Venable v. Kerry

Filing 33

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 5/30/14. (c/m 5/30/14 bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SHEILA VENABLE,

:

Plaintiff,

:

v.

:
Civil Action No. GLR-13-1867

PENNY PRITZKER, SECRETARY OF
THE UNITED STATES DEPARTMENT
OF COMMERCE,
Defendant.

:
:
:

MEMORANDUM OPINION
THIS MATTER is before the Court on six pending motions
including Defendant’s, Penny Pritzker, Secretary of the United
States Department of Commerce (“Commerce”), Motion to Dismiss
or, in the Alternative, for Summary Judgment (ECF No. 17) and
Motion

to

Strike

Plaintiff’s,

Sheila

Venable,

Second

Amended

Complaint (ECF No. 28), and Venable’s Motion for Leave to Amend
(ECF No. 23), Motion to Strike (ECF No. 24), Motion for Leave to
File Sur-Reply (ECF No. 30), and Renewed Motion for Leave to
Amend (ECF No. 31).
Venable brings this action against her former employer, the
United States Bureau of the Census (the “Census Bureau”), which
is part of Commerce1, pursuant to Title VII of the Civil Rights

1

Under 42 U.S.C. § 2000e-16(c) (2012), the proper defendant
in an employment discrimination action brought by a federal
employee is “the head of the department, agency, or unit.”
Title 42 U.S.C. § 2000e-16(a) defines Commerce as one such
“department, agency, or unit.”
1

Act of 1964 (“Title VII”), as amended, 42 U.S.C. §§ 2000e-16 et
seq. (2012) and the Age Discrimination in Employment Act of 1967
(“ADEA”),
gender,

29

U.S.C.

and

et

seq.

discrimination

race

§§

633a

(2012),

and

claiming

retaliation.

age,

Having

reviewed the pleadings and supporting documents, the Court finds
no hearing necessary.

See Local Rule 105.6 (D.Md. 2011).

the

below,

reasons

outlined

the

Census

Bureau’s

For

Motion

to

Dismiss or, in the Alternative, for Summary Judgment will be
granted,

and

its

Motion

Complaint will be denied.

to

Strike

Venable’s

Second

Amended

Venable’s Motion for Leave to Amend,

Motion to Strike, and Motion for Leave to File Sur-Reply will be
denied,

and

her

Renewed

Motion

for

Leave

to

Amend

will

be

granted.
I. BACKGROUND2
Effective
service

May

two-year

11,

term

2009,

appointment

Resources

(“HR”)

Specialist,

Relations

Branch

(“ERB”)

headquartered

in

Venable

Suitland,

to

received
the

GS-0201-12,

of

the

Maryland.

competitive

position
with

Census

a

the

Bureau,

The

of

Human

Employee
which

appointment

is
was

subject to the successful completion of a one-year probationary
period. Effective January 15, 2010, approximately eight months

2

Unless otherwise noted, the following facts are taken from
the Amended Complaint and the parties’ briefings on the instant
motions, and are viewed in the light most favorable to the
nonmoving party.
2

into

her

probationary

Venable’s appointment.
Bureau

informed

inappropriate

period,

Census

Bureau

terminated

In the termination letter, the Census

Venable

behavior

the

that

and

she

was

being

because

she

did

removed
not

have

for
the

requisite communication and interpersonal skills necessary to
perform

her

responsibilities

as

an

HR

Specialist

fully

and

satisfactorily.
The termination letter specifically referenced her conduct
on January 13 and 14, 2010.
Census

Bureau

employee

On January 13, Venable emailed a

regarding

the

processing

of

that

employee’s request for leave under the Family Medical Leave Act
(“FMLA”).

In this email, Venable advised the employee that in

her opinion, she and her first-line supervisor, Ann Lucas, “had
done just about everything wrong.”

Venable apologized to the

employee for what she perceived was their mishandling of the
request and sent a copy of this email to Lucas, as well as to
her second-line supervisor, Branch Chief Stacy Chalmers, and her
third-line supervisor, Assistant Division Chief John Cunningham.
Later that afternoon, Chalmers informed Venable that her conduct
in sending such an email was inappropriate as it caused Census
Bureau employees to question the advice and services provided by
the Census Bureau’s HR Specialists and ultimately undermined the
ERB’s ability to provide effective guidance.

3

The

next

day,

on

January

14,

Venable

contacted

an

investigator for the ERB, Darryl Disque, who is responsible for
conducting investigations relating to claims of harassment made
by

Census

employees.

Bureau

employees

Venable

asked

against

Disque

for

other
a

copy

Census
of

an

Bureau
official

harassment investigation file prepared by the Census Bureau in
response to a complaint of sexual harassment made by a female
Census Bureau employee.

The Census Bureau claimed that Venable

did not provide Disque with an official reason for requesting
the file and instead demanded, in a discourteous way, that he
give her the file, which he refused to do.
On

February

1,

2010,

Venable

filed

a

whistleblower

complaint with the Office of Special Counsel (“OSC”) alleging
that the Census Bureau terminated her appointment in reprisal
for her alleged whistleblowing activity.3
3,

2010,

Employment

Venable

complained

Opportunity

to

(“EEO”)

the

Further, on February
Census

Office

Bureau’s

alleging

Equal

that

termination was impermissibly based on her race and gender.

her
On

February 19 and 20, 2010, however, Venable informed the Census

3

Specifically, Venable alleged that she was terminated in
reprisal for: (1) sending the January 13, 2010 email in which
she stated that she and her team had done just about everything
wrong” when handling the employee’s FMLA request; and (2)
informing Regional Manager Ann Foster Marriner on January 14,
2010, that someone from the Atlanta Regional Census Center was
using personally identifiable information for an improper
purpose.
4

Bureau’s EEO Office that she wished to withdraw her complaint.
Subsequently, by letter dated March 9, 2010, the OSC advised
Venable that it was terminating its inquiry into her allegations
and closing her case file.
On

March

24,

2010,

in

a

separate

action,

the

Maryland

Department of Labor, Licensing, and Regulation (“DLLR”) awarded
Venable unemployment benefits.

The Census Bureau appealed the

award of benefits, for which a teleconference hearing was held
on April 21 and May 13, 2010.

During the hearing, Venable

questioned Disque about reporting to Chalmers that Venable was
discourteous in her communication with him.

Venable alleges

that Disque recanted his allegations that she was discourteous,
and that as a result, he subsequently should have been subject
to discipline for make false allegations against her.

