Bowman-Cook v. Washington Metropolitan Area Transit Authority et al
MEMORANDUM OPINION (c/m to Plaintiff 8/21/17 sat). Signed by Judge Deborah K. Chasanow on 8/21/2017. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BELYNDA L. BOWMAN-COOK
Civil Action No. DKC 14-1877
WASHINGTON METROPOLITAN AREA
TRANSIT AUTHORITY, et al.
employment case is the motion for summary judgment filed by
(ECF No. 52).
The issues have been briefed, and the
court now rules, no hearing being deemed necessary.
judgment will be granted.
Plaintiff Applies for a Promotion
Plaintiff Belynda L. Bowman-Cook (“Plaintiff”) was hired by
WMATA on January 20, 2000, as a traffic clerk.
(ECF No. 66-2,
participate in a WMATA skills program, which consisted of school
Unless otherwise noted, the facts outlined here are
undisputed and construed in the light most favorable to
completed the skills program in 2002 (ECF No. 66-3, at 1), and
began working as a D-level Electrical Mechanic.
In late 2007, WMATA had one or more open positions for an
AA-level Electrical Mechanic (“Position 006517”).
(ECF No. 66-2
As a D-level Electrical Mechanic, Plaintiff was required
to pass tests on the C, B, A, and AA levels to qualify for an
administered in succession; a test-taker may only take the next
test after she passes the one below it.
On November 13, 2007,
Plaintiff took and passed the C and B tests, but failed the A
test, and was not allowed to proceed to the AA test.
66-2 ¶¶ 5, 7).
On December 3, Plaintiff went to the testing
site planning to retake the A test and to take the AA test.
Training Instructor James Loos, told Plaintiff that she could
not rely on her previous C and B-level tests, and that she would
have to take all of the tests, the C, B, A, and AA tests, that
day in order to be eligible for the AA-level position.
66-7, at 1).
Plaintiff told Mr. Loos that he was mistaken and
refused to retake the C and B tests.
Mr. Loos agreed to
let Plaintiff take the A and AA tests on the condition that her
results would be invalidated if he was correct that all of the
Plaintiff passed both the A and AA tests, but her supervisor E.
Rod Spencer later confirmed that Mr. Loos’ understanding of the
testing procedure was correct, and Plaintiff’s test results were
Thus, Plaintiff was not considered for
Position 006517 was eventually awarded to Anthony Boykin.
According to Plaintiff, Mr. Boykin was a C-level Mechanic before
he was awarded Position 006517.
(ECF Nos. 66-2 ¶¶ 5,7; 66-17,
Mr. Boykin passed the B test on April 11, 2007, the A
test on October 7, and the AA test on November 13.
17, at 1).
(ECF No. 66-
Mr. Boykin was awarded the position even though he
did not pass the B, A, and AA tests during one testing period.
selected on April 19, 2008, to fill similar vacancies without
having to pass the requisite tests in a single testing period as
Plaintiff was required to do.
(ECF Nos. 66-2 ¶ 6; 66-17, at 1-
Plaintiff filed a grievance related to the incident, which
was denied in January 2008.
(ECF No. 66-6).
She also engaged
in WMATA’s internal processes for raising discrimination issues,
corresponding with various WMATA officials in May, June, and
Plaintiff’s complaints resulted in any resolution in her favor.
Transit Union Local 689 (the “Union”), provides that employees
have the opportunity to apply for their preferred shifts twice
per year, in June and December.
(ECF No. 66-13, at 2).
are then allocated to employees based on their preference and
status within the union.
Plaintiff indicated her preference for
the day shift in December 2007, but the results of the December
“pick” placed her on the evening shift.
(ECF No. 66-18, at 1).
Plaintiff requested an exception be made to move her from the
evening shift to the day shift for child care reasons, and WMATA
agreed to make the exception and keep Plaintiff on the day shift
for the next six-month period.
(ECF No. 66-16, at 2).
2008, Plaintiff again indicated her preference to remain on the
(ECF No. 66-18, at 3).
