Alexander v. United States Department of Veterans Affairs
Filing
16
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 1/10/12. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
FREDIA R. ALEXANDER
:
v.
:
Civil Action No. DKC 10-3168
:
UNITED STATES DEPARTMENT OF
VETERANS AFFAIRS
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this Title
VII employment discrimination action is a motion to dismiss or,
alternatively,
for
summary
judgment
filed
Department of Veterans Affairs (“DVA”).
by
Defendant
U.S.
(ECF No. 12).
The
issues are fully briefed, and the court now rules, no hearing
being
deemed
necessary.
See
Local
Rule
105.6.
For
the
facts
are
following reasons, Defendant’s motion will be granted.
I.
Background
A.
Factual Background
For
purposes
of
this
decision,
the
following
either uncontroverted or stated in the light most favorable to
Plaintiff.
Plaintiff Fredia R. Alexander, an African-American female,
has served as Business Manager for the Managed Care Clinical
Center at the DVA since November 2002.
Dep.,
at
4,
24).
Her
(ECF No. 12-3, Alexander
responsibilities
include
budgeting,
managing personnel, hiring, and ensuring that the permanent care
clinics
in
staffed.”
several
(Id.
Maryland
at
4).
locations
The
“are
Managed
properly
Care
run
Clinical
and
Center
initially oversaw the Compensation and Pension (“C&P”) program,
which
performs
veterans
requesting
benefits from DVA’s Veteran Benefits Administration.
(ECF No. 1
¶¶ 22-23).
physical
examinations
of
The C&P program is located at the DVA’s Loch Raven
clinic in Baltimore.
(Id. ¶ 22).
In August 2008, after April
Jefferson, the prior C&P program supervisor left that position,
Plaintiff
“Acting
assumed
Jefferson’s
of
Supervisor”
responsibilities
program,
the
C&P
while
perform her other duties as Business Manager.
Jefferson
informed
Plaintiff
at
the
time
of
as
interim
continuing
to
(Id. ¶¶ 24, 26).
transition
that
Plaintiff should regularly monitor the file containing completed
veterans’ exams to ensure that the exams were released to DVA
within thirty days and that the file never contained more than
200 exams.
In
(ECF No. 12-4, Marshall Dep., at 6-7).
late
2008,
Dr.
Sandra
Marshall,
Plaintiff’s
direct
supervisor and Director of the Managed Care Clinical Center, and
Dr. Frederick Kotler, Deputy Director of the Managed Care Clinic
Center,
learned
that
the
C&P
program
file
contained
significantly more than 200 exams, causing the C&P program to
2
fail
its
performance
subsequently
discussed
measures.
this
(Id.
problem
6).1
at
with
Dr.
Plaintiff,
Kotler
learning
that the excessive file size resulted from a combination of too
few staff and an increase in the number of exams performed.
(Id.).
The Office of the Chief of Staff detailed John Tyler, a
Health
Systems
Specialist
from
that
office
and
an
employee
recognized as “someone who solved problems,” to the Loch Raven
clinic to aid Plaintiff in attempting to resolve the issue at
the end of 2008.
(Id. at 7; ECF No. 12-3, at 8).2
Plaintiff alleges that the discriminatory treatment began
at
this
time.
Initially,
Plaintiff
was
excluded
from
departmental emails about improvements to the C&P program and
from other decision-making efforts and “branded as the person
responsible for the [program’s] failure.”
(Id. ¶¶ 34, 50, 60).
Plaintiff contends that Tyler, who accused her of sabotaging the
C&P program, stated that he was “going to crack the whip” and
later instructed the program staff not to speak with Plaintiff
by late January 2009.
14-15).
of
(ECF No. 1 ¶¶ 37, 68; ECF No. 12-3, at
Tyler also gave this instruction to Regina Moore, one
Plaintiff’s
direct
reports
and
the
employee
who
aided
Plaintiff in preparing a required report, and asked Moore to
1
Dr. Marshall is a Caucasian female, while Dr. Kotler is a
Caucasian male.
2
Tyler is a Caucasian male.
3
watch Plaintiff carefully and report any errors that she made in
her work.
(ECF No. 1 ¶¶ 38-39, 41).
Plaintiff, however, knew
how to prepare the report without Moore’s assistance and was
able to do so.