Venable

further alleges Chalmers falsely testified about Venable’s work
performance to prevent her from receiving unemployment benefits
on the basis of discrimination and in reprisal for having filed
the whistleblower complaint.
On May 13, 2010, Venable then filed an individual right of
action

(“IRA”)

appeal

of

the

OSC’s

dismissal

of

her

whistleblowing complaint to the Merit Systems Protection Board
(“MSPB”).

On September 10, 2010, however, the administrative

judge dismissed Venable’s IRA appeal for lack of jurisdiction,
finding that she failed to present a non-frivolous allegation of
5

whistleblowing.

Venable’s Petition for Review of the Initial

Decision was denied by the Board in a Final Order issued on May
5, 2011.
On January 6, 2011, the Census Bureau issued dual vacancy
announcements for two HR Specialist positions in the ERB in
Suitland, Maryland — the same position from which Venable was
removed

a

year

earlier.

An

internal

vacancy

announcement,

Vacancy Announcement Number HRD-2011-0035, was advertised under
the merit promotion procedures and restricted to current federal
employees

and

former

federal

employees

with

certain

reinstatement rights, certain veterans, and persons with special
hire

authority.

An

external

vacancy

announcement,

Vacancy

Announcement No. HRD-2011-036, was open to all U.S. citizens.
The external vacancy announcement provided that the vacancy was
also being advertised under internal competitive procedures and
that

all

applicants

eligibility.

would

be

evaluated

for

preference

On January 11, 2011, Venable, not qualified to

apply under the internal vacancy announcement, applied for the
position of HR Specialist at the GS-12 level under the external
vacancy announcement.
Once
closed,

the

Susan

Employment
applications

internal
Kreft,

and
to

and

HR

Specialist

Compensation
determine

external

Branch
which
6

vacancy

in

the

Census

(“ECB”),

candidates

announcements
Bureau’s

reviewed
were

the

minimally

qualified per the specialized experience requirements identified
in

the

announcements.

Kreft

then

used

this

information

to

generate a “Merit Certificate,” listing the qualified applicants
who

responded

to

the

internal

vacancy

announcement,

and

a

“Certificate of Eligibles,” listing the qualified applicants who
responded to the external vacancy announcement.

Because Venable

was a non-preference-eligible applicant competing against two
preference-eligible veterans at the GS-12 level, she was not
included on the Certificate of Eligibles and was not referred to
Chalmers,

the

selecting

consideration.
abandoned

to

Regardless,

and

responded

official

Chalmers
the

the

for

Certificate

ultimately

internal

these

vacancy

selected

vacancies,

for

Eligibles

was

individuals

who

of

announcement

to

fill

the

position.
On April 3, 2011, after learning that she was not selected,
Venable filed a formal charge of discrimination with the EEO
alleging that the Census Bureau discriminated against her on the
basis

of

race

and

in

retaliation

for

prior

protected

EEO

activity and for filing a whistleblower complaint with the MSPB.
On May 4, 2011, the Commerce’s Office of Civil Rights (“OCR”)
issued

a

Notice

Venable’s

race

dismissing

her

of

Acceptance

discrimination
whistleblowing

Investigation

and

reprisal

claim

claim.
7

for

for

failure

accepting

claims,
to

but

state

a

On June 2, 2011, Venable sent a request to OCR to amend her
formal complaint to include allegations of age, sex, and race
discrimination with respect to her January 2010 termination by
the Census Bureau.

On June 21, 2011, OCR issued a Notice of

Partial Acceptance for Investigation, dismissing Venable’s 2010
termination allegations as untimely.

On December 12, 2011, the

Census Bureau issued a Final Agency Decision finding that no
violation of Title VII had been committed concerning the nonselection of Venable for the January 2011 HR Specialist vacancy.
On January 13, 2012, Venable filed an appeal of the Final Agency
Decision to the Equal Employment Opportunity Commission (“EEOC”)
Office of Federal Operations (“OFO”), and on March 26, 2013, the
OFO affirmed Commerce’s Final Agency Decision.
On June 26, 2013, Venable filed her Complaint in this Court
alleging gender and race discrimination and retaliation as to
three discrete acts – (1) Chalmers allegedly falsified testimony
at Venable’s April 21, 2010 unemployment benefits hearing in
front

of

the

DLLR;

(2)

the

Census

Bureau’s

failure

to

hire

Venable for a September 2010 HR Specialist vacancy; and (3) the
Census Bureau’s failure to hire Venable for a January 2011 HR
Specialist vacancy.

(ECF No. 1).

On July 22, 2013, Venable

filed her first Amended Complaint adding allegations of gender
and race discrimination and retaliation concerning the Census

8

Bureau’s

failure

to

discipline

Darryl

making false statements about Venable.

Disque

for

allegedly

(ECF No. 5).

On December 2, 2013, the Census Bureau filed its Motion to
Dismiss or, in the Alternative, for Summary Judgment.
17).

On

January

22,

2014,

Venable

filed

a

(ECF No.

Response

in

Opposition to the Census Bureau’s Motion to Dismiss or, in the
Alternative, for Summary Judgment (ECF No. 22), and a Motion to
Strike

certain

exhibits

from

the

Census

Bureau’s

Motion

to

Dismiss or, in the Alternative, for Summary Judgment (ECF No.
24).

Venable’s Motion to Strike remains unopposed.
Additionally, on January 22, 2014, Venable also filed a

Motion for leave to file a Second Amended Complaint seeking to
include

allegations

of

age

discrimination

as

to

all

four

discrete acts identified in her first Amended Complaint.
Motion also remains unopposed.
Census

Bureau

filed

Amended Complaint.
On

March

Venable’s

7,

a

This

On March 5, 2014, however, the

Motion

to

Strike

Plaintiff’s

Second

(ECF No. 28).
2014,

Opposition

to

the
its

Census
Motion

Bureau
to

filed

Dismiss

Alternative, for Summary Judgment (ECF No. 29).

a
or,

Reply
in

to
the

On March 21,

2014, Venable filed a Motion for Leave to file a Sur-Reply (ECF
No. 30), and a Response to Motion to Strike and Renewed Motion
for

Leave

to

file

a

Third

Amended

Complaint

(ECF

No.

31).

Venable’s Third Amended Complaint appears to be substantially
9

similar, but not identical, to her Second Amended Complaint.
Venable’s

Motion

for

Leave

to

file

a

Sur-Reply

and

Motion for Leave to Amend also remain unopposed.

Renewed

On April 7,

2014, the Census Bureau filed a Reply in Support of its Motion
to Strike Plaintiff’s Second Amended Complaint.

(ECF No. 32).

These motions are ripe for disposition.
II. DISCUSSION
A.

Determining the Operative Complaint
1.

