Simpson v. Technology Service Corporation

Filing 59

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 9/8/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
KIMBERLY SIMPSON
:
v.

:

Civil Action No. DKC 14-1968

:
TECHONOLOGY SERVICE CORPORATION
:
MEMORANDUM OPINION
Presently pending and ready for review in this employment
discrimination action are two motions: (1) a motion for summary
judgment filed by Defendant Technology Service Corporation (ECF
No. 43-1); and (2) a motion to unseal Plaintiff’s Exhibits 25
and 26 filed by Plaintiff Kimberly Simpson (ECF No. 57).

The

relevant issues have been briefed, and the court now rules, no
hearing being deemed necessary.

Local Rule 105.6.

For the

following reasons, Defendant’s motion for summary judgment will
be granted and Plaintiff’s motion to unseal will be granted
without prejudice to Defendant, giving Defendant fourteen (14)
days to file a properly supported motion to seal.
I.

Background
This

case

involves

discrimination

claims

(“Plaintiff”)

against

several

brought
her

by

retaliation
Plaintiff

employer,

Corporation (“Defendant” or “TSC”).

and

gender

Kimberly

Simpson

Technology

Service

Plaintiff, a woman, worked

at TSC for approximately 27 years from 1983 until 2011.
No. 58-1, at 2).1

(ECF

She held the position of Facilities Security

Officer (“FSO”) from her promotion in 1987 until the company
terminated her employment.2

(Id.).

A.

Factual Background3

1.

Employment at Defendant’s Navy Yard Location

In 2007, Defendant transferred Plaintiff from a Dahlgren,
Virginia, facility to its Navy Yard office in Washington, D.C.
(ECF No. 43-1, at 6-7).

During the relevant period of her

employment at Defendant’s Navy Yard location, Plaintiff worked
as an FSO on Defendant’s contract with the Navy for the Cobra
Judy Replacement (“CJR”) project.

(Id. at 7).

As an FSO,

Plaintiff was responsible for securing and protecting classified
information.4

1

When citing to Plaintiff’s opposition, this opinion will
refer to ECF No. 58-1, which was re-filed not under seal on
April 2, 2015.
Plaintiff had previously filed her opposition
entirely under seal on March 11, 2015. (See ECF No. 51).
2

Elsewhere in her opposition, Plaintiff states that her
promotion occurred in 1988. (ECF No. 58-1, at 1).
3

The following facts are uncontroverted, alleged
Plaintiff, or construed in the light most favorable to her.
4

by

In her deposition, Plaintiff provided a description of her
duties: “I was responsible for all classified information
protection, and the procedures, and managing the program.” (ECF
No. 43-3, at 22). Charged with protecting “hard copy classified
documents, CDs, computers, [and] laptops,” Plaintiff was also
2

In 2010, Plaintiff worked at the Navy Yard facility under
the

supervision

of

several

TSC

employees,

some

of

positions funded through Defendant’s CJR contract.
No.

58-1,

at

3).
the

Matt
team

Prenatt
lead

had

(Id.; ECF

was

Plaintiff’s

TSC

for

whom

employees

immediate

supervisor

and

contract.

Mr. Prenatt supervised Plaintiff and Atilla Horvath,

Defendant’s other employee on the CJR contract.
responsibilities

included

their time cards.

reviewing

their

on

the

CJR

His supervisory

work

and

approving

Defendant’s Office Manager, Randy McQueen,

was Plaintiff’s second-level supervisor and not funded by the
CJR contract.
Engineering
Silver

Dave Schubert, TSC’s VP/Division Director for

and

Spring

manager.

Technical
office

Services,

and

served

worked

as

from

Defendant’s

Plaintiff’s

third-level

(ECF No. 58-52 ¶ 6).

Plaintiff alleges that, while employed as an FSO on the CJR
project, Defendant denied her the option to telework that was
offered to her male colleague, Mr. Horvath.
3).

According

telecommute,
hours”

a

policy

to

Plaintiff,

TSC

permitted

practice

inconsistent

enforced

by

Mr.

(ECF No. 58-1, at

with

McQueen

employees working on the CJR contract.

Mr.

Horvath

Defendant’s
and

(Id.).

to

“core

applicable

to

Plaintiff avers

that she reported to Mr. McQueen and Mr. Prenatt that she felt
responsible
for
training
protocol. (Id. at 23-24).

others

3

on

information

security

she was being treated differently from others and was “tired of
this men’s management.”

(Id. at 4).

She also asserts that, on

or around January 8, 2010, she complained to Mr. McQueen, “[A]ll
you men are against me.”

(Id.).

At the time, Plaintiff “was

the lone woman working on the CJR program for Defendant.”

(Id.

at 5).
Plaintiff asserts that, during a meeting with Mr. Prenatt
on or around January 8, 2010, they discussed her time card and
the option to telework.
she

was

being

singled

(ECF No. 58-52 ¶¶ 7-8).
out,

Plaintiff

follow up.

(ECF No. 58-1, at 4).

January

2010,

11,

Plaintiff

stated

Alleging that

that

she

would

Several days later, on

e-mailed

Mr.

McQueen

and

Mr.

Prenatt:
I
can
not
work
under
this
type
of
management. I feel I am on a time clock and
need to punch in and out with [M]att.
[I]
am being question[ed] about working early
hours and need a[n] explanation as to
working offsite versus working from home.[]
I would appreciate an office meeting so we
can all be on the same page and I don’t feel
like I am being treated different than
anyone else in the office.
(ECF No. 43-5, at 2).

Shortly thereafter, on or around January

11, 2010, Mr. McQueen and Mr. Schubert informed Plaintiff that
the “government customer wanted [her] removed from the [CJR]
contract” and that she would have several months to find a new
position.

(ECF No. 58-52 ¶¶ 11-12).

4

In the interim, Defendant

allowed Plaintiff to look for another position, either within
TSC or externally.

(ECF No. 43-1, at 13).