Again, the results of the
“pick” placed Plaintiff on the evening shift.
(ECF No. 52-1, at
Once again, Plaintiff requested to stay on the day shift,
but, this time, WMATA denied Plaintiff’s request.
After being told that she would have to work the evening
shift, Plaintiff wrote a letter to her supervisor Sam Prather,
on June 26, 2008, stating if WMATA would not move her to a day
shift, she would have “no alternative but to request a leave of
absence without pay.”
(ECF No. 52-1, at 3).
WMATA responded by
once again denying her request to change shifts and notifying
(Id. at 4).
When her new shift schedule began on June
30, Plaintiff reported that she was sick and stopped coming to
(Id. at 4-5).
On July 10, Plaintiff’s shift supervisor
James Thompson directed her to provide medical documentation to
explain her absence.
(Id. at 5).
Plaintiff did not provide him
with the medical documentation he requested.
Duty” form on Plaintiff’s behalf.
Instead, in late
(ECF No. 66-16, at 3).
the blank prompting Plaintiff to “describe briefly” her illness,
Greenbelt Annex all the time it NEVER STOPS!
It[’]s one thing
Thompson refused to sign the form, which did not meet WMATA’s
(ECF Nos. 66-16, at 3; 66-25, at 2).
On August 29,
Mr. Spencer sent a letter to Plaintiff, informing her of the
medical absentee reporting requirements, directing her again to
provide documentation, and warning her that failure to comply
would be grounds for dismissal.
(ECF No. 52-1, at 6-7).
September 5, Mr. Spencer emailed Plaintiff the same warning.
(Id. at 8).
Plaintiff received the email, and she responded on
September 8, telling Mr. Spencer not to call or e-mail her again
because she was in treatment and was unaware of a return date.
(Id. at 9).
On September 19, Mr. Spencer issued Plaintiff a
final warning giving her another opportunity to provide medical
(Id. at 10).
Plaintiff failed to respond and
was fired on September 29.
(Id. at 11-12).
According to Mr.
Spencer, Plaintiff was fired because she “fail[ed] to comply
absence from duty.”
Employment Opportunity Commission (“EEOC”) on October 6, 2008,
(See ECF No. 52-1, at 13).
In her EEOC charge,
Plaintiff stated that she had applied for a promotion to the
position of AA mechanic in December 2007, and that, in January
2008, the candidates were posted.
Eventually, five of her male
co-workers were selected ahead of her despite her seniority over
She further stated that she was denied her shift
pick in June 2008.
Lastly, Plaintiff stated her belief
The EEOC concluded its investigation on
March 24, 2012, and Plaintiff was issued a Notice of Right to
Sue on December 20, 2013.
Plaintiff filed suit against the
Union and WMATA in the Circuit Court for Prince George’s County
on March 18, 2014, and WMATA removed the case to this court on
June 12, 2014.
(ECF Nos. 1; 2).
The complaint asserts claims for: sex discrimination (Count
I) and race discrimination (Count II) under Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et
Rehabilitation Act, 29 U.S.C. § 710, et seq., as amended by the
Americans with Disabilities Act (“ADA”), 29 U.S.C. § 791; age
Employment Act (“ADEA”), 29 U.S.C. § 621; retaliation (Count V)
under Title VII and the ADEA; wrongful discharge (Count VI);
hostile work environment under Title VII, the ADEA, and the
accommodation (Count IX); violations of the Rehabilitation Act
of 1973, (Count X); and breach of contract (Count XI).
12, 2015, Plaintiff and the Union stipulated to the voluntary
claims against the Union.
(ECF No. 30).
WMATA moved for summary judgment on October 14, 2016. (ECF
After the court granted Plaintiff three extensions of
time to file an opposition (ECF Nos. 55; 57; 59), Plaintiff’s
counsel sought a sixty-day stay so that she could withdraw from
(ECF No. 60).
court stayed the case.
WMATA consented to the stay and the
(ECF Nos. 60; 61).
On February 3,
Plaintiff’s counsel filed a motion to withdraw, and Plaintiff
filed a motion for further extension of time either to find
counsel or to proceed pro se.