Procedural Posture

As a preliminary matter, the Court must determine which
Complaint

is

operative.

Venable

initially

filed

a

Second

Amended Complaint, which was attached to a Motion for Leave to
Amend.

The Census Bureau then moved to strike Venable’s Second

Amended Complaint.

In response, Venable filed an opposition to

the Motion to Strike along with a Renewed Motion to Amend, to
which she attached a Third Amended Complaint.
Under Local Rule 103.6 (D.Md. 2011), a party is required to
file

a

proposed

amended

leave to so file.
properly

the

with

its

motion

requesting

Thus, Venable’s Second Amended Complaint was

attached

Accordingly,

pleading

to

Census

her

Motion

Bureau’s

for

Motion

Leave
to

Strike

to

Amend.

Venable’s

Second Amended Complaint will be denied.
Further, in light of Venable’s Renewed Motion for Leave to
file a third amended complaint, her Motion for Leave to file a
10

second amended complaint will be denied as moot and the Court
will

consider

the

propriety

of

accepting

the

Third

Amended

Complaint as an amendment to the first Amended Complaint.
The

Census

Bureau’s

Reply

in

Support

of

its

Motion

to

Strike Plaintiff’s Second Amended Complaint will be construed as
an opposition to Venable’s Renewed Motion for Leave to Amend.4
See Monge v. Portofino Ristorante, 751 F.Supp.2d 789, 792 n.1
(D.Md. 2010) (noting that because Federal Rule Civil Procedure 1
instructs the Court to construe the rules “to secure the just,
speedy,

and

proceeding,”

inexpensive
the

Court

determination

should

not

of

exalt

every

form

action

over

and

substance

(quoting Fed.R.Civ.P. 1) (internal quotation marks omitted)).
2.

Leave to File Third Amended Complaint

The Court will grant Venable’s Motion for Leave to file her
Third

Amended

Motion,

Complaint.

however,

will

not

The

decision

moot

the

to

Census

grant

Venable’s

Bureau’s

pending

Motion to Dismiss, or for Summary Judgment.
Under Federal Rule of Civil Procedure 15(a), “[t]he court
should freely give leave [to amend a complaint] when justice so
requires.”

Fed.R.Civ.P. 15(a)(2).

Although the federal rules

favor granting leave to amend, the decision lies within the

4

In light of the similarities between the second and third
amended complaints, the Census Bureau’s Motion to Strike
Venable’s Second Amended Complaint and Reply in Support of its
Motion to Strike Plaintiff’s Second Amended Complaint present
nearly identical issues.
11

sound discretion of the district court.

Medigen of Ky., Inc. v.

Pub. Serv. Comm’n of W. Va., 985 F.2d 164, 167–68 (4th Cir.
1993) (citing Nat’l Bank v. Pearson, 863 F.2d 322, 327 (4th Cir.
1988)).

Leave to amend is properly denied when amendment would

prejudice the opposing party, the moving party has exhibited bad
faith, or amendment would be futile.

Edell & Assocs., P.C. v.

Law Offices of Peter G. Angelos, 264 F.3d 424, 446 (4th Cir.
2001) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 242
(4th Cir. 1999)).
The most significant changes Venable makes in her proposed
Third Amended Complaint are substituting Penny Pritzker5 as the
properly named defendant, adding a cause of action based on agebased

discrimination

additional

facts

in

violation

necessary

to

of

the

support

ADEA,

and

her

claims

should

not

alleging
of

race,

gender, and age discrimination.
The

Census

Bureau

argues

Venable

be

granted

leave to amend because her age-based discrimination claim is
futile.
Census

While Venable’s ADEA claim may in fact be futile, the
Bureau

argues

neither

prejudice

nor

bad

faith

with

5

Venable originally named Acting Secretary of Commerce,
Cameron Kerry, as the defendant.
Ms. Pritzker, however, was
sworn in as the Secretary of Commerce on June 26, 2013, the same
day Venable filed her original Complaint. See supra note 1
(identifying the head of Commerce as the proper defendant in an
employment discrimination action brought by a Census Bureau
employee).
12

respect

to

Venable’s

other

proposed

changes.

Because

Penny

Pritzker is not a new party, Venable’s additional facts are
restatements of the allegations already contained in her Amended
Complaint, and because the case is still in its infancy, the
Court will grant Venable’s Motion to Amend.
3.

The Effect on the Defendant’s Pending Motions

When a plaintiff files an amended complaint, it generally
moots

any

pending

motions

complaint is superseded.

to

dismiss

because

the

original

See Pac. Bell Tel. Co. v. Linkline

Commc’ns, Inc., 555 U.S. 438, 456 n.4 (2009) (“Normally, an
amended

complaint

supersedes

the

original

complaint.”).

In

certain instances, however:
Defendants should not be required to file a new motion
to dismiss simply because an amended pleading was
introduced while their motion was pending. If some of
the defects raised in the original motion remain in
the new pleading, the court simply may consider the
motion as being addressed to the amended pleading. To
hold otherwise would be to exalt form over substance.
Buechler v. Your Wine & Spirit Shoppe, Inc., 846 F.Supp.2d 406,
415 (D.Md. 2012) (quoting 6 Charles Alan Wright et al., Federal
Practice & Procedure § 1476 (3d ed. 2010)) (internal quotation
marks omitted).
Although the Court will grant Venable’s Motion for Leave to
File Third Amended Complaint, the Court will not require the
Census Bureau to file a new motion to dismiss, or for summary
judgment.

None of Venable’s proposed changes materially affect
13

the

Census

Bureau’s

Motion.

As

a

result,

the

Court

will

consider the Census Bureau’s Motion to Dismiss, or for Summary
Judgment as addressing Venable’s Third Amended Complaint.
B.

Venable’s Motion to Strike
Venable has moved to strike certain exhibits attached to

the Census Bureau’s Motion to Dismiss or, for Summary Judgment.
Because those exhibits impact the Court’s decision on the other
pending motions, the Court will address this Motion first.
First, Venable moves the Court to strike the Affidavit of
Stacy Chalmers submitted by Defendants in support of its Motion
for

Summary

Judgment.