When
(ECF No. 12-3, at 12).
the
C&P
program
had
not
attained
satisfactory
performance measures on January 22, 2009, the Office of the
Chief of Staff realigned the C&P program from the Managed Care
Clinical Center to its own office.
13 ¶ 10).
(ECF No. 12-4, at 8; ECF No.
Dr. Marshall then informed Plaintiff that she would
no longer serve as interim “Acting Supervisor” and allegedly
instructed Plaintiff not to return to the Loch Raven clinic.
(ECF No. 12-3, at 6; ECF No. 12-4, at 9).3
Leslie
Jacobs,
another
of
Plaintiff’s
In February 2009,
direct
reports,
was
detailed to the Loch Raven clinic as the new “Acting Supervisor”
of
the
C&P
program,
and
Kotler
and
Tyler
allegedly
instructed her to cease communicating with Plaintiff.
3
also
(ECF No.
Dr. Marshall disputes that she “banned” Plaintiff from the
Loch Raven clinic, asserting that she merely told Plaintiff
“that the administrative staff [at the clinic] were to work
directly with [Tyler].”
(ECF No. 12-4, at 9).
Dr. Marshall
additionally notes that she had received complaints about
Plaintiff’s “professional behavior” at the clinic prior to
Plaintiff’s removal, although she contends that these complaints
were unrelated to Plaintiff’s subsequent removal as “Acting
Supervisor” of the C&P program. (Id. at 8-9).
4
1
63-64).4
¶¶
Tyler
subsequently
obtained
the
ability
to
appropriate certain funds related to the C&P program, allegedly
causing Plaintiff to lose control of her budget.
48, 50).
(ECF No. 1, ¶
Additionally, although Plaintiff no longer worked on
the C&P program after January 2009, Dr. Marshall told Plaintiff
that
the
project
failure
impacted
her
2009
performance
evaluation, with Plaintiff receiving an “Excellent,” rather than
“Outstanding” rating.
(Id. ¶ 72).5
Plaintiff maintains that the problems she faced extended
beyond
the
C&P
program.
Following
a
grievance
that
some
positions, including those of the C&P staff, “did not meet the
grade that they were given,” the Office of Personnel Management
(“OPM”) began a consistency review of those positions.
12-4, at 19).
(ECF No.
A human resources specialist from OPM contacted
Plaintiff as part of this process, and Plaintiff provided the
specialist with the job descriptions that she requested.
No. 1 ¶¶ 42-43).
(ECF
Plaintiff insists that Dr. Marshall initially
4
Although the record indicates that Jacobs began working
from the Loch Raven clinic at this time, it appears that Jacobs
continued reporting to and communicating with Plaintiff. (See,
e.g., ECF No. 1 ¶ 65 (“Leslie Jacobs has reported directly to
Plaintiff since December 2007.”); ECF 12-3, at 17 (“[Leslie
Jacobs] communicates with me to this day.”).
5
The declaration attached to Plaintiff’s opposition
characterizes this rating as “exceeding.”
(ECF No. 13-3,
Alexander Decl., ¶ 8).
This memorandum opinion will use these
terms interchangeably.
5
accused her of contacting OPM to initiate this review, although
both parties now agree that OPM in fact initiated contact with
Plaintiff
as
Plaintiff.
B.
part
of
a
nationwide
program
unrelated
to
(ECF No. 12-3, at 19-21; ECF No. 12-4, at 19-20).
Procedural Background
Plaintiff initially sought EEO counseling on February 18,
2009, claiming that she had suffered discrimination on the basis
of
sex
and
environment.
race
and
had
(Id. ¶ 10).
been
subjected
to
a
hostile
work
She filed a formal complaint with the
EEOC on or about June 1, 2009 and made similar allegations.
(ECF Nos. 12-5, 12-6).
The agency considered the following
issue and five instances when evaluating Plaintiff’s complaint:
“Whether
[Plaintiff]
was
discriminated
against on the bases of race (Black) and
sex (Female) when she was subjected to
harassment:
(1) On January 22, 2009, [Plaintiff] was
informed by her supervisor, Dr. Sandra
Marshall, that she was banned from going to
the Loch Raven Community Based Outpatient
Clinic to visit her staff.
(2) On January 26, 2009, [Plaintiff]
informed by her coworkers that she
under surveillance by management.
was
was
(3) On
or
about
February
6,
2009,
[Plaintiff] was accused of sabotaging the
compensation and pension program.