(ECF Nos. 62; 63).
proceeding pro se, filed her opposition (ECF No. 66), and WMATA
replied (ECF No. 67).
Standard of Review
WMATA moves for summary judgment pursuant to Fed.R.Civ.P.
Summary judgment will be granted only if there exists no
genuine dispute as to any material fact and the moving party is
Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
about a material fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Liberty Lobby, 477 U.S. at 249.
In undertaking this inquiry, a
court must view the facts and the reasonable inferences drawn
therefrom “in the light most favorable to the party opposing the
motion,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962)); see also EEOC v. Navy Fed. Credit
Union, 424 F.3d 397, 405 (4th Cir. 2005), but a “party cannot
speculation or compilation of inferences,” Shin v. Shalala, 166
F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted).
To prevail on a motion for summary judgment, the moving
party generally bears the burden of showing that there is no
genuine dispute as to any material fact.
No genuine dispute of
material fact exists, however, if the nonmoving party fails to
make a sufficient showing on an essential element of her case as
to which she would have the burden of proof.
Celotex, 477 U.S.
Therefore, on those issues on which the nonmoving
confront the summary judgment motion with an “affidavit or other
evidentiary showing” demonstrating that there is a genuine issue
See Ross v. Early, 899 F.Supp.2d 415, 420 (D.Md.
2012), aff’d, 746 F.3d 546 (4th Cir. 2014).
dismissed because they related exclusively to the Union, which
has now been dismissed. (ECF No. 52, at 9-10).
Count XI for
Neither Plaintiff’s complaint nor her pro se response in
opposition to the motion for summary judgment is a model of
clarity. The court has attempted to construe her specific legal
claims and the factual allegations that pertain to each claim in
a way that provides consistency in light of the allegations in
her EEOC charge, the allegations in the complaint, and the
evidence presented in the documents attached to her response in
opposition to the motion.
breach of contract did not mention WMATA and, in Plaintiff’s
opposition to the motion for summary judgment, she refers to
that count as “Breach of Contract against Local 689.”
2, at 9; 66-1, at 6).
The stipulated dismissal of the Union
opposition refers to Count VI, however, as “Wrongful Discharge
against WMATA and Local 689,” and the complaint includes some
Moreover, although the legal basis for this claim is unclear, it
makes much more sense that a claim for wrongful discharge would
sufficient to dismiss Count VI.
ADEA and ADA Claims
WMATA asserts that sovereign immunity bars Count IV, and
parts of Counts V and VII, because it cannot be sued under the
(ECF No. 52, at 10).
The Eleventh Amendment provides
that “an unconsenting State is immune from suits brought in
federal courts by her own citizens as well as by citizens of
Edelman v. Jordan, 415 U.S. 651, 662–63 (1974).
The interstate compact that formed WMATA extends the immunity of
the signatory states to WMATA and its officials “for any torts
occurring in the performance of a governmental function.”
Code, Transp. § 10-204, Art XVI, § 80 (2016); see also Smith v.
WMATA, 290 F.3d 201, 206 (4th Cir. 2002).
Courts have repeatedly
held that WMATA is immune from claims brought under the ADEA
practices” that qualify as governmental functions.
Defendant is entitled to immunity as to Plaintiff’s ADEA-based
claims in Counts IV, V, and VII.
Summary judgment will be
granted as to these claims.
Courts have similarly held that WMATA is immune from suits
under the ADA.
See, e.g., Sewell v. WMATA, No. GJH-16-2456,
2017 WL 992407, at *3 (D.Md. Mar. 13, 2017).
Count IX of the
complaint is titled “denial of reasonable accommodation.”
unclear from the complaint or Plaintiff’s response whether she
intends to bring this claim under the ADA or the Rehabilitation
If Plaintiff brings this claim under the ADA, WMATA is
Rehabilitation Act, it is redundant to Count X of the complaint,
which alleges that WMATA “discriminated against [Plaintiff] by
denying her reasonable accommodation for her disabilities . . .
in violation of the Rehabilitation Act.”
