dismissal based on
any ground other than “lack of jurisdiction, improper venue, or failure to join a [necessary or
indispensable] party under Rule 19” ordinarily “operates as an adjudication on the merits.” Fed.
R. Civ. P. 41.
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Courts have ruled that dismissal for untimeliness constitutes a final judgment on the
merits for the purposes of res judicata.7 See Mills v. Des Arc Convalescent Home, 872 F.2d 823,
826 (8th Cir. 1989); Nilsen v. City of Moss Point, 701 F.2d 556, 562 (5th Cir. 1983) (en banc);
Robertson v. Cree, Inc., 2012 WL 699533, at *1 (E.D.N.C. Mar. 1, 2012) (dismissing case based
on res judicata where the plaintiff asserted claims pursuant to 42 U.S.C. § 1981 after the court
had dismissed similar Title VII claims as untimely).
In Mills, a case quite similar to the instant case, plaintiff sued her former employer
alleging termination on the basis of race. 872 F.2d at 824. The district court dismissed her suit as
untimely, because plaintiff filed her complaint more than ninety days after receiving a right-tosue letter from the EEOC. Id. at 825. After judgment was entered in favor of the defendant in the
first suit, plaintiff filed another complaint under 42 U.S.C. § 1981, contesting the same
termination. Id. The district court dismissed the second suit, citing res judicata. Id. The Eighth
Circuit affirmed the dismissal, stating that “a disposition of a Title VII action as untimely filed is
a decision on the merits for purposes of res judicata.” Id. at 826.
Similarly, in Nilsen, 701 F.2d 556, summary judgment was granted for defendant on the
plaintiff’s Title VII claims due to plaintiff’s “failure to meet the timely filing requirements of
Title VII.” Id. at 558. The plaintiff filed a new action alleging similar theories under 42 U.S.C.
§ 1983, and the court again granted the defendant’s motion for summary judgment. Id. at 560.
The Fifth Circuit affirmed, holding that res judicata precluded the plaintiff’s new claims because
the prior grant of summary judgment on the basis of timeliness constituted a final judgment on
the merits. Id. at 562. The Fifth Circuit explained that jurisdictional decisions are not decisions
on the merits, but decisions based on limitations are not considered jurisdictional. Id. (“the
7
To my knowledge, the Fourth Circuit has not decided this issue.
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timely filing requirements of Title VII are to be treated as limitations periods for all purposes.”).
Therefore, the court determined that a ruling that a plaintiff’s claim is untimely bars not only that
claim, but any other claims arising from the same cause of action. Id. at 562-63.
In this case, Judge Russell granted summary judgment in favor of defendant in Lawsuit I
because plaintiff’s complaint alleged that her EEOC charge had been filed “over 30 years ago,”
thus indicating that plaintiff had not filed Lawsuit I within ninety days of the EEOC’s disposition
of her charge. 14-4028-GLR, ECF 14 at 2. As in Mills and Nilsen, then, Judge Russell’s Order
in Lawsuit I is a final judgment on the merits, because the complaint was dismissed on
limitations grounds. See Mills, 872 F.2d at 826; Nilsen, 701 F.2d at 562. Because Judge Russell’s
decision was premised on plaintiff’s failure to timely file her complaint, it constitutes a final
judgment on the merits. Thus, the first element is satisfied.
Second, a cause of action is “identical” for purposes of res judicata if it “involves a right
arising out of the same transaction or series of connected transactions that gave rise to the claims
in the first action.” Harnett v. Billman, 800 F.2d 1308, 1314 (4th Cir. 1986); see Clodfelter v.
Republic of Sudan, 720 F.3d 199, 210 (4th Cir. 2013) (“[W]e follow the ‘transactional’ approach
when considering whether causes of action are identical: ‘As long as the second suit ‘arises out
of the same transaction or series of transactions as the claim resolved by the prior judgment,’ the
first suit will have preclusive effect.’”) (Citation omitted). Notably, “[u]nder this transactional
approach, res judicata will bar a ‘newly articulated claim[ ]’ if it is based on the same underlying
transaction and could have been brought in the earlier action.” Clodfelter, 720 F.3d at 210 (citing
Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 162 (4th Cir. 2008)).
The claims presented here arise out of the same thirty-year period in which plaintiff
alleges she was denied opportunities for projects, training, and promotions, and therefore
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“involve [] right[s] arising out of the same transaction or series of connected transactions,” as
alleged in Lawsuit I. See Harnett, 800 F.2d at 1314. In addition, as in the complaint filed in
Lawsuit I, plaintiff’s instant Complaint does not identify the date of any EEOC filing, other than
her original filing “over 30 years ago.” ECF 1 at 2; 14-4028-GLR, ECF 1 at 2. Moreover, the
instant Complaint does not specifically identify any alleged retaliation involving projects,
trainings, or promotions that occurred since the filing of Lawsuit I. ECF 1 at 2. Thus, the second
element is met as to any transactions that were or could have been raised in Lawsuit I.
