Addison v. Dept. of the Navy

Filing 26

MEMORANDUM OPINION (c/m to Plaintiff 3/20/15 sat). Signed by Judge Deborah K. Chasanow on 3/20/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
VERNON ADDISON

:

v.

:

Civil Action No. DKC 13-0846

:
DEPT. OF THE NAVY
:
MEMORANDUM OPINION
Presently
employment

pending

discrimination

alternatively,

for

and

ready

case

summary

is

for
the

resolution
motion

judgment

to

filed

in

this

dismiss

by

or,

Defendant

Department of the Navy, Bureau of Medicine (“Defendant” or “the
Navy”).

(ECF No. 16).

The issues have been briefed, and the

court now rules, no hearing being deemed necessary.
105.6.
I.

Local Rule

For the following reasons, the motion will be granted.

Background
The thorny procedural history in this case has been set

forth in prior orders, but will be discussed here for clarity
purposes.

From 1995 until his termination in December 2010,

Plaintiff

worked

as

Division,

Operations

a
and

computer

operator

Network

Support

in

the

Operations

Department

with

the

National Naval Medical Center.

Plaintiff, proceeding pro se,

filed

March

the

Department

instant
of

the

lawsuit
Navy,

on

Bureau

of

20,

2013,

Medicine.

against
The

the

complaint

alleges

that

Plaintiff

was

discriminated

against

based

on

national origin under Title VII of the Civil Rights Act of 1964,
and includes as the only “supporting facts” that “[t]he cause
and/or source of past situations at work 1995-2010.”
1,

at

2).

Plaintiff

charges

with

the

(“EEOC”)

from

1998

retirement

asserted

Equal
to

benefits,

that

Employment

2010.

back

he

(Id.

pay,

filed

(ECF No.

administrative

Opportunity
at

3).

He

reinstatement

position, and $20,000,000 in monetary damages.

Commission
sought

to

his

full

former

(Id. at 3-4).

Plaintiff filed another action on March 20, 2013 against
the

same

Defendant,

Administrative

Law

seeking

Judge

to

(“ALJ”)

termination of job, and assault.
Civil

Action

No.

DKC

13-856

appeal
with

a

decision

regard

to

of

lost

an

wages,

See Addison v. Dep’t of Navy,
(D.Md.).

He

stated

in

this

complaint that he suffered continued assaults and retaliation by
co-workers

and

managers

and

alleged

that

the

instructed to do so by human resource personnel.
No. 1, at 2).

staff

was

(Id. at ECF

Plaintiff alleged that he was assigned harder,

new procedures to complete, his schedule was changed, he was
given false write-ups, he was assaulted by several co-workers,
and he was stripped of his work station.

(Id.).

He again

sought lost wages, $20,000,000 in monetary damages, and other
miscellaneous relief.

(Id. at 3).

2

On April 1, 2013, the court consolidated the cases, granted
Plaintiff leave to proceed in forma pauperis, closed Case No.
13-856, and afforded him an additional twenty-eight (28) days to
supplement his consolidated complaint to demonstrate that he had
exhausted administrative remedies as to his Title VII claims.
(ECF No. 3).

On April 25, 2013, Plaintiff filed a timely motion

for extension of time to file his supplemental complaint.

The

motion was granted, extending the deadline to June 25, 2013.
(ECF No. 5).

On July 5, 2013, the court dismissed the complaint

without prejudice because Plaintiff did not file any supplement
as directed by the court.

(ECF No. 6).

On July 22, 2013, however, Plaintiff filed a motion to stay
the case while he filed an administrative appeal.

(ECF No. 7).

He stated that he never received a “final order,” allegedly
served on him by the EEOC in June of 2013, and indicated that he
wished to finalize his appeal before moving on with his federal
complaint.

(Id.).

Attached

to

the

motion

documents purportedly served by and on the EEOC.

to

stay

were

(ECF No. 7-1).

The motion to stay made no reference to the prior dismissal of
the case or to the current status of his administrative review
before any EEOC Office.
Affording the self-represented Plaintiff the benefit of the
doubt, on November 6, 2013, the court reopened the case and gave
Plaintiff an additional thirty days to “inform the court whether
3

he wishes to proceed with his appeal at the EEOC or with his
employment discrimination case.”

(ECF No. 8).