(ECF No. 2, at 9).3
Summary Judgment will therefore also be granted as to Count IX.
In her opposition to the motion for summary judgment,
Plaintiff refers to Count IX as “Conspiracy to Inflict Harm by
Rehabilitation Act and Common Law Claims
Rehabilitation Act in Counts III, VII, and X are barred by the
statute of limitations.
(ECF No. 52, at 11).
that these claims are barred because she was fired on September
29, 2008, and did not file her suit until more than five years
later on March 18, 2014.
(Id. at 10-11).
Act does not specify a limitation period.
Because of this,
courts “borrow” the most appropriate or analogous state statute
of limitations and apply it to the federal cause of action.
A Soc’y Without A Name v. Virginia, 655 F.3d 342, 347 (4th Cir.
“Maryland courts apply the three-year limitations period
Jeandron v. Bd. of Regents of Univ. Sys. of Md., 510
F.App’x 223, 226 (4th Cir. 2013) (citations omitted); see also
Schalk v. Associated Anesthesiology Practice, 316 F.Supp.2d 244,
251 (D.Md. 2004).
Plaintiff’s Rehabilitation Act claims are
WMATA.” (ECF No. 66-1, at 6). It is not clear what the legal
basis of this claim is, but, to the degree it differs from the
failure to accommodate claim made in Count IX of the complaint,
“it is axiomatic that the complaint may not be amended by the
briefs in opposition to a motion.”
Mylan Labs., Inc. v. Akzo,
N.V., 770 F.Supp. 1053, 1068 (D.Md. 1991) (quoting Car Carriers,
Inc. v. Ford Motor Co., 745 F.2d 1101 (7th Cir. 1984)); see also
Zachair Ltd. v. Driggs, 965 F.Supp. 741, 748 n.4 (D.Md. 1997)
(stating that the plaintiff “is bound by the allegations
contained in its complaint and cannot, through the use of motion
briefs, amend the complaint”), aff’d, 141 F.3d 1162 (4th Cir.
WMATA as to these claims.4
applies in causes of action for wrongful discharge.
Capitol Office Solutions, No. PJM-13-2290, 2014 WL 4825931, at
*4 (D.Md. Sept. 23, 2014) (citing Knickman v. Prince George’s
wrongful discharge claim in Count VI is therefore also barred
because she failed to file her suit within three years of her
Title VII Claims
Plaintiff’s EEOC Charge
Plaintiff’s remaining claims in Counts I, II, V, VII, and
VIII fall under Title VII.
WMATA first argues that Plaintiff
has failed to exhaust her administrative remedies as to her
claim for race discrimination in Count II because she failed to
include it in her EEOC charge.
(ECF No. 52, at 17).
Anticipating that Plaintiff would argue that the
limitations period should be tolled for the period in which her
EEOC charge was pending, WMATA pointed to Harris v. O’Malley,
No. WDQ-13-2579, 2015 WL 996557, at *5 (D.Md. Mar. 4, 2015), in
which the court held that a plaintiff was not entitled to
equitable tolling during the pendency of her EEOC charge. Nonfederal employees are not required to exhaust any administrative
remedies under the Rehabilitation Act, see id., and Plaintiff
has neither argued that her claims should be tolled nor provided
any evidence of “extraordinary circumstances” that would make it
“unconscionable to enforce the limitation period,” see Harris v.
Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000).
limitations period will not be tolled here.
administrative remedies by bringing a charge with the EEOC.”
Smith v. First Union Nat’l Bank, 202 F.3d 234, 247 (4th Cir.
identify the parties, and to describe generally the action or
practices complained of.’”
Chacko v. Patuxent Inst., 429 F.3d
505, 508 (4th Cir. 2005) (quoting 29 C.F.R. § 1601.12(b) (2004)).
Because a failure to exhaust administrative remedies deprives
the federal courts of subject matter jurisdiction, the scope of
the plaintiff’s right to file a federal lawsuit is determined by
the charge’s contents.