Defendant ultimately

did not discharge Plaintiff in January 2010 or several months
later, and she was informed that she could continue working as
an

FSO

on

the

CJR

contract

transition was finalized.

until

the

government

(Id. at 12).

contractor

To aid in her search,

Mr. McQueen provided Plaintiff with a letter of recommendation,
dated January 15, 2010, stating the reasons for her departure:
Defendant’s “contract is being re-competed and the government is
bringing

in

a

civil

servant

effort.”

to

manage

the

program

security

(ECF No. 58-14).

2.
Removal from Defendant’s Navy Yard Location and
Continued TSC Employment at Dahlgren
Plaintiff continued working as an FSO at Defendant’s Navy
Yard

location

until

late

May

2010.

During

this

time,

Ms.

Simpson also secured a Defendant-contracted position with the
Navy’s

Air

and

Missile

Defense

Radar

(“AMDR”)

program

in

Dahlgren, Virginia, due to her contacts within the government.
(ECF

No.

43-1,

at

13).

approximately March 2010.5

She

began

(Id.).

her

AMDR

assignment

No other TSC employees were

based in the Dahlgren office in which Plaintiff worked.

5

in

(Id.).

Between approximately March and late May 2010, Plaintiff
worked on both the CJR and AMDR contracts at Navy Yard and
Dahlgren, respectively. (See ECF No. 43-1, at 12, 13 n.49).
5

On May 27, 2010, after Plaintiff had begun work at Dahlgren
but while she continued to serve as an FSO at the Navy Yard
location, a security breach occurred when a TSC employee moved a
classified laptop computer from Defendant’s Navy Yard office to
the Silver Spring office.
when

Ted

Mayberry,

then

(Id.).
the

Plaintiff was not present

Deputy

Operations

Manager

Defendant’s Silver Spring office, removed the computer.
No. 58-1, at 6).
security

(ECF

Recognizing that this constituted a reportable

violation

of

Defense

Security

Service

(“DSS”)

procedures, Plaintiff called to alert DSS of the breach.
No.

58-52

¶

at

28).

Immediately

thereafter,

(ECF

Plaintiff

and

Defendant disputed whether she had followed company protocol in
reporting the security violation.
Mr.

McQueen

met

with

Plaintiff

On or around May 28, 2010,
and

told

her

that

circumvented company procedures.

(Id. ¶¶ 36-37).

argues

“contrary

that

established

her
by

actions
the

were

National

Industrial

to

she

had

Defendant

the

process

Security

Program

Operation Manual (‘NISPOM’) and TSC’s related practices,” which
call

for

“a

preliminary

inquiry

compromise or suspected compromise.”
original).

before

reporting

a

loss,

(Id. at 15) (emphasis in

Plaintiff indicated to Mr. McQueen that she did not

intend to follow protocol in the future and, at the conclusion
of the meeting, Mr. McQueen informed Plaintiff that she would be
removed as FSO for the Navy Yard office.
6

(ECF Nos. 43-1, at 17-

18; 58-47, at 39).

Plaintiff allegedly replied, “[N]one of the

men have my back.”

(ECF No. 58-52 ¶ 38).

She also later

testified that she believed her removal as Navy Yard FSO was
directly related to the May 2010 security incident.

(ECF No.

43-4, at 36).
Upon being relieved of her FSO responsibilities, Plaintiff
continued
Dahlgren.

to

work

for

Defendant

on

the

AMDR

contract

at

There, she worked on-site with government employees

rather than in a TSC office.

As a result, Defendant argues, it

asked Dario Llacuna, a TSC employee who also worked on the AMDR
contract,
behalf.

to

monitor

Plaintiff’s

(ECF No. 43-1, at 13-14).

performance

on

Defendant’s

Mr. Llacuna reported to Bob

Blase, Defendant’s technical lead on the AMDR contract.

Mr.

Llacuna regularly checked in on Plaintiff beginning in or around
April 2010, and Defendant “was not aware of any problems with
Ms. Simpson’s performance on the AMDR contract at Dahlgren.”
(Id. at 14).
3.
Cuts to the AMDR Program, Termination of Plaintiff’s
Employment, and Defendant’s Decision to Name Mr. Mayberry
as Silver Spring FSO
In early January 2011, while Plaintiff was employed on the
AMDR contract at Dahlgren, Defendant’s FSO at the Silver Spring
office, Chris Hildebrand, resigned his position.

(Id. at 18).

Defendant contends that, upon Mr. Hildebrand’s resignation, Mr.
Schubert “decided not to fund a distinct full-time position for
7

the

FSO

role

at

the

Silver

Spring

[o]ffice,

and

instead

designated [Mr.] Mayberry as FSO in his capacity as [Silver
Spring]

Deputy

Operations

Manager.”

(Id.).

According

to

Defendant, the decision to assign FSO responsibilities to Mr.
Mayberry was intended to save costs.
“did

not

express

any

expectation

(Id. at 19).
that

continue to serve as FSO permanently.”

[Mr.]

Mr. Schubert

Mayberry

would

(Id.).

In January 2011, Plaintiff received a termination letter
from Defendant and learned that Mr. Mayberry had been assigned
to take on the Silver Spring FSO responsibilities.
52 ¶¶ 51-52).

(ECF No. 58-

Plaintiff alleges that she “was not made aware of

any opportunity to apply formally for the Silver Spring FSO
position at any time in 2011,” even though she “had made [her]
interest in positions within TSC known.”
54).

The

decision

to

designate

Mr.

(ECF No. 58-52 ¶¶ 53-

Mayberry

as

the

Silver

Spring FSO was made prior to the termination of Plaintiff’s
employment,

although

decided

designate

unclear.6

to

the
Mr.

precise

date

Mayberry

the

on

which

Silver

Mr.

Spring

Schubert
FSO

is

(ECF Nos. 43-1, at 19; 43-7, at 18).

6

There is some discrepancy concerning the date of
Plaintiff’s discharge.
Defendant contends that it notified
Plaintiff on January 13, 2011 that her employment would be
terminated, with an effective date of January 28, 2011.
(ECF
No. 43-1, at 22).
Plaintiff states that “[Mr.] Llacuna e[]mailed me on January 14, and asked if I would meet him and
[Mr.] Blase at the Dahlgren [o]ffice on Monday, January 17,
8

Defendant asserts that it learned in early January 2011 of
the

Navy’s

position

at

cuts

to

the

Dahlgren.