He was cautioned

that “if he wished to proceed with his administrative appeal
process at the EEOC, he [could] not resort to the federal court
process at the same time.”

(Id.).

That same day, the court received a document construed as
Plaintiff’s supplemental complaint.

(ECF No. 9).

The document

provides the alleged history of Plaintiff’s employment with the
United States Navy and the difficulties he experienced with coworkers and supervisors starting in 1995 through 2010.
to

the

document

are

seventy-eight

pages

of

Attached

materials

which

appear to relate to a series of interviews conducted by the Navy
in

1997,

Plaintiff’s

discrimination

complaints

from

1997

to

2000, a newspaper article, a series of emails from 2000, 2005,
2009

&

2010,

statements.

performance

appraisals,

and

Plaintiff’s

pay

(See ECF No. 9-2).

Finally, on December 5, 2013, Plaintiff filed a document
labeled as a “request regarding continuance with Case No. DKC13-846, [p]roceed.”
been

no

response

to

(ECF No. 10).
his

notice

of

He states that there has
appeal

and

that

several

investigations have been conducted regarding his administrative
complaints.
experiences

He proceeds to discuss his worsening employment
and

the

difficulties

4

he

has

undergone

with

coworkers.
respect.”

Plaintiff asks that his case “go on with all due
(ECF No. 10).

On January 30, 2014, the court issued an order stating:
“[t]his court has generously construed Plaintiff’s filings and
afforded

him

directives.

every

opportunity

to

directly

respond

to

At this late juncture, the undersigned finds that

it makes sense to obtain a response from Defendant.”
11).

court

(ECF No.

The court directed that a summons and complaint be served

on Defendant, and summonses were issued and served.
12-15, 25).

(ECF Nos.

Defendant moved to dismiss or for summary judgment

on April 3, 2014.

(ECF No. 16).

Plaintiff was provided with a

Roseboro notice (ECF No. 17), which advised him of the pendency
of the motion to dismiss and his entitlement to respond within
seventeen (17) days from the date of the letter.
Garrison,

528

F.2d

309,

310

(4th

Cir.1975)

Roseboro v.

(holding

pro

se

plaintiffs should be advised of their right to file responsive
material to a motion for summary judgment).

After obtaining an

extension of time, Plaintiff opposed the motion on May 21, 2014.
(ECF No. 20).
II.

Defendant did not file a reply.

Analysis
A.
As

alleges

Events Preceding March 2009 EEO Complaint
indicated
that

above,

Plaintiff

the
was

complaint

in

discriminated

Case
against

No.

13-846

based

on

national origin, and includes as the only “supporting facts”
5

that “[t]he cause and/or source of past situations at work 19952010.”

(ECF No. 1, at 2).

Noting that there may be exhaustion

and timeliness issues with the complaint, the court - in an
order issued on April 1, 2013 - directed Plaintiff to supplement
his complaint to set out in a straightforward manner: (1) how he
has administratively exhausted each and every claim before the
appropriate

federal

agency;

and

(2)

whether

district court claims in a timely manner.

has

filed

(See ECF No. 3).

his
He

filed a supplement on November 6, 2013, which is a far cry from
a

model

of

directive,

clarity,
and

does

does

not

not

comply

include

with

any

the

court’s

factual

clear

allegations

pertaining to his discrimination claim based on national origin.
(See ECF No. 9).
A review of the exhibits attached to Defendants’ motion
reveals the following chain of events.

Plaintiff filed an EEO

complaint on March 11, 2009 alleging discrimination based on
race, sex, and retaliation.

In his complaint supplement and

opposition to Defendants’ motion, however, Plaintiff references
events dating back to 1995, when he first began employment with
the Department of the Navy.
entire

employment

history

Plaintiff may not litigate his

and

may

not

rely

on

any

claims

pertaining to prior EEO Complaint (filed before the March 2009
complaint which forms the basis of his instant suit), because
those claims are time-barred.

Defendant attaches the Report of
6

Investigation1 in connection with the March 2009 EEO Complaint,
which

indicates

that

sometime

in

1997,

Plaintiff

purportedly

filed an EEO complaint.

Defendant supplies a declaration from

D’Ontae

Assistant

D.

Sylvertooth,

Counsel

in

the

Office

of

Counsel for the U.S. Department of the Navy’s Bureau of Medicine
and Surgery.

