Kearse v. Berryhill
Filing
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MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 12/14/18. (krs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JEHOVAH KEARSE,
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Plaintiff,
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v.
Civil Action No. RDB-17-3028
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NANCY A. BERRYHILL,
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Defendant.
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MEMORANDUM OPINION
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Plaintiff Jehovah Kearse (“Plaintiff” or “Kearse”) brings this action against Nancy A.
Berryhill, in her official capacity as Acting Commissioner of the United States Social Security
Administration (“Defendant” or the “Agency”), alleging that his supervisor, an AfricanAmerican female, discriminated against him on the basis of his race and gender and
retaliated against him by terminating his employment after his one-year probationary period,
in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (Am.
Compl., ECF No. 9.) Currently pending before this Court is the Defendant’s Motion to
Dismiss or, in the alternative, Motion for Summary Judgment (ECF No. 10) and the
Plaintiff’s Motion to Defer Ruling on Defendant’s Motion for Summary Judgment Pending
Discovery (ECF No. 16).1 The parties’ submissions have been reviewed, and no hearing is
necessary. See Local Rule 105.6 (D. Md. Dec. 1, 2018).
Also pending before this Court are two additional Motions. First, the Defendant’s Motion to Dismiss or, in
the alternative, Motion for Summary Judgment with respect to the Original Complaint (ECF No. 8), which is
MOOT. Second, the Plaintiff’s unopposed Motion for Extension of Time to Respond to the Defendant’s
Opposition to the Motion to Defer Ruling (ECF No. 21), which is GRANTED and this Court will consider
the Plaintiff’s Reply to the Defendant’s Opposition.
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As explained below, there are no genuine issues of material fact based upon the
record before this Court, and no reasonable basis for concluding that the discovery Kearse
requests would reveal a triable issue of fact. Therefore, the Defendant’s Motion, treated as a
Motion for Summary Judgment, is GRANTED (ECF No. 10) and Plaintiff’s Motion to
Defer Ruling (ECF No. 16) is DENIED.
BACKGROUND
One July 7, 2012, Plaintiff Jehovah Kearse (“Plaintiff” or “Kearse”) an AfricanAmerican male, began working for the United States Social Security Administration (the
“Agency”) on a one-year probationary term as a GS-14 Division Director for the Division of
Policy and Purchase Card Administration in the Office of Acquisition and Grants (“Division
Director”). (Record of Investigation (“ROI”), ECF No. 10-2, Kearse Aff., Ex. 6 at 2-3.)2 As
a Division Director, Kearse was responsible for reviewing and preparing acquisition policy,
conducting training, and supervising policy analysts, and he asserts that the workload was
extremely heavy. (Id. at 4.) His immediate supervisor was the GS-15 Director of Acquisition
and Grants, Allyson Stokes, an African-American female. (Id. at 2, 4.) In addition to Plaintiff,
Stokes supervised seventeen other employees in various positions, including procurement
analysts who reported to Kearse. (Ex. 5B.) Among the eighteen employees were eight
Caucasian, eight African-American, and two Asian employees, and seven male and eleven
female employees. (Id.)
In February of 2013, Kearse and Stokes met for Kearse’s mid-year performance
Record of Investigation (“ROI”) refers to the record compiled at the administrative level of the Plaintiff’s
claims. Unless indicated otherwise, all exhibits referred to are from the Record of Investigation (ECF No. 102).
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review. (Ex. 14e.) While Kearse alleges that Stokes appeared pleased with his performance
during his first six months (Am. Compl., ECF No. 9 at ¶ 20), his written assessment
identified several areas in which Kearse needed improvement or “more emphasis.” (Ex. 14e.)
Specifically, the mid-year performance review stated:
Interpersonal Skills: …He communicates very well orally and in writing. His
ideas and thoughts are conveyed clearly and concisely. [Mr. Kearse] tailors
message appropriately for the intended audience, and ensures information is
communicated effectively. Improvement is needed in the area of returning
emails promptly. At the least, emails should be acknowledged within 24 hours
after receipt, and include an estimated time of providing the response to the
inquiry. Improvement is also needed in the area of keeping staff apprised
when time will be spent away from the office. . . .
Participation: …[Mr. Kearse] typically provides reports, controlled
correspondence, and documents within reasonable timeframes. More
emphasis is needed on managing the workload so that controls and other
assignments are completed timely, and documents are reviewed timely…. He
needs to ensure monthly acquisition personnel training and quarterly COTR
training sessions are held or inform management if these sessions will not be
held on a monthly or quarterly basis as scheduled. . . .
Demonstrates Job Knowledge: …[Mr. Kearse] stays abreast of regulation and
policy changes. More emphasis is needed in ensuring analysts keep policies
and procedures up to date with regulatory changes, and as requested by
management. …[Mr. Kearse] writes extremely well, and articulates logically
and clearly while communicating orally. His email correspondence is clear,
concise, and well written. More emphasis is needed on ensuring the work
products of others are in an active voice, clear, and concise.