(4) On March 5, 2009, Leslie Jacobs, Acting
Supervisor,
was
instructed
not
to
communicate with [Plaintiff].
6
(5) During April 2009, [Plaintiff] was
accused of inappropriately contacting . . .
OPM . . . which resulted in a position
description review.”
(Id.).
When
the
EEO
official
charged
with
investigating
Plaintiff’s case asked Plaintiff why she believed that the above
instances
resulted
Plaintiff
stated
from
only
“because I’m female.”
race-
and
“[b]ecause
sex-based
I’m
discrimination,
African-American”
(ECF No. 12-3, at 13-14).
and
The EEOC
subsequently issued a report of investigation on November 9,
2009, concluding that no unlawful discrimination had occurred,
and
Plaintiff
then
requested
the
appointment
Administrative Judge, who ruled against Plaintiff.
13).
of
an
EEOC
(ECF No. 1 ¶
Plaintiff later requested leave to file a civil action in
district court, and she filed her complaint on November 30,
2010, advancing two claims under Title VII: (1) “Sex and Race
Discrimination in Terms and Conditions of Employment”, and (2)
“Disparate
Discipline
Discrimination.”
based
(ECF No. 1).
on
Sex
and
Race/Color
Defendant filed a motion to
dismiss or, alternatively, for summary judgment on April 28,
2011 (ECF No. 12), and Plaintiff opposed this motion on May 12,
2011
(ECF
No.
13).
Defendant
Plaintiff’s opposition on May 31, 2011.
7
subsequently
replied
(ECF No. 15).
to
II.
Standard of Review
Defendant
has
moved
summary judgment.
to
dismiss
or,
alternatively,
for
A court considers only the pleadings when
deciding a Rule 12(b)(6) motion.
Where, as here, the parties
present matters outside of the pleadings and the court considers
those
matters,
judgment.
the
motion
is
treated
as
one
for
summary
See Fed.R.Civ.P. 12(b); Gadsby by Gadsby v. Grasmick,
109 F.3d 940, 949 (4th Cir. 1997); Paukstis v. Kenwood Golf &
Country Club, Inc., 241 F.Supp.2d 551, 556 (D.Md. 2003).
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).
“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.
8
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).
construe
the
favorable
to
facts
the
that
party
Liberty Lobby, 477 U.S. at
At the same time, the court must
are
presented
opposing
the
in
the
motion.
light
See
most
Scott
v.
Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297.
III. Analysis
Plaintiff’s
complaint
includes
two
counts:
(1)
“Sex
and
Race Discrimination in Terms and Conditions of Employment,” and
(2)
“Disparate
Discrimination.”
Discipline
based
on
Sex
and
Race/Color
Despite the apparent simplicity of these count
titles, it is far from clear what actions Plaintiff contends
constitute discriminatory actions and the precise nature of the
claims that she intends to allege.
In its motion, Defendant
construed count one as alleging disparate treatment resulting
from the removal of Plaintiff’s C&P program duties and count two
as alleging disparate discipline stemming from the loss of these
duties and Plaintiff’s 2009 performance evaluation downgrade.6
6
Defendant separately contends that the court cannot
consider the allegation regarding Plaintiff’s lower 2009
performance evaluation because she failed to exhaust her
9
Plaintiff’s
relevant
to
opposition,
a
hostile
however,
work
briefly
environment
sets
and
forth
factors
contends
that
Defendant “mischaracterizes the complaint” by failing to focus
on the “ongoing” discrimination that she suffered while employed
as both Business Manager and interim “Acting Supervisor” of the
C&P program.
(ECF No. 13-1, at 1).
In a later part of this
opposition, Plaintiff asserts that she “has demonstrated a prima
administrative remedies by not raising that allegation during
the administrative process.
It is well-established that
“[b]efore filing suit under Title VII, a plaintiff must exhaust
her administrative remedies by bringing a charge with the EEOC.”
Smith v. First Union Nat’l Bank, 202 F.3d 234, 247 (4th Cir.
2000).
The scope of the civil action stemming from the EEOC
charge is confined to “those discrimination claims stated in the
initial charge, those reasonably related to the original
complaint, and those developed by reasonable investigation [of
that complaint].”
Jones v. Calvert Group, Ltd., 551 F.3d 297,
300 (4th Cir. 2009) (quotation marks omitted).
Civil suits may
not present entirely new factual bases or entirely new theories
of liability not found in the initial EEOC complaint.