She declares:

I conducted a thorough search for documents
relating to Plaintiff’s 1997 EEO complaint;
however, due to the passage of time and the
age of the complaint, no documents could be
found relating to Plaintiff’s 1997 EEO
complaint.
It appears that such documents
were destroyed consistent with the Agency’s
document retention policy, as well in accord
with
the
Equal
Employment
Opportunity
Commission’s
recordkeeping
policy
and
procedure.
(ECF No. 16-11 ¶ 2).

As explained in the April 1, 2013 order,

an employee may not commence a civil action in federal district
court

until

the

administrative

earlier

complaint

of

either

and

the

receipt

filing

of

the

of

a

formal

Final

Agency

Decision (“FAD”), or 180 days from the filing of the formal
administrative

complaint.

C.F.R. § 1614.407.

See

42

U.S.C.

§

2000e-16(c);

29

Any civil action must be brought within 90

days of receipt of the FAD.

See 29 C.F.R. § 1614.407.

The

deadline for filing a complaint in district court premised on a
1997 EEO complaint has long passed.
1

Accordingly, the scope of

Defendant filed with the Clerk’s Office a paper version of
the ROI, stating that it exists only in paper format and is
longer than fifty pages. (ECF No. 16-2).
7

the instant lawsuit is limited to the claims raised in the March
2009 EEO Complaint.
B.

Discrimination Based on National Origin

Defendant

argues

that

Plaintiff’s

discrimination

claim

based on national origin should be dismissed for lack of subject
matter

jurisdiction

because

he

failed

administrative remedies as to this claim.
16).

to

exhaust

his

(ECF No. 16-1, at 15-

Fourth Circuit precedent indicates that failure to exhaust

administrative remedies under Title VII should be addressed by
way

of

a

motion

to

dismiss

for

lack

of

subject

jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1).
Calvert
(stating

Group,
that

Ltd.,

551

“failure

F.3d

300-01

the

by

See Jones v.

(4th

297,

plaintiff

matter

Cir.
to

2009)

exhaust

administrative remedies concerning a Title VII claim deprives
the

federal

claim”).

courts

of

subject

matter

jurisdiction

over

the

Title VII requires, and the Fourth Circuit has held,

that the scope of a judicial complaint is limited to allegations
in the EEOC administrative charge.

Id. at 300.

A Title VII

lawsuit may only include “those discrimination claims stated in
the initial charge, those reasonably related to the original
complaint, [] those developed by reasonable investigation of the
original complaint,” and those contained in official amendments
to the EEO complaint.

Khoury v. Meserve, 268 F.Supp.2d 600, 608

(D.Md. 2003) (holding that a plaintiff who took no official
8

action to amend her administrative charge of discrimination had
not

exhausted

her

remedies

with

respect

included in the original charge).
following

allegations

investigation:

of

to

claim

not

The ROI reflects that the

discrimination

“[w]hether

the

[Plaintiff]

were

accepted

[was]

for

discriminated

against based on [his] race (Black), sex (Male) and retaliation
(EEO

Activity).”

(ROI,

at

page

36).

As

Defendant

argues,

nowhere during the administrative process did Plaintiff raise a
claim of discrimination based on national origin.
the

national

origin

claim

will

be

dismissed

Accordingly,

on

failure

to

exhaust grounds.2
C.

Termination

It is not at all clear whether Plaintiff attempts to rely
on

his

termination

discrimination

or

on

December

retaliation.

3,

2010

As

set

as

a

forth

basis

for

above,

the

consolidated complaint alleges discrimination on the basis of
national origin (complaint in Case No. 13-846), and apparently
seeks to appeal the administrative law judge decision (complaint
in Case No. 13-856).

Plaintiff makes some references to his

termination – albeit obliquely – in his supplemental complaint.
(See ECF No. 9, at 5).

As explained below, Plaintiff is barred

from bringing the termination into the present action as he

2

Indeed, nowhere in the
identify his place of origin.

pleadings
9

does

Plaintiff

even

entered into a negotiated settlement agreement with the Navy
related to his termination.
The Navy removed Plaintiff from his position as a computer
operator effective December 3, 2010.
73; 16-9, at 2).3

(See ECF No. 9-2, at 69-

On December 11, 2010, Plaintiff filed an

appeal of his removal with the Merit System Protection Board
(“MSPB”).4

(See ECF No. 16-6).

settlement

on

termination.
provided,

February
(See

in

17,

The parties reached a negotiated
2011

ECF No. 16-7).

part,

for

pertaining

to

Plaintiff’s

The settlement agreement

Plaintiff’s

resignation

effective

February 26, 2011, in lieu of the agency’s removal action.
at

4-8).