Achieves Business Results: …[Mr. Kearse] strives to handle day-to-day work
challenges effectively. More emphasis is needed on completing a majority of
the work assignments timely and as scheduled, and using a balanced approach
to complete assignments, reviews, and read and respond to emails. …
Demonstrates Leadership: …[Mr. Kearse] allows his employees to work
independently, and adjusts resources as necessary. He is a good role model
and demonstrates good ethics. He encourages the staff to work effectively and
efficiently. More emphasis is needed on timely reviewing work products of the
analysts so as not to delay processing. [Mr. Kearse] is very supportive of his
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staff, and interacts well with them, thus creating and maintaining a positive
work environment. …
Manages Performance: [Mr. Kearse] needs to conduct performance
assessments and performance discussions timely per the schedule established
by the agency. He establishes and communicates appropriate performance
expectation, provides development for his staff, and makes training
recommendations consistent with the needs of the staff.
(Id.)
Kearse asserts that due to the nature of the Division Director position, he frequently
worked over forty hours per week. (ECF No. 9 at ¶ 22.) Pursuant to the Agency’s overtime
policy, employees request “credit hours” for overtime work. (Kearse Aff., Ex. 6 at 7.)
Accordingly, Stokes testified that she required all of her employees to submit oral or written
requests to work credit hours indicating what tasks they intended to complete. (Stokes Aff.,
Ex. 7 at 5.)
At some unspecified time during his one-year probationary term, Kearse alleges that
Stokes required him, but not other Caucasian females, to request credit hours in writing and
also provide a written account of his overtime activity afterwards. (Kearse Aff., Ex. 6 at 7-8.)
Stokes testified that she only required Kearse, and none of the other employees under her
supervision,3 to submit reports for work completed because Kearse began requesting a
considerable amount of credit hours early in his tenure, and she needed to know what he
was completing during that time. (Stokes Aff., Ex. 7 at 5.)
It is undisputed that although Stokes required Kearse to submit written requests and
follow up reports, Stokes never denied any of Kearse’s requests for credit hours. Both
Two of those employees, Joan Smith and Phyllis Hopson, similarly testified that they had to provide
requests to work credit hours and indicate the project they would be completing, but did not have to submit
reports for work completed. (Smith Aff., Ex. 10 at 4; Hopson Aff., Ex. 9 at 4.)
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Kearse and Stokes testified, however, that once Stokes imposed this requirement, Kearse
began requesting credit hours less frequently. (Stokes Aff., Ex. 7 at 56; EEO Complaint, Ex.
1 at 4.) Kearse asserts that he discussed with Stokes “the apparent disparity in treatment”
between him and other Caucasian female employees. (Kearse Aff., Ex. 6 at 3.) He asserts
that thereafter, “Stokes’ attitude towards [him] immediately changed” and “she became quite
hostile.” (Id.)
On July 8, 2013, Stokes informed Kearse that his employment would not continue
past his one-year probationary period. (Kearse Aff., Ex. 6 at 6.) His Letter of Termination
indicated that despite his mid-year evaluation, Stokes had continued to observe Kearse
perform deficiently in managing his workload, completing his work in a timely and correct
manner, and managing his staff’s deadlines. (Ex. 14f.) Seth Binstok, Kearse’s second line
supervisor and a Caucasian male, testified that although Stokes did not need his approval to
terminate Kearse’s employment, he did not believe that Kearse had sufficiently improved
from his mid-year performance evaluation and agreed with her decision. (Binstok Aff., Ex. 8
at 4.)
On September 6, 2013, Kearse filed a Charge of Discrimination with the Equal
Employment Opportunity (“EEO”) program, asserting that he was terminated on the basis
of his race and gender and because he had complained to Stokes about disparate treatment
with respect to credit hours. (EEO Complaint, Ex. A.) The Social Security Administration
investigated the complaint from December 30, 2013 through February 28, 2014, and
compiled a Report of Investigation (“ROI”) on April 7, 2014. (Id.) Among the information
collected in the one-hundred and twenty page report was an affidavit and rebuttal statement
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by the Plaintiff Jehovah Kearse; an affidavit by his supervisor Allyson Stokes; an affidavit by
his second-level supervisor Seth Binstok; affidavits or letters by five Procurement Analysts
who reported to Kearse; and documents concerning Plaintiff’s position. (Id.)
On July 10, 2014, Kearse requested a hearing before the U.S. Equal Employment
Opportunity Commission (“EEOC”). (Final Agency Determination, ECF No. 10-3 at 2.)