Finally, the defendant in this case is in privity with the defendant in Lawsuit I. Parties are
in privity for purposes of res judicata where they are “so identified in interest . . . that [they]
represent[] precisely the same legal right in respect to the subject matter involved.” Martin v.
Am. Bancorporation Ret. Plan, 407 F.3d 643, 651 (4th Cir. 2005) (quoting Jones v. SEC, 115
F.3d 1173, 1180 (4th Cir. 1997)). Here, defendant is merely the official at the head of the SSA at
the time this suit was filed, and therefore shares the interests of the prior holder of that office
who was sued in Lawsuit I. See id. Consequently, the privity requirement is met, and all of the
claims plaintiff raised or could have raised in her earlier lawsuit are barred by res judicata.
B. 2014 Non-Selection
There is one transaction that could not have been part of plaintiff’s Lawsuit I. Defendant
concedes that plaintiff pursued, and has now properly exhausted, an EEOC complaint regarding
her non-selection in 2014 to the position of Social Security Insurance Specialist, advertised under
Vacancy Announcement Number SH-1094820. ECF 10-1 at 3. At the time that plaintiff filed
Lawsuit I, plaintiff had not yet exhausted her administrative remedies relating to the Position.
Plaintiff does not mention the Position expressly in her Complaint, but complaints filed by pro se
litigants are subject to liberal construction. See Boag v. MacDougall, 454 U.S. 364, 365 (1982)
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(per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972). Accordingly, it is appropriate to
consider plaintiff’s claim regarding the Position in this case, as it is not barred by res judicata.
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.,
“prohibits employers from discriminating on the basis of race, color, religion, sex, or national
origin, or retaliating against their employees for opposing or seeking relief from such
discrimination.” Green v. Brennan, –––U.S. ––––, 136 S. Ct. 1769, 1773-74 (2016); see Gentry
v. E. W. Partners Club Mgmt. Co. Inc., 816 F.3d 228, 233 (4th Cir. 2016); Boyer-Liberto v.
Fontainbleu Corp., 786 F.3d 264, 298 (4th Cir. 2015) (en banc); Freeman v. Dal-Tile Corp., 750
F.3d 413, 420 (4th Cir. 2014). In order to prevail under Title VII, “the existence of some adverse
employment action is required.” James v. Booz–Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th
Cir. 2004).
An “adverse employment action” is one that “‘constitutes a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.’” Hoyle v.
Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (quoting Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 761 (1998)). In this case, the failure to promote plaintiff to the Position constitutes
an adverse employment action. See Bryant v. Aiken Regional Med. Ctrs. Inc., 333 F.3d 536, 544
(4th Cir. 2003) (stating that “[i]t has long been clear that failure to promote an employee
constitutes an adverse employment action for the purposes” of Title VII).
In general, there are “two avenues” at trial by which a plaintiff may prove intentional
employment discrimination. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284
(4th Cir. 2004) (en banc) (recognized in Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243,
249 (4th Cir. 2015) as abrogated on other grounds by Univ. of Texas Sw. Med. Ctr. v. Nassar,
15
570 U.S. 338 (2013)). The plaintiff’s first avenue is to offer “‘direct or indirect’” evidence of
discrimination under “‘ordinary principles of proof.’” Burns v. AAF-McQuay, Inc., 96 F.3d 728,
731 (4th Cir. 1996) (citation omitted), cert. denied, 520 U.S. 1116 (1997). The plaintiff’s second
avenue is to follow the burden-shifting approach first articulated by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Young v. United Parcel
Serv., Inc., –––U.S. ––––, 135 S. Ct. 1338, 1345 (2015) (construing the Pregnancy
Discrimination Act); Guessous v. Fairview Prop. Investments, LLC, 828 F.3d 208, 216 (4th Cir.
2016) (discussing the three steps of the McDonnell Douglas framework).
The McDonnell Douglas proof scheme is “a procedural device, designed only to establish
an order of proof and production.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 521 (1993)
(emphasis omitted). Under the McDonnell Douglas approach, the “ultimate burden of persuasion
[at trial] never ‘shifts’ from the plaintiff” to prove intentional unlawful discrimination. Williams
v. Cerberonics, Inc., 871 F.2d 452, 456 n.2 (4th Cir. 1989) (citation omitted). Notably, “the
McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of
discrimination.” Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985).
