Smith v. Vilsack
Filing
16
MEMORANDUM OPINION (c/m to Plaintiff 6/2/11 sat). Signed by Chief Judge Deborah K. Chasanow on 6/2/11. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
EILEEN Y. SMITH
:
v.
:
Civil Action No. DKC 10-2306
:
THOMAS J. VILSACK
:
MEMORANDUM OPINION
Presently
pending
and
ready
for
resolution
in
this
employment discrimination action is a motion to dismiss or, in
the alternative, for summary judgment filed by Defendant Thomas
J. Vilsack.1
(ECF No. 7).
The issues are fully briefed and the
court now rules pursuant to Local Rule 105.6, no hearing being
deemed
necessary.
For
the
reasons
that
follow,
Defendant’s
motion will be granted.
I.
Background
A.
Factual Background
Unless
otherwise
uncontroverted.
noted,
Smith
has
the
following
offered
general
facts
are
allegations
contesting some of Vilsack’s proffered facts, but she failed to
offer
admissible
1
evidence
in
support
of
those
allegations.
Vilsack is the Secretary of Agriculture.
Smith sued
him in his official capacity as the head of the agency that
oversees the Animal and Plant Health Inspection Service.
Consequently, Vilsack’s facts are largely treated as undisputed
for purposes of this motion.
See Fed.R.Civ.P. 56(e)(2)-(3).
Before July 2006, Plaintiff Eileen Smith worked for the
United States Department of Agriculture (“USDA”) as a Program
Facility/Director
and
California
Sterile
Coordinator in Los Alamitos, California.
part
of
the
Quarantine
Western
division
Region
of
of
the
USDA’s
Inspection Service (“APHIS”).
the
Insect
Technique
Smith’s position was
Plant
Animal
Protection
and
Plant
and
Health
In July 2006, Western Regional
Director Phillip Garcia reassigned her to a new position because
of “organizational conflicts.”
8).
(ECF No. 7-7, Garcia Dep., at
Smith then became Regional Program Manager (“RPM”) within
the same division but remained in California.
For
her
first
supervised Smith.
Manager
Judy
three
months
as
an
RPM,
Steve
Johnson
In September 2006, Senior Regional Program
Pasek
replaced
Johnson
as
Smith’s
supervisor.
Sherry Sanderson, who was then supervised by Garcia, supervised
Pasek.
All of Smith’s superiors were stationed in Fort Collins,
Colorado.
1.
Training and Travel
While working as an RPM, Smith was offered several training
opportunities.
In
January
2007,
for
example,
authorized to take an irradiation training course.
2
Smith
was
A month
later, in February 2007, she attended an agroterrorism training
course.
From February 2007 to May 2007, Smith completed a 90-
day temporary duty assignment in Riverdale, Maryland as part of
a leadership program.
While
on
temporary
duty
in
Maryland,
she
also
received
training at an APHIS Safety and Health Conference in Kansas
City, Missouri in April 2007.
Smith states that she had a
meeting with Garcia during her trip that did not go well.
In
particular, Smith maintains that Garcia told her she had “no
future in the Agency or even in the western region” and that she
would “have to start over.”
21).
(ECF No. 7-4, Smith Dep., at 20-
Garcia denies making any such statement.
After her temporary duty in Maryland ended, Smith travelled
to Fort Collins for two weeks, from July 8 to July 20.
There,
she received additional training on websites and data analysis.
During
the
trip,
on
July
16,
she
also
supervisors, Pasek, Sanderson, and Garcia.
her
about
her
role
and
responsibilities,
met
again
with
her
After talking with
they
asked
her
to
return to Fort Collins for a 30-day temporary duty assignment to
help her better understand the regional office.
Smith “pretty
much left open” the question of when she would return, as she
needed to attend certain medical appointments every two weeks
over the next several months.
(ECF No. 7-4, Smith Dep., at 37).
3
The next day, on July 17, Smith requested permission to
attend
an
Avian
Influenza
Conference
in
Bethesda,
Maryland.
Pasek denied her request for the training, as she felt Smith had
“other priorities for work assignments and travel.”
5, Report of Investigation (“ROI”), at 237).
(ECF No. 7-
A week later, on
July 24, Smith emailed Pasek and explained that she wanted to
attend
another
Association
$1,600.
only
course
(“AMA”)
–
a
training
three-day
course
in
American
August
Management
costing
over
Pasek denied the request, as her budget provided for
$1,200
in
training
for
each
individual
and
already received $1,800 in training for the year.