When a hearing had not occurred by June of 2017, Kearse withdrew his request for a hearing
and sought to remand his complaint back to the Agency. (Id.) Subsequently, on July 18,
2017, the Agency issued a Final Agency Decision, finding that Kearse’s termination was not
discriminatory on the basis of his race or gender or retaliatory for engaging in protected
activity. (Id.) Specifically, the SSA determined that Kearse failed to establish a prima facie case
for discrimination or retaliation and, even if he had, the Agency had a legitimate reason for
terminating the Plaintiff’s employment which he did not show was pretext for
discrimination. (Id.)
On October 16, 2017, Kearse filed a Complaint in this Court, alleging discrimination
and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et
seq. (Compl., ECF No. 1.) After the Defendant filed a Motion to Dismiss or, in the
alternative, Motion for Summary Judgment (ECF No. 8), the Plaintiff filed an Amended
Complaint (ECF No. 9.) The Defendant then filed a Motion to Dismiss the Amended
Complaint or, in the alternative, Motion for Summary Judgment (ECF No. 10.) After
requesting two extensions of time to file a response or reply, which this Court granted,
Kearse filed a Response in Opposition (ECF No. 15) and a Motion to Defer Ruling on
Defendant’s Motion for Summary Judgment Pending Discovery (ECF No. 16), asking this
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Court to permit him to conduct discovery pursuant to Federal Rule of Evidence 56(d).
STANDARD OF REVIEW
The Defendant filed a Motion to Dismiss or, in the alternative, Motion for Summary
Judgment. (ECF No. 10.) 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). If it does so, “the motion must be treated as one for summary
judgment under Rule 56.” Fed. R. Civ. P. 12(d). Therefore, a motion styled in this manner
implicates a court’s discretion under Rule 12(d) of the Federal Rules of Civil Procedure.
Kensington Vol. Fire Dept., Inc. v. Montgomery County, 788 F. Supp. 2d 431, 436-37 (D. Md.
2011). 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.” Sager v. Hous. Com’n of Anne Arundel Cty., 855 F. Supp. 2d 524, 542 (D. Md.
2012) (quoting 5C Wright & Miller, Federal Practice & Procedure § 1366, at 159 (3d ed.
2004, 2011 Supp.)). As explained below in the context of Plaintiff’s Motion to Defer Ruling,
in this Court’s discretion, the Defendant’s Motion is treated as a Motion for Summary
Judgment.
Under Federal Rule of Civil Procedure 56(c), a court must grant summary judgment if
the record shows “that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247 (1986). A material fact is one that “might affect the outcome of the suit under the
governing law.” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting
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Anderson, 477 U.S. at 248). The party seeking summary judgment bears the initial burden of
demonstrating the absence of a genuine dispute of material fact, Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986), and the court must take all facts and inferences in the light most
favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). The party
opposing summary judgment must, however, “do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986); see also In re Apex Express Corp., 190 F.3d 624, 633 (4th Cir. 1999).
The non-movant “‘may not rest upon the mere allegations or denials of [his] pleadings,’ but
rather must ‘set forth specific facts showing that there is a genuine issue for trial.’” Bouchat v.
Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (alteration in original)
(quoting Fed. R. Civ. P. 56(e)); see also Adickes v. S. H. Kress & Co., 398 U.S. 144, 160 (1970).
A court should enter summary judgment when a party fails to make a showing sufficient to
establish elements essential to a party’s case, and on which the party will bear the burden of
proof at trial. Celotex Corp., 477 U.S. at 322-23.
ANALYSIS
The Plaintiff Kearse, an African-American male, claims that his supervisor, an
African-American female, discriminated against him on the basis of his race and gender and
retaliated against him by terminating his employment after his one-year probationary period,
in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.4 In his
The Amended Complaint alleged Kearse was discriminated against both when he was terminated and also
when additional “terms and conditions” were imposed on him with respect to his requests for credit hours.
(ECF No. 9 at ¶ 43.) Plaintiff’s Response to the Motion to Dismiss, however, does not address the
Defendant’s argument that the requirements concerning the credit hours do not amount to adverse
employment actions, and accordingly the Plaintiff concedes this point. Stenlund v. Marriot Int’l, Inc., 172 F.
Supp. 3d 874, 887 (D. Md. 2016) (“In failing to respond to [defendant’s] argument, Plaintiff concedes the
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Motion to Defer Ruling on Defendant’s Motion for Summary Judgment Pending Discovery,
he also asserts that a Motion for Summary Judgment is premature on the present record and
asks this Court to permit him to conduct discovery. (ECF No. 16.) On the other hand, the
Defendant argues that the undisputed facts of this case gathered from the Record of
Investigation and additional documents provided by the Defendant show that Kearse’s
termination was not discriminatory or retaliatory, but rather his supervisor terminated his
employment at the end of his one-year probationary period because he was not meeting the
Agency’s legitimate expectations. This Court addresses the Plaintiff’s discrimination and
retaliation claims and his Motion to Defer Ruling below.
I.