If the plaintiff chooses to proceed at trial under the McDonnell Douglas approach, the
plaintiff must first establish a “prima facie case of discrimination.” Merritt v. Old Dominion
Freight Line, Inc., 601 F.3d 289, 294 (4th Cir. 2010); see Abilt v. Central Intelligence Agency,
848 F.3d 305, 315 (4th Cir. 2017). Although the precise formulation of the required prima facie
showing will vary in “different factual situations,” McDonnell Douglas, 411 U.S. at 802 n.13, the
plaintiff is generally required to show that the employer took adverse action against an applicant
“under circumstances which give rise to an inference of unlawful discrimination.” Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
16
In a failure to promote case, the Fourth Circuit has said that, to establish a prima facie
case of discrimination under Title VII, the plaintiff must show by a preponderance of the
evidence that (1) she is a member of a protected class; (2) her employer had an open position for
which she applied or sought to apply; (3) she was qualified for the position; and (4) she was
rejected for the position under circumstances giving rise to an inference of unlawful
discrimination. Evans v. Tech. Applications & Serv. Co., 80 F.3d 954, 959-60 (4th Cir. 1996)
(citing Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94; Carter v. Ball, 33 F.3d 450, 458 (4th Cir.
1994); McNairn v. Sullivan, 929 F.2d 974, 977 (4th Cir. 1991)).
If a plaintiff establishes a prima facie case of unlawful discrimination, “a presumption of
illegal discrimination arises, and the burden of production shifts to the employer” to produce
evidence of a legitimate, non-discriminatory reason for its adverse employment action. Hoyle,
650 F.3d at 336; see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000);
Hurst v. District of Columbia, ––– Fed.Appx. ––––, 2017 WL 908208, at *3 (4th Cir. Mar. 7,
2017) (per curiam). “If the defendant carries this burden of production, the presumption raised by
the prima facie case is rebutted.” Burdine, 450 U.S. at 255. In that circumstance, “the McDonnell
Douglas framework—with its presumptions and burdens—is no longer relevant,” and “simply
drops out of the picture.” St. Mary’s Honor Ctr., 509 U.S. at 510-11. The plaintiff must then
prove, by a preponderance of evidence, “that the proffered reason was not the true reason for the
employment decision,” and that the plaintiff “has been the victim of intentional discrimination.”
Burdine, 450 U.S. at 256; see also Reeves, 530 U.S. at 143; St. Mary’s Honor Ctr., 509 U.S. at
516-20; Adams v. Trustees of Univ. of North Carolina-Wilmington, 640 F.3d 550, 560 (4th Cir.
2011) (“[I]n demonstrating the Defendants’ decision was pretext, [plaintiff] had to prove ‘both
17
that the reason was false, and that discrimination was the real reason.’ ”) (quoting Jiminez v.
Mary Washington Coll., 57 F.3d 369, 378 (4th Cir. 1995) (emphasis in original)).
As noted, these two approaches establish the common methods by which a plaintiff may
prove intentional employment discrimination at trial. See Burns, 96 F.3d at 731. At the summary
judgment or motion to dismiss stage, however, these approaches merely serve to inform a court’s
evaluation of the allegations. See Pettis v. Nottoway Cnty. Sch. Bd., 592 Fed. Appx. 158, 160
(4th Cir. 2014) (stating that a plaintiff asserting racial discrimination “may avoid summary
judgment by proceeding under the burden-shifting framework established in McDonnell
Douglas....”).
In the Motion, defendant argues that summary judgment is appropriate because plaintiff
has not put forth any direct or circumstantial evidence of retaliation, nor has she established
retaliation under the McDonnell Douglas framework. ECF 10-1 at 18-21; see McDonnell
Douglas, 411 U.S. at 802. I agree.
“Direct evidence must be ‘evidence of conduct or statements that both reflect directly the
alleged discriminatory attitude and that bear directly on the contested employment decision.’”
Warch v. Ohio Casualty Insurance Co., 435 F.3d 510, 520 (4th Cir. 2006) (citation omitted).
Circumstantial evidence, defined as “[e]vidence based on inference and not on personal
knowledge or observation” (Blacks L. Dictionary, “Evidence” (10th Ed. 2014)), “is not only
sufficient, but may also be more certain, satisfying and persuasive than direct evidence.” Desert
Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (quoting Rogers v. Missouri Pacific R. Co., 352
U.S. 500, 508 n.17 (1957)). For example, “[p]roof that the defendant’s explanation is unworthy
of credence is simply one form of circumstantial evidence that is probative of intentional
18
discrimination, and it can be quite persuasive.” Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 147 (2000).