In

support

of

her

Motion

to

Strike,

Venable argues Chalmers’s July 19, 2011 and December 2, 2013
Declarations, (Def.’s Mot. to Dismiss or, in the Alternative,
for Summ. J. [“Mot. Dismiss or, Summ. J.”] Ex. 4 [“Chalmers’s
Dec. 2, 2013 Decl.”], ECF No. 17-6), (Mot. Dismiss or, Summ. J.
Ex. 18 [“Chalmers’s Jul. 19, 2011 Decl.”], ECF No. 17-20), are
presumably false because Chalmers was found to have given false
testimony
benefits

on

April

appeal

Chalmers’s
provided

21,

2010,

before

the

declarations
during

the

during

DLLR.

flatly
DLLR

Venable’s
Further,

contradict

hearing

and

unemployment

Venable

argues

sworn

testimony

include

internal

inconsistencies in violation of the sham affidavit rule.
“[A]

party

cannot

create

a

genuine

issue

of

fact

sufficient to survive summary judgment simply by contradicting
14

his or her own previous sworn statement (by, say, filing a later
affidavit

that

flatly

contradicts

that

party’s

earlier

sworn

deposition) without explaining the contradiction or attempting
to

resolve

Corp.,

526

the
U.S.

disparity.”
795,

806

Cleveland
(1999).

v.

Policy

“Application

Mgmt.
of

Sys.

the

sham

affidavit rule at the summary judgment stage ‘must be carefully
limited to situations involving flat contradictions of material
fact.’”

Zimmerman v. Novartis Pharm. Corp., 287 F.R.D. 357, 362

(D.Md. 2012) (quoting Mandengue v. ADT Sec. Sys., Inc., No. ELH–
09–3103, 2012 WL 892621, at *18 (D.Md. Mar. 14, 2012)).
is

a

distinction,

however,

between

flat

There

contradictions

that

create a transparent sham and inconsistencies that create an
issue of credibility.

Tippens v. Celotex Corp., 805 F.2d 949,

953 (11th Cir. 1986).
Here,

the

contradiction

Court
between

cannot

determine

Chalmers’s

the

declarations

extent

of

submitted

the
by

Defendants in support of its Motion for Summary Judgment and her
April 2010 testimony because her prior testimony has not been
presented to the Court.
shown

to

have

Further, to the extent Chalmers can be

previously

lied

under

oath

or

there

are

inconsistencies in her testimony, she may be found less credible
if this case proceeds to trial.

Such “credibility[, however,]

cannot be assessed on summary judgment.”

Black & Decker Corp.

v. United States, 436 F.3d 431, 442 (4th Cir. 2006).
15

The Court,

therefore, will not strike Chalmers’s July 2011 and December
2013 Declarations on the basis that they are sham affidavits.
Next, Venable argues Chalmers’s declarations are irrelevant
under Federal Rule of Evidence 402.
admissible.”

Fed.R.Evid. 402.

“Irrelevant evidence is not

Evidence is relevant if “it has

any tendency to make a [material] fact more or less probable
than

it

would

be

without

the

evidence.”

Fed.R.Evid.

401(a).

Materiality means the evidence “goes to the substantial matters
in

dispute

or

has

a

legitimate

decision of the same . . . .”

or

effective

bearing

on

the

United States v. De Lucia, 256

F.2d 487, 491 (7th Cir. 1958) (citing 31 Francis C. Amendola et
al., C.J.S. Evidence §§ 159, 185, pp. 868, 906).
In her December 2013 Declaration, Chalmers testifies as to
her

role

in

the

vacancy

selection

Chalmers’s Dec. 2, 2013 Decl.).
Chalmers

testifies

process,

her

about

understanding

her

process.

(See

generally

In her July 2011 Declaration,
role

of

why

in

the

Venable

vacancy

selection

did

make

not

the

Certificate of Eligible from which the ultimate candidate was
selected,

and

her

previous

supervisory

relationship

Venable. (See generally Chalmers’s Jul. 19, 2011 Decl.).

with
The

Court concludes this testimony is relevant because it tends to
establish

the

Census

Bureau’s

reason for not selecting Venable.

16

legitimate,

nondiscriminatory

The Court, therefore, will

not strike Chalmers’s July 2011 and December 2013 Declarations
on the basis that they are irrelevant.
Finally, Venable moves the Court to strike Exhibits 1, 5,
6, 8, 9, 10, 11, 12, and 16 attached to Defendant’s Motion for
Summary

Judgment

irrelevant.

because

Exhibits

5,

they
6,

are
8,

redundant,

9,

10,

11,

immaterial,
and

12

and

tend

to

establish the steps Venable took to exhaust her administrative
remedies prior to initiating this action.

The Court concludes

this

its

evidence

is

relevant

to

establish

jurisdiction concerning certain claims.

subject

matter

See Jones v. Calvert

Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (“[A] failure by
the plaintiff to exhaust administrative remedies concerning a
Title VII claim deprives the federal courts of subject matter
jurisdiction over the claim.”).
Exhibit 1 is a Notification of Personnel Action documenting
Venable’s term appointment as a HR Specialist.

Exhibit 16 is

Venable’s application for the position in which she alleges she
was not selected based on discrimination.

These documents tend

to establish that Venable applied for the position under the
Census

Bureau’s

external

announcement,

current

federal

employee

or

reinstatement
veteran’s
hiring

rights,

preference,

consideration.

and

that

career
The

a

she

tenure
Court
17

former

that

she

federal

could
status,

concludes

not
or

was

not

a

employee

with

establish

any

other

this

special

evidence

is

relevant

because

it

tends

to

establish

the

Census

Bureau’s

legitimate, nondiscriminatory reason for not selecting Venable.
For

all

of

the

foregoing

reasons,

Venable’s

Motion

to

Strike will be denied.
C.

Venable’s Motion for Leave to File a Sur-reply
Venable has also moved for leave to file sur-reply to the

Census

Bureau’s

Motion

to

Dismiss,

or

for

Summary

Judgment

arguing sur-reply is needed to correct alleged misstatements of
the facts and law.

The Court will deny the motion because it is

unnecessary.
“Unless otherwise ordered by the Court, surreply memoranda
are not permitted to be filed.”
2011).

Local Rule 105.2(a) (D.Md.

“Surreplies may be permitted when the moving party would

be unable to contest matters presented to the court for the
first time in the opposing party’s reply.”

Khoury v. Meserve,

268 F.Supp.2d 600, 605 (D.Md. 2003) (citing Lewis v. Rumsfeld,
154 F.Supp.2d 56, 61 (D.D.C. 2001)).
does

not

raise

contentions
Venable’s

any

Venable
“factual”

new

issues.

presented

in

concerns

The Census Bureau’s Reply
It

her
are

directly

addresses

Response.
mostly

the

Conversely,

disputes

over

conclusions of law that she addresses by reiterating arguments
she previously made in her responses to the Census Bureau’s
Motion to Dismiss, or for Summary Judgment.

18

Because Venable had

an adequate opportunity to address those concerns, the Court
will deny her Motion for leave to file sur-reply.
D.