Defendant is entitled to Summary Judgment on Plaintiff’s Title VII
Claims
a. Discrimination Claim (Count I)
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq.,
makes it unlawful “to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race . . ..” §
2000e-2(a)(1). The Plaintiff asserts that the Defendant discriminated against him on the basis
of his race and gender when he was terminated at the end of his one-year probationary
period. Where, as here, the Plaintiff has not presented any direct evidence of discrimination,
he must establish his claim by circumstantial evidence through the “pretext” framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).
point.”). Moreover, an adverse employment action is one that “adversely affects the terms, conditions, or
benefits of the plaintiff’s employment, so that the employee suffers a “significant detrimental effect” from the
action at issue. Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007). The Plaintiff’s allegations
that he was required to submit written requests and follow up reports in order to obtain credit hours, without
any allegations that any of his requests were denied, do not constitute adverse employment actions.
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Under the “pretext” framework, the burden is first on Plaintiff to make a prima facie
case of disparate treatment by proving that (1) he is a member of a protected class; (2) he
suffered an adverse employment action; (3) he was meeting his employer’s legitimate
expectations at the time of the adverse employment action; and (4) similarly situated
employees outside of his class received more favorable treatment. Williams v. Silver Spring
Volunteer Fire Dept., 86 F. Supp. 3d 398, 420 (D. Md. 2015) (citing Coleman v. Md. Court of
Appeals, 626 F.3d 187, 190 (4th Cir. 2010)). If Kearse makes this showing, the second step
places the burden on the employer to assert a “legitimate, non-discriminatory reason” for the
disparate treatment. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. 1817. If the employer meets
this step, the burden then shifts back to Plaintiff to demonstrate that the employer’s
purported reason was “pretextual.” As this Court stated in Venugopal v. Shire Labs., 334 F.
Supp. 2d 835 (D. Md. 2004), aff’d sub nom, 134 F. App’x 627 (4th Cir. 2005), “[w]hile
the McDonnell Douglas framework involves a shifting back and forth of the evidentiary
burden, Plaintiff, at all times, retains the ultimate burden of persuading the trier of fact that
the employer discriminated in violation of Title VII.” 334 F. Supp. 2d at 841. Accordingly,
on a motion for summary judgment, “if the plaintiff cannot present facts that would permit
a reasonable inference that the stated reason is a pretext for discrimination, summary
judgment in favor of the defendant should be granted.” Huie v. Univ. of Maryland Med. Ctr.,
No. RDB-04-2987, 2006 WL 197183, at *3 (D. Md. Jan. 23, 2006) (citing Rowe v. Marley
Co., 233 F.3d 825, 830 (4th Cir. 2000)).
It is undisputed that as an African-American male, Kearse is a member of a protected
class. In addition, his termination is clearly an adverse employment action because it
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“adversely affect[ed] the terms, conditions, or benefits of his employment.” Holland v.
Washington Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007) (quoting James v. Booz-Allen &
Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004)). The Defendant argues, however, that the
Plaintiff fails to meet the third and fourth elements of a prima facie case and, further, the
Defendant had a legitimate reason for terminating his employment that the Plaintiff has not
shown was pretext for discrimination. As explained below, even assuming that Kearse
established a prima facie case, based on the administrative record and facts before this Court
the Agency had a legitimate, non-discriminatory reason for terminating Kearse that he has
not shown is pretext for discrimination.
When evaluating whether an employer has articulated a legitimate, non-discriminatory
reason for disparate treatment, “this Court does not sit as a kind of super-personnel
department weighing the prudence of employment decisions made by firms charged with
employment discrimination.” DeJarnette v. Corning, Inc., 133 F.3d 293, 298-299 (4th Cir. 1998);
Staley v. Guenberg, No. 13-1875, 575 F. App’x. 153, 156 (4th Cir. June 6, 2014). Thus, “‘when
an employer articulates a reason for [its treatment of the plaintiff]’ that the statute does not
proscribe, ‘it is not [the court’s] province to decide whether the reason was wise, fair, or even
correct, ultimately, so long as it truly was the reason for the [employment decision].” Villa v.
CavaMezze Grill, LLC, 858 F.3d 896, 901 (4th Cir. 2017) (quoting DeJarnette, 133 F.3d at 299).
Kearse does not dispute that his employment as a GS-14 Division Director was
subject to a one-year probationary term beginning in July of 2012. In February of 2013, he
received his mid-year performance evaluation. (Ex. 14e.) The evaluation both commended
Kearse in some areas, but also identified several areas for improvement and more emphasis.
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For example, in the area of interpersonal skills, the evaluation stated Kearse “communicates
very well orally and in writing” and “his ideas and thoughts are conveyed clearly and
concisely,” while it also stated “improvement is needed in the area of returning emails
promptly” and “improvement is also needed in the area of keeping staff apprised when time
will be spent away from the office.” (Id.) Similarly, in the area of participation, the evaluation
commended Kearse for providing reports, controlled correspondence, and documents
within a reasonable time frame, while also indicating that “more emphasis is needed on
managing the workload so that controls and other assignments are completed timely, and
documents are reviewed timely.” (Id.) Of the six performance areas, each highlighted
Kearse’s performance while identifying areas for improvement or more emphasis. (Id.)