Smith
had
When Pasek
told her that the training request was denied, Smith revealed
that she had already purchased the program with her government
credit card and believed that the fee was non-refundable.2
August
1,
Smith
renewed
her
request
to
attend
the
On
Avian
Influenza Conference, but Pasek again denied it, as she felt it
was
important
that
Smith
complete
assignment in Fort Collins first.
her
30-day
temporary
duty
Around the same time, Pasek
suggested that Smith could break her 30-day visit into smaller
trips to avoid conflicts with Smith’s medical appointments.
2
The government ultimately was able to recover the fee.
4
After taking three days of medical leave in August, Smith
returned to work and began pressing her request to attend the
Avian
Influenza
Conference
once
more.
On
August
30,
for
instance, Smith informed Pasek and Sanderson that she intended
to approach the EEOC about the denial of her training request.
In an August 31 telephone call with Pasek, Smith again raised
the issue of the Avian Influenza Conference; Pasek refused to
change her decision.
During the same call, Smith insisted that
she would not come to Fort Collins until 2008 because Pasek had
denied her request to attend the Avian Influenza Conference.
The day after her telephone conversation with Pasek, Smith
emailed Pasek, Sanderson, and Garcia.3
she
felt
the
Avian
responsibilities.
Influenza
The email reiterated that
Conference
related
to
her
job
Smith also said:
So until you make some effort to understand
or learn to ask me for information before
just deciding without understanding, we will
just
continue
to
be
dysfunctional
and
disagreeable
.
.
.
which
I
find
so
unproductive, unreasonable and ridiculous,
but that apparently is how you all want to
operate . . . to find fault with everything
3
The email stemmed from a request by Pasek that Smith
provide documentation evidencing that she was an APHIS Safety
Officer.
Pasek originally did not believe that Smith was such
an officer because there was no documentation in Smith’s
personnel file.
Smith argued that her position as a Safety
Officer justified her attendance at the Avian Influenza
Conference.
5
I say or try to do . . .
and to use my
medical and EEO situations against me . . .
and prevent me from attaining anything
related to my performance elements . . . I
already anticipate that my end of the year
evaluation will be very contentious . . .
pretty sad state of affairs . . .
And so there is no misunderstanding, and as
I stated over the phone, I will not be
coming to Colorado anytime before January at
the earliest . . . also, I would like to be
provided with exactly what I will be doing
over a 30 day period because I don’t see
this time period to be very productive
either . . . all of this is a good example
of this . . . reading emails, documents, and
giving
an
opinion
and
drawing
pretty
pictures with data off various websites is
not my idea of a good time or even being
remotely constructive . . . all of this and
coming to Colorado for 30 days is apparently
just a reason to be continually serving out
Phil’s life sentence because of the bogus
circumstances of last year.
(ECF No. 7-5, ROI, at 250 (ellipses and bold in original)).
Pasek determined that the August 31 email merited a letter
of
caution
in
response.
Accordingly,
after
consulting
with
Human Resources, Pasek sent Smith such a letter on September 7,
2007.
was
went
The letter warned Smith that (1) the tone of her email
inappropriate
outside
Sanderson
and
the
and
chain
Garcia,
disrespectful,
of
and
command
(3)
(2)
in
she
she
sending
inappropriately
the
wrongfully
email
to
disregarded
management decisions in refusing to travel to Colorado until
January
2008.
Smith
refused
6
to
sign
the
acknowledgement
indicating that she had received the letter, as she felt her
comments
were
taken
out
of
context.
Nevertheless,
she
apologized for the email and explained that she did not wish to
be disrespectful or inappropriate.
Following
received
some
the
issuance
additional
of
the
letter
training.
In
example, she received ethics training.
of
caution,
October
Smith
2007,
for
Later, in February 2008,
she attended classroom training in Oklahoma City.
She was not
permitted to attend the National Biocontrol Meeting in Colorado
because, according to Pasek, “[t]ravel to that conference was
limited to two people per state . . . [a]nd biocontrol was not a
program area that [Smith] had direct responsibility for.”
(ECF
No. 7-6, Pasek Dep., at 46).
2.
Application for GS-13 Agriculturist Position
Also in 2007, Smith applied for an Agriculturist (Assistant
Trade
Director)
position
Management (“PIM”) Staff.
within
the
Phytosanitary
Issues
The position, a GS-13 position, was
advertised in a vacancy announcement running from June 11 to
July 2, 2007.
The selecting official was Craig Fedchock, who
received assistance in evaluating the applications from Fan-Li
Chou,
John
Guidicipietro
Tyrone
Jones,
also
discussed
and
the
7
Jennifer
Lemly;
selection
with
Michael
Fedchock.
Neither Fedchock nor Guidicipietro were aware of Smith’s prior
EEO activity at the time the selection was made.
Fedchock ultimately selected Judith Macias, a woman, for
the agriculturalist position on August 22, 2007.