AMDR
(ECF

program
No.

43-1,

affecting
at

Plaintiff’s

20).

Defendant

maintains, and Plaintiff disputes, that it “had no involvement
in the AMDR program’s underlying funding decisions and played no
role in the decision to discontinue funding for Ms. Simpson’s
position.”

(Id.).

The Navy initially informed Plaintiff that

her funding on the AMDR program was being cut: “[Plaintiff’s]
government client, Brad Crane, advised [her] in early January
2011 that funding cuts were coming and [her] position was going
to be abolished on the contract.”

(ECF No. 43-8, at 3).

Mr.

Schubert contacted the “TSC manager at Dahlgren to see if he had
[a

position

available

anything for her.”

for

Plaintiff],

but

he

(ECF No. 58-51, at 131).

did

at

22).

Defendant’s

termination

letter

have

Subsequently,

Defendant terminated Plaintiff’s employment with TSC.
43-1,

not

to

(ECF No.
Plaintiff,

dated January 13, 2011, notes that “[t]his was an extremely
difficult decision based entirely on loss of our AMDR funding
under the EG&G contract and lack of suitable work.”

(ECF No.

58-3).

2011.
. . .
I had no idea that I was going to receive a
termination letter.”
(ECF No. 43-8, at 3).
Neither Plaintiff
nor Defendant, however, dispute that the decision to designate
Mr. Mayberry as Silver Spring FSO was made prior to Plaintiff’s
dismissal.
9

On January 24, 2011, Plaintiff e-mailed Defendant’s thenPresident, Bob Graziano, to request a meeting.

The record is

inconclusive as to whether any in-person meeting took place, but
Plaintiff and Mr. Graziano seem to have spoken by telephone.
Prior to their conversation, Mr. Graziano and Mr. Schubert emailed

regarding

the

details

of

Plaintiff’s

discharge.

Mr.

Schubert wrote:
We were informed early in January that
the AMDR program was taking cuts and could
no longer support [Plaintiff] after the end
of January.
She pretty much burned her
bridges as a security officer, both at our
Dahlgren office and at the Navy Yard.
She
was also released from the Cobra Judy
Replacement program last year for poor
performance.
I lost confidence in her
judgment as a[n] FSO when she reported a
dubious security procedure with a laptop
computer to DSS against my wishes and
without consulting me.
(ECF No. 43-14, at 2).

Plaintiff asserts that, during their

telephone conversation, “[Mr.] Graziano told [her] she was not
‘qualified’” to serve as Silver Spring FSO, the position that
had been reassigned to Mr. Mayberry.

(ECF No. 58-1, at 14).

4.
EEOC Filing and Defendant’s Decision to Hire a New
Silver Spring FSO
In

May

Opportunity

2011,

Plaintiff

Commission

(“EEOC”)

filed

an

Equal

discrimination

Employment

charge

against

Defendant, alleging discriminatory and retaliatory termination
and failure to hire.

(ECF No. 58-12).

10

In or around June 2011, Mr. Schubert decided to search for
a full-time Silver Spring FSO so that Mr. Mayberry could resume
his

former

position

with

a

focus

on

business

development.7

Around this time, Geraldine McGovern, a TSC employee who then
served as the Navy Yard FSO, was losing funding coverage for her
position.

(ECF No. 43-1, at 25).

Mr. McQueen suggested to Mr.

Schubert that TSC transfer Ms. McGovern to the Silver Spring
office to serve as FSO.

(Id.).

Plaintiff did not apply for the

open FSO position, and Defendant did not consider Plaintiff for
employment.8

(Id.

at

26-27).

In

October

2011,

Defendant

transferred Ms. McGovern to the Silver Spring office and, upon
being

relieved

of

his

FSO

responsibilities,

Mr.

Mayberry

continued in his role as Deputy Operations Manager.

(Id. at

26).
B.

Procedural History

On May 11, 2011, Plaintiff filed Discrimination Charge No.
531-2011-01407 with the EEOC against Defendant, alleging gender

7

Mr. Schubert explained in an attachment to Defendant’s
position statement to the EEOC, dated June 17, 2011: “I assigned
[Mr. Mayberry] to fill in to handle these duties until we had
the financial resources to bring on another full time [FSO]. We
have started looking at candidates, both male and female, to
fill this position, and hope to fill it in the fall of 2011.”
(ECF No. 58-9, at 7).
8

After her dismissal, Plaintiff did not express an interest
in further employment with Defendant.
(ECF Nos. 43-1, at 26;
43-3, at 39-40).
11

discrimination and retaliation.

(ECF No. 58-12).

Defendant

received a copy of Plaintiff’s EEOC charge on May 20, 2011.
(ECF No. 58-9, at 6).

Plaintiff commenced this action on May 1,

2014

Court

in

the

Circuit

for

Montgomery

County,

Maryland,

alleging discrimination and retaliation claims under Title VII.
(ECF No. 2).

On June 18, 2014, Defendant removed Plaintiff’s

action to this court based on federal question jurisdiction.
(ECF No. 1).
against

Plaintiff filed a two-count amended complaint

Defendant

on

August

29,

2014.

(ECF

No.

14-1).

Defendant submitted its answer (ECF No. 15) and later amended
its answer on December 12, 2014 (ECF No. 32).

The court granted

the parties’ joint motion for entry of a stipulated protective
order on December 1, 2014.
On

February

6,

(ECF No. 31).

2015,

after

the

close

of

discovery,

Defendant filed the pending motion for summary judgment.
No. 43-1).
under

seal

thereafter,

(ECF

Plaintiff responded in opposition filed entirely
on

March

Plaintiff

(ECF No. 54).

11,
filed

2015.
a

(ECF

No.

corresponding

51).
motion

Shortly
to

seal.9

Plaintiff’s motion to seal was denied “without

prejudice to the filing of a properly supported motion.”

9

(ECF

Pursuant to the confidentiality order (ECF No. 31),
Plaintiff moved to seal her opposition “because it contains
documents that have been marked as ‘confidential’ and makes
reference to such documents.” (ECF No. 54, at 1).

