Akwei v. Burwell

Filing 31

MEMORANDUM OPINION (c/m to Plaintiff 6/23/16 sat). Signed by Judge Deborah K. Chasanow on 6/23/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ADOTE G. AKWEI
:
v.

:

Civil Action No. DKC 15-1095

:
SYLVIA MATHEWS BURWELL,
Secretary, Department of Health :
and Human Services
MEMORANDUM OPINION
Presently

pending

and

ready

for

resolution

in

this

employment discrimination case is a motion to dismiss or, in the
alternative,

for

summary

judgment

filed

by

Defendant

Sylvia

Mathews Burwell, Secretary of the United States Department of
Health and Human Services (“Defendant”).

(ECF No. 19).

The

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

reasons,

Defendant’s

Local Rule 105.6.
motion

to

dismiss

For the

or,

in

the

alternative, for summary judgment will be granted.
I.

Background
A.

Factual Background

Unless
undisputed

otherwise
and

noted,

construed

in

the

facts

outlined

the

light

most

Plaintiff Adote Akwei (“Plaintiff”).
discussed

in

Christian

male

the
of

analysis
African

favorable

are
to

Additional facts will be

section.
descent,

here

Plaintiff,

worked

in

the

a

black,

Office

of

Acquisitions (“OA”) at the National Institutes of Health (“NIH”)
as

a

government

contractor

employed

by

Interior

Systems

Incorporated Professional Services (“ISI”) from July 2006 until
April 2011.

(ECF Nos. 19-1, at 3; 25-2, at 1).

Until June

2008, Plaintiff was working as a “Clerk/Typist” and was one of
several

contractors

within

the

OA.

In

June

2008,

the

NIH

restructured the OA, converting all but one contractor position
to federal government employee positions.

(ECF No. 19-6 ¶ 3).

Plaintiff was selected for the one remaining contractor position
and began working at the reception desk in the OA front office.
(Id.

¶ 4).

After the reorganization, Plaintiff’s title was

initially a “Junior Quality Assurance Specialist, but it was
changed to a “Clerk/Typist/Program Analyst” in September 2010.
(ECF Nos. 19-12; 19-22).

In this most recent role, Plaintiff’s

expected job duties were to: organize and complete all clerical
typing duties as assigned; keep office files and task orders
updated

and

prepare

reports

as

required;

take

messages

for

personnel and assist management with clerical and typing needs;
act as time keeper; procure and maintain office supplies; and
“other duties as required.”
For

the

first

two

(ECF No. 19-2, at 2).
years

Plaintiff

worked

at

the

OA

reception desk, Melissa Richardson served as the OA Director.
(See ECF No. 25-13, at 2-3).

In an affidavit submitted as part

of the Equal Employment Opportunity Commission’s (the “EEOC”)
2

investigation into Plaintiff’s allegations, Ms. Richardson noted
that she “had no problems with [Plaintiff’s] work because he was
able to perform the tasks [she] assigned to him,” which included
answering

phones

and

greeting

visitors,

picking

up

and

distributing the mail, filing documents, gathering and collating
documents for Freedom of Information Act requests, delivering
packages to offices, gathering supply orders, and “other related
administrative

support

operation of OA.”

activities

necessary

(ECF No. 25-13, at 4).

to

assist

the

Ms. Richardson,

recognizing that Plaintiff’s new role included “evolving tasks”
of increased complexity, suggested to Plaintiff’s supervisor at
ISI that Plaintiff enroll in various training classes that would
assist him in performing his new job functions.

(Id.).

After Ms. Richardson was reassigned in January 2010, Pat
Rice became the Acting Director of the OA.
25-13,

at

3).

According

to

Mr.

(See 19-4, at 1-2;

Rice,

Plaintiff’s

job

description required significantly more than the receptionist
and

administrative

support

(ECF No. 19-4, at 3).

duties

Plaintiff

was

performing.

Mr. Rice believed that Plaintiff “did not

demonstrate these skills nor did he complete any tasks related
to the majority of these requirements[,] requiring others to
perform these tasks.”

(Id.).

Accordingly, Mr. Rice suggested

to Plaintiff and Robert England, Plaintiff’s supervisor at ISI,
that Plaintiff take training courses offered by the NIH or ISI.
3

(Id. at 5).

Plaintiff asserts that he was denied training that

he requested in July 2010.

(ECF No. 25-2, at 20).

Despite

several suggestions by Mr. Rice and Mr. England that he take
additional training, Plaintiff did not enroll in any of the
suggested substantive training courses.1

Plaintiff contends that

Mr. Rice made multiple derogatory remarks about him and his
performance.

Specifically, Mr. Rice asked Plaintiff to speak

more loudly and clearly on the phone, and Plaintiff alleges that
Mr. Rice noted that he could not understand Plaintiff due to his
accent.

(ECF No. 19-3, at 3).

overheard

Mr.