Fedchock chose
Machias because her experience and qualifications exceeded that
of the other candidates.
In particular, Machias “had extensive
experience working at the field level on many of the issues
facing the PIM staff.”
application
confirms
related experience.
In
the
end,
(ECF No. 7-5, ROI, at 90).
that
she
possessed
Machias’
significant
trade-
(ECF No. 7-5, ROI, at 161-190).
however,
Smith
was
able
to
secure
a
position in February 2008 as a national program manager.
new
She
was then stationed in Riverdale, Maryland.4
B.
Procedural Background
Smith filed an administrative complaint in November 2006
asserting claims not at issue in the present case, principally
relating to a decision by Garcia to transfer her to a different
position.5
She then filed a new complaint, raising seven new
4
The parties disagree over whether Garcia provided a
“good” recommendation when contacted by the selecting official
for this position.
That dispute is irrelevant to the present
case.
5
That
case
administrative appeal.
was
dismissed
8
and
is
pending
on
issues,
on
September
May
24,
15,
2007
2007).
(with
The
an
amendment
administrative
following
judge
decided
on
to
consolidate one of the issues in this new complaint with the
earlier November 2006 filing, leaving six claims remaining in
the later action.
The judge dismissed those six claims in an
August 11, 2009 decision that was affirmed on appeal to the
Equal
Employment
Opportunity
Commission’s
(“EEOC”)
Federal Operations (“OFO”) on March 19, 2010.
Office
of
See Smith v.
Vilsack, Appeal No. 0120100039, 2010 WL 1178321 (E.E.O.C. Mar.
19, 2010), reconsideration denied, 2010 WL 2255030 (E.E.O.C. May
28, 2010).
On August 23, 2010, Smith filed a pro se complaint in this
court
raising
complaint.
the
six
issues
presented
in
her
later
EEO
In particular, Smith maintains that she suffered six
adverse employment actions because of gender discrimination and
retaliation for prior EEO activity.
actions included:
(ECF No. 1).
These adverse
(1) the letter of caution she received on
September 7, 2007; (2) denial of leadership training on August
9,
2007;
(3)
Pasek’s
refusal
to
let
her
attend
the
Avian
Influenza Conference; (4) a “management” prohibition on training
or travel beginning on July 24, 2007; (5) Garcia’s comments on
April 26, 2007 in Kansas City; and (6) her non-selection for the
Agriculturalist position on August 22, 2007.
9
(Id. ¶¶ 1-6).
She
seeks “a finding of discrimination,” attorneys’ fees and costs,
and “emotional damages” of $100,000.
(Id. at 3).
The Secretary moved to dismiss, and alternatively sought
summary judgment, on January 7, 2011.
(ECF No. 7).
Pursuant to
the requirements of Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), Smith was notified by letter that the Secretary had filed
a dispositive motion, the granting of which could result in the
dismissal of her complaint.
(ECF No. 8).
The letter informed
Smith that she was entitled to file materials in opposition to
within 17 days, but that her case could be dismissed (or summary
judgment entered) if she failed to illustrate, by affidavit or
the like, a genuine dispute of material fact.
filed an opposition on March 4, 2011.
government replied shortly thereafter.
II.
(Id.).
Smith
(ECF No. 12).
The
(ECF No. 15).
Standard of Review
The
government
bases
12(b)(6), and Rule 56.
Rule
12(b)(1)
court’s
6
motion
subject
matter
its
motion
on
Rule
12(b)(1),
Rule
The motion is not properly styled as a
because
no
part
jurisdiction.6
of
it
implicates
In
addition,
a
the
court
The
Secretary
likely
anticipated
that
its
administrative exhaustion argument, discussed below, would raise
a jurisdictional issue.
Although a plaintiff’s failure to
exhaust administrative remedies related to a Title VII claim
deprives a federal court of subject matter jurisdiction, “the
untimeliness of an administrative charge does not affect federal
10
considers
only
the
motion to dismiss.
pleadings
when
deciding
a
Rule
12(b)(6)
Because the parties rely on matters outside
the pleadings, the court will construe the motion as one for
summary judgment.
F.3d
315,
319
See Fed.R.Civ.P. 12(b); Walker v. True, 399
n.2
(4th
Cir.
2005);
Offen
v.
Brenner,
553
F.Supp.2d 565, 568 (D.Md. 2008).
A court may enter summary judgment only if there is no
genuine issue as to any material fact and the moving party is
entitled
56(a);
to
judgment
Celotex
Corp.
as
a
matter
v.
Catrett,
of
477
law.
U.S.
See
317,
Fed.R.Civ.P.
322
Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
(1986);
Summary
judgment is inappropriate if any material factual issue “may
reasonably be resolved in favor of either party.”