12

No.

55,

at

opposition

1).

on

Defendant

March

30,

timely

2015.

replied

(ECF

No.

to

Plaintiff’s

56).

Plaintiff

subsequently re-filed her opposition on April 2, 2015.10
No. 58-1).
motion

to

Also on April 2, 2015, Plaintiff filed the pending
unseal

or,

in

the

alternative,

to

redact

or

Plaintiff’s Exhibits 25 and 26, which remain under seal.
No. 57).

(ECF

seal
(ECF

Defendant has not responded to Plaintiff’s motion to

unseal.
II.

Defendant’s Motion for Summary Judgment
A.

Standard of Review

A motion for summary judgment will be granted only if there
exists no genuine dispute as to any material fact and the moving
party

is

entitled

to

judgment

as

a

matter

of

law.

See

Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986);

Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

250

(1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
Summary judgment is inappropriate if any material factual issue
“may reasonably be resolved in favor of either party.”

Liberty

Lobby, 477 U.S. at 250; JKC Holding Co. LLC v. Wash. Sports
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).

10

Plaintiff kept two exhibits under seal and attached other
exhibits with only minor redactions.
(ECF No. 58 (“After
consultation with the parties, redacted documents are being
filed herewith in place of the original sealed exhibits and
opposition, except for Exhibits 2[5] and 2[6].”)).
13

The moving party bears the burden of showing that there is
no genuine dispute as to any material fact.

However, no genuine

dispute of material fact exists if the nonmoving party fails to
make a sufficient showing on an essential element of his or her
case as to which he or she would have the burden of proof.
Celotex, 477 U.S. at 322–23.

Therefore, on those issues on

which the nonmoving party has the burden of proof, it is his or
her responsibility to confront the summary judgment motion with
an “affidavit or other evidentiary showing” demonstrating that
there is a genuine issue for trial.

See Ross v. Early, 899

F.Supp.2d 415, 420 (D.Md. 2012), aff'd, 746 F.3d 546 (4th Cir.
2014).
B.

Analysis

Plaintiff’s

two-count

complaint

alleges

retaliation

and

gender discrimination when, in both January 2011 and October
2011, Defendant failed to hire Plaintiff for the Silver Spring
FSO position, and when Defendant terminated her employment in
January 2011.

Plaintiff’s claims are brought under Title VII of

the Civil Rights Act, which prohibits discrimination based on an
employee’s

personal

characteristics

religion, sex, or national origin.”

such

as

“race,

color,

42 U.S.C. § 2000e-2(a)(1);

Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2525
(2013).
employees

It also prohibits retaliation by the employer against
who

engage

in

a

protected
14

activity.

42

U.S.C.

§

2000e-3(a).

Protected

activity

includes

opposing

“unlawful

employment practice[s] [under] this subchapter” or “ma[king] a
charge, testif[ying], assist[ing], or participat[ing] in . . .
[a Title VII] investigation, proceeding, or hearing[.]”
To

survive

a

motion

for

summary

judgment,

a

Id.
plaintiff

asserting Title VII claims must provide evidence of intentional
discrimination through one of two avenues of proof:
evidence

that

employer’s

retaliation

adverse

(1) direct

or

protected

status

motivated

employment

decision;

or

the

(2)

the

McDonnell

Douglas “pretext framework” requiring a plaintiff to establish a
prima

facie

case

and

show

that

the

“employer’s

proffered

permissible reason for taking an adverse employment action is
actually a pretext for [retaliation or discrimination].”

Hill

v. Lockheed Martin Logistics Management, Inc., 354 F.3d 277,
284-85 (4th Cir. 2004) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973)).

Direct evidence includes “conduct or

statements that both reflect directly the alleged discriminatory
attitude and that bear on the contested employment decision.”
Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006)
(internal

quotation

marks

omitted).

If

believed,

direct

evidence “would prove the existence of a fact . . . without any
inference or presumptions.”

O’Connor v. Consol. Coin Caterers

Corp., 56 F.3d 542, 548 (4th Cir. 1995) (citation and internal
quotation marks omitted), rev’d on other grounds, 517 U.S. 308
15

(1996).

Plaintiff

presents

no

direct

evidence

showing

that

Defendant terminated her employment due to unlawful retaliation
or

gender

claims

discrimination.

must

be

examined

Thus,
using

Plaintiff’s

the

discrimination

burden-shifting

framework

established in McDonnell Douglas.11
The

familiar

McDonnell

Douglas

framework

“‘compensat[es]

for the fact that direct evidence of intentional discrimination
is hard to come by’” and “give[s] plaintiffs who lack direct
evidence a method for raising an inference of discrimination.”
Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th
Cir. 2005) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228,
271 (1989) (O'Connor, J., concurring in the judgment)).

Under

McDonnell Douglas, once the plaintiff meets her initial burden
of establishing a prima facie case for a Title VII violation,
“the burden shifts to the employer to articulate a legitimate,
nondiscriminatory

reason

for

the

adverse

Lockheed Martin, 354 F.3d at 285.

employment

action.”

If 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

retaliation
11

By
frame her
Plaintiff
supporting

or

discrimination.

Id.

(quoting

Reeves

v.

using the McDonnell Douglas pretext architecture to
argument throughout her opposition (ECF No. 58-1),
in effect concedes the absence of direct evidence
her claims.
16

Sanderson

Plumbing

Prods.,

Inc.,

530

U.S.

133,

143

(2000)).

According to the United States Court of Appeals for the Fourth
Circuit, “[t]he 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) (citation and internal
quotation marks omitted).
1.

Defendant’s Failure to Hire Plaintiff

Plaintiff asserts in Count I of her amended complaint that
she

was

January

not

selected

2011

both

for

the

because

Silver

of

gender

Spring

FSO

position

discrimination

and

retaliation for her prior complaints of discrimination.

in
in
She

further contends that she was not hired in October 2011 for the
FSO

position

both

due

to

gender

discrimination

and

in

retaliation for filing an EEOC complaint in May 2011.
a.
Defendant Assigned Silver Spring FSO Responsibilities
to Mr. Mayberry in January 2011
In

the

discriminatory

failure-to-hire

context,

Plaintiff

must show “that (1) she is a member of a protected class; (2)
her employer had an open position for which she applied; (3) she
was qualified for the position; (4) she was rejected for the
position

under

circumstance

unlawful discrimination.”

giving

rise

to

an

inference

of

Mackey v. Shalala, 360 F.3d 463, 468

17

(4th Cir. 2004) (citation omitted).