Rice

tell

Plaintiff also avers that he

another

employee,

[Plaintiff] cannot amount to anything.”

“You

know

(Id. at 9).

that
Ericka

Mack, one of Plaintiff’s colleagues avers that Mr. Rice told her
that

Plaintiff’s

“lacked

a

appearance
believed

employment

was

terminated

sufficient

level

of

skill

to

‘face

of

the

the

fact

be

referred

the
“to

to

Mr.

Rice,

that

other

did

office,’”

everyday rather than business casual.”
According

and

because
not
which

[Plaintiff]

Plaintiff
have
Ms.

wore

the
Mack

jeans

(ECF No. 19-7, at 4).

employees

complained

about

Plaintiff’s work because they were taking on tasks originally
1

Although Plaintiff attaches training certificates to his
response, they are for basic introductory trainings, including
information security awareness, diversity awareness, and sexual
harassment prevention trainings from 2007 through 2009.
(ECF
No. 25-14).
These trainings, while undeniably important, are
not the type of trainings that Mr. Rice encouraged Plaintiff to
take in order to enhance his substantive skills.
4

assigned to Plaintiff.

(ECF No. 19-4, at 3-4).

Mr. Rice also

believed that Plaintiff was overusing the Internet for personal
use;

furthermore,

communication
phone

line.

he

skills,
(Id.

was

unsatisfied

particularly

at

4).

in

with

answering

Plaintiff

also

Plaintiff’s
the

main

often

OA

played

religious music at his desk, which Mr. Rice requested he not do
during business hours.
On February 23, 2011, Mr. Rice requested a meeting with Mr.
England “to discuss the work performance of [Plaintiff].”
No. 19-16).

(ECF

According to Mr. England, Mr. Rice “stated that

even though [Plaintiff] is at the front desk, his duties require
more than him just answering the phone and that he should be
performing other duties as well.”
Plaintiff

to

convey

Mr.

suggestions for improvement.

Rice’s

(Id.).

Mr. England met with

concerns

(ECF No. 19-17).

and

to

provide

On March 28, Mr.

Rice and other supervisors at the NIH requested another meeting
with

Mr.

England

performance.
not

been

any

to

discuss

(ECF No. 19-18).
substantial

Plaintiff’s

continued

poor

Mr. Rice “stated that there had

improvement”

in

Plaintiff’s

work

performance and he had not signed up for any training classes.
(Id.).

Plaintiff’s NIH supervisors believed that “they were not

getting the work or the value from the position that is required
to support the office and the Director” and that “they needed
someone with greater skill sets with Microsoft Office Suite and
5

handling front desk duties.”

(Id.).

According to Mr. England,

“NIH

longer

needed

stated

that

[Plaintiff].”

they

no

(Id.).

Following

this

the

meeting,

removed Plaintiff from the position at the NIH.
at 3).

services
Mr.

of

England

(ECF No. 19-8,

Because ISI had no other open contractor positions, it

terminated Plaintiff’s employment.
B.

Procedural History

On April 27, 2011, Plaintiff contacted an Equal Employment
Opportunity (“EEO”) counselor at the United States Department of
Health and Human Services (“HHS”), the department of which the
NIH is a part.
formal

EEO

complaint

discrimination
wrongful

(ECF No. 19-23).

based

asserting

on

termination;

environment

due

to

On July 4, Plaintiff filed a

race,

following

religion,

denial
Mr.

the

of

Rice’s

and

national

training;
derogatory

claims

origin:

hostile
comments

of

work
about

Plaintiff’s accent and lack of competence; and discriminatory
restriction on playing religious music.

(ECF No. 19-24).

After

conducting an investigation and reviewing the record, the HHS
EEO office determined that Plaintiff “has not met his burden of
persuasion to show by a preponderance of the evidence that he
was discriminated against or subjected to harassment based on
his race, national origin[, or] religion.”
16).

Plaintiff

affirmed

the

HHS

appealed
EEO

the

decision

determination
6

and

(ECF No. 19-25, at
to

the

denied

EEOC,

which

Plaintiff’s

request for reconsideration on February 25, 2015.

(ECF Nos. 19-

26; 19-27).
On

April

16,

Plaintiff,

proceeding

pro

se,

filed

a

complaint in this court asserting discrimination and harassment
claims under Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e et seq.

(ECF No. 1).

After multiple

motions to extend time, Defendant filed the pending motion to
dismiss or, in the alternative, for summary judgment.
19).

(ECF No.

Plaintiff responded (ECF No. 25), and Defendant replied

(ECF No. 28).
II.

Standard of Review
Defendant has moved to dismiss or, in the alternative, for

summary judgment.

Ordinarily, a court cannot consider matters

outside the pleadings or resolve factual disputes when ruling on
a Rule 12(b)(6) motion to dismiss.
510 F.3d 442, 450 (4th Cir. 2007).