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co.
LLC v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th
Cir. 2001).
In examining the record, the court must construe
the facts presented in the light most favorable to the party
opposing the motion.
See Scott v. Harris, 550 U.S. 372, 378
(2007); Emmett, 532 F.3d at 297.
jurisdiction over a Title VII claim.”
Jones v. Calvert Grp.,
th
Cir. 2009) (citing Zipes v. Trans
Ltd., 551 F.3d 297, 301 (4
World Airlines, Inc., 455 U.S. 385, 393 (1982)).
The
Secretary’s argument does not affect subject matter jurisdiction
because it attacks only the timeliness of Smith’s efforts.
11
“A party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of
[his]
pleadings,’
but
rather
must
‘set
forth
specific
showing that there is a genuine issue for trial.’”
facts
Bouchat v.
Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003) (quoting former Fed.R.Civ.P. 56(e)).
proof
.
.
.
will
not
suffice
to
“A mere scintilla of
prevent
summary
judgment.”
Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).
“If the
evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.”
249-50.
(citations omitted).
Liberty Lobby, 477 U.S. at
Moreover, unsubstantiated factual
contentions found in the summary judgment briefs are simply not
enough
to
stave
off
summary
judgment.
“The
court
is
not
required to scour the record looking for factual disputes and
such
unsupported
factual
assertions
will
not
be
credited.”
Jurgensen v. Albin Marine, Inc., 214 F.Supp.2d 504, 510 (D.Md.
2002) (quotation marks and ellipses omitted).
Although pro se litigants are to be given some latitude,
the above standards apply to everyone.
Thus, as courts have
recognized repeatedly, even a pro se party may not avoid summary
judgment
arguments.
by
relying
on
bald
assertions
and
speculative
See, e.g., Price v. Reilly, 697 F.Supp.2d 344, 352-
53 (E.D.N.Y. 2010); Johnson v. Deloach, 692 F.Supp.2d 1316, 1323
12
(M.D.Ala. 2010); Benckini v. Hawk, 654 F.Supp.2d 310, 316 & n.1
(E.D.Pa. 2009); Hammad v. Bombadier Learjet, Inc., 192 F.Supp.2d
1222, 1229 (D.Kan. 2002).
III. Analysis
A.
Timely Exhaustion of Administrative Remedies
In this action, Smith asserts Title VII claims of gender
discrimination and retaliation based on six different incidents.
As a threshold matter, one of these incidents – the comments
allegedly
made
considered.
by
Garcia
Federal
on
April
employees
26,
alleging
2007
-
may
not
discrimination
be
under
Title VII must exhaust their administrative remedies in a timely
fashion.
Among other things, federal employees “must initiate
contact with a Counselor within 45 days of the matter alleged to
be discriminatory.”
29 C.F.R. § 1614.105(1).
Failure to comply
with this timing requirement can result in dismissal (or, in
this case, summary judgment).7
See Lorenzo v. Rumsfeld, 456
F.Supp.2d 731, 734 (E.D.Va. 2006) (citing Zografov v. Veterans
Admin. Med. Ctr., 779 F.2d 967, 970 (4th Cir. 1985)); see also
Moret v. Geren, 494 F.Supp.2d 329, 337-340 (D.Md. 2007).
Smith
apparently waited until August 31, 2007, more than 120 days
7
Equitable tolling or estoppel could apply, but there
is no argument that it should in this case. There is no basis
for these arguments evident in the record, either.
13
later,
to
raise
an
informal
comments on April 26, 2007.
complaint
concerning
Garcia’s
(ECF No. 7-5, ROI, at 1).
Smith maintains that the comment-based claims were timely
because they were part of an “ongoing pattern” of conduct.
No. 12, at 4).
(ECF
This argument is likely an attempt to invoke the
“continuing violation” theory, which “allows for consideration
of
incidents
incidents
that
are
occurred
part
discrimination.”
of
outside
a
the
single,
time
bar
ongoing
when
those
pattern
of
Holland v. Washington Homes, Inc., 487 F.3d
208, 219 (4th Cir. 2007) (citing Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 118 (2002)).
Such a theory only applies,
however, when an employee asserts a hostile work environment
claim.
Id.
(“.
discrimination,
hostile
work
Morgan,
536
.
.
i.e.,
part
when
environment
U.S.
at
122
of
the
a
incidents
claim.”
(“A
single,
(emphasis
charge
ongoing
make
pattern
up
part
added));
alleging
a
of
of
a
see
also
hostile
work
environment claim, however, will not be time barred so long as
all
acts
which
constitute
the
claim
are
part
of
the
same
unlawful employment practice and at least one act falls within
the time period.”).
even
in
the
There is no indication in the complaint (or
administrative
proceedings
below)
intended to bring a hostile work environment claim.
that
Smith
She cannot
bring one now simply by hinting at it in her opposition to the
14
Secretary’s
F.Supp.2d
motion.