Defendant concedes that Ms.

Simpson, a female, is a member of a protected class.
Defendant disputes that Plaintiff can satisfy the second
and

fourth

elements

of

her

prima

failure to hire her in January 2011.
element,

Defendant

argues

that

facie

case

concerning

its

With respect to the second
Plaintiff

has

failed

to

demonstrate that the Silver Spring FSO position was open when
she applied or sought to apply in January 2011.12

Defendant

contends that when Mr. Hildebrand resigned from his position as
the Silver Spring FSO, Mr. Schubert decided to designate Mr.
Mayberry, then the Deputy Operations Manager, to absorb the FSO
responsibilities into his current workload.

According to Mr.

Schubert, Mr. Mayberry was to “take on [the Silver Spring FSO]
12

Defendant focuses on when and whether the FSO position
was open rather than the sufficiency of Plaintiff’s application.
Whether Plaintiff did enough to apply for the Silver Spring FSO
position is a close question.
See Diamond v. Colonial Life &
Acc. Ins. Co., 416 F.3d 310, 319 (4th Cir. 2005) (explaining that
in
the
failure-to-promote
context,
an
individual
must
demonstrate that he “applied for the position in question”).
Such a showing is not onerous, however, as “the McDonnell
Douglas framework only demands that a plaintiff seek to apply,
rather than actually apply, to an open position.”
FerdinandDavenport v. Children’s Guild, 742 F.Supp.2d 772, 780 (D.Md.
2010).
In her affidavit, Plaintiff recounts that “previously while
working for TSC, I had made my interest for positions within TSC
known and this was all that was required for me to do to receive
consideration for the position.”
(ECF No. 58-52 ¶ 54).
However, when asked whether she had submitted an application for
any position at the Silver Spring office in January 2011,
Plaintiff responded, “No. I was not told to.” (ECF No. 43-3,
at 38).
18

duties

as

collateral

duty

for

a

short

decide how to proceed with a new FSO.”

while

until

we

could

(ECF No. 43-3, at 140).

Mr. Schubert indicated that this arrangement was temporary “and
then somewhere down the line have a full-time FSO.”
142).

(Id. at

Defendant draws on these facts to argue that, because Mr.

Schubert designated Mr. Mayberry to assume the FSO position,
Defendant therefore did not have an open FSO position in January
2011.

Thus, Plaintiff cannot demonstrate that Defendant had an

open position when she applied or sought to apply.
concedes

that

“she

sought

Spring] FSO position
(ECF

No.

43-7,

at

after

18)

to

be

considered

for

Plaintiff
the

[Silver

it was given to [Mr.] Mayberry.”

(emphasis

added).

She

confirmed

the

timeline of events in her deposition, pointing to a conversation
with

Laura

termination,

Grieco
learned

as
of

when

she

Mr.

received

Mayberry’s

expressed her desire to fill the position.
38).

her

letter

designation,

of
and

(ECF No. 43-3, at

By the time Plaintiff expressed interest in the Silver

Spring FSO position in January 2011, Mr. Schubert had already
designated

Mr.

Mayberry

as

Mr.

Hildebrand’s

replacement.

Plaintiff fails to forecast sufficient evidence that Defendant
had an open position for which she applied or sought to apply
and, therefore, cannot satisfy the second element of her prima
facie case.

19

For the same reasons, Plaintiff cannot establish that she
was rejected under circumstances giving rise to an inference of
unlawful discrimination, as is required by the fourth element of
a prima facie discrimination case.

To create an inference of

unlawful discrimination, Plaintiff “must

at least

demonstrate

that her ‘rejection did not result from the two most common
legitimate reasons on which an employer might rely to reject a
job applicant: an absolute or relative lack of qualifications or
the absence of a vacancy in the job sought.’”

Moore v. Leavitt,

No. WDQ–04–2819, 2007 WL 5123539, at *4 (D.Md. Feb. 9, 2007)
(quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324,
358

n.44

(1977))

Defendant

did

(emphases

not

have

a

added).

vacant

As

FSO

discussed

position

Spring office when Plaintiff sought the job.

at

its

above,
Silver

Defendant provides

an additional legitimate reason for its decision to have Mr.
Mayberry replace Mr. Hildebrand:

it was a cost-saving measure.

By retaining his prior responsibilities and absorbing the FSO
duties previously performed by Mr. Hildebrand, Mr. Mayberry “was
able

to

.

overhead.”

.

.

save

the

company

(ECF No. 43-1, at 14).

a

significant

amount

of

Plaintiff has not undermined

Defendant’s reasoning or created an inference of discrimination
sufficient

to

satisfy

the

fourth

discrimination case.

20

prong

of

a

prima

facie

The retaliation component of Plaintiff’s claim fails for
the same reasons.
framework,

Under the first step of the McDonnell Douglas

Plaintiff

must

establish

a

prima

facie

case

of

retaliation under Title VII by showing that: (1) she engaged in
a

protected

adversely

activity;13

against

her;14

(2)
and

in

response,

(3)

the

her

employer

protected

causally connected to the adverse action.

acted

activity

was

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)).

“Although the

plaintiff’s burden is ‘not onerous,’ it nevertheless requires
him to ‘prov[e] by the preponderance of the evidence a prima
facie

case

of

discrimination.’”

(citations omitted).

Warch,

435

F.3d

at

515

If there was no position for which she

could have been selected, then there is no adverse action.