Plaintiff

agreed

to

withdraw

his

MSPB

appeal

(Id.
and

further agreed that:
he will file no further appeal, grievance,
civil action, and/or complaint with the
Equal
Employment
Opportunity
Commission,
Office of Special Counsel, Federal Labor
Relations Authority, Office of Personnel
Management, General Accounting Office, or
any other Federal agency, administrative
3

The notice of proposed removal from the agency, dated
November 17, 2010, indicated that the proposed removal was due
to: 1) inappropriate conduct by Mr. Addison in punching a
coworker in the face during an altercation; 2) sleeping while on
duty on at least two occasions; and 3) failure to meet a
condition of employment by not obtaining his security +
certification, which is a condition of employment and required
for his position as a computer operator. (ECF No. 9-2, at 6973; see also ECF No. 16-5).
4

Notably, Plaintiff did not assert that his removal
resulted from prohibited discrimination. (ECF No. 16-6, at 5).
10

court or tribunal regarding his removal from
the Department of the Navy’s National Naval
Medical Center [] that occurred prior to
signing this agreement.
(Id. at 5) (emphasis added).5

29 C.F.R. § 1614.504(a) states:

“Any settlement agreement knowingly and voluntarily agreed to by
the parties, reached at any stage of the complaint process,
shall be binding on both parties.”

Federal courts have held

that settlement agreements are contracts between the parties,
subject to rules of contract interpretation.
819 F.Supp.2d 456, 466 (D.Md. 2011).

Rock v. McHugh,

Under the terms of the

settlement agreement, Plaintiff agreed, among other things, not
to file a civil action regarding his removal from the Department
of the Navy’s National Naval Medical Center.

Accordingly, any

claims premised on his removal are barred.
D.

Remaining Discrimination Claims

Aside from his discrimination claim premised on national
origin – which he failed to exhaust for the reasons explained
above - Petitioner’s only other basis for the instant lawsuit is
an appeal from the decision of Administrative Law Judge Evelyn

5

The MSPB subsequently issued an initial decision
dismissing Plaintiff’s MSPB claim.
(See ECF No. 16-8).
Plaintiff then filed a petition for review of the settlement
agreement with the MSPB, arguing that “the settlement agreement
is invalid because he was innocent of the misconduct charged in
the removal action and because the agency representative and his
union representation had pressured him into signing the
settlement agreement.”
(ECF No. 16-9, at 2).
The MSPB denied
the petition on January 6, 2012. (Id.).
11

Maiben concerning his March 2009 EEO complaint.
argues

that

because

the

consolidated

“Defendant

is

complaint

simply

Defendant first

should

unable

to

be

dismissed

ascertain

from

Plaintiff’s consolidated complaint or any of his supplemental
pleadings what he is alleging constitutes discrimination.”
No. 16-1, at 9).

(ECF

Defendant also denies the allegations, (id. at

11), but the allegations must be taken as true at the motion to
dismiss stage.
consolidated

Although Defendant is correct that Plaintiff’s

complaint

and

supplement

do

not

elucidate

the

precise claims Petitioner asserts, considering Plaintiff’s pro
se status, the court will construe the pleading as asserting
race

and

sex

discrimination,

and

retaliation,

which

are

the

claims raised in the March 2009 EEO complaint which the ALJ
adjudicated and from which Plaintiff “appeals.”

See Scott v.

Johanns, 409 F.3d 466, 469 (D.C. Cir. 2005) (“In a Title VII
suit brought after a final administrative disposition finding no
discrimination, the district court considers the discrimination
claim de novo.” (quoting Chandler v. Roudebush, 425 U.S. 840
(1976)).

Although in his complaint supplement and opposition to

Defendant’s
wrongdoings

motion,
by

his

Petitioner
employer,

the

chronicles
scope

of

many
the

alleged
complaint

necessarily is limited to the claims raised in the March 2009
EEO complaint.
Defendant has moved to dismiss or for summary judgment.
12

Ordinarily,

a

court

cannot

consider

matters

outside

the

pleadings or resolve factual disputes when ruling on a Rule
12(b)(6) motion.