591,
615
See,
e.g.,
(E.D.N.C.
Bostic
2009)
v.
Rodriguez,
(“Plaintiffs
may
not
667
use
their response to amend their complaint.”); Caudill v. CCBCC,
Inc.,
651
F.Supp.2d
499,
510
(S.D.W.Va.
2009)
(“Indeed,
a
plaintiff may not amend her complaint through argument in a
brief opposing summary judgment.” (quotation marks and brackets
omitted)); Sensormatic Sec. Corp. v. Sensormatic Elec. Corp.,
455 F.Supp.2d 399, 435-36 (D.Md. 2006); see also Barclay White
Skanska, Inc. v. Battelle Mem’l Inst., 262 F.App’x 556, 563 (4th
Cir. 2008).
Even when a plaintiff is pro se, she must bring her
claims in the complaint, not in ad hoc additions in the midst of
summary judgment briefing.
Smith also insists that the timeliness issue was already
decided at the administrative level; she accuses the Secretary
of “trying to reverse a decision that has already been decided.”
(ECF
No.
12,
at
5).
The
decision
of
the
OFO
indicates
otherwise, as the office “determine[d] that [it was] unnecessary
to address the agency’s determination on appeal that complainant
initiated untimely EEO Counselor contact regarding [the Garcia
comments].”
Smith, 2010 WL 1178321, at *4 n.3.
Regardless, “a
federal employee who brings a civil action in the district court
must
put
his
employing
agency’s
underlying
discrimination
issue [even] if the OFO accepts those allegations.”
15
at
Laber v.
Harvey, 438 F.3d 404, 419 (4th Cir. 2006); accord Murchison v.
Astrue, 689 F.Supp.2d 781, 789 (D.Md. 2010) (“After the employee
chooses the second route - appealing the agency’s underlying
decision - and the OFO either rules against the employee or
orders a remedy the employee finds unsatisfactory, the employee
again has the opportunity to seek a de novo civil action in
federal court (putting the entire issue of discrimination in
front of the court).”).
Thus, the Secretary is not trying to
rehash an issue already decided, as the OFO’s legal conclusions
have no relevance at this stage.
“[A]dministrative res judicata
does not operate in a Title VII suit.”
Astoria Fed. Sav. & Loan
Ass’n v. Solimino, 501 U.S. 104, 112 (1991) (quotation marks
omitted).
Because she failed to exhaust her administrative remedies
in accordance with the applicable timing requirements, summary
judgment must be entered on any claims premised on Garcia’s
alleged comments.
B.
Gender-Based Discrimination
Title VII bars federal government employers from engaging
in “any discrimination based on race, color, religion, sex, or
national origin.”
8
42 U.S.C. § 2000e-16.8
In her complaint,
“Notwithstanding the differences in wording, sections
2000e-2 and 2000e-16 generally have been treated as comparable,
16
Smith argues that she was the victim of such discrimination by
virtue of her gender.
Her opposition to the government’s motion
for summary judgment makes little mention of this claim.
Smith
does
not
discrimination.
present
Therefore,
any
she
direct
would
evidence
need
to
of
rely
gender
on
the
burden-shifting framework established by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to avoid
summary
judgment.
Under
that
familiar
standard,
Smith
establish a prima facie case encompassing four elements:
must
“(1)
membership in a protected group, (2) qualification for the job
in
question,
(3)
an
adverse
employment
action,
and
circumstances supporting an inference of discrimination.”
(4)
King
v. Marriot Int’l, Inc., 195 F.Supp.2d 720, 723 (D.Md. 2002).
The
burden
then
shifts
to
the
employer
to
provide
some
legitimate, non-discriminatory reason for the disputed action.
Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285
(4th Cir. 2004).
If the employer can do so, the burden then
shifts back to the employee, who must then demonstrate that the
reason offered is in fact a pretext for discrimination.
Id.
with the standards governing private-sector claims applied to
claims under section 2000e-16.”
Bhella v. England, 91 F.App’x
835, 844 (4th Cir. 2004).
17
1.
Adverse Employment Action: Letter of Caution
As to the third element – an adverse action – the Secretary
contends
that
some
of
the
constitute adverse actions.
discriminatory
conditions,
act
or
that
events
cited
of
Holland, 487 F.3d at 219.
Smith
do
not
An adverse employment action is a
‘adversely
benefits
by
the
affect[s]
plaintiff’s
the
terms,
employment.’”