Therefore, a plaintiff fails to exhaust her claims when “h[er]
administrative charges reference different time frames, actors,
and discriminatory conduct than the central factual allegations
in h[er] formal suit.” Chacko v. Patuxent Inst., 429 F.3d 505,
In the present case, both the time frame
506 (4th Cir. 2005).
and the actor responsible for providing this 2009 evaluation are
unclear. Indeed, the record contains no information indicating
when Plaintiff received this evaluation or which supervisor
provided her with the evaluation; rather, it indicates only that
Plaintiff received a lower rating on her 2009 evaluation and
that Dr. Marshall subsequently indicated to Plaintiff that the
C&P program failure drove the rating reduction.
This lack of
facts thus makes it unclear whether the EEO investigation of
Plaintiff’s complaint may have considered the evaluation or
whether the evaluation would otherwise be “reasonably related”
to Plaintiff’s EEO complaint.
These issues, however, need not
be resolved because even assuming that Plaintiff did exhaust her
administrative remedies as to the 2009 performance evaluation,
she cannot avoid summary judgment based on this allegation.
10
facie case of disparate treatment” before again focusing on the
“continuous
and
ongoing
manner”
experienced discrimination.
Defendant’s
in
which
(Id. at 4-5).
characterization
of
complaint.
Due
to
Plaintiff’s
cumulative
effect
of
Defendant’s
the
she
allegedly
She does not dispute
second
actions,
of
her
emphasis
repeated
count
on
the
of
her
count
one
complaint will be construed as a hostile work environment claim
rather
than
discrete
a
claim
actions.
for
disparate
Additionally,
treatment
because
based
both
on
these
Plaintiff
and
Defendant describe the second claim as stemming from “disparate
discipline,”
count
two
will
be
construed
as
a
disparate
discipline claim.
In
evaluating
both
claims,
principles to keep in mind.
sit
as
prudence
with
a
of
kind
of
are
two
overarching
First, the federal courts do “not
super-personnel
employment
employment
there
decisions
discrimination.”
department
made
by
weighing
[employers]
Amirmokri
v.
the
charged
Abraham,
437
F.Supp.2d 414, 424 (D.Md. 2006) (quoting DeJarnette v. Corning
Inc., 133 F.3d 293, 299 (4th Cir. 1998)).
Second, even when the
employer is a federal agency, courts have an important duty in
the anti-discrimination context “not to invade the province of
another in circumstances which the law does not allow.”
Hux v.
City of Newport News, Va., 451 F.3d 311, 315 (4th Cir. 2006).
11
A.
Count One: Hostile Work Environment
Title VII bars federal government employers from engaging
in “any discrimination based on race, color, religion, sex, or
national origin.”
race
and
42 U.S.C. § 2000e-16.7
sex,
represents
and
leading
one
form
of
to
this
a
Harassment based on
hostile
prohibited
work
environment,
discrimination.
See
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986); Wang
v. Metro. Life Ins. Co., 334 F.Supp.2d 853, 863 (D.Md. 2004).
The first count of Plaintiff’s complaint alleges that she was
the victim of such discrimination.
Under the familiar McDonnell Douglas framework, Plaintiff
bears the initial burden of establishing a prima facie case, and
only
if
she
does
so
will
the
burden
shift
to
Defendant
to
proffer a legitimate, non-discriminatory reason for its actions.
Pitter v. Cmty. Imaging Partners, Inc., 735 F.Supp.2d 379, 390
(D.Md. 2010).
To establish a prima facie case of hostile work
environment from racial and sexual harassment, Plaintiff must
show
the
following
four
elements:
7
(1)
she
was
subjected
to
“Notwithstanding the differences in wording, sections
2000e-2 [which address private sector claims] and 2000e-16
generally have been treated as comparable, 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).
12
unwelcome conduct; (2) the unwelcome conduct was based on race
and sex; (3) the conduct was sufficiently pervasive or severe to
alter the conditions of employment and create a hostile work
environment; and (4) some basis exists for imputing liability to
the employer.
See, e.g., Smith v. First Union Nat'l Bank, 202
F.3d 234, 241-42 (4th Cir. 2000).
Plaintiff wholly fails to make
this showing.
As an initial matter, even if Plaintiff demonstrates that
she
faced
unwelcome
conduct,
it
is
unlikely
that
she
could
demonstrate that this conduct occurred because of her race and
sex.