13

Defendant vigorously disputes the first element, whether
Plaintiff engaged in protected activity. In doing so, however,
Defendant fails to acknowledge the context in which Plaintiff’s
complaints of unfair treatment were made, and, while thin,
evidence that she made her assertions of disparate treatment
known suffices.
14

Unlike for a discrimination claim, a plaintiff need not
establish an “ultimate employment decision” to make out her
prima facie case of retaliation; rather, she 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).
Actions like “petty slights,
minor annoyances, and simple lack of good manners” are
insufficient to support a retaliation claim, even under this
lower standard. Id.
21

Accordingly,
discrimination

or

Plaintiff

cannot

show

retaliation

in

non-selection

her

either

gender
for

the

temporary assignment of FSO duties in January 2011.
b.
Defendant Transferred Ms. McGovern to Serve as Silver
Spring FSO in October 2011
The Silver Spring FSO position was not filled by a TSC
employee on a permanent basis until October 2011, well after
Plaintiff left the employ of TSC.

She did not apply for the

position and was not considered for it.

Plaintiff contends that

her failure to apply is not fatal to a prima facie retaliation
case, stating that she “was never informed that the position was
vacant or that a selection was being made, and had no way of
finding out.”

(ECF No. 58-1, at 47).

This argument, however,

is unavailing.

Not only did Plaintiff fail to pursue employment

with TSC after filing her EEOC charge in May 2011, but she
concedes

that

she

would

not

have

pursued

a

position

Defendant even had she known of any TSC job openings.

with

Plaintiff

describes why she did not submit any employment applications to
Defendant

between

May

and

October

2011:

“I

discrimination claim against them in May . . . .
apply for a job there?”

(ECF No. 43-3, at 39-40).

provided

a

Why would I
Plaintiff’s

admissions belie her contention that her protected activity was
the but-for cause of Defendant’s decision to hire someone else

22

in October 2011.15

Plaintiff also admits that she saw a job

opening for a security position with a subsidiary of Defendant,
but did not apply.
Defendant

in

any

(Id. at 40).
way

caused

She does not allege that

her

not

to

apply.

(Id.).

Furthermore, Plaintiff has presented no evidence other than her
own subjective belief to demonstrate that her October 2011 nonselection resulted from her May 2011 EEOC charge.
own

self-serving

opinions,

absent

A plaintiff’s

anything

insufficient to establish a prima facie case.

did

not

apply

for

considered for the position.

the

position,

are

See Goldberg v.

B. Green & Co., 836 F.2d 845, 848 (4th Cir. 1988).
Plaintiff

more,

and

At bottom,
she

was

not

See Miles v. Jaczko, No. DKC-2009-

0503, 2010 WL 889793, at *10 (D.Md. Mar. 5, 2010) (holding that
the

causation

lacking

when

application”).

element
the

of

a

prima

plaintiff

“did

facie
not

retaliation
submit

case

an

is

actual

Therefore, her retaliatory failure-to-hire claim

fails.
Plaintiff’s claim that Defendant failed to select her for
the

Silver

Spring

FSO

position

protected status also fails.

in

October

2011

due

to

(See ECF No. 14-1, ¶ 105).

15

her
As a

The Supreme Court of the United States recently clarified
that the plaintiff must ultimately prove that the alleged
discriminatory action was the “but for” cause of the adverse
employment action.
Nassar, 133 S.Ct. at 2533 (holding that
“Title VII retaliation claims must be proved according to
traditional principles of but-for causation”).
23

threshold

matter,

demonstrate
further

that

contends

and
she

as

discussed

applied

that

for

Plaintiff

above,
the

Plaintiff

position.

cannot

show

cannot

Defendant

that

“she

was

rejected for the position in favor of someone not a member of a
protected group under circumstances giving rise to an inference
of unlawful discrimination.”

Agelli v. Sebelius, No. DKC-13-

497,

(D.Md.

2014

WL

347630,

at

*4

Jan.

30,

2014)

(citing

Alvarado v. Bd. of Trs. of Montgomery Cmty. Coll., 928 F.2d 118,
121 (4th Cir. 1991)).
presented

undisputed

Here, Plaintiff is female.
evidence

that,

in

Defendant has

October

2011,

it

transferred Ms. McGovern, also female, from the Navy Yard to
Silver Spring in order for her to serve as FSO in a full-time
capacity.
position
negates

(ECF No. 43-1, at 53).
was
an

filled
inference

by
of

someone
gender

That the Silver Spring FSO
within

her

protected

discrimination

and

class

fatally

undermines Plaintiff’s ability to establish a prima facie case.
See Janey v. N. Hess Sons, Inc., 268 F.Supp.2d 616, 626 (D.Md.
2003); Nash v. Hudson Belk Co., 232 F.3d 888, 2000 WL 1421329,
at *1 (4th

Cir. 2000) (holding that the plaintiff failed to

establish a prima facie case of discrimination when the position
plaintiff sought was not filled by someone outside the protected
class).

24

2.

Termination of Plaintiff’s Employment

In Count II of her amended complaint, Plaintiff contends
that Defendant terminated her employment in January 2011 as a
result of gender discrimination and in retaliation for her prior
protected activity.
In the discriminatory termination context, Plaintiff must
establish
required
filled

a

prima

elements,
by

[a]

facie

case

that

her

similarly

protected class.”

showing,
“position

qualified

in

addition

remained

applicant[]

to

open

other

or

was

outside

the

Lockheed Martin, 354 F.3d at 285 (citation

omitted).

Indeed, as a general rule in the Fourth Circuit,

“Title

plaintiffs

VII

must

show

that

they

were

replaced

by

someone outside their protected class in order to make out a
prima facie case.”
Cir. 2005).

Miles v. Dell, Inc., 429 F.3d 480, 486 (4th

Plaintiff attempts to satisfy this element of the

prima facie case by declaring that the record “show[s] that she
was replaced on the [Navy] contract by a man, Malcolm Clark.”
(ECF No. 58-1, at 20).

Plaintiff states, “The only subsequent

change was that [Ms.] Simpson’s funding was deleted and Malcom
Clark was funded instead . . . .”

(Id. at 13).

However,

nothing in either Plaintiff’s opposition or the record supports
her contention that Mr. Clark was an employee of Defendant or
that Defendant had anything to do with his assignment to the
AMDR contract.

That Mr. Clark took a position funded by the
25

contract simultaneously with Plaintiff’s removal does not mean
that Defendant employed Mr. Clark, caused the elimination of
Plaintiff’s position, or “fabricated its own internal documents
replacing [Ms.] Simpson in the funding” with Mr. Clark.
28).