See Bosiger v. U.S. Airways,
If the court does consider

matters outside the pleadings, “the motion must be treated as
one for summary judgment under Rule 56,” and “[a]ll parties must
be given a reasonable opportunity to present all the material
that is pertinent to the motion.”

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

Finley Lines Joint Protective Bd. Unit 200 v. Norfolk S. Corp.,
109 F.3d 993, 997 (4th Cir. 1997) (“[A] Rule 12(b)(6) motion to
dismiss supported by extraneous materials cannot be regarded as
one

for

summary

judgment

until
7

the

district

court

acts

to

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

consideration

materials.”).

of

the

motion

the

supporting

extraneous

Here, both parties submit extraneous materials,

and Plaintiff had notice of a potential conversion to summary
judgment by virtue of the motion filed by Defendant.

See Warner

v. Quilo, No. ELH-12-248, 2012 WL 3065358, at *2 (D.Md. July 26,
2012) (“When the movant expressly captions its motion ‘in the
alternative’ as one for summary judgment, and submits matters
outside the pleadings for the court’s consideration, the parties
are deemed to be on notice that conversion under Rule 12(d) may
occur[.]”) (quoting Laughlin v. Metro. Wash. Airports Auth., 149
F.3d 253, 261 (4th Cir. 1998)).

Accordingly, Defendant’s motion

will be treated as one for summary judgment.
Summary judgment is appropriate under Fed.R.Civ.P. 56(a)
when there is no genuine dispute as to any material fact, and
the moving party is plainly entitled to judgment in its favor as
a matter of law.
242,

249

(1986),

In Anderson v. Liberty Lobby, Inc., 477 U.S.
the

Supreme

Court

of

the

United

States

explained that, when considering a motion for summary judgment,
the “judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.”

A dispute about a material fact

is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
8

Id. at 248.

Thus,

“the judge must ask himself not whether he thinks the evidence
unmistakably favors one side or the other but whether a fairminded jury could return a verdict for the [nonmoving party] on
the evidence presented.”

Id. at 252.

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. Ltd. 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).
evidence

is

not

sufficient to preclude an order granting summary judgment.

See

Liberty

in

The mere existence of a “scintilla” of

support

Lobby,

477

of

U.S.

the

at

nonmoving

252.

A

party’s

“party

case

cannot

create

a

genuine dispute of material fact through mere speculation or
compilation of inferences.”

Shin v. Shalala, 166 F.Supp.2d 373,

375 (D.Md. 2001) (citation omitted).

Indeed, this court has an

affirmative obligation to prevent factually unsupported claims
and defenses from going to trial.
F.2d

774,

778–79

(4th

Cir.

1993)

See Drewitt v. Pratt, 999
(quoting

Felty

v.

Graves–

Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)).
Although pro se litigants are to be given some latitude,
the above standards apply to everyone.

Thus, as courts have

recognized repeatedly, even a pro se party may not avoid summary
9

judgment

by

arguments.

relying

on

bald

assertions

and

speculative

See Smith v. Vilsack, 832 F.Supp.2d 573, 580 (D.Md.

2011) (citing cases).
III. Analysis
A.

Employer-Employee Relationship

As a threshold matter, Defendant contends that Plaintiff’s
claims must be dismissed because Plaintiff was not an employee
of the NIH but was rather an employee of ISI.
13-21; 28, at 2-7).2
employee

of

ISI,

but

(ECF No. 19-1, at

Plaintiff does not dispute that he was an
asserts

that

employee relationship with the NIH.

he

also

had

an

employer-

(ECF No. 25-2, at 3).

In

effect, Plaintiff contends that the NIH was a joint employer
with ISI.
“An entity can be held liable in a Title VII action only if
it

is

an

‘employer’

of

the

complainant.”

Butler

v.

Automotive Indus. of Am., Inc., 793 F.3d 404, 408 (4th
2015).

Drive
Cir.

Even if an entity is not a plaintiff’s formal employer,

2

Defendant frames the discussion regarding the employeremployee
relationship
as
one
implicating
subject
matter
jurisdiction. This court has held, however, that a defendant’s
status as a plaintiff’s employer for purposes of Title VII “is
better suited to a Rule 12(b)(6) [or summary judgment] analysis,
as the question implicates the merits of [a] plaintiff’s claim.”
Gilbert v. Freshbikes, LLC, 32 F.Supp.3d 594, 600 (D.Md. 2014);
see also Murphy-Taylor v. Hofmann, 968 F.Supp.2d 693, 724 (D.Md.
2013) (“[A] defendant’s qualification as the ‘employer’ of a
Title VII plaintiff constitutes a substantive ‘element of [the]
plaintiff’s claim for relief, not a jurisdictional issue.’”
(quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006)).
10

it may be an “employer” under the joint employer doctrine if it
exercises “sufficient control of the terms and conditions of
[the plaintiff’s] employment.”