See Bryant v. Bell Atl. Md., Inc., 288
F.3d 124, 132 (4th Cir. 2002).
“Only those discrimination claims
stated in the initial charge, those reasonably related to the
investigation of the original complaint may be maintained in a
subsequent Title VII lawsuit.”
Evans v. Techs. Applications &
Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996).
Thus, a plaintiff
fails to exhaust administrative remedies for her claims when
“h[er] administrative charges reference different time frames,
allegations in his formal suit.”
Chacko, 429 F.3d at 506.
limitation on the civil action is routinely applied where a
plaintiff’s charge “alleges discrimination on one basis — such
as race — and he introduces another basis in formal litigation —
such as sex.”
Id. at 509. It also applies, however, when “the
administrative charge alleges one type of discrimination — such
as discriminatory failure to promote — and the claim encompasses
another type — such as discrimination in pay and benefits.”
Plaintiff left the box for race discrimination unmarked, and she
Defendant is entitled to summary judgment as to Count II.
Likewise, Plaintiff did not give any indication in her EEOC
charge that she was subjected to a hostile work environment.
plaintiff fails to exhaust administrative remedies on a hostile
discrete incidents of alleged discrimination.
See Chacko, 429
F.3d at 509 (citing Dennis v. Cty. of Faifax, 55 F.3d 151, 153,
156-57 (4th Cir. 1995)) (“[T]he allegation of a discrete act or
Here, Plaintiff described three distinct events
in her EEOC charge: (1) the failure to promote her in January
2008; (2) the denial of her shift-change request in June 2008;
discrete incidents and are the type of claim-inducing adverse
employment actions that are not generally considered allegations
of a hostile work environment.
See id. at 511 n.2 (finding EEOC
charges of failure to promote and a retaliatory demotion are not
hostile work environment allegations) (citing Evans, 80 F.3d at
respect to her hostile work environment claim, and WMATA is
entitled to summary judgement as to Count VII.
Failure to Promote
WMATA raises one more procedural issue.
It argues that the
EEOC requires that a charge be filed within 180 days of the
(ECF No. 52, at 12-13).5
Generally, under Title VII, a charge of discrimination
must be filed with the EEOC within 180 days after the alleged
unlawful employment practice occurred.
42 U.S.C. § 2000e5(e)(1); Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618,
621 (2007). “This period is extended to 300 days in a deferral
state, one in which ‘state law proscribes the alleged employment
practice and the charge has initially been filed with a state
Valderrama v. Honeywell Tech. Sols., Inc.,
473 F.Supp.2d 658, 662 n.4 (D.Md. 2007) (quoting Tinsley v.
First Union Nat’l Bank, 155 F.3d 435, 439 (4th Cir. 1998)).
Maryland is a “deferral state,” but WMATA is immunized from
suits under the applicable state law analogs to Title VII, such
as the Maryland Human Relations Act, Md.Code Ann., State
Government, §§ 20–606, 20–1013, 20–1202. “The Supreme Court has
held that, in enacting Title VII, Congress properly abrogated
the states’ Eleventh Amendment immunity for such suits.”
window applies to any “discrete acts” of discrimination, “such
refusal to hire . . . . Each incident of discrimination and each
retaliatory adverse employment decision constitutes a separate
occurred before April 9, 2008, because the charge was filed no
earlier than October 6.
(ECF No. 52-1, at 13).6
WMATA argues that all of the events related to Plaintiff’s
failure to promote claims occurred before April 9, 2008.
discriminatory conduct Plaintiff alleged in her EEOC charge and
in Counts I and VIII of the complaint is the invalidation of her
test scores and refusal to consider her for Position 006517.
Plaintiff’s opposition to the motion for summary judgment, she
notes that there were three male employees who were not forced
to take the tests in succession that were promoted on April 19.
Stewart, Jr. v. Va. Com. Univ., 414 F.App’x 555, 556 (4th Cir.
2011) (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 456–57
No such abrogation exists as to the state and local
discrimination laws. Because Plaintiff could not have filed her
suit with a state or local agency, the 180-day limit applies.