Kearse’s termination letter then indicates that Stokes continued to observe Kearse
failing to manage his workload, complete his work correctly and timely, hold his staff
accountable, and effectively follow up on projects. (Ex. 14f.) Seth Binstok, Kearse’s second
line supervisor and a Caucasian male, also testified that he believed that Kearse had not
sufficiently improved from his mid-year performance evaluation and agreed with Stokes’
decision to terminate Kearse’s employment. (Binstok Aff., Ex. 8 at 4.) Therefore, the Agency
has met its burden of production of articulating a legitimate, non-discriminatory reason for
Kearse’s termination at the end of his one-year probationary period.
Accordingly, the burden shifts back to the Plaintiff under the McDonnell Douglas
framework to demonstrate that the Agency’s purported reason for terminating him was
“pretextual.” McDonnell Douglas, 411 U.S. at 804, 93 S. Ct. 1817. To meet this burden, a
plaintiff must show “both that the reason was false, and that discrimination was the real
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reason” for the disparate treatment. Adams v. Tr. of the Univ. of N.C.-Wilmington, 640 F.3d 550,
560 (4th Cir. 2011) (emphasis omitted). From the Record of Investigation and the parties’
submissions, there is no genuine dispute of material fact that the Agency’s legitimate reason
for terminating Kearse’s employment was not pretext for discrimination.
First, Plaintiff has not presented any evidence that the proffered reasons for his
termination were false. At most, the Plaintiff only offers his speculative belief that despite
the language of the mid-year evaluation, he was performing his position well and meeting the
Agency’s legitimate expectations. Relatedly, he asserts that that the mid-year performance
evaluation “d[id] nothing to suggest possible doubt about retention of employment” and
Stokes “made no specific reference to anything showing a less than preferable level of
‘emphasis.’” (Pl.’s Resp., ECF No. 15 at 8.) However, “when an employer gives a legitimate,
non-discriminatory reason for discharging the plaintiff, ‘it is not our province to decide
whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the
reason for the plaintiff’s termination.’” Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir.
2000) (quoting DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998)). Aside from his
own beliefs, Kearse has not directed this Court to any evidence that Stokes’ assessment of
his performance was dishonest or not the real reason for his termination. See Hawkins, 203
F.3d at 279 (explaining that the plaintiff’s claims that her supervisor’s “criticisms were
inaccurate” and she actually performed her job well were insufficient to show that the
defendant’s stated reasons for terminating her were not the real reasons for her
termination).5
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To the extent the Amended Complaint alleges that Kearse’s staff came forward after his termination stating
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Second, Kearse has not shown that racial or gender biases were the real reasons
Stokes terminated him at the end of his one-year term. “[I]t is not enough . . . to dis believe
the employer; the factfinder must believe the plaintiff’s explanation of intentional
discrimination.” Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 147m 120 S. Ct. 2097
(2000) (quoting St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 519, 113 S. Ct. 2742 (1993))
(emphasis in original). At the outset, when the Plaintiff Kearse filled out his affidavit with
respect to the administrative proceedings in January of 2014, he testified that he believed
Stokes did not want him working for the Agency “for some reason. It is difficult for me to
say exactly why . . ..” (Kearse Aff., Ex. 6 at 6.) He then when on to say that “[b]ut given the
treatment she accorded me relative to my white female counterparts,” he believed he was
terminated because of his race and gender. (Id.) As explained below, however, the
“treatment” Plaintiff refers to were the requirements concerning his requests for credit
hours, and it is undisputed that Stokes required all of her employees to submit requests to
work credit hours, and only required Kearse to submit follow-up reports.
The thrust of Kearse’s discrimination claim is that he, an African-American male, was
required to submit in writing requests for credit hours and afterwards submit a report
indicating what tasks he had completed, while other, Caucasian female employees were
permitted to orally request credit hours and did not have to provide a follow up report. At
the outset, this Court notes that as explained above, it is undisputed that the requirements
Stokes imposed on Kearse concerning credit hours were not adverse employment actions,
that Kearse “listened and heard what we had to say” and “boost[ed] morale, uplift[ed] spirits, and buil[t]
positive attitudes about the work place,” the Fourth Circuit has held that “[t]he alleged opinions of [a
plaintiff’s] co-workers as to the quality of [his or] her work” are “close to irrelevant.” Hawkins, 203 F.3d at
280 (citation omitted).