(Id. at

Plaintiff’s bald assertions are not supported by facts, as

she cannot point to any documentation showing that Defendant
employed Mr. Clark or agitated for either his addition to the
AMDR

contract

or

Plaintiff’s

removal.

Similarly,

Plaintiff

offers no evidence that her position at TSC remained open or was
filled

by

someone

outside

the

protected

class.

Focusing

inadvisably on the Navy’s own employment decisions concerning
the

AMDR

contract

and

attributing

them

to

Defendant

without

substantiation, Plaintiff fails to satisfy her prima facie case.
Defendant

challenges

Plaintiff’s

prima

facie

retaliatory

termination case on the ground that she has failed to establish
a causal nexus.

See Dowe v. Total Action Against Poverty in

Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998) (“To survive
summary judgment, therefore, [Plaintiff] must have evidence from
which

a

reasonable

factfinder

could

conclude

that

a

causal

connection exists between the protected activity and the adverse
action.”).
protected

Given

the

long

activity

and

the

gap

between

adverse

26

Plaintiff’s

employment

asserted

action,

it

is

unlikely

that

she

can

establish

a

causal

nexus.16

See

id.

(citations omitted) (“A lengthy time lapse between the employer
becoming aware of the protected activity and the alleged adverse
employment action . . . negates any inference that a causal
connection

exists

between

the

two.”).

However,

even

if

Plaintiff were able to support a prima facie retaliation case,
or indeed, a gender discrimination case, Defendant also offers
legitimate,

nondiscriminatory

reasons

terminate Plaintiff’s employment.
no

involvement

in

the

AMDR

for

its

decision

to

Defendant asserts that it had
program’s

underlying

funding

decisions and played no role in the decision to cut funding for
Plaintiff’s position.
of

the

funding

(ECF No. 43-1, at 44-45).

cuts,

Mr.

Schubert

explored

After learning
other

potential

employment opportunities for Plaintiff, but the TSC manager at
Dahlgren “did not have anything for her.”
131).

According

to

Plaintiff’s

(ECF No. 58-51, at

termination

letter,

she

was

fired “based entirely on [the] loss of . . . AMDR funding . . .
and lack of suitable work.”
described,

it

was

not

(ECF No. 58-3).

unusual

16

for

As Mr. Schubert

Defendant

to

discharge

Although Plaintiff does not include Defendant’s alleged
January 2010 “initial firing attempt” as an adverse employment
action in the counts of her amended complaint, she references
this event to demonstrate causation, i.e., as evidence of
Defendant’s recurring retaliatory animus and pretext. (ECF No.
58-1, at 33-35).
Plaintiff, however, offers only conclusory
remarks tying Defendant’s “initial firing attempt” to her
January 2011 non-selection and discharge.
27

employees due to government funding decisions: “[W]e have taken
funding cuts to many projects and had to lay[]off many people
all the time I have been a TSC manager.”
130).

(ECF No. 58-51, at

The record establishes convincingly that Defendant had

legitimate, nondiscriminatory reasons for dismissing Plaintiff.
Plaintiff, meanwhile, has failed to show that Defendant’s
legitimate, nondiscriminatory reasons for its actions are merely
a pretext for underlying discriminatory or retaliatory behavior.
When

an

employer

articulates

a

legitimate,

nondiscriminatory

basis for its action, courts are not to “decide whether the
reason was wise, fair, or even correct, ultimately, so long as
it truly was the reason for the [adverse employment action].”
Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000).

“To

show pretext, a plaintiff must proffer sufficient evidence such
that

a

reasonable

trier

of

fact

could

conclude

that

the

employer’s explanation is false or unworthy of credence, and
that discrimination or retaliation was the true reason for the
adverse employment action.”
WL

521158,

at

*23

Hart v. Lew, No. ELH-12-03482, 2015

(D.Md.

Feb.

6,

2015)

(emphasis

added)

(citations and internal quotation marks omitted).
Here,
motives

Plaintiff’s

and

obfuscation

establish pretext.
that

the

various
to

arguments
Defendant

attributing
are

unlawful

insufficient

to

See Goldberg, 836 F.2d at 848 (acknowledging

plaintiff’s

own

opinions
28

and

conclusory

allegations

lack sufficient “probative force to reflect a genuine issue of
material fact”).

Plaintiff advances unsubstantiated arguments

that Defendant decided to remove her from the AMDR program, that
no

documents

indicate

the

Navy’s

desire

to

have

Plaintiff

removed, and that “[w]hether the Navy in fact cut [her] funding
or position is hotly disputed.”

(See ECF No. 58-1, at 12).

She

further contends that Defendant’s multiple explanations for the
January 2011 adverse employment actions “reveal[] the defense as
fabricated,” or pretextual.

(Id. at 39); see Alvarado, 928 F.2d

at 122–23 (holding that the plaintiff demonstrated pretext by
showing

that

the

justifications
Plaintiff

for

employer
its

“has

had

offered

adverse

not

multiple,

employment

demonstrated

inconsistent

action).
such

However,
weaknesses,

implausibilities, or inconsistencies in [Defendant’s] proffered
reasons for [her] removal that a reasonable fact-finder could
find those reasons unworthy of credence.

Nor has she offered

other forms of circumstantial evidence sufficiently probative of
retaliation.”
F.Supp.2d

577,

Romeo

v.

589-90

quotation marks omitted).

APS

Healthcare

(D.Md.

2012)

Bethesda,

(citation

and

Inc.,

876

internal

Plaintiff also asserts generally that

Mr. Schubert’s anger is evidence of retaliatory animus, but she
does not set forth specific facts supported by the record or

29

personal knowledge.17
contradicts

or

Accordingly,

(See ECF No. 58-1, at 37).

fails

she

to

cannot

support

show

that

The record

Plaintiff’s

assertions.

Defendant’s

legitimate,

nondiscriminatory reasons are merely a pretext.

No reasonable

jury could conclude by a preponderance of the evidence that
Plaintiff’s

January

discrimination

or

2011
in

discharge

retaliation

occurred
for

due

to

protected

unlawful
activity.