It is axiomatic that a plaintiff’s mere speculation as to
racial
or
gender
animus
will
not
suffice
to
prove
suffered unwelcome conduct due to race and sex.
that
she
See, e.g.,
Nicole v. Grafton Sch., Inc., 181 F.Supp.2d 475, 482-93 (D.Md.
2002);
Sonpon v. Grafton Sch., Inc., 181 F.Supp.2d 494, 500
(D.Md. 2002); cf. Evans v. Techs. Applications & Serv. Co., 80
F.3d 954, 959 (4th Cir. 1996) (explaining that a plaintiff’s
“‘own naked opinion, without more, is not enough to establish a
prima facie case of []discrimination’” (alteration in original)
(citations omitted)).
Indeed, where the plaintiff sets forth no
evidence of racial or sexual epithets by others, any assertion
that
impermissible
likely fail.
factors
drove
the
unwelcome
conduct
will
Compare Khoury v. Meserve, 268 F.Supp.2d 600, 612-
13 (D.Md. 2003) (rejecting a gender- and national origin-based
13
hostile work environment claim where the plaintiff alleged only
that she did not receive a workplace award given to a male
colleague and that another colleague commented on her Englishspeaking ability because “none of the events [she] describe[d] .
. . explicitly refer[red] to [her] gender or national origin”),
with EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167, 175-79 (4th
Cir. 2009) (finding that an employer’s use of racial and gender
epithets
demonstrated
that
the
alleged
unwelcome
conduct
was
based on race and sex).
Here, Plaintiff’s contention that she faced harassment due
to
race
Khoury.
and
sex
is
factually
analogous
to
the
situation
in
First, she presents no derogatory statement from her
supervisors or any other employee with whom she worked regarding
her race or sex.
In fact, the only statements in the record
even mentioning Plaintiff’s race and sex come from Plaintiff
herself – when she asserted during her deposition with the EEO
investigator
that
she
faced
harassment
“because
African-American” and “because [she was] female.”
3, at 13-14).
[she
was]
(ECF No. 12-
Such speculation by Plaintiff, however, simply
will not suffice to demonstrate that she experienced racial or
sexual
harassment;
concrete
gender animus are required.
facts
demonstrating
racial
and
To the extent Plaintiff intends to
allege that Defendant’s interference with her role as Business
Manager and “Acting Supervisor” of the C&P program demonstrates
14
harassment
based
on
race
“circumstantial at best.”
or
sex,
such
an
argument
Khoury, 268 F.Supp.2d at 613.
is
Given
Plaintiff’s acknowledgement that the C&P program she supervised
was
consistently
failing
to
meet
its
performance
measures,
“[t]his circumstantial evidence . . . is insufficient to support
a reasonable inference that, but for Plaintiff’s membership in a
protected class, she would not have [faced] the entire pattern
of treatment she claims constituted a hostile work environment.”
Id.; see also Daso v. Grafton Sch., Inc., 181 F.Supp.2d 485,
492-93
(D.Md.
2002)
(rejecting
a
harassment
stemming
evidence
of
racial
placement
on
probation
where
the
plaintiff’s
from
plaintiff
circumstantial
his
repeated
“admitted
to
the
truth of the circumstances stated by [the employer]” as the
reasons for those probations).
Even
if
Plaintiff
could
demonstrate
that
the
unwelcome
conduct occurred because of her race and sex, her hostile work
environment claim would fail because she cannot demonstrate that
the conduct was sufficiently severe or pervasive to alter the
conditions of her employment.
See Cent. Wholesalers, 573 F.3d
at 175; Thorn v. Sebelius, 766 F.Supp.2d 585, 601 & n.19 (D.Md.
2011).
instances
Plaintiff’s
allegedly
complaint
suggests
combined
to
that
create
a
eight
separate
hostile
work
environment: (1) exclusion from emails and decision-making; (2)
loss of control over her budget when Tyler obtained the ability
15
to appropriate certain funds related to the C&P program; (3)
Tyler’s instruction to Moore to watch Plaintiff and report any
errors that she made; (4) Tyler’s instruction to the C&P program
staff not to communicate with Plaintiff; (5) blame Plaintiff
believes she absorbed for the C&P program failure; (6) animosity
Plaintiff experienced from her staff following Dr. Marshall’s
accusation that Plaintiff initiated the OPM consistency review;
(7) Dr. Marshall’s alleged instruction to Plaintiff to abstain
from visiting the Loch Raven clinic; and (8) Plaintiff’s removal
as interim “Acting Supervisor” for the C&P program.8
While hostile work environment claims generally involve the
cumulative effect of discrete acts that may not be individually
actionable, the harassing actions must nonetheless combine to
permeate
the
workplace
with
“discriminatory
intimidation,
ridicule, and insult” in order for a plaintiff to succeed in
presenting a prima facie case.
Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 116 (2002).
The United States Court of
Appeals for the Fourth Circuit has explained this standard as
follows:
8
Plaintiff does not contend that her reduced rating of
“excellent” or “exceeding” in 2009 constituted a continuation of
the hostile work environment.
Indeed, in her opposition, she
explains that it was the actions cited above that “unreasonably
interfered with her ability to perform” and that this
interference merely manifested itself in her lower performance
evaluation. (ECF No. 13-1, at 5).
16
Title VII does not establish a general
civility code for the American workplace.
This is because, in order to be actionable,
the harassing conduct must be [so] extreme
[as] to amount to a change in the terms and
conditions of employment. . . . Our circuit
has likewise recognized that plaintiffs must
clear a high bar in order to satisfy the
severe or pervasive test.
Workplaces are
not always harmonious locales, and even
incidents that would objectively give rise
to bruised or wounded feelings will not on
that account satisfy the severe or pervasive
standard.
Some rolling with the punches is
a fact of workplace life.
Thus, complaints
premised on nothing more than rude treatment
by [coworkers], callous behavior by [one’s]
superiors,
or
a
routine
difference
of
opinion
and
personality
conflict
with
[one’s] supervisor, are not actionable under
Title VII.
EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315-16 (4th Cir.
2008) (internal quotation marks and citations omitted); see also
Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (noting
that “[d]iscourtesy or rudeness should not be confused with . .
. harassment (internal quotation marks and citations omitted)).
Plaintiff
fails
to
meet
this
standard.
The
record
is
devoid of any evidence of intimidation, ridicule, or insults
that Plaintiff suffered.
At most, the instances cited above
indicate a combination of disagreement between Plaintiff and her
co-workers
regarding
the
failure
of
the
C&P
program
and
a
potentially rude reaction from these co-workers in response to
that
disagreement.
appropriate
forum
Federal
to
resolve
court,
such
17
however,
disputes.
is
not
Amirmokri,
the
437
F.Supp.2d at 424; see also Thorn, 766 F.Supp.2d at 600-01 (using
similar reasoning to reject a hostile work environment claim
stemming from a plaintiff’s loss of management duties, numerous
reprimands,
project
and
team
marginalization
and
his
due
to
supervisor’s
his
exclusion
instruction
employee to refrain from working with him).
to
from
a
another
Plaintiff fails to
present a prima facie case for racial and sexual harassment due
to hostile work environment.
B.
Count Two: Disparate Discipline
The
second
count
of
Plaintiff’s
complaint
alleges
that
Defendant subjected Plaintiff to “disparate discipline” based on
race and gender following the C&P program’s failure to meet its
performance
measures.
To
establish
a
prima
facie
case
for
disparate discipline, Plaintiff must set forth three elements:
(1) she is a member of a protected class; (2) the prohibited
conduct in which she engaged was comparable in seriousness to
that
of
employees
outside
the
protected
class;
and
(3)
the
disciplinary action taken against her was more severe than the
action
taken
against
other
employees.
Cook
Corp., 988 F.2d 507, 511 (4th Cir. 1993).
v.
CSX
Transp.
Defendant contends
that Plaintiff cannot set forth a prima facie case as to this
claim, and Plaintiff does not dispute this contention.
Ultimately,
protected
class
while
due
Plaintiff
to
her
qualifies
race
18
and
as
gender,
a
member
her
of
a
disparate
discipline claim must fail because the record fails to set forth
any
prohibited
conduct
for
which
she
was
disciplined.
The
disparate discipline framework generally applies to situations
in
which
employees
have
faced
discipline
after
engaging
in
workplace misconduct, such as violations of policies and rules,
or
criminal
activity.
See,
e.g.,
Cook,
988
F.2d
at
511-12
(considering a disparate discipline claim where an employer had
dismissed
an
employee
after
five
violations
of
corporate
policy); Jenks v. City of Greensboro, 495 F.Supp.2d 524, 530
(M.D.N.C.