The Census
Judgment
1.

Bureau’s

Motion

to

Dimiss

or,

for

Summary

Standard of Review

To survive a Rule 12(b)(6) motion to dismiss, a complaint
must set forth “a claim for relief that is plausible on its
face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007).

A claim is facially

plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
Twombly,

555

U.S.

at

556.

In

Iqbal, 556 U.S. at 678;

considering

a

Rule

12(b)(6)

motion, the Court must construe the complaint in the light most
favorable to the plaintiff, read the complaint as a whole, and
take the facts asserted therein as true.

Mylan Labs., Inc. v.

Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
[A] pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal
pleadings drafted by lawyers and can only be dismissed
for failure to state a claim if it appears beyond
doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to
relief.
Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v.
Kerner, 404 U.S. 519, 520-21 (1972)) (internal quotation marks
omitted).

19

“When matters outside the pleading are presented to and not
excluded by the court, the 12(b)(6) motion shall be treated as
one for summary judgment and disposed of as provided in Rule
56.”

Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253,

260-61 (4th Cir. 1998) (quoting Fed.R.Civ.P. 12(b)) (internal
quotation marks omitted).

Under Federal Rule of Civil Procedure

56, the Court must grant summary judgment if the moving party
demonstrates there is no genuine issue as to any material fact,
and the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a).
In reviewing a motion for summary judgment, the Court views
the facts in a light most favorable to the non-moving party.
Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

255

(1986)

(citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970)).
Once

a

motion

for

summary

judgment

is

properly

made

and

supported, the opposing party has the burden of showing that a
genuine dispute exists.

Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586-87 (1986).

“[T]he 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, 477 U.S. at 247-48 (alteration in the

original).

20

A “material fact” is one that might affect the outcome of a
party’s case.

Id. at 248; see also JKC Holding Co. v. Wash.

Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citing
Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001)).
Whether a fact is considered to be “material” is determined by
the substantive law, and “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”

Anderson, 477

U.S. at 248; accord Hooven-Lewis, 249 F.3d at 265.
Here, because the Court will consider matters outside of
the pleading, the Census Bureau’s Motion will be construed as a
Motion for Summary Judgment.
2.

Analysis
a.

Venable
Judgment

is

Motion for Summary Judgment is Not Premature
argues

the

premature

Census
because

opportunity for discovery.
Generally,

“summary

Bureau’s
she

has

Motion
not

for

been

Summary

given

an

The Court disagrees.
judgment

‘adequate time for discovery.’”

is

appropriate

only

after

Evans v. Techs. Applications &

Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996) (quoting Celotex
Corp.

v.

provides
summary

Catrett,
that

the

judgment

477
Court
“[i]f

U.S.
may
a

317,

322

deny

or

nonmovant

(1986)).
continue
shows

by

Rule
a

56(d)

motion

affidavit

for
or

declaration that, for specified reasons, it cannot present facts
21

essential
56(d).

to

justify

its

opposition

.

.

.

.”

Fed.R.Civ.P.

A party opposing summary judgment under Rule 56(d),

however, may not simply assert that discovery is necessary; the
party

must

file

an

affidavit

that

“particularly

legitimate needs for further discovery.”

specifies

Nguyen v. CNA Corp.,

44 F.3d 234, 242 (4th Cir. 1995).
Here,

Venable

filed

a

Rule

56(d)

declaration.

Her

declaration, however, failed to identify any facts essential to
her opposition that were not already available to her and could
only

be

obtained

through

discovery.

The

materials

already

available to Venable include numerous documents provided during
the processing of her MSPB appeal and EEO complaint.

See Boyd

v. Guiterrez, 214 F.App’x 322, 323 (4th Cir. 2007) (affirming
the district court’s decision denying a request to continue a
motion for summary judgment pending additional discovery given
the

extent

to

which

the

numerous

documents

and

affidavits

submitted during the plaintiff’s EEOC proceedings were already
available to him).
Moreover, to the extent that Venable argues the need for
discovery related to claims other than her 2011 non-selection,
those

claims

administrative

will

be

remedies

dismissed
and

are

22

for

not,

failure
therefore,

to

exhaust

subject

to

discovery.6

To the extent Venable argues the need for discovery

related to her 2011 non-selection claim, none of that discovery
would

be

sufficient

to

place

defeat summary judgment.
Dep’t

Stores

Co.,

5

material

facts

in

dispute

and

Cromwell Field Assocs., LLP v. May

F.App’x

186,

189-90

(4th

Cir.

2001)

(affirming the district court’s decision denying a request to
continue

a

motion

for

summary

judgment

pending

additional

discovery where the facts on which the district court relied to
decide the case were not in dispute and the facts sought under
discovery were immaterial to the summary judgment motion).
Accordingly,

the

Court

will

deny

Venable’s

Rule

56(d)

request.
b.

Failure to Exhaust Administrative Remedies
1. Gender and Race Discrimination and Retaliation
Claims

The

undisputed

evidence

shows

that

Venable

failed

to

exhaust her administrative remedies as to all claims except her
January 2011 non-selection race discrimination and retaliation
claim.

Venable’s Third Amended Complaint appears to allege four

discrete acts of discrimination and retaliation7: (1) Chalmers’s

6

See discussion infra Part II.D.2.b.

7

Discrete acts of discrimination and retaliation are
unlawful employment practices that can be said to occur on a
particular day as opposed to unlawful employment practices that
can be said to occur over a series of days or years. See Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002)
23

testimony at Venable’s April 2010 unemployment benefits hearing
before the DLLR; (2) the Census Bureau’s alleged failure to
discipline Disque for allegedly making false statements about
Venable; (3) failure to hire Venable for a September 2010 HR
Specialist

vacancy;

and

(4)

failure

January 2011 HR Specialist vacancy.

to

hire

Venable

for

a

She alleges age, gender,

and race discrimination and retaliation as to all four discrete
acts.
Prior to instituting a judicial action alleging employment
discrimination under Title VII or the ADEA, a federal employee
is required to exhaust all available administrative remedies.
42 U.S.C. § 2000e-16(c); Brown v. Gen. Servs. Admin., 425 U.S.
820, 832 (1976).

First, the employee must file a charge of

discrimination with the agency’s EEO office within forty-five
days

of

the

alleged

act

of

discrimination.

29

C.F.R.

§

1614.105(a)(1) (2013).

A complainant’s failure to contact an

EEO

the

Counselor

tantamount

to

within
failure

to

forty-five
timely

days

exhaust

all

prescribed

“is

administrative

remedies” and “ordinarily results in dismissal of a complaint of
discrimination.”