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and Stokes never denied Kearse’s requests for credit hours. See supra n. 4. Moreover, it
undisputed that pursuant to the Agency’s policy, Stokes required all employees to submit
oral or written requests for credit hours (Stokes Aff., Ex. 7 at 5), which Kearse
acknowledged he understood in his EEO Complaint. (EEO Compl., Ex. 1 (“Upon starting
work at SSA and learning about credit hours, I observed that common practice was that
employees could request to work credit hours verbally or via email.”).) Accordingly, Stokes,
an African-American female, required all of the employees she supervised—eight Caucasian,
eight African-American, and two Asian employees and seven male and eleven female
employees—to request credit hours in advance, pursuant to the Agency’s policy. (Ex. 5B;
Stokes Aff., Ex. 7 at 5.)
To the extent Kearse is relying on the fact that Stokes required him to submit a
written request for hours, and supplement the request afterwards with a report of the work
he completed, Kearse also has not shown that these requirements were implemented
because of racial or gender bias. Stokes testified that she imposed the particular requirements
on Kearse because he began requesting a considerable amount of credit hours early in his
tenure, and she needed to know what he was completing during that time. (Stokes Aff., Ex. 7
at 5.) Moreover, it is undisputed that Stokes only required Kearse, and none of the other
male or African-American employees, to follow such procedures. (Id.)
Finally, this Court addresses the Plaintiff’s vague assertion that his “white female
predecessor” was not required to “justify use of credit hours in advance” or submit reports
afterward. (Am. Compl., ECF No. 9 at ¶ 26.) During the EEO proceedings, the only
additional information Kearse offered about this alleged comparator was that this employee
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was not his immediate predecessor, contradicting the Amended Complaint. (Kearse Aff., Ex.
6 at 3.) Moreover, when using comparator evidence, a plaintiff “must demonstrate that the
comparator was ‘similarly situated’ in all relevant respects.” Johnson v. Baltimore City Police
Dep’t, No. ELH-12-2519, 2014 WL 1281602, at *19 (D. Md. Mar. 27, 2014) (citing Sawyers v.
United Parcel Serv., 946 F. Supp. 2d 432, 442 n.10 (D. Md. 2013), aff’d, 576 F. App’x 199 (4th
Cir. 2014)). The Plaintiff offers no evidence, or even allegations, that the alleged predecessor
was similarly situated to him in all relevant respects, including whether she was on a one-year
probationary employment, whether she was meeting the Agency’s legitimate expectations, or
the extent to which she requested credit hours.
In sum, halfway through Kearse’s one-year probationary term, he received an
evaluation that indicated several areas for improvement or more emphasis. When his
supervisor, an African-American female, did not observe him improve in those areas, she
decided to terminate his employment at the end of the one-year period. Kearse’s second line
supervisor, a Caucasian male, agreed with the decision. From the undisputed record, the
Plaintiff has failed to present any evidence that his supervisor, in charge of supervising
eighteen diverse employees, terminated his employment because of discriminatory animus
with respect to his race or gender. All he has offered is his own belief that he was
discriminated against because he was required to provide more documentation when
requesting credit hours, which the record shows was asked only of him, and not of other
male or African-American employees. Moreover, as the United States Court of Appeals for
the Fourth Circuit has held, “[a] plaintiff’s ‘own assertions of discrimination in and of
themselves are insufficient to counter substantial evidence of legitimate nondiscriminatory
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reasons for a discharge.’” Vannoy v. Fed. Reserve Bank of Richmond, 827 F.3d 296, 305 (4th Cir.
2016) (citing Dockins v. Benchmark Commc’ns, 176 F.3d 745, 749 (4th Cir. 1999)); see also Frank
v. England, 313 F. Supp. 2d 532, 539 (D. Md. 2004) (citing Williams v. Cerberonics, Inc., 871
F.2d 452, 455 (4th Cir. 1989)). Therefore, the Agency had a legitimate reason to terminate
Kearse which he has not shown was pretext for racial or gender discrimination, and the
Defendant’s Motion for Summary Judgment is GRANTED with respect to the Plaintiff’s
discrimination claim (Count I).
b. Retaliation Claim (Count II)
Title VII also “prohibits an employer from taking an adverse employment action
against any employee ‘because he has opposed any practice made an unlawful employment
practice.’” EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005) (quoting 42
U.S.C. § 2000e–3(a)). The Plaintiff claims that he was terminated for engaging in the
protected activity of complaining to Stokes about being treated differently with respect to
the requests for credit hours on account of his race and gender. As the Plaintiff also has not
presented any direct evidence of retaliation, he must establish his claim through the
“pretext” framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.
1817 (1973).