2007)
(applying
disparate
discipline
framework
following a police officer’s assault of a civilian); Manning v.
Foodarama, Inc., 195 F.Supp.2d 741, 744 (D.Md. 2002) (analyzing
a
disparate
discipline
between employees).
claim
stemming
from
a
physical
fight
Indeed, it appears that no court in the
Fourth Circuit has applied this framework to a claim stemming
solely
from
an
employee’s
underperformance
in
the
workplace.
See Abrams v. Wachovia Corp., No. 3:08-4073-JFA-PJG, 2010 WL
2622437, at *6 (D.S.C. June 25, 2010) (rejecting a disparate
discipline
claim
where
the
facts
indicated
only
that
the
plaintiff “underperformed, he did not misconduct himself”).
Here,
allegedly
Plaintiff
bases
discriminatory
her
disparate
treatment
that
supervision of the failing C&P program.
(“Plaintiff
was
discriminated
against
19
discipline
stemmed
claim
from
on
her
(See ECF No. 1 § 54
when
she
was
.
.
.
disparately disciplined for the failure of the C&P program.”).
Inadequate
supervision
of
the
failing
program
on
its
own,
however, cannot serve as the basis of a disparate discipline
claim
because
it
involves
neither
workplace
misconduct
nor
criminal activity – the forms of prohibited conduct on which
10disparate discipline claims are generally based.
2010 WL 2622437, at *6.9
Cf. Abrams,
Accordingly, Plaintiff’s disparate
discipline claim cannot proceed.10
9
Although not emphasized in the cause of action alleging
disparate discipline, there is one other circumstance set forth
in Plaintiff’s complaint that could constitute “prohibited
conduct” and give rise to a disparate discipline claim:
the
allegation that Plaintiff “inappropriately contact[ed] OPM” and
initiated a position review (ECF No. 12-3, at 19). The parties
now agree that Plaintiff did not initiate the review, but
Plaintiff asserted in her deposition that Dr. Marshall believed
that she had done so.
Even if Dr. Marshall did believe that
Plaintiff had “inappropriately” initiated the review, Plaintiff
would be unable to set forth a prima facie case for disparate
discipline based on that purported misconduct because Plaintiff
failed to allege that she suffered discipline of any kind as a
result.
Indeed, when asked about this issue during the EEO
investigation, Plaintiff acknowledged that Dr. Marshall had
taken no action against her based on the erroneous belief that
Plaintiff had initiated the position review.
10
As noted at the outset of this opinion, Plaintiff does
not appear to allege discrimination in the form of a traditional
disparate treatment claim, and instead asserts claims based on
hostile work environment and disparate discipline.
To the
extent that Plaintiff did intend to allege a traditional
disparate treatment claim, it too would fail. The elements of a
prima facie case of disparate treatment are as follows: “(1)
membership
in
a
protected
class;
(2)
satisfactory
job
performance; (3) adverse employment action; and (4) different
treatment
from
similarly
situated
employees
outside
the
protected class.”
Coleman v. Md. Court of Appeals, 626 F.3d
20
C.
Plaintiff’s Rule 56(d) Request
In a final attempt to avoid summary judgment, Plaintiff
contends
that
summary
judgment
at
this
stage
is
premature
because she has not had the opportunity to “obtain necessary
discovery of information possessed by her opponent.”
13-1, at 3).
(ECF No.
As a general matter, “summary judgment [must] be
refused where the nonmoving party has not had the opportunity to
discover
information
that
is
Anderson, 477 U.S. at 250 n.5.
essential
to
the
motion.”
To render this general rule
187, 190 (4th Cir. 2010), cert. granted on other grounds, 131
S.Ct. 3059 (June 27, 2011) (No. 10-1016). Plaintiff here cannot
satisfy the third or fourth elements. As an initial matter, it
is unlikely that any of the actions she challenges, which
include the eight instances listed in her hostile work
environment claim along with her reduced performance evaluation,
qualify as adverse employment actions.
The majority of these
actions merely constitute “minor slights and grievances” that
courts have long refused to classify as adverse actions.