Blount v. Thompson, 400 F.Supp.2d 838, 841

(D.Md. 2004) (citing Jakubiak v. Perry, 101 F.3d 23, 26–27 (4th
Cir. 1996)).

(describing the difference between hostile environment claims
and discrete acts).
24

If an informal resolution is not reached through informal
counseling

with

an

EEO

Counselor,

the

agency

must

issue

a

written Notice of Right to File a Formal Complaint advising the
complainant of her responsibility to file a formal complaint
within fifteen days of receipt of the notice.

29 C.F.R. §

1614.105(d); see also 29 C.F.R. § 1614.106(b) (2013) (requiring
a federal employee to file a formal complaint within fifteen
days of receiving notice of a right to do so).
comply

with

the

fifteen-day

time

limit

set

Failure to

by

29

C.F.R.

1614.106(b) similarly bars an action in federal court.
Blount

v.

(dismissing

Shalala,
Title

32

VII

F.Supp.2d

claims

on

339,

341

timeliness

(D.Md.

grounds

§

See
1999)

for

the

plaintiff’s failure to file a formal administrative complaint
within fifteen days of being noticed of her right to do so),
aff’d, 199 F.3d 1326 (4th Cir. 1999).
Here, it is undisputed that Venable initiated contact with
a

Census

February

Bureau
3,

EEO

2010,

Counselor
Venable

on

two

initiated

occasions.
contact

First,

with

an

on
EEO

counselor alleging that she was terminated on January 15, 2010,
on the basis of race and sex-based discriminated.8

On February

8

Because Venable challenges the authenticity of Exhibit 5
(Venable Decl., at 3, ECF No. 22-1), purporting to be the EEO
Informal Complaint Contact Sheet, attached to the Census
Bureau’s Motion to Dismiss, or, for Summary Judgment, the Court
will not consider it.
See Orsi v. Kirkwood, 999 F.2d 86, 92
(4th Cir. 1993) (“It is well established that unsworn,
25

20, 2010, however, Venable sent an email to EEO Specialist Kathy
Hopkins

indicating

that

she

no

longer

wished

to

pursue

her

discrimination claim. (Mot. Dismiss or, Summ. J. Ex. 6, ECF No.
17-8).
Nonetheless,

on

February

22,

2010,

the

EEO

Office

sent

Venable a written Notice of Right to File a Formal Complaint and
advised Venable of her responsibility to file a formal complaint
within fifteen days of receipt of the notice.

(Mot. Dismiss or,

Summ.

however,

J.

officially

Ex.

7,

ECF

withdrew

No.

her

17-9).

Venable,

complaint

nor

filed

a

neither

formal

one.

Consequently, she is deemed to have abandoned her claim.

See

Tate v. Potter, EEOC Request No. 0520060584, 2006 WL 3770922, at
*1 (Dec. 15, 2006) (“[A] complainant who receives counseling on
an allegation, but does not go forward with a formal complaint
on

that

allegation

is

deemed

to

have

abandoned

consequently, cannot raise it in another complaint.”

it,

and

(quoting

Jacqueline Small, EEOC Decision No. 05980289, 1999 WL 589571
(July 16, 1999))) (internal quotation marks omitted)).
Second, on April 3, 2011, Venable filed a formal complaint
with the Census Bureau’s EEO Office alleging that “she was not

unauthenticated documents cannot be considered on a motion for
summary judgment.” (citing Hal Roach Studios, Inc. v. Richard
Feiner and Co., 896 F.2d 1542, 1550-51 (9th Cir. 1990)).
Venable, however, does not dispute subsequent communications
that establish that she initiated contact with an EEO counselor
alleging discrimination on the basis of race and sex and that
she later withdrew that complaint.
26

selected for the Position of Human Resources Specialist . . .
because of her race, in retaliation for having filed a whistle
blower complaint, and in retaliation for having alleged race and
gender

discrimination

termination.”
17-24).

in

connection

with

her

January

2010

(Mot. Dismiss or, Summ. J. Ex. 22, at 3, ECF No.

Subsequently, on June 2, 2011, Venable sought to amend

her April 3, 2011 formal complaint to include allegations that
her January 15, 2010 termination was a result of discrimination
on the basis of race, sex, and age.
Ex. 24, ECF No. 17-26).
Bureau

dismissed

discrimination
termination.

as

(Mot. Dismiss or, Summ. J.

On June 21, 2011, however, the Census

untimely

allegations

Venable’s

concerning

race,

her

sex,

January

and
15,

age
2010

(Mot. Dismiss or, Summ. J. Ex. 25, at 5-6, ECF No.

17-27).
Although
2011

unclear,

non-selection

Venable

claim

appears

was

timely

to

argue,

filed

because

her

based

on

and

retaliation for protected activity she took with respect to her
2010 termination, and because her newly alleged discrete acts of
discrimination reflect a pattern of retaliation related to her
2010

termination,

litigation.

they

are

independently

actionable

in

The Court disagrees.

[D]iscrete discriminatory acts are not actionable if
time barred, even when they are related to acts
alleged in timely filed charges. Because each discrete
act starts a new clock for filing charges alleging

27

this

that act, the charge must be filed [within
appropriate time period] after the act occurred.

the

Nat’l R.R. Passenger Corp., 536 U.S. at 102.
Venable

asserts

gender

and

race

discrimination

and

retaliation concerning Chalmers’s April 21, 2010 DLLR testimony,
the Census Bureau’s disparate treatment in favor of Disque, and
her September 2010 non-selection for the first time in this
litigation.

Additionally, Venable asserts gender discrimination

with respect to her January 2011 non-selection for the first
time in this litigation.
EEO

Counselor

discrete

within

Because Venable failed to contact an

forty-five

discriminatory

acts

days

after

the

date

occurred,

those

claims

these

are

time

similarly

time

barred and will be dismissed with prejudice.
2.
Venable’s

age

ADEA Claims
discrimination

claims

are

barred under either of the ADEA’s avenues for asserting age
discrimination claims in federal court.

A federal government

employee alleging violations under the ADEA may dispense with
the EEOC process described above and file an ADEA claim directly
in federal court if, at least thirty days prior to commencing
suit, she provides notice to the EEOC of her intent to sue, and
she

files

this

notice

within

180

days

of

the

alleged

discriminatory conduct. 29 U.S.C. § 633(d) (2012); Stevens v.
Dep’t of Treasury, 500 U.S. 1, 5-6 (1991).

28

Venable argues she exhausted her administrative remedies
with respect to her ADEA claims because on June 2, 2011, she
timely amended her formal charge of discrimination with the EEO
to

include

discrimination

on

the

basis

of

age.