“Although conduct short of ultimate
employment decisions can constitute adverse employment action,
there
still
must
be
a
tangible
conditions of employment.”
effect
that
makes
an
the
terms
and
Geist v. Gill/Kardash P’ship, 671
F.Supp.2d 729, 737 n.6 (D.Md. 2009).
everything
on
employee
“Title VII does not remedy
unhappy.”
Jeffers
v.
Thompson, 264 F.Supp.2d 314, 329 (D.Md. 2003).
The letter of caution was not an adverse employment action.
Generally, a “reprimand, whether oral or written, does not per
se significantly affect the terms or conditions of employment,”
but only becomes an adverse action if it “works a real, rather
than speculative, employment injury.”
Jeffers, 264 F.Supp.2d at
330; accord Nichols v. Harford Cnty. Bd. of Educ., 189 F.Supp.2d
325, 342 (D.Md. 2002); Newman v. Giant Food, Inc., 187 F.Supp.2d
524, 528-29 (D.Md. 2002); see also Thompson v. Potomac Elec.
Power Co., 312 F.3d 645, 651 (4th Cir. 2002) (explaining that the
imposition of discipline is not an adverse action unless it
18
materially alters the terms of employment).
Much like a poor
performance evaluation, the letter would only become an adverse
action “where the employer subsequently uses [it] as a basis to
detrimentally alter the terms or conditions of the recipient’s
employment.”
James v. Booz-Allen & Hamilton, Inc., 368 F.3d
371, 377 (4th Cir. 2004); accord Pulley v. KPMG Consulting, Inc.,
348 F.Supp.2d 388, 394-95 (D.Md. 2004).
Smith has not pointed
to any bit of evidence indicating that the letter had any effect
on
her
employment.
Indeed,
there
were
apparently
no
consequences stemming from the letter at all.9
Because it was not an adverse action, Smith cannot rely on
the letter of caution to sustain a gender-based discrimination
claim.
9
In much the same way, even if they could properly be
considered, Garcia’s alleged comments do not amount to an
adverse employment action.
There is no evidence that the
comments had any impact on the terms of Smith’s employment. The
alleged comments might have been frank or even harsh, but there
is no argument that the comments generated any of the typical
forms of adverse action: “discharge, demotion, decrease in pay
or benefits, loss of job title or supervisory responsibility, or
reduced opportunities for promotion.” Bonne v. Goldin, 178 F.3d
253, 255 (4th Cir. 1999). And as a general matter, “disparaging
remarks made by a supervisor do not state an adverse employment
action.”
Blount v. Dep’t of Health & Human Servs., 400
F.Supp.2d 838, 842 (D.Md. 2004).
19
2.
Circumstances Supporting Inference of Discrimination:
Training, Travel, and Non-Selection
The Secretary also asserts that Smith has not established
the
fourth
element
of
the
prima
facie
case
–
circumstances
supporting an inference of discrimination – with regard to the
remaining claims.
One of the most common ways to establish such
circumstances is to point to a similarly situated comparator
outside of the protected class who was treated differently.
Of
course, Smith is not required to summon such evidence; she may
also
point
to
any
discrimination.
other
circumstantial
evidence
suggesting
Bryant v. Aiken Reg’l Med. Ctrs. Inc., 333 F.3d
536, 545-46 (4th Cir. 2003).
Here,
Smith
has
failed
to
provide
similarly
situated
comparators or any other circumstantial evidence supporting an
inference of discrimination with regard to her non-selection for
the Agriculturalist position.
non-selection
in
passing,
Indeed, Smith only references her
suggesting
that
(1)
her
lack
of
training and travel “impacted all future potential promotions,
including the GS-13 Trade position”; and (2) Garcia might have
talked to Guidicipietro about her.
Such speculative arguments
are woefully insufficient, especially given that an inference of
gender discrimination is undermined by the fact that another
woman was selected for the position.
See Foreman v. Weinstein,
485 F.Supp.2d 608, 610 n.1 (D.Md. 2007) (explaining, in the
20
failure to promote context, that the claim is “essentially moot”
if the person promoted is in the same protected class as the
plaintiff); Sonpon v. Grafton Sch., Inc., 181 F.Supp.2d 494, 500
(D.Md.
2002)
(“[C]ourts
have
held
that
a
plaintiff
did
not
satisfy the fourth prong of the test for failure to promote
where applicants of the same race and gender as the plaintiff
filled the positions for which he had applied.”).
Smith also has not identified any circumstances giving rise
to an inference of discrimination with regard to her alleged
denial of training.
a
safety
officer
She notes that a male employee who was not
was
allowed
to
attend
the
Avian
Influenza
Conference, while she was not allowed to attend despite her
relevant status as a safety officer.