See Bosiger v. U.S. Airways, 510 F.3d 442, 450

(4th Cir. 2007).

If the court does consider matters outside the

pleadings,

motion

“the

must

be

treated

as

one

for

summary

judgment under Rule 56,” and “[a]ll parties must be given a
reasonable

opportunity

to

pertinent to the motion.”

present

all

the

material

that

is

Fed.R.Civ.P. 12(d); see also Finley

Lines Joint Protective Bd. Unit 200 v. Norfolk S. Corp., 109
F.3d 993, 997 (4th

Cir. 1997) (“[A] Rule 12(b)(6) motion to

dismiss supported by extraneous materials cannot be regarded as
one

for

summary

judgment

until

the

district

court

acts

to

convert the motion by indicating that it will not exclude from
its

consideration

materials.”).

It

of

the

motion

is

appropriate

the
to

supporting

consider

the

extraneous
extraneous

materials submitted by Defendant, and Plaintiff had notice by
virtue of the motion filed by Defendant.

See Warner v. Quilo,

No. ELH-12-248, 2012 WL 3065358, at *2 (D.Md. July 26, 2012)
(“When

the

movant

expressly

captions

its

motion

‘in

the

alternative’ as one for summary judgment, and submits matters
outside the pleadings for the court’s consideration, the parties
are deemed to be on notice that conversion under Rule 12(d) may
occur[.]”) (quoting Laughlin v. Metro. Wash. Airports Auth., 149
F.3d 253, 261 (4th Cir. 1998)).

Accordingly, Defendant’s motion
13

shall be treated as a motion for summary judgment.
1.

Standard of Review

Rule 56(a) of the Federal Rules of Civil Procedure provides
that the “court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant

is

entitled

Fed.R.Civ.P. 56(a).

to

judgment

as

a

matter

of

law.”

The Supreme Court has clarified that this

does not mean that any factual dispute will defeat the motion.
“By

its

very

terms,

this

standard

provides

that

the

mere

existence of some alleged factual dispute between the parties
will

not

defeat

an

otherwise

properly

supported

motion

for

summary judgment; the requirement is that there be no genuine
issue of material fact.”

Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 247–48 (1986) (emphasis in original).
“A 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 Fed.R.Civ.P. 56(e)).

The court must “view the

evidence in the light most favorable to . . . the nonmovant, and
draw all reasonable inferences in [his] favor without weighing
the evidence or assessing the witnesses’ credibility.”

Dennis

v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir.
14

2002).

At the same time, the court also must abide by the

“affirmative obligation of the trial judge to prevent factually
unsupported

claims

and

defenses

from

proceeding

to

trial.”

Bouchat, 346 F.3d at 526 (quoting Drewitt v. Pratt, 999 F.2d
774, 778–79 (4th Cir. 1993)) (internal quotation marks omitted)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986)).
2.

Analysis

Defendant argues that Plaintiff has failed to establish a
prima facie case of discrimination or retaliation.
16-1, at 21).
plaintiff

(See ECF No.

To survive a motion for summary judgment, a

making

Title

VII

claims

must

provide

evidence

of

intentional discrimination, which includes acts of retaliation,
through

one

of

circumstantial

two

avenues

evidence

that

of

proof:

protected

(1)

status

direct

or

or

retaliation

motivated the employer's adverse employment decision, or (2) the
McDonnell Douglas “pretext framework” that requires a plaintiff
to show that “employer's proffered permissible reason for taking
an

adverse

employment

[discrimination

or

action

is

actually

a

Hill

Lockheed

retaliation].”

v.

pretext

for

Martin

Logistics Management, Inc., 354 F.3d 277, 284–85 (4th Cir. 2004)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817,

36

L.Ed.2d

framework,
establishing

once
a

668
the

(1973)).
plaintiff

prima

Under

the

McDonnell

Douglas

15

his

initial

case

facie

meets

burden

for

discrimination

of
or

retaliation, “the burden shifts to the employer to articulate a
legitimate, nondiscriminatory reason for the adverse employment
action.”

Hill, 354 F.3d at 285.

Once the employer meets this

burden of production, “the burden shifts back to the plaintiff
to prove by a preponderance of the evidence that the employer's
stated reasons ‘were not its true reasons, but were a pretext
for discrimination.’”