Venable’s

attempt to amend her EEO complaint concerned only her January
15, 2010 termination, however, and the EEO dismissed her amended
allegations as untimely.
her

EEO

complaint

to

concerning

her

that

exhausted

she

allegations

of

2010

age

Venable’s untimely attempt to amend
include

termination

violations
is

insufficient

administrative
discrimination

under

remedies

with

the

to

ADEA

establish

concerning

respect

to

any

her
other

claim.
Second, Venable argues she properly and timely alleged age
discrimination in violation of the ADEA because her April 3,
2011 formal charge of discrimination concerning her 2011 nonselection claim stated that she was over the age of forty.
Court disagrees.
notice

of

The

On May 4, 2011, the EEO mailed Venable a

acceptance

for

investigation

the

charge

of

discrimination on the basis of race and retaliation for filing
an appeal with the MSPB with respect to her non-selection for
the 2011 position of HR Specialist.
Ex. 23, ECF No. 17-25).

(Mot. Dismiss or, Summ. J.

Venable was advised of her right and

responsibility to notify the EEO within fifteen calendar days if
the issues in her complaint were not correctly identified.
29

(Id.

at 2).
issue

Because Venable failed to contact the EEO concerning the
accepted

for

investigation,

allegations were properly identified.

it

is

presumed

that

her

(Id.).

Because the issues identified by the EEO did not include
violations of the ADEA, the Court finds that Venable failed to
comply

with

the

administrative

requirement

that

she

initiate

contact with an EEO counselor within forty-five days of the date
of the alleged discriminatory conduct.
elected

to

proceed

with

her

ADEA

To the extent Venable

claims

by

bringing

suit

directly in federal court, her ADEA claims are untimely because
she did not contact an EEO counselor, or otherwise provide the
EEO notice of her intent to sue within 180 days of any of the
alleged discriminatory conduct.

Further, because these claims

are now time barred, Venable’s age discrimination claims will be
dismissed with prejudice.
c.

Non-Selection for the January 2011 HR Specialist
Vacancy
1. Race Discrimination Under Title VII

The Court will grant the Census Bureau’s Motion for Summary
Judgment with respect to Venable’s Title VII race discrimination
claim because Venable fails to establish a prima facie case of
discrimination and further fails to produce sufficient evidence
to rebut as mere pretext, the Census Bureau’s legitimate and
non-retaliatory reason for her termination.

30

Generally,
discrimination

the

adjudication

under

Title

VII

is

of

a

complaint

analyzed

of
the

under

race
proof

scheme articulated in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973).

See Hill v. Lockheed Martin Logistics

Mgmt., Inc., 354 F.3d 277, 284-86 (4th Cir. 2004) (employing the
McDonnell Douglas framework to analyze a discrimination claim
based

principally

on

circumstantial

evidence).

Under

the

McDonnell Douglas standard, Venable must first establish a prima
facie case of discrimination.
burden,

the

Census

Bureau

discrimination

raised

establishing

legitimate,

termination.

a

Id.

by

Id. at 285.
can

rebut

Venable’s

If she meets this

the

prima

presumption
facie

nondiscriminatory

reason

of

case

by

for

her

If the Census Bureau succeeds in doing so,

Venable must then “prove by a preponderance of the evidence that
the legitimate reasons offered by [the Census Bureau] were not
its true reasons, but were a pretext for discrimination.”

Tex.

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Venable “bears the ultimate burden of proving that [the Census
Bureau]

intentionally

discriminated

against

her.”

Evans,

80

F.3d at 959 (citing Burdine, 450 U.S. at 253).
To state a claim for race discrimination based on a failure
to hire, Plaintiff must allege that:
(i) [she] belongs to a protected class, (ii) [she]
applied and was qualified for a job for which the
employer was seeking applicants, (iii) despite [her]
31

qualifications, [she] was rejected, and (iv) after
[her] rejection, the position remained open and the
employer continued to seek applicants from persons of
[her] qualifications.

E.E.O.C. v. Sears Roebuck & Co., 243 F.3d 846, 851 (4th Cir.
2001).

“In cases where the position sought was filled, the

fourth prong is most easily satisfied by showing that someone
outside
selected

of

the

for

plaintiff’s

the

protected

position.”

group

Langerman

F.Supp.2d 490, 495 (D.Md. 2001).

ultimately

was

Thompson,

155

v.

“[A] plaintiff must ordinarily

show that she was [not selected in favor of someone] outside her
protected class because, when someone within her protected class
is hired . . . that fact ordinarily gives rise to an inference
that the defendant did not [discriminate against plaintiff on
the basis] of her protected status.”

Miles v. Dell, Inc., 429

F.3d 480, 488 (4th Cir. 2005).
In her Third Amended Complaint, Venable admits that the
2011

HR

class.

vacancy

was

filled

by

(3rd Am. Compl., at 4).

someone

within

her

protected

Although the Fourth Circuit has

recognized that certain factual circumstances may give rise to
an

exception

to

the

general

rule,

Venable

has

plead

no

additional facts that warrant such an exception.

Consequently,

Venable

case

has

failed

to

establish

discrimination.

32

a

prima

facie

of

race

Even assuming arguendo that Venable can establish a prima
facie case of race discrimination, however, the Census Bureau
articulated a legitimate, nondiscriminatory reason for her nonselection, and Venable is unable to create a material dispute
with regard to whether the Census Bureau’s stated reason was a
pretext for discrimination.
“[The

Census

Bureau]

is

not

required

to

persuade

[the

Court] that the proffered reason [it did not select Venable for
the vacancy] was the actual motivation for [its] decision. [It]
must

merely

articulate

a

justification

that

sufficient to justify a judgment in its favor.”

is

legally

Mereish v.

Walker, 359 F.3d 330, 335 (4th Cir. 2004) (citation omitted)
(quoting Burdine, 450 U.S. at 254-55) (internal quotation marks
omitted).

The Census Bureau states as it reason for its non-

selection of Venable that her application was not referred to
the selecting official because two veteran’s preference-eligible
candidates blocked her from inclusion on the referral list of
the external applicants. Moreover, the Census Bureau did not
hire

anyone

Venable

from

applied,

announcement.

the

external

because

The

Court

it

vacancy

hired

concludes

announcement

from
that

the
the

to

which

internal

vacancy

Census

Bureau’s

stated reason constitutes a legitimate, nondiscriminatory reason
for her non-selection.

33

Thus, the burden shifts to Venable to offer evidence that
the

articulated

reason

for

her

non-selection

is

pretextual.