Summary judgment will be entered in favor of Defendant on Count
II.
III. Plaintiff’s Motion to Unseal
Plaintiff

responded

to

Defendant’s

motion

for

summary

judgment by filing her opposition and supporting documentation
entirely under seal, without an appropriate motion.
51).

(ECF No.

When notified that her opposition was filed incorrectly

(ECF No. 52), Plaintiff subsequently filed a motion to seal
pursuant to a confidentiality order between the parties “because
[her opposition] contains documents that have been marked as
‘confidential’ and makes reference to such documents” (ECF No.

17

Rule 56 does not require the district court to scour the
record in search of evidence to support a litigant’s claims on
summary judgment. Malina v. Baltimore Gas & Elec., 18 F.Supp.2d
596, 604 (D.Md. 1998) (citations omitted) (“[I]t is the
responsibility of the plaintiff, not the court, to identify with
particularity the evidentiary facts existing in the record which
can oppose the defendant’s summary judgment motion. The court .
. . is not required to independently comb the record to look for
them.”).
30

54, at 1).

The next day, Plaintiff’s motion to seal was denied

“without

prejudice

to

the

motion.”

filing

(ECF No. 55, at 1).

of

a

properly

supported

Shortly after Defendant filed its

reply (ECF No. 56), Plaintiff re-filed her opposition largely
not

under

seal

Defendant,

Plaintiff

documentation
seal.

(ECF

but

No.

58-1).

redacted

kept

After

portions

Plaintiff’s

consultation
of

Exhibits

her
25

and

with

supporting
26

under

Simultaneously, Plaintiff filed the pending motion to

unseal or, in the alternative, to redact or seal Plaintiff’s
Exhibits 25 and 26.

(ECF No. 57).

Defendant has not responded

to Plaintiff’s motion to unseal.
At

issue

in

any

request

to

seal

are

the

principles

of

common law access and the more rigorous First Amendment analysis
that applies to judicial records.
access
motions,

to

judicial
such

as

records
a

motion

The First Amendment test for

extends
for

successful either in full or part.”

to

“‘dispositive’

summary

judgment

civil

that

is

Allstate Ins. Co. v. Warns,

No. CCB–11–1846, 2012 WL 681792, at *17 (D.Md. Feb. 29, 2012)
(emphasis added); Rushford v. New Yorker Magazine, Inc., 846
F.2d 249, 252 (4th Cir. 1988).
remarked

in

In

re

U.S.

for

The Fourth Circuit also recently
an

Order

Pursuant

to

18

U.S.C.

Section 2703(D), 707 F.3d 283 (4th Cir. 2013), that “documents
filed with the court are ‘judicial records’ if they play a role
in the adjudicative process, or adjudicate substantive rights.”
31

Id. at 290.

Here, a motion to seal must comply with Local Rule

105.11, which provides:
Any motion seeking the sealing of pleadings, motions,
exhibits or other papers to be filed in the Court
record shall include (a) proposed reasons supported by
specific
factual
representations
to
justify
the
sealing and (b) an explanation why alternatives to
sealing would not provide sufficient protections. The
Court will not rule upon the motion until at least 14
days after it is entered on the public docket to
permit the filing of objections by interested parties.
Materials that are the subject of the motion shall
remain temporarily sealed pending a ruling by the
Court. If the motion is denied, the party making the
filing will be given an opportunity to withdraw the
materials.
This rule endeavors to protect the common law right to inspect
and

copy

judicial

records

and

documents,

Nixon

v.

Warner

Commc’ns, Inc., 435 U.S. 589, 597 (1978), while recognizing that
competing

interests

sometimes

outweigh

the

public’s

right

of

access, In re Knight Publ’g Co., 743 F.2d 231, 235 (4th Cir.
1984).
At present, there is no properly supported motion to seal
pending.

Moreover, it is unclear whether either party supports

sealing the exhibits in question, in whole or in part.

The

existence of the exhibits is mentioned in the motion papers, but
most of the contents are not.

The protective order entered with

the consent of both parties recites that: “The burden of proving
the Confidentiality of designated information remains with the
party asserting such Confidentiality.”

32

(ECF No. 30-1, at 7).

Although Defendant has not opposed Plaintiff’s motion to unseal,
Plaintiff’s

motion

suggests

that

Defendant

has

provided

some

justification as to why Exhibits 25 and 26 should remain under
seal.

To the extent that Defendant wishes to have Plaintiff’s

Exhibits 25 and 26 remain under seal, in whole or in part, it
must file a motion to seal that comports with Local Rule 105.11
within fourteen (14) days.
2013

WL

8292331,

at

*15

See Marks v. Dann, No. DKC-13-0347,
(D.Md.

F.App’x 81 (4th Cir. 2015).

July

24,

2013),

aff’d,

600

If no such motion is filed, the

exhibits will be ordered unsealed at that time.
On the other hand, Plaintiff’s redactions throughout the
documentation

supporting

her

opposition

are

reasonable

and

narrowly tailored to maintain the confidentiality of sensitive
information belonging to the Navy and DSS, while permitting the
public to view the information relevant to the current dispute.
(See ECF Nos. 58-16; 58-17; 58-18; 58-26; 58-27; 58-28; 58-29;
58-30;

58-31;

appropriately

58-32;
remain

58-33).

This

redacted.

See

type
Sky

of

information

Angel

U.S.,

LLC

may
v.

Discovery Commc’ns, LLC, No. DKC-13-0031, 2015 WL 1393559, at
*17 (D.Md. Mar. 24, 2015); Pittson Co. v. United States, 368
F.3d 385, 406 (4th Cir. 2004) (affirming decision to seal certain
“confidential, proprietary, commercial, or financial data” that
was produced under a protective order).

33

IV.

Conclusion
For the foregoing reasons, the motion for summary judgment

filed

by

granted.

Defendant

Technology

Service

Corporation

will

be

Plaintiff’s motion to unseal Exhibits 25 and 26 will

be granted without prejudice, and Defendant will have fourteen
(14) days to file a motion setting forth its position regarding
sealing.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

34