Id. (quoting Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 143 (2000)).

“The final pretext

inquiry merges with the ultimate burden of persuading the court
that

[the

plaintiff]

has

been

the

victim

of

intentional

discrimination, which at all times remains with the plaintiff.”
Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294
(4th Cir. 2010) (internal quotation marks omitted).
a.
The

Race and Gender Discrimination
following

allegations

of

discrimination

investigated by the EEO:
Whether Plaintiff was discriminated against
based on race, sex, and retaliation when:
1) On November 11, 2008, his arrival
and departure times were altered;
2) On November 11, 2008, his arrival
and departure times were observed by his
manager;
3) On January 4, 2009, he was issued a
five (5) day suspension
from January 4 to
January 8, 2009, for sending out an email
message; and

16

were

4) In February 2009, he became aware
that he was denied a reassignment to the
night shift.
(ROI, at p. 36; see also ECF No. 16-3, at 2).

Plaintiff has

presented no direct evidence to support his claims of race and
gender discrimination.

His consolidated complaint, supplement,

and his opposition provide no direct evidence that any of the
above actions were taken as a result of his protected status.
Thus, the race and gender discrimination claims must be examined
using the McDonnell Douglas burden-shifting framework.
An employee establishes a prima facie case of disparate
treatment on the basis of race and gender discrimination under
Title VII by showing that: (1) he is a member of a protected
class; (2) his job performance was satisfactory; (3) he was
subjected to an adverse employment action; and (4) similarly
situated employees outside of his class received more favorable
treatment.

See Holland v. Washington Homes, Inc., 487 F.3d 208,

214 (4th Cir. 2007).

Defendant argues that some of the incidents

cited by Plaintiff do not constitute adverse employment actions.
The

Fourth

Circuit

has

explained:

“[a]n

adverse

employment

action is a discriminatory act that adversely affects the terms,
conditions, or benefits of a plaintiff’s employment.”

Holland

v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007)
(internal quotation marks, citation, and alterations omitted).
The Fourth Circuit has described an “adverse employment action”
17

as one that “‘constitutes a significant change in employment
status, such as hiring, firing, failing to promote, reassignment
with

significantly

causing

a

different

significant

responsibilities,

change

in

or

a

benefits.’”

decision
Hoyle

v.

Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (quoting
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).
Plaintiff has not established that the altering or monitoring of
his arrival and departure times constitute adverse employment
actions, as these actions did not affect the terms, conditions,
or benefits of Plaintiff’s employment.
Sebelius,

766

F.Supp.2d

585,

598

See, e.g., Thorn v.

(D.Md.

2011)

(“‘Although

conduct short of ultimate employment decisions can constitute
adverse employment action, there still must be a tangible effect
on the terms and conditions of employment.’” (quoting Geist v.
Gill/Kardash P’ship, 671 F.Supp.2d 729, 737 n.6 (D.Md. 2009)).
As for the denial of a reassignment, Plaintiff was asked
why he believed his request for reassignment to the night shift
was denied because of his race, sex, and prior EEO activity, to
which he responded: “[b]ecause of my past EEO complaint.”
at 51).

(ROI,

Thus, Plaintiff does not appear to be attributing the

reassignment
Plaintiff

denial

has

not

to

his

race

established

or

gender.

that

the

In

any

denial

event,
of

his

reassignment to the night shift had a significant detrimental
effect

on

his

employment

status
18

to

constitute

an

adverse

employment action.

Moreover, Defendant has offered a legitimate

nondiscriminatory reason for this action.
Service

Support

Supervisor

with

the

Jose Angel Izquierdo,

National

Naval

Medical

Center, stated that Plaintiff never submitted a formal request
to be reassigned to night shift.

(Id. at 444).