Id. (internal quotation marks

omitted) (citing Torres-Negron v. Merck & Co., 488 F.3d 34, 40
n.6 (1st Cir. 2007)).

In Butler, the United States Court of

Appeals for the Fourth Circuit held that the joint employer
doctrine

applies

to

actions

brought

under

Title

VII,

and

“multiple entities may simultaneously be considered employers.”
Id.

at

409-10.

employment

The

doctrine

Fourth

“prevents

Circuit
those

reasoned
who

that

effectively

the

joint

employ

a

worker from evading liability by hiding behind another entity,
such as a staffing agency.”

Id. at 410.

In determining whether an entity is an employer under the
joint employer doctrine, the Fourth Circuit has directed that
district courts look at the following factors:
(1)

authority to hire and fire the individual;

(2)

day-to-day

supervision

of

the

individual,

including

employee discipline;
(3)

whether the putative employer furnishes the equipment
used and the place of work;

(4)

possession of and responsibility over the individual’s
employment records, including payroll, insurance, and
taxes;

11

(5)

the length of time during which the individual has
worked for the putative employer;

(6)

whether the putative employer provides the individual
with formal or informal training;

(7)

whether the individual’s duties are akin to a regular
employee’s duties;

(8)

whether

the

individual

is

assigned

solely

to

the

putative employer; and
(9)

whether the individual and putative employer intended
to enter into an employment relationship.

Id. at 414.3
element

of

None of these factors are dispositive, and the
control

remains

the

“principal

guidepost”

determining if an entity is a plaintiff’s “employer.”

in

Id.

Three factors are the most important.
The first factor, which entity or entities
have
the
power
to
hire
the
putative
employee,
is
important
to
determining
ultimate control.
The second factor, to
what extent the employee is supervised, is
useful
for
determining
the
day-to-day,
practical control of the employee.
The
third factor, where and how the work takes
place, is valuable for determining how
similar the work functions are compared to
those of an ordinary employee.

3

Defendant’s motion cites to factors from outdated case
law.
As the Fourth Circuit noted in Butler, such factors
“include considerations that are irrelevant to the joint
employment context.”
Butler, 793 F.3d at 414.
Defendant,
perhaps recognizing the same, focuses her reply on the
appropriate Butler factors. (ECF No. 28, at 3-7).
12

Id.

at

414-15.

Conversely,

the

ninth

factor

regarding

the

subjective intent of the parties “ordinarily will be of minimal
consequence.”

Id.

at

414

n.12.

Applying

the

factors,

particularly the three key factors, illustrates that, at least,
there is a factual dispute as to whether the NIH was Plaintiff’s
“employer.”
As

to

authority

the
to

first

hire

factor,

and

fire

although

ISI

Plaintiff,

had

the

the
NIH

ultimate
played

significant role in Plaintiff’s selection and removal.

a

The NIH

determined what positions would be filled by contractors and
what the requirements for such positions were.

(See ECF No. 28,

at 14 (noting that “only NIH is in a position to assess” if the
requirements for a position are being met)).

Plaintiff could

not have worked in his position without approval of officials at
the NIH.

See Crump v. TCoombs & Assocs., LLC, No. 2:13-cv-707,

2015 WL 5601885, at *19 (E.D.Va. Sept. 22, 2015) (holding that
the first factor indicated that the Navy was the plaintiff’s
employer

because

[p]laintiff,

[as]

“the
.

.

Navy
.

it

had
set

some
the

role

in

hiring

qualifications”

the

for

the

position).
Similarly, there is evidence that individuals at the NIH,
such

as

Mr.

Rice,

were

Plaintiff’s employment.

instrumental

in

the

termination

of

The NIH requested two meetings with Mr.

England to discuss concerns with Plaintiff’s performance.
13

(ECF

Nos. 19-16; 19-18).

Plaintiff’s employment was terminated only

after NIH officials informed Mr. England that “they no longer
needed

the

services

of

[Plaintiff].”

(ECF

No.

19-18).

In

Butler, 793 F.3d at 415, the defendant sent an e-mail to the
contracting company “directing that [the plaintiff] be added to
the list for replacement.”

The contracting company then, “after

a delay,” terminated the plaintiff.

Id.

The Fourth Circuit

determined that “[a]lthough [the contracting company] was the
entity that formally fired [the plaintiff], [the defendant] had
effective control over [the plaintiff’s] employment.”

Id.; see

also Crump, 2015 WL 5601885, at *19 (noting that “the record
establishe[d] that the Navy had at least partial authority to
terminate Plaintiff’s work [with a contracting company] because
the Navy retained the authority to report [the contractor’s]
misconduct or deficiencies”).