See Whorton v. WMATA, 924 F.Supp.2d 334, 345 (D.D.C. 2013); cf.
Dezaio v. Port Authority of N.Y. & N.J., 205 F.3d 62, 65 (2d Cir.
2000) (applying a 180-day exhaustion timeline because New York’s
anti-discrimination laws did not provide jurisdiction over the
Port Authority, another interstate compact).
Plaintiff signed and dated her EEOC charge on October 6.
(ECF No. 66-1, at 2 (citing ECF Nos. 66-2 ¶ 6; 66-17, at 1-2)).
Plaintiff seems to argue that, had her scores been valid, she
would have been eligible for these promotions, and that these
promotions thus qualify as further acts of discrimination.
The United States Court of Appeals for the Fourth Circuit
has established that it is the date of the “actual promotion
assignment (or any other date) that determines the timeliness of
[a plaintiff’s] claims.”
Williams v. Giant Food, Inc., 370 F.3d
423, 428 n.2 (4th Cir. 2004).
In Williams, the date of the
employees were selected for the position and the plaintiff was
Plaintiff was removed from consideration in December when her
scores valid, Plaintiff’s claim accrued on the date that her
scores were invalidated, not the date of promotion for each
Construing each subsequent promotion to be a
new violation “would transform her non-selection claim into a
continuing violation that would occur indefinitely.”
BAE Sys. Info. Sols., No. 1:16-cv-979, 2016 WL 7234088, at *5
plaintiff has been “definitely rejected from the position,” even
accrued when WMATA decided that Plaintiff’s scores were invalid,
or, at the latest, when she was notified of that decision and
recognized it as discriminatory.
See Hanani v. N.J. Dep’t of
Envtl. Protection, 205 F.App’x 71, 76 (3d Cir. 2006) (holding
that claim accrued at the time plaintiff was told that her name
was removed from the list of employees being considered for a
promotion); see also Taylor v. Republic Servs., Inc., No. 12-CV00523-GBL-IDD, 2013 WL 487042, at *8 (E.D.Va. Feb. 6, 2013)
(holding that a claim for discriminatory denial of bonus pay
accrued at the time Plaintiff was notified that she would not be
Plaintiff took the test that was invalidated on December 3,
2007, and the record indicates that WMATA made the decision to
invalidate her scores that day.
(See ECF No. 66-7, at 2 (Mr.
Loos stating that Mr. Spencer confirmed that the B- and C-level
tests needed to be taken and that her scores were invalid that
Although neither party has provided a clear
description of WMATA’s promotion process, it appears that a list
of candidates for AA-level positions was posted in January 2008
and that this list excluded Plaintiff and included Mr. Boykin
and the other three individuals who were promoted in April 2008.
(ECF No. 66-29).
By January 2008, Plaintiff also had filed a
Plaintiff’s claim accrued no later than January 2008, when she
therefore failed to comply with the 180-day time limit, and
WMATA is entitled to summary judgment on her failure to promote
claims in Counts I and VIII.
Plaintiff’s arguments as to WMATA’s denial of her request
for a day shift fail for the same reason.
In her EEOC charge,
location, however, only AA mechanics were allowed this benefit.”
(ECF No. 52-1, at 13).
Plaintiff seems to allege that the
denial of a day shift was a consequence of her discriminatory
This subsequent consequence of the discrete act
discrimination on this ground.
To the degree that Plaintiff argues that she was denied
the day shift beginning in June 2008 not as a consequence of her
non-promotion but rather directly because of her sex, she has
failed to state a claim for discrimination. Such a claim would
fall under the rubric of disparate treatment.
To establish a
prima facie case for a disparate treatment claim, a plaintiff
Finally, WMATA moves for summary judgment on Plaintiff’s
retaliation claim in Count V.
To establish a prima facie case
of retaliation, Plaintiff must show that:
(1) she engaged in
protected activity; (2) her employer took an adverse employment
See Holland v. Wash. Homes, Inc., 487 F.3d 208, 218 (4th
Cir. 2007); Davis v. Dimensions Health Corp., 639 F.Supp.2d 610,
616 (D.Md. 2009).