See
Bonds v. Leavitt, 647 F.Supp.2d 541, 547, 556-57 (D.Md. 2009)
(internal quotation marks omitted) (refusing to consider as
adverse actions inability to attend meetings or close one’s
office door), overruled on other grounds by 629 F.3d 369 (4th
Cir. 2011); James v. Booz–Allen & Hamilton, Inc., 368 F.3d 371,
377 (4th Cir. 2004) (internal quotation marks omitted) (“[A] poor
performance evaluation is actionable only where the employer
subsequently uses the evaluation as a basis to detrimentally
alter the terms or conditions of the recipient's employment.”).
Assuming arguendo that Plaintiff’s removal as interim “Acting
Supervisor” did constitute adverse employment action, which is
not at all certain given the part-time, interim nature of that
position, Plaintiff is unable to establish the final element of
a prima facie case because Dr. Kotler and Dr. Marshall, a
Caucasian male and Caucasian female, respectively, also lost
their supervisory positions when the C&P program was transferred
from the Managed Care Clinical Center.
21
applicable, however, the nonmovant must clearly demonstrate the
need for discovery pursuant to Rule 56(d), which allows a court
to deny summary judgment or delay ruling on the motion until
discovery has occurred if the “nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts
Fed.R.Civ.P. 56(d).11
essential to justify its opposition.”
“The
Fourth
requirements
failure
to
Circuit
of
Rule
file
an
has
56[(d)],”
affidavit
strictly
previously
under
Rule
interpreted
holding
that
56[(d)]
is
the
“the
itself
sufficient grounds to reject a claim that the opportunity for
discovery
Domain
was
Names,
inadequate.”
302
F.3d
214,
Harrods
244
Ltd.
(4th
v.
Cir.
Sixty
2002)
Internet
(internal
quotation marks and citations omitted); Amirmokri, 437 F.Supp.2d
at
420.
And
although
courts
have
relaxed
the
affidavit
requirement if the nonmoving party’s objection “served as the
functional equivalent of an affidavit” or if the nonmoving party
diligently pursued discovery, they have done so only where the
discovery
fact.
sought
would
create
a
genuine
dispute
of
material
Harrods Ltd., 302 F.3d at 244-45; Strag v. Bd. of Trs.,
55 F.3d 943, 954 (4th Cir. 1995).
11
Here, Plaintiff’s Rule 56(d)
In an apparent procedural oversight, Plaintiff makes no
reference to Rule 56(d) in setting forth this argument, instead
repeatedly referencing Rule 56(f).
The 2009 Amendments to the
Federal Rules of Civil Procedure transferred the language of
former Rule 56(f) to Rule 56(d).
22
request fails at the first step.
Although her memorandum in
opposition to Defendant’s pending motion references an affidavit
explaining
that
“discovery
is
the
only
method
through
which
Plaintiff’s claims can be proved,” Plaintiff attached no such
affidavit to that memorandum.
(ECF No. 13-1, at 9).
Even setting aside this significant procedural error and
assuming that Plaintiff could satisfy one of the two limited
exceptions
to
the
affidavit
requirement,
Plaintiff
cannot
demonstrate that discovery would enable her to create a genuine
issue of material fact.
enable
her
to
depose
Plaintiff states that discovery would
other
business
managers
“regarding
the
oversight over their direct reports and budget, as well [as] Dr.
Sandra Marshall regarding her reasons for denying Plaintiff’s
ability to approve her direct reports’ [time and leave], view
their
grade
belonging
explained,
to
and
step,
and
[Plaintiff].”
further
for
taking
(Id.).
investigation
on
First,
of
responsibilities
as
previously
Plaintiff’s
budget
allegation would create no material factual dispute because that
allegation demonstrates neither unwelcome conduct sufficient to
create a hostile work environment nor misconduct sufficient to
support a disparate discipline claim.
Second, Plaintiff alleges
for the first time in her opposition that Dr. Marshall took away
job responsibilities, such as interaction with direct reports,
which belonged to Plaintiff.
It is well-established that a
23
plaintiff may not amend her complaint through argument in a
brief
opposing
summary
judgment,
Sensormatic
Sec.
Corp.
v.
Sensormatic Elecs. Corp., 455 F.Supp.2d 399, 436 (D.Md. 2006)
(citing Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir.
1996)), which is precisely the result that would obtain if the
court permitted Plaintiff to take discovery of this newly raised
issue.
Plaintiff thus cannot sustain her case by invoking the
protections of Rule 56(d).
IV.
Conclusion
For the foregoing reasons, Defendant’s motion for summary
judgment will be granted.
A separate Order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
24
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