“[Venable] can meet [her] burden of proving pretext either by
showing that [the Census Bureau’s] explanation is ‘unworthy of
credence’ or by offering other forms of circumstantial evidence
sufficiently probative of [race] discrimination.”
(citing Burdine, 450 U.S. at 256).
reliance

on

discrimination
evidence

of

objective
claim

Moreover, an employer’s

evaluation

unless

the

See

Anderson

pretext.

Id. at 336

factors

plaintiff
v.

defeats

offers

a

specific

Westinghouse

Savannah

River Co., 406 F.3d 248, 267-268 (4th Cir. 2005).
Venable does not offer specific evidence of pretext but
merely argues it is plausible that her 2010 EEO activity “tipped
the scales” when the Census Bureau decided not to select her for
the

2011

HR

Specialist

position

because

she

had

otherwise

received favorable performance reviews in July 2009 and October
2009.

The Census Bureau, however, did not evaluate the quality

of Venable’s application, or suggest that her responses to the
job-related
enough

assessment

score,

objectively

but

using

questionnaire

instead
the

evaluated

statutorily

did
all

not
of

defined

warrant
the

a

high

candidates

category

rating

system.
The Homeland Security Act of 2002 authorized “alternative
ranking and selection procedures,” which have come to be known
34

as “category rating.”

5 U.S.C. § 3319 (2012).

By a directive

of the President, effective November 1, 2010, category rating
became

the

primary

competitive-service

method

by

vacancies.

which

See

all

Dean

Mgmt., 115 M.S.P.R. 157, 168 n.7 (2010).

v.

agencies
Office

of

fill
Pers.

Under category rating,

an agency may score applicants based upon job-related assessment
tools employed in the application process and then use those
scores to place applicants in pre-defined “quality categories.”
5 U.S.C. § 3319(a).
preference

eligible

Within each quality category, however,
individuals

are

listed

ahead

of

non-

preference eligible individuals, and an agency may not fill a
vacancy with a non-preference eligible individual ahead of one
who is preference eligible in the same quality category unless
it seeks and receives approval for a pass over.

5 U.S.C. §

3319(b), (c)(2).
Here, Venable applied for the position of HR Specialist, as
advertised under external Vacancy Announcement No. HRD-2011-036,
at only the GS-12 level.
No. 17-18).

(Mot. Dismiss or, Summ. J. Ex. 16, ECF

Because Venable was not preference-eligible, and

because there were at least two preference-eligible applicants
who “floated” to the top of the Certificate, Venable was not
placed on the Certificate of Eligibles for Vacancy Announcement
Number

HRD-2011-0036

at

the

GS-12

level,

referred to Chalmers for consideration.
35

and

she

was

not

(See Mot. Dismiss or,

Summ. J. Ex. 19, at 8, ECF No. 17-21); (see also Mot. Dismiss
or, Summ. J. Ex. 20, at 11-13, ECF No. 17-22 (applicant listing
report marking qualified preference eligibles candidates with
their appropriate veterans’ preference designation code)).
Venable

alleges

“Defendant

said

that

a

veteran

scored

higher than plaintiff” but “Defendant did not hire a veteran for
the January 2011 vacancy.”
category

rating,

categories,

however,

gold,

(3rd Am. Compl., at 4).
Commerce

silver,

and

pre-defined

bronze,

and

Under

three

quality

assigned

all

applicants numerical scores only for the purposes of placing
them in the appropriate pre-defined quality category.
Dismiss

or,

Summ.

J.

Ex.

17,

ECF

No.

17-19).

(Mot.

Once

the

applicants were designated to quality categories, the veteran
preference

eligibles

categories

at

each

numerical scores.
Ultimately,

floated
GS

to

level

the

top

regardless

of
of

those
their

quality
assigned

(Mot. Dismiss or, Summ. J. Ex. 19, at 8).

however,

Chalmers

made

her

selections

for

the

position from the merit Certificate of Eligibles generated from
the internal posting, Vacancy Announcement Number HRD-2011-0035,
and the Certificate of Eligibles generated from the external
posting was abandoned. (Mot. Dismiss or, Summ. J. Ex. 21, ECF
No. 17-23).
There was no subjective evaluation of Venable’s application
or

prior

performance

that

could
36

reflect

discriminatory

or

retaliatory bias.

It is difficult to see how such a neutral

initial evaluation method could be discriminatory, and Venable
has offered no evidence from which to conclude otherwise.

Thus,

Venable has failed to meet her burden of creating a material
dispute with regard to whether the Census Bureau’s stated reason
for

her

termination

was

pretext

for

discrimination.

Accordingly, the Court will grant summary judgment in favor of
the Census Bureau with respect to Venable’s 2011 non-selection
race discrimination claim.
2. Retaliation
In addition to her claim of race discrimination, Venable
further contends she was not selected for the 2011 HR Specialist
vacancy in retaliation for filing an appeal with the MSPB.

The

Court will grant the Census Bureau’s Motion for Summary Judgment
on Venable’s retaliation claim because she fails to rebut as
mere pretext the Census Bureau’s legitimate and non-retaliatory
reason for her termination.
As with claims of discrimination, the adjudication of a
complaint of retaliation under Title VII is analyzed under the
proof scheme articulated in McDonnell Douglas.

See Price v.

Thompson, 380 F.3d 209, 212 (4th Cir. 2004).

Even assuming

arguendo

Venable

retaliation,

the

could

establish

a

point

becomes

moot

prima

facie

because

she

case

of

cannot

sufficiently demonstrate pretext for the same reasons she could
37

not make that showing with respect to her race discrimination
claim.

She presented no evidence that the Census Bureau’s non-

selection of her for the 2011 HR vacancy was in retaliation as
opposed to being blocked from inclusion on the referral list of
the

external

applicants.

Accordingly,

the

Court

will

grant

summary judgment in favor of the Census Bureau with respect to
Venable’s 2011 non-selection retaliation claim.
III. CONCLUSION
For the reasons given above, the Census Bureau’s Motion to
Dismiss or, in the Alternative, for Summary Judgment (ECF No.
17) is GRANTED, and Motion to Strike Venable’s Second Amended
Complaint (ECF No. 28) is DENIED.

Venable’s Motion for Leave to

Amend (ECF No. 23) is DENIED as MOOT, Motion to Strike (ECF No.
24) is DENIED, Motion for Leave to File Sur-Reply (ECF No. 30)
is DENIED, and Renewed Motion for Leave to Amend (ECF No. 31) is
GRANTED.

A separate Order will follow.

Entered this 30th day of May, 2014

/s/
_____________________________
George L. Russell, III
United States District Judge

38