Plaintiff contends that she was fired in
undisputed that Plaintiff’s discharge qualifies as an adverse
must show four elements: (1) that she is a member of a protected
class; (2) that her job performance was satisfactory; (3) that
she suffered adverse employment action; and (4) that she was
treated differently from similarly situated employees outside
the protected class. Coleman v. Md. Court of Appeals, 626 F.3d
Plaintiff has not presented evidence
187, 190 (4th Cir. 2010).
or argument that she was treated differently from other
similarly situated employees.
Indeed, Plaintiff has repeatedly
admitted that she was denied the day shift because of her
In her complaint, Plaintiff contends that
she was discriminated against “because of her employment
classification/gender when she was denied her opportunity of a
(ECF No. 2, at 4 (emphasis added)).
opposition to the motion for she explained that she bid on a day
shift, but that “other more senior Mechanic Helper Electrical
employees bid and received all available day shift positions.”
(ECF No. 66-1, at 3).
She specifically acknowledged that she
“was not selected for the day shift, based on her seniority.”
(Id.). Accordingly, Plaintiff would not have a valid claim for
sex discrimination based on WMATA’s denying her the day shift.
(ECF No. 52, at 19).
WMATA argues that she
cannot show that she engaged in a protected activity or that
Davis, 639 F.Supp.2d at 617.
activity encompasses utilizing informal grievance procedures as
well as staging informal protests and voicing one’s opinions in
Laughlin v. Metro. Wash. Airports Auth., 149 F.3d
participation are outlined in the statute: (1) making a charge;
manner in an investigation, proceeding, or hearing under Title
Id.; see also 42 U.S.C. § 2000e–3(a).
engaged in protected activity by filing a grievance related to
the incident in December 2007 or January 2008 (see ECF No. 66-6
(formally denying grievance in January)), and by engaging in
WMATA’s internal processes for discrimination issue, including
email correspondence with various WMATA officials on May 28,
2008 (ECF No. 66-10), June 18, 2008 (ECF No. 66-11), and July
burden to show that she engaged in protected activity.
As for the final element of a retaliation claim, a causal
connection, “the employer must have taken the adverse employment
action because the plaintiff engaged in a protected activity.”
Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d
653, 657 (4th Cir. 1998).
Often a plaintiff will rely on the
adverse employment action to draw an inference of causation.
Here, Plaintiff’s protected activities occurred between two and
nine months before her termination.
Moreover, there is evidence
that Plaintiff was discharged for the intervening reason that
information regarding her medical condition.
The last protected activity Plaintiff engaged in was an
email to Ms. Beverly Pollard, a WMATA EEO Dispute Resolution
Officer, on July 14, 2008.
stopped coming to work.
By that time, Plaintiff had already
(ECF No. 52-1, at 4-6).
In the lead up
to Plaintiff’s dismissal, WMATA sent Plaintiff several letters
and emails requesting medical confirmation of her illness.
Given that her purported illness coincided with her
undesired shift change and that the only information Plaintiff
eventually submitted described her illness as being “tormented
by the Management,” WMATA appears to have had good reason to
seek further medical documentation.
After months without seeing
Plaintiff, Mr. Spencer warned her once more on September 19 that
(Id. at 10).
When she failed to do so, she was
established procedures of [WMATA], the Collective [B]argaining
Agreement between [the Union] and [WMATA] and [the] reasonable
(Id. at 12).
The timing and sequence of these letters
in relation to Plaintiff’s termination provides a sharp contrast
to the attenuated timing between Plaintiff’s termination and her
grievance and complaints.
Moreover, the relationship between
contention that Plaintiff’s failure to come to work or provide
reason for her termination.
Plaintiff has produced no evidence
that this reason was false or that it is pretextual.
F.Supp.2d at 617 (citing Matvia, 259 F.3d at 271).
summary judgment will be granted as to Count V.
For the foregoing reasons, the motion for summary judgment
Authority will be granted.
A separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
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