Unfortunately, Smith fails
to provide any evidentiary support for the existence of this
comparator.
Moreover,
even
if
the
court
were
permitted
or
inclined to consider Smith’s unsubstantiated view of the facts,
the
mere
assertion
that
training is not enough.
a
male
was
permitted
to
attend
the
Putting aside the fact that it is not
clear who exactly permitted the male employee to attend, Smith
must provide some indication that the male employee was in a
comparable position to Smith.
“To be similarly situated and
thus permit a valid comparison, the [male] employee[] must have
dealt
with
the
same
supervisor,
21
been
subject
to
the
same
standards,
and
have
engaged
in
the
same
conduct”
as
Smith.
Duggan v. Sisters of Charity Providence Hosps., 663 F.Supp.2d
456,
468
(D.S.C.
relevant facts.
2009).
Smith
has
not
established
these
In her opposition, Smith would seem to protest
that she cannot present valid comparators because her work place
was too small.
If that is indeed the case, she must provide
other circumstantial evidence or seek direct evidence.
Having
failed to do either, her claim cannot proceed.
Consequently,
Smith’s
gender-based
discrimination
claims
premised on her denials of training and travel and her nonselection for the GS-13 Agriculturalist position fail.
3.
Pretext
Given that Smith has not established a prima facie case of
gender-discrimination, there is no need to move through the rest
of the McDonnell Douglas framework.
Even if Smith had met her
initial
still
failed.
burden,
however,
her
claim
would
have
largely
As the statement of facts makes clear, the Secretary
has offered legitimate explanations for most of the challenged
actions; while they need not be repeated in full, a brief survey
confirms the point.
Smith’s requested training and travel was
denied because of budget limitations and because her superiors
placed higher priority on her visit to Fort Collins.
Smith
received a letter of caution because of an insubordinate email,
22
which even Smith now admits was a mistake.
the
Agriculturalist
position
candidate was selected.
because
She did not receive
another
more-qualified
While Smith labels these explanations
“excuses,” she has not provided any evidence in support of that
view.
“[A]
plaintiff
demonstrates
pretext
by
showing
the
employer’s proffered nondiscriminatory reason is a lie and the
real reason is based on discriminatory intent.”
Hobbs v. City
of Chicago, 573 F.3d 454, 462 (7th Cir. 2009).
Smith has done
neither.
Judgment will be entered for the defendant on the entire
gender-based discrimination claim.
C.
Retaliation
Title
VII
also
prohibits
an
employer
from
retaliating
against an employee who exercises his Title VII rights.
U.S.C.
§ 2000e-3.
Smith
claims
the
agency
violated
42
that
prohibition by retaliating against her after she filed her first
EEOC complaint.
Just
like
the
discrimination
claim,
without
any
direct
evidence, Smith may employ the McDonnell Douglas burden-shifting
framework.
2004).
needs
See Price v. Thompson, 380 F.3d 209, 212 (4th Cir.
To survive summary judgment under McDonnell Douglas, she
to
demonstrate
three
elements:
(1)
she
engaged
in
protected activity; (2) the agency took an adverse employment
23
action
against
between
the
action.
her;
and
protected
(3)
there
activity
and
was
a
the
causal
connection
adverse
employment
See Davis v. Dimensions Health Corp., 639 F.Supp.2d
610, 616 (D.Md. 2009); accord Holland, 487 F.3d at 218.
Once
that challenge is met, the Secretary must then provide a nondiscriminatory explanation for the adverse action.
The burden
would then shift back to Smith to show the reason is pretextual.
Recognizing that Smith engaged in protected activity in filing
her first EEOC action, the Secretary focuses on the second and
third elements of the prima facie retaliation case.
First, the government argues that several of the disputed
events
were
not
materially
adverse.
The
definition
of
an
adverse action “is simply not reducible to a comprehensive set
of
clear
rules[,]
.
.
.
[but]
judging harm must be objective.”
the
provision’s
standard
for
Thompson v. N. Am. Stainless,
LP, 131 S.Ct. 863, 868 (2011) (quotation marks omitted).
Thus,
an action is materially adverse if, from an objective point of
view, “it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.”
Burlington N.
Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (quotation marks
omitted).
On the other hand, “[t]he anti-retaliation provision
of Title VII does not protect against ‘petty slights, minor
24
annoyances,
and
simple
lack
of
good
manners.’”
Geist,
671
F.Supp.2d at 738 (quoting Burlington, 548 U.S. at 68).