Accordingly, as in Butler and

Crump, the first factor narrowly favors a finding that the NIH
was Plaintiff’s employer.
The second factor, whether the purported employer engaged
in

“day-to-day

supervision

of

employees,

including

employee

discipline,” seeks to assess “to what extent the employee is
supervised, [which] is useful for determining the day-to-day,
practical control of the employee.”
Although

Defendant

contends

that

Butler, 793 F.3d at 414.
Plaintiff

was

“supervised,

evaluated[,] and disciplined by ISI according to ISI’s employee
14

handbook,” there is evidence that NIH officials also exercised
significant day-to-day supervision over Plaintiff.

Plaintiff

provided administrative support for NIH employees, and his tasks
were directed and coordinated by his NIH supervisors.
Nos. 19-4, at 4; 19-7, at 3).

(See ECF

Plaintiff received “on-the-job

training multiple times from Delois Holloway,” an NIH employee.
(ECF No. 19-4, at 3).

Although Plaintiff formally requested

leave from Mr. England at ISI, he was required to “coordinate”
his request for leave with his NIH supervisors, and at times
received direct “approval” from them.
Finally,

Defendant’s

position

to

requirements

assess”

representation
whether

supports

the

(ECF No. 25-27, at 1, 4).
that

Plaintiff

notion

“only
is

that

the

NIH

meeting
NIH

is
his

in

a

job

supervised

Plaintiff’s day-to-day performance.
Unsurprisingly, Defendant does not discuss the third factor
of “whether the putative employer furnishes the equipment used
and the place of work,” which “is valuable for determining how
similar the work functions are compared to those of an ordinary
employee.”

Butler, 793 F.3d at 414-15.

Plaintiff worked at the

NIH and “worked side by side” with NIH employees.

Id. at 415.

When Plaintiff did not complete his tasks to the satisfaction of
his NIH supervisors, other NIH employees stepped in to do so.
(ECF No. 19-4, at 3-4).

Plaintiff sat at an NIH desk, answered

the NIH phone, and used NIH supplies.
15

Accordingly, “there was

little or no effective difference between the work performed” by
Plaintiff and NIH employees.

Butler, 793 F.3d at 415.

Keeping in mind that the first three factors “are the most
important,” the remaining factors further illustrate that, at
least, there is a dispute as to whether the NIH was Plaintiff’s
employer.
because

The

ISI

fourth

maintained

factor

weighs

possession

and

of

Defendant

responsibility

and taxes.

The fifth factor, the length of time Plaintiff has

worked

the

employer.

indicates

that

the

payroll,

over

employment

NIH,

including

favor

Plaintiff’s

for

records,

of

in

NIH

was

insurance,

Plaintiff’s

The Eastern District of Virginia, when applying this

factor, noted that a one-year duration is “relatively short.”
Crump, 2015 WL 5601885, at *22.
favors

a

non-employer

“entered
almost

into

a

a

yearly

new

Defendant contends that this

relationship
contract

basis.”

for

(ECF

because

the

[Plaintiff’s]

No.

19-1,

at

NIH

and

position

19).

ISI
on

Although

Plaintiff’s employment was subject to renewal of his contract,
he worked for the NIH, and the OA in particular, for nearly five
years.
The sixth factor regarding which entity provides training
cuts

both

provide

ways.

Although

Plaintiff

formal

it

was

training,

ISI’s
Ms.

official
Holloway

policy

to

provided

Plaintiff with “on-the-job training,” and there were training
courses available to Plaintiff at the NIH, in which Mr. Rice,
16

Ms. Holloway, and Mr. England “encouraged” Plaintiff to enroll.
(ECF Nos. 19-4, at 3-5; 19-5, at 3; 19-8, at 3).

The seventh

and

Plaintiff’s

eighth

Butler

factors,

which

assess

whether

duties are “akin to a regular employee’s duties” and if he was
“assigned solely to” the NIH weigh in favor of an employeremployee relationship.
the

OA

Plaintiff was assigned only to NIH, and

specifically.

Moreover,

Plaintiff’s

tangential or peripheral to [the NIH].”

work

“was

not

Butler, 793 F.3d at

415.

Rather, Plaintiff performed many of the same tasks as

those

performed

employees.

by

administrative

assistants

who

were

NIH

The ninth factor regarding the subjective intentions

of the parties is inconclusive, and in any event, is “of minimal
consequence in the joint employment analysis.”
Accordingly,

there

is

evidence

that

Id. at 414 n.12.

the

Butler

factors

support a finding that the NIH was Plaintiff’s “employer” for
Title VII purposes, and Defendant is not entitled to summary
judgment on this ground.
contractor,

the

Fourth

Although Plaintiff was technically a
Circuit’s

test

“specifically

aims

to

pierce the legal formalities of an employment relationship to
determine the loci of effective control over an employee, while
not

discounting

employer

who

those

exercises

formalities
actual

entirely.

control

could

liability by hiding behind another entity.”

17

Otherwise,
avoid

Title

Id. at 415.

an
VII

B.

Discrimination Claims

Title VII prohibits discrimination based on an employee’s
personal characteristics such as “race, color, religion, sex, or
national origin.”