For a retaliation claim, a plaintiff makes a prima facie case by proving “(1) that [ ]he
engaged in a protected activity, as well as (2) that h[is] employer took an adverse
employment action against h[im], and (3) that there was a causal link between the two
events.” Battle v. Price, No. PWG-14-2250, 2018 WL 1963791, at *2 (D. Md. Apr. 25,
2018), appeal dismissed sub nom, Battle v. Azar, No. 18-1641, 2018 WL 6334888 (4th Cir. Aug. 2,
17
2018) (citing Boyer–Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (en banc))
(internal quotations omitted). If Kearse makes this showing, the burden shifts to the
Defendant to assert a “legitimate, non-retaliatory reason” for the purportedly retaliatory
action. Id. (quoting Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 250 (4th Cir. 2015)). If the
Defendant meets this step, like the final step of Kearse’s discrimination claim, the burden
then shifts to Kearse to demonstrate that the employer’s purported reason was “pretextual.”
McDonnell Douglas, 411 U.S. at 804, 93 S. Ct. 1817. Accordingly, Kearse “must establish both
that the [employer’s] reason was false and that [retaliation] was the real reason for the
challenged conduct.” Battle v. Price, 2018 WL 1963791, at *2 (quoting Foster, 787 F.3d at 252)
(internal quotations omitted).
For the reasons explained above, even if the Plaintiff established a prima facie
retaliation claim—that he complained to Stokes that he, unlike his female Caucasian
counterparts, was required to undergo extra procedures for requesting credit hours, and
Stokes fired him because of this complaint, which the Defendant disputes—the Agency has
articulated a legitimate, non-retaliatory explanation for terminating him that he has not
shown is pretext. The Plaintiff has not demonstrated that the legitimate concerns with
respect to his performance raised in his mid-year performance evaluation and restated in his
termination letter were not true, or that the real reason Stokes fired him was because he
complained about being required to take the extra steps with respect to the credit hours. See
Ramos v. Molina Healthcare, Inc., 963 F. Supp. 2d 511, 529 (E.D. Va. 2013), aff’d, 603 F. App’x
173 (4th Cir. 2015) (“In order to rebut these legitimate reasons, [the p]laintiff must establish
first that these legitimate reasons are not truthful and second that the real reason for the
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adverse action was [the p]laintiff’s engagement in the protected activity.”) The Plaintiff’s
claim is further undercut by the fact that Stokes required all of her employees to request
credit hours and state what task they would be completing, and required no one but Stokes
to provide written requests or follow up reports. Therefore, even assuming that Kearse did
in fact engage in a protected activity, the Agency had a legitimate reason for terminating his
one-year probationary employment that he has not shown is pretext. Accordingly, the
Defendant’s Motion for Summary Judgment is GRANTED with respect to the Plaintiff’s
retaliation claim (Count II).
II.
Plaintiff’s Motion to Defer Ruling on Defendant’s Motion for Summary
Judgment Pending Discovery is Denied
On the same day the Plaintiff filed his Response in Opposition to the Defendant’s
Motion to Dismiss the Amended Complaint or, in the alternative, for Summary Judgment,
he also filed a Motion to Defer Ruling on Defendant’s Motion for Summary Judgment
Pending Discovery. (ECF No. 16.) As explained above, the Defendant’s Motion implicates
this Court’s discretion under Rule 12(d) of the Federal Rules of Civil Procedure to determine
whether or not to accept submissions of materials beyond the pleadings and treat the motion
as one for summary judgment. Fed. R. Civ. P. 12(d); Kensington Vol. Fire Dept., Inc. v.
Montgomery County, 788 F. Supp. 2d 431, 436-37 (D. Md. 2011). Under Rule 56(d), a court
may defer considering a motion for summary judgment, or allow time to take discovery, if
the “nonmovant shows by affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition . . ..” Fed. R. Civ. P. 56(d). On the other hand,
a court may deny a Rule 56(d) request if “the additional evidence sought for discovery would
not . . . by itself create[] a genuine issue of material fact sufficient to defeat summary
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judgment.” Ingle v. Yelton, 439 F.3d 191, 195 (4th Cir. 2006); Courtney-Pope v. Bd. of Educ. of
Carroll County, 304 F. Supp. 3d 480, 490 (D. Md. 2018). “Moreover, denial of additional
discovery is appropriate when the materials sought by the requesting party could have been
discovered earlier, including in the course of administrative discovery.” Courtney-Pope, 304 F.
Supp. 3d at 490 (citing Volochayev v. Sebelius, 513 F. App’x 348, 351-52 (4th Cir. 2013)).
In support of treating the Defendant’s Motion as one for summary judgment, the
Defendant attached the Record of Investigation and Final Agency Decision from 2014,
which totals over one-hundred and twenty-eight pages. (ECF Nos. 10-2, 10-3.) The
Defendant also attached several emails related to Kearse’s performance and requests for
credit hours. (ECF Nos. 10-4, 10-5.) In his Motion to Defer Ruling, the Plaintiff opposes
this Court treating the Motion as one for summary judgment on the ground that he has not
been afforded the opportunity to discover facts essential to his opposition. (ECF No. 16.)