Mr. Izquierdo

further explained:
[Plaintiff] was not denied reassignment to
the night shift. During this period we had
hired a new staff member, I [] instructed
Mr. Miller that I wanted to ensure that the
new member worked in all shifts, to include
night and weekends to learn all the required
duties.
Upon completion of the rotation we
would re-evaluate who would work what shift.
As it is, both [Plaintiff] and Mr. Nguyen
are currently on nights.
(Id. at 444) (emphasis added).
evidence

that

Defendant’s

Plaintiff has not provided any

stated

reason

for

denial

of

reassignment was pretextual.
As

for

the

five-day

suspension,

Defendant

concedes

that

this action constitutes an adverse employment action, but argues
that

Plaintiff

differently

in

protected class.

has

not

established

this

regard

than

that

he

employees

(ECF No. 16-1, at 22).

was

outside

treated
of

the

The administrative

record reflects that there were seven individuals employed in
the

Operations

employed

-

with

Branch
the

–

the

group

following

in

which

demographics:

Plaintiff
5

males

female; 5 African Americans, 1 Caucasian, and 1 Filipino.

19

was

and

1

(See

ROI,

at

172).

Plaintiff

asserts

that

he

was

suspended

for

sending an incorrect “postmaster,” which is an email directed by
the

Board

of

Directors

to

informational purposes.

be

released

to

the

Command

for

Plaintiff apparently made mistakes in

sending out a postmaster, but Plaintiff attributes this to a
lack of training, and also asserts that other people in his
group also made mistakes but were not suspended.

(Id. at 46-

47).

three

The

administrative

record

reflects

that

other

computer operators (two African American, and one Filipino) were
suspended
however.

for

the

same

purported

infraction

as

Plaintiff,

(Id. at 129).

Based on the foregoing, his race and gender discrimination
claims cannot survive summary judgment.
b.

Retaliation

Plaintiff also alleged retaliation in his March 2009 EEO
complaint.

Title VII makes it unlawful for “an employer to

discriminate against any of [its] employees . . . because he has
opposed

any

subchapter,

practice
or

because

made

an

unlawful

practice

he

has

made

charge,

a

by

this

testified,

assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.”
2000e–3(a).

To establish a

prima facie

42 U.S.C. §

case of retaliation

under Title VII, a plaintiff must show that:

(1) he engaged in

a protected activity, (2) an adverse employment action was taken
20

against

him,

and

(3)

the

protected

connected to the adverse action.

activity

was

causally

See Holland v. Washington

Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007) (citing Beall v.
Abbott Labs., 130 F.3d 614, 619 (4th Cir. 1997)).
discrimination

claim,

a

plaintiff

need

not

Unlike a

establish

an

“ultimate employment decision” to make out his prima facie case;
rather, he must show only that the action would be seen as
materially adverse through the eyes of a reasonable employee.
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006).
simple

Actions
lack

of

like

good

“petty

manners”

slights,
are

minor

annoyances,

insufficient

to

retaliation claim, even under this lower standard.
Because
retaliation,

Plaintiff

has

his

will

Douglas framework.

claim

presented
be

no

analyzed

support

a

Id.

direct
under

and

evidence
the

of

McDonnell

When asked whether he ever participated in

any protected activity, the only protected activity Plaintiff
identified was from 1995 through 1998.

(See ROI, at 44).

The

Fourth Circuit has held that “a causal connection for purposes
of demonstrating a prima facie case exists where the employer
takes

adverse

employment

against

an

learning of the protected activity.”
F.3d 209, 213 (4th Cir. 2004).

employee

shortly

after

Price v. Thompson, 380

Conversely, a longer passage of

time “tends to negate the inference of discrimination.”

21

Id.

As

discussed

above,

aside

from

the

five-day

suspension,

none of the other actions – including alteration and observation
of his arrival and departure times and denial of reassignment to
night

shift

assuming

–

constitute

all

employment

the

adverse

employment

actions
the

actions,

complained
in

gap

time

actions.

about
between

were
the

Even
adverse

prior

EEO

activity in 1998 and the alleged retaliation – nearly ten years
– is far too remote to infer causation.

See Pepper v. Precision

Valve Corp, 526 F.App’x 335, 337 (4th Cir. 2013) (“[A] causal
connection
exists
against

for

where
an

purposes
the

of

employer

employee

shortly

demonstrating

a

takes

adverse

after

prima

learning

facie

employment
of

the

case

action

protected

activity.” (alteration in original) (emphasis added) (internal
citation and quotation marks omitted)).
has

not

established

a

causal

Accordingly, Plaintiff

connection

between

Defendant’s

actions and his earlier filing of an EEO complaint, and summary
judgment will be granted to Defendant on the retaliation claim.
III. Conclusion
For the foregoing reasons, the motion filed by Defendant
will be granted.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

22