42 U.S.C. § 2000e-2(a); Univ. of Texas Sw.

Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2525 (2013).

To survive a

motion for summary judgment, a plaintiff must provide evidence
of

intentional

discrimination

through

one

of

two

avenues

of

proof: (1) direct or circumstantial evidence that discrimination
motivated the employer’s adverse employment decision; or (2) the
McDonnell Douglas “pretext framework” that requires a plaintiff
to show that “the employer’s proffered permissible reason for
taking an adverse employment action is actually a pretext for
[discrimination].”

Hill

v.

Lockheed

Martin

Logistics

Mgmt.,

Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en banc) (citing Texas
Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981);
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807 (1973)).
Direct evidence is “evidence of conduct or statements that
both reflect directly the alleged discriminatory attitude and
that bear on the contested employment decision.”
Cas.

Ins.

Co.,

435

F.3d

quotation marks omitted).

510,

520

(4th

Cir.

Warch v. Ohio
2006)

(internal

“Only the most blatant remarks, [the

intent of which] could be nothing other than to discriminate . .
.

constitute

Takyiwaa

direct

Shalom

v.

evidence
Payless

of

discrimination.”

Shoesource
18

Worldwide,

Nana-Akua
Inc.,

921

F.Supp.2d 470, 484 (D.Md. 2013) (citation and internal quotation
marks omitted).

Here, Plaintiff does not put forth any such

direct

and

evidence,

thus

must

proceed

under

the

McDonnell

Douglas burden-shifting framework.
Under

the

McDonnell

Douglas

framework,

once

a

plaintiff

meets his initial burden of establishing a prima facie case for
discrimination, “the burden shifts to the employer to articulate
a

legitimate,

nondiscriminatory

employment action.”

Id. at 285.

reason

for

the

adverse

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 discrimination.’”

Id. (quoting Reeves v. Sanderson Plumbing

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

“The final pretext

inquiry merges with the ultimate burden of persuading the court
that

[the

plaintiff]

has

been

the

victim

of

intentional

discrimination, which at all times remains with the plaintiff.”
Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294
(4th Cir. 2010) (internal quotation marks omitted).
1.

Wrongful Termination

To establish a prima facie case of wrongful termination,
Plaintiff must show that: (1) he is a member of a protected
class;

(2)

he

suffered

adverse

employment

action,

which

is

satisfied by his termination; (3) he was performing his job
19

duties

at

a

level

that

met

his

employer’s

legitimate

expectations at the time of the adverse employment action; and
(4)

the

position

qualified

remained

applicants

open

outside

or

the

was

filled

protected

by

similarly

class.

Bonds

v.

Leavitt, 629 F.3d 369, 386 (4th Cir. 2011) (citing Hill, 354 F.3d
at 285).
Defendant

argues

that

Plaintiff

“fails

to

allege

satisfactory job performance as required to satisfy the third
element

of

Plaintiff

a

has

prima

facie

provided

no

case.”

(ECF

evidence

No.

supporting

19-1,
his

at

25).

conclusory

assertions that his job performance met the NIH’s legitimate
expectations.

Plaintiff’s

own

view

of

his

performance

is

irrelevant.

See Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th

Cir. 2000).

Similarly, the views of Ms. Richardson, Plaintiff’s

former supervisor are of little relevance, particularly because
Plaintiff’s job description and duties had changed since she was
Plaintiff’s supervisor.
description,
required

more

which

Mr. Rice believed that the new job

contained

than

the

“Performance

basic

level

of

Analyst”

administrative

receptionist duties that Plaintiff was performing.
4,

at

3).

employees

On

multiple

completing

occasions

Plaintiff’s

Mr.

work,

duties,

Rice
and

he

and

(ECF No. 19-

observed
believed

other
that

Plaintiff did not demonstrate skills or complete tasks related
to

the

majority

of

his

job
20

requirements.

(Id.

at

4).

Plaintiff’s

colleagues

support

Mr.

Rice’s

contention

that

Plaintiff was failing to perform satisfactorily and up to Mr.
Rice’s expectations for the position.
7, at 3).

(ECF Nos. 19-5, at 3; 19-

Mr. Rice attempted to work with Plaintiff to improve

his performance.

Although Mr. Rice, Mr. England, and others

urged Plaintiff to enroll in training classes, Plaintiff never
enrolled.

Mr.

England

also

met

with

Plaintiff

to

discuss

specific areas of improvement, but Mr. Rice saw no improvement a
month later.
Plaintiff

(See ECF Nos. 19-16; 19-17; 19-18).

has

failed

to

establish

a

prima

Accordingly,

facie

case

of

discriminatory termination because he has not shown that he was
meeting the NIH’s legitimate performance expectations.
Even assuming Plaintiff could establish a prima facie case
of wrongful termination, he has failed to show that Defendant’s
nondiscriminatory

reason

Defendant

that

because

asserts

“there

had

for

termination

Plaintiff’s

not

been

any

was

employment
substantial

pretextual.

was

terminated

improvement

in

[Plaintiff’s] work performance,” Plaintiff had not signed up for
training classes, and Plaintiff’s supervisors at the NIH felt
that “they were not getting the work or the value from the [new]
position

that

Director.”
meeting
under

a

is

(ECF

certain

required
No.

job

previous

to

19-18).