To be sure, in this case plaintiff has alleged that defendant acted with retaliatory intent.
See, e.g., ECF 1 at 2. However, the only direct or circumstantial evidence she proffers is the
document dated December 3, 2014, purportedly drafted by an anonymous “employee of the
Federal Government,” recounting information he or she received in 2005 in a conversation with
unidentified individuals. ECF 14-1. That document does not meet the requirements to be
considered in opposition to a motion for summary judgment. See Fed. R. Civ. Proc. 56(c)(4)
(“An affidavit or declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.”); see also J.H. by David H. v. ABC Care,
Inc., 953 F. Supp. 675, 682 (D. Md. 1996) (deeming evidence “not of sufficient caliber and
quantity to present a dispute of material fact” where affidavits did not identify “the persons who
purportedly made the statements relied upon”). Even if the document from the anonymous
employee could be considered at summary judgment, information provided about the alleged
motivations of selecting officials in 2005 has no bearing on decisions made nine years later, in
2014, regarding plaintiff’s non-selection for the Position.
Defendant also argues that summary judgment is appropriate under the McDonnell
Douglas standard because plaintiff failed to set forth a prima facie case of retaliatory nonselection. ECF 10-1 at 18-21. As indicated, to establish a prima facie case that a failure to
promote violated Title VII, the plaintiff must prove: “(1) she is a member of a protected class; (2)
her employer had an open position for which she applied or sought to apply; (3) she was
qualified for the position; and (4) she was rejected for the position under circumstances giving
19
rise to an inference of unlawful discrimination.” Evans, 80 F.3d at 959-60. Clearly, plaintiff has
satisfied the first three criteria.
Although it is a closer call as to whether plaintiff has demonstrated that she was rejected
for the Position under “circumstances giving rise to an inference of unlawful discrimination,”
“the burden of establishing a prima facie case of disparate treatment is not onerous.” Evans, 80
F.3d at 960 (citing Burdine, 450 U.S. at 253). Thus, for the purpose of this opinion, I find that
plaintiff has satisfied the “relatively easy test.” Id. (citing Young v. Lehman, 748 F.2d 194, 197
(4th Cir. 1985)).
Even assuming, then, that plaintiff can establish a prima facie case, she offers no
evidence that defendant’s legitimate, non-discriminatory reason for her non-selection was
pretexual.
“[T]he employer has discretion to choose among equally qualified candidates
provided the decision is not based upon unlawful criteria.” Wileman v. Frank, 979 F.2d 30, 38
(4th Cir. 1992). Accordingly, “[i]n a failure to promote case, the plaintiff must establish that she
was the better qualified candidate for the position sought.” Evans, 80 F.3d at 960. Plaintiff has
not done so here. Defendant cites statements from Greene and Wolf regarding the fact that
experience in a field office was an important factor in their evaluation of the candidates. See
ECF 10-4 at 116, 122. Ikenaga had such experience, and plaintiff did not. Id.
Moreover, no inference can be drawn that there was a causal connection between
plaintiff’s protected EEOC activity and her non-selection. The Fourth Circuit has found that,
without other evidence of retaliation, a six month lapse in time between the protected activity
and the alleged discrimination does not demonstrate “temporal proximity” suggesting a causal
connection. See Hooven-Lewis v. Caldera, 249 F.3d 278 (4th Cir. 2001) (“A six month lag is
sufficient to negate any inference of causation.”); Causey v. Balog, 162 F.3d 795, 803 (4th Cir.
20
1998) (determining that a thirteen month interval between plaintiff’s initial charge and
termination was too long to establish causation absent other evidence of retaliation). Here, the
lag of more than 30 years from the only EEOC complaint mentioned in the complaint is clearly
outside the bounds of “temporal proximity.”8
Finally, plaintiff received a promotion shortly after her non-selection for the Position,
undermining the notion that she was passed over on the basis of retaliation. ECF 14 at 3.
Plaintiff, in fact, credits Wolf, who participated in the screening for the Position, for “refusing to
retaliate” and for promoting plaintiff to GS-13. ECF 14 at 14.
In the absence of any evidence suggesting that defendant’s legitimate, non-discriminatory
reason for selecting another candidate constituted pretext for retaliatory conduct, and the
substantial evidence to the contrary, summary judgment is appropriate.
IV. Conclusion
For the reasons set forth above, I shall grant summary judgment to defendant. An Order
follows, consistent with this Memorandum Opinion.
Dated: April 2, 2018
/s/
Ellen L. Hollander
United States District Judge
8
Defendant avers that plaintiff filed a more recent EEOC charge in 2009, ECF 10-6 at 23, but even that charge was five years before the non-selection in question.
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