In opposing the Secretary’s motion for summary judgment,
Smith has suggested that the six discrete instances underlying
these
claims
actually
were
discrimination and pretext.”
part
of
“an
ongoing
(ECF No. 12, at 4).
pattern
of
The Secretary
reads this argument as an attempt to amend the complaint to
include a retaliatory hostile work environment claim (which, as
noted above, Smith cannot do).
such
an
argument
“essentially
The government maintains that
concedes
[its]
arguments,”
as
there is no hostile work environment claim in the complaint and
Smith did not argue that any single act was materially adverse.
The Secretary’s argument likely misconstrues the nature of
an “adverse action” in the retaliation context.
As the Supreme
Court bluntly reminded courts in Burlington, “[c]ontext matters”
in retaliation cases.
548 U.S. at 69.
Thus, it behooves courts
to “consider whether based upon the combined effect of alleged
events, a reasonable worker could be dissuaded from engaging in
protected
activity.”
Test
v.
Holder,
614
F.Supp.2d
73,
84
(D.D.C. 2009) (quotation marks and ellipses omitted; emphasis in
original); see also Caldwell v. Johnson, No. 1:09CV707, 2009 WL
2487850,
at
*10
n.13
(M.D.N.C.
cases).
In other words, a court may consider the cumulative
25
Aug.
13,
2009)
(collecting
effect of several allegedly retaliatory acts without converting
the claim into a hostile work environment claim.
before
Burlington,
retaliation
rather
courts
may
a
than
come
single
in
seemed
the
form
discrete
willing
of
a
act.
to
Indeed, even
recognize
pattern
See,
of
e.g.,
that
behavior,
McKenzie
v.
Illinois Dep’t of Transp., 92 F.3d 473, 483 n.7 (7th Cir. 1996)
(“We do not foreclose the possibility that another plaintiff
might
have
a
cognizable
claim
of
retaliation
based
on
acts
which, although seemingly appropriate and nondiscriminatory when
considered
in
together.”).
isolation,
Smith
may
bespeak
retaliation
therefore
rely
when
the
on
considered
collective
retaliatory force of these acts without having to amend her
complaint.
The problem for Smith, though, is that even if one assumes
that she suffered a materially adverse employment action, she
has
not
established
any
causal
activity and the adverse action.
link
between
the
protected
This is principally so because
none of the relevant decisionmakers here – Pasek, Sanderson,
Fedchock, or Guidicipietro – apparently had knowledge of her
prior EEO activity.
Smith argues that two of the decisionmakers
(Pasek and Sanderson) were on Garcia’s staff and asserts that
Guidicipietro sometimes talked with Garcia.
She infers from
these relationships that the decisionmakers must have known of
26
her protected activity because Garcia was aware of it; in fact,
she goes so far as to accuse Garcia of “recruiting and directing
his staff” to retaliate against her.
without
any
particularly
evidence,
given
that
that
the
is
too
(ECF No. 12, at 5).
speculative
relevant
sworn to their lack of knowledge.10
an
decisionmakers
Yet
inference,
have
all
“Since, by definition, an
employer cannot take action because of a factor of which it is
unaware, the employer’s knowledge that the plaintiff engaged in
a protected activity is absolutely necessary to establish the
third element of the prima facie case.”
Dowe v. Total Action
Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir.
1998); accord Baqir v. Principi, 434 F.3d 733, 748 (4th Cir.
2006);
Hooven-Lewis
v.
Caldera,
249
F.3d
259,
278
(4th
Cir.
2001).11
10
Pasek says she learned in September 2007 that Smith
had filed a “complaint” against Garcia, but she did not
understand that it was EEO-related.
(ECF No. 7-6, Pasek Dep.,
at 38-39).
That event happened after all of the allegedly
retaliatory events. In 2006, she also heard “rumors” that Smith
might file a complaint against past supervisors, but did not
understand that Smith had filed any such complaint. (Id. at 3738).
11
Even if the court were to assume knowledge, there is
nothing hinting at a connection between the protected activity
and the adverse actions. The adverse actions here are separated
by several months and the passage of time tends to negate an
inference of retaliation. See Price, 380 F.3d at 213. Although
other relevant evidence may be used to support a causal
connection where temporal proximity is lacking, Lettieri v.
27
It
also
Secretary
bears
has
repeating
provided
that,
legitimate,
for many of the challenged actions.
as
explained
above,
non-discriminatory
the
reasons
As with her discrimination
claim, Smith has failed to provide evidence (or even a forecast
of evidence) that these reasons are pretext.
Judgment
for
the
Secretary
will
be
entered
on
the
retaliation claim.
IV.
Conclusion
For the foregoing reasons, Defendant’s motion, construed as
a motion for summary judgment, will be granted.
/s/
DEBORAH K. CHASANOW
United States District Judge
Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007), Smith has not
provided such evidence here.
28
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?