Thus,

performance

job

support

even

if

expectations

description,
21

the

Mr.

Rice

office

and

Plaintiff
or

the
were

expectations

and

other

NIH

officials believed that Plaintiff had not taken the necessary
steps

to

fulfill

the

requirements

description for the position.

of

the

most

recent

job

According to Ms. Mack, another OA

employee, Mr. Rice “wanted someone in the position who ha[d]
more advanced computer skills” as well as the ability to perform
quality assurance or program analyst duties “such as data calls,
audit review and analysis.”

(ECF No. 19-7, at 3).

“A plaintiff demonstrates pretext by showing the employer’s
proffered nondiscriminatory reason is a lie and the real reason
is based on discriminatory intent.”
(citation

and

internal

quotation

Smith, 832 F.Supp.2d at 584
marks

omitted).

Plaintiff

appears to contend that Defendant’s reasons for his termination
are pretextual because Mr. Rice commented on Plaintiff’s accent
and because Mr. Rice told a colleague that Plaintiff “did not
have the appearance to be the face of the office.”

(ECF No. 25-

2, at 27).
It is disputed whether Mr. Rice referred to Plaintiff’s
accent when discussing his performance.

Plaintiff avers that

Mr. Rice told him that people could not understand him on the
phone

because

proficiency.

of

his

accent

and

(ECF No. 19-3, at 8).

alleged

lack

of

English

According to Mr. Rice, he

never mentioned Plaintiff’s accent, but asked him to speak more
clearly and loudly when answering the telephone.
at 5).

(ECF No. 19-4,

Even if Mr. Rice referenced Plaintiff’s accent, such a
22

remark, made in the context of Mr. Rice’s legitimate assessment
of a critical aspect of Plaintiff’s job, does not show pretext
for discrimination.
F.Supp.2d

684,

See E.E.O.C. v. Orkin Exterminating Co., 63

692

(D.Md.

1999)

(noting

that

an

adverse

employment action may permissibly be “based upon an employee’s
accent

if

that

accent

‘interferes

materially

with

job

performance’” (quoting Fragante v. City and Cnty. Of Honolulu,
888 F.2d 591, 596 (9th Cir. 1989))).

In addition, Mr. Rice’s

purported statement that Plaintiff did not have the appearance
to

be

the

“face

of

the

office”

is

an

incomplete

quotation.

Plaintiff’s colleague, Ms. Mack, avers that Mr. Rice told her
that

he

was

terminating

Plaintiff

because

he

“lacked

a

sufficient level of skill and did not have the appearance to be
the ‘face of the office,’” which Ms. Mack believed referred “to
the

fact

that

[Plaintiff]

business casual.”

wore

jeans

everyday

(ECF No. 19-7, at 4).

rather

than

In light of the

evidence regarding Plaintiff’s job performance, this statement
does

not

establish

that

Defendant’s

legitimate,

nondiscriminatory reason for terminating Plaintiff’s employment
was a pretext for discrimination.
2.

Restriction on Playing Music

Plaintiff alleges that he was discriminated against based
on

his

religion

because

Mr.

Rice

restricted

his

playing

of

religious music while his colleagues were allowed to play music
23

in their offices.

Defendant counters that Mr. Rice put the

restriction in place due to Plaintiff’s location at the front
reception
purpose.

desk

and

not

for

any

prohibited

discriminatory

“Courts have recognized that employees may utilize two

theories in asserting religious discrimination claims.
theories

are

denominated

as

the

‘failure to accommodate theories.’”

‘disparate

These

treatment’

and

Chalmers v. Tulon Co. of

Richmond, 101 F.3d 1012, 1017 (4th Cir. 1996) (citation omitted).
Although it is not clear under which theory Plaintiff brings his
religious discrimination claim, Plaintiff fails to establish a
prima facie case under either.
a.

Disparate Treatment

To succeed on a disparate treatment claim, a plaintiff must
“demonstrate that [the NIH] treated [him] differently than other
employees

because

of

[his]

religious

beliefs.”

Adams

v.

Trustees of the Univ. of N.C.-Wilmington, 640 F.3d 550, 558 (4th
Cir. 2011) (internal quotation marks omitted) (citing Chalmers,
101

F.3d

employee

at

1017).

under

this

“The

evidentiary

theory

mirror

burdens

those

placed

placed
on

on

the

employees

alleging employment discrimination based on race or sex,” and a
plaintiff can satisfy this burden either by presenting direct
evidence of discrimination or by utilizing the McDonnell Douglas
burden-shifting framework.