He asserts that due to the particular administrative proceedings that occurred, including “a
lengthy and very unusual passage of time,” the Plaintiff did not engage in typical discovery
during the administrative proceeding. (ECF No. 22 at 1.) The Rule 56(d) affidavit then
submitted by Plaintiff’s counsel seeks various forms of discovery, including requests to:
depose Stokes and his second level supervisor, Seth Binstok; review all personnel actions
Stokes has taken as a “deciding official” with each employee involved identified by race and
gender; determine the “specific reasons” for why “more emphasis” was needed in various
areas on his mid-year performance review; and compare Kearse’s performance to his
“White, female predecessor.” (Klaminski Aff., ECF No. 16-2 at ¶ 2.) The Defendant argues
that the information Plaintiff requests was either already provided to him during the EEO
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proceeding, or he had the opportunity to request the information. (ECF No. 20.)
Secondarily, the Defendant asserts that even if afforded the requested discovery, the
information would not reveal any triable issues of fact. (Id.)
The Record of Investigation at the administrative level, the parties’ submissions, and
the Rule 56(d) affidavit do not reveal a plausible basis for believing that evidence of unlawful
discrimination or retaliation would result from granting the Plaintiff’s requests for discovery.
See McKinnon v. Blank, No. DKC-12-1265, 2013 WL 781617, at *11 (D. Md. Feb. 28, 2013)
(concluding that the plaintiff revealed “no plausible basis for believing that any evidence of
unlawful discrimination would turn up during discovery”). The Record of Investigation in
this case was compiled less than a year after Plaintiff’s termination, in April of 2014. It is
undisputed that Plaintiff was represented by his current counsel during the administrative
proceedings, where there was at least a ninety day period for written discovery around mid2015. (ECF No. 22 at 3.) After Plaintiff revoked his request with the EEOC for a hearing,
the agency issued its final decision on July 18, 2017. Subsequently, the Plaintiff filed this
Complaint in October of 2017, and was on notice of the Defendant’s intent to seek dismissal
or alternatively summary judgment since at least March 6, 2018, when the Defendant filed
the Motion to Dismiss the Complaint or, in the alternative, Motion for Summary Judgment.
(ECF No. 8.) After filing an Amended Complaint and two requests for extensions of time to
respond, the Plaintiff filed his Motion to Defer Ruling over two months later on May 16,
2018. (ECF Nos. 9, 11, 13, 16.)
At this stage in the proceedings, the Plaintiff’s request to discover all “[p]ersonnel
actions in which Allsyon Stokes served as deciding official, including actions relating to
21
hiring, firing and discipline, with the employee involved identified by race and sex,” is an
attempt “to find out if [he] has a claim, rather than that [he] has a claim for which [he] needs
. . . discovery.” McKinnon, 2013 WL 781617, at *11 (quoting Paddington Partners v. Bouchard, 34
F.3d 1132, 1138 (2d Cir. 1994)). The information contained in the record of investigation
includes the affidavits of Kearse, Stokes, and several other employees and identifying
information for the eighteen employees under Stokes’ supervision. That information shows
that the only area in which the Plaintiff alleges disparate treatment—with respect to the
credit hours—was, in fact, not disparate treatment as Stokes required all eighteen diverse
employees to submit requests for credit hours and had a legitimate reason for imposing
additional requirements on Kearse that were unrelated to his race or gender.
Plaintiff emphasizes that during the administrative proceedings “both parties were
intent on taking depositions” that ultimately never occurred, and therefore he now requests
to depose Stokes and Binstock. The request for depositions amounts, however, to a “purely
speculative hope” that Stokes and Binstock will recant their testimony and reveal a biased
decision to terminate Kearse. McKinnon, 2013 WL 781617, at *11 (“Plaintiff’s purported need
for depositions amounts to a ‘purely speculative hope that the [selecting officials] will recant
their sworn testimony and reveal a long-running and intricately-planned conspiracy’ not to
hire Plaintiff because of his age.” (quoting Hamilton v. Geithner, No. 1:08cv1112, 2009 WL
2240358, at *2 (E.D. Va. July 23, 2009))). The record before this Court, along with Plaintiff’s
counsel’s affidavit, reveals no rational basis for believing that through discovery the Plaintiff
can discover evidence essential to his opposition, and the Defendant is entitled to summary
judgment on the Plaintiff’s discrimination and retaliation claims. Therefore, Plaintiff’s
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Motion to Defer Ruling on Defendant’s Motion for Summary Judgment Pending Discovery
(ECF No. 16) is DENIED.
CONCLUSION
For the reasons stated above, Defendant’s Motion, treated as a Motion for Summary
Judgment, is GRANTED (ECF No. 10) and Judgment is ENTERED in favor of
Defendant, and Plaintiff’s Motion to Defer Ruling on Defendant’s Motion for Summary
Judgment Pending Discovery (ECF No. 16) is DENIED.
A separate order follows.
Dated: December 14, 2018
_/s/___________________________
Richard D. Bennett
United States District Judge
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