Chalmers, 101 F.3d at 1017.

24

“As with sex, race, color, and national origin, a plaintiff
claiming

religious

discrimination

adverse employment action.”

under

Title

VII

must

show

Ali v. Alamo Rent-A-Car, Inc., 8

F.App’x 156, 158 (4th Cir. 2001); see also Adams, 640 F.3d at
558.

For

disparate

action

is

a

treatment

discriminatory

claims,

act

that

an

adverse

adversely

“terms, conditions, or benefits” of employment.
Allen

&

Hamilton,

Typically,

an

Inc.,

adverse

368

F.3d

employment

371,

375

action

employment

affects

the

James v. Booz(4th

includes

Cir.

2004).

“discharge,

demotion, decrease in pay or benefits, loss of job title or
supervisory

responsibility,

or

reduced

opportunities

for

promotion.”

Boone v. Gordin, 178 F.3d 253, 255 (4th Cir. 1999).

Here, Mr. Rice’s request that Plaintiff restrict the hours he
could

play

music

at

the

reception

desk

was

not

an

adverse

employment action, and there is no indication that Plaintiff was
fired

or

otherwise

disciplined

for

playing

religious

music.

Accordingly, Plaintiff is unable to establish a prima facie case
of disparate treatment.4

4

Defendant asserts that Plaintiff was restricted from
playing
music
because
Mr.
Rice
believed
that
it
was
unprofessional to have music playing at the OA’s front reception
desk.
Even if Plaintiff could establish a prima facie case of
disparate treatment, he has failed to show that this nondiscriminatory reason was a pretext for discrimination.
25

b.

Failure to Accommodate

To establish a prima facie failure to accommodate claim, a
plaintiff

must

show

that:

“(1)

he

or

she

has

a

bona

fide

religious belief that conflicts with an employment requirement;
(2) he or she informed the employer of this belief; and (3) he
or

she

was

conflicting
Fibers

&

employment

Textiles

(citation
argues

disciplined

and

that

failure

to

requirement.”

Co.,

internal
playing

for

515

F.3d

quotation

religious

comply

E.E.O.C.

307,
marks

music

312

with

v.

(4th

Firestone
Cir.

omitted).

was

not

a

the

2008)

Defendant
“bona

fide

religious belief” and that Plaintiff was not “disciplined or
discharged for failure to comply” with Mr. Rice’s restrictions.
The Fourth Circuit has held that although “an employer has
a

duty

to

employer

accommodate

does

not

an

have

a

employee’s
duty

to

religious

accommodate

beliefs,
an

the

employee’s

Dachman v. Shalala, 9 F.App’x 186, 192 (4th Cir.

preferences.”

2001) (citing Tiano v. Dillard Dep’t Stores, Inc., 139 F.3d 679,
682 (9th Cir. 1998)).
her

employer’s

refusal

In Dachman, the plaintiff asserted that
to

allow

her

to

leave

work

early

on

Fridays to purchase challah bread for observance of the Sabbath
was

a

failure

to

accommodate

her

religious

beliefs.

The

district court held that she “failed to establish that she had a
bona

ride

employer’s

religious
leave

belief

restriction

that
because
26

conflict[ed]”
the

purchase

with
of

her

challah

bread was not “mandatory” for her religious observance.
v. Shalala, 46 F.Supp.2d 419, 439 (D.Md. 1999).

Dachman

The Fourth

Circuit affirmed, noting that the plaintiff’s desire to pick up
challah bread on Friday afternoons “was simply her preference
and not a religious requirement.”

Dachman, 9 F.App’x at 192.

Here, Plaintiff does not allege, and has put forth no evidence
showing, that playing religious music during work hours is a
religious

requirement.

establish

the

first

Accordingly,
element

of

a

Plaintiff
prima

has

to

failure

facie

failed

to

accommodate case.
Moreover,

“[i]n

a

traditional

accommodation

case,

a

plaintiff brings suit because [he] has suffered some discipline
because of a conflict between [his] employment obligations and
[his] religious practices.

. . .

[T]he discipline at issue is

usually ‘discharge, demotion, decrease in pay or benefits, loss
of

job

title

or

opportunities.’”
F.Supp.2d

389,

supervisory
Abdelkader

395

(D.Md.

v.

2011)

responsibility,

or

Sears,

&

Roebuck

(citations

reduced
Co.,

omitted)

780

(quoting

Boone, 178 F.3d at 255).

That is, to satisfy the third element

of

a

a

prima

facie

case,

plaintiff

must

show

that

he

was

disciplined in some way connected to his religious belief.

In

Abdelkader, the plaintiff asserted that she was required to work
certain
religious

Fridays

even

though

observance.

The

she

requested

district
27

court

Fridays
held

off

for

that

the

plaintiff

failed

to

establish

a

prima

facie

failure

to

accommodate case because she was not “coerced” into working on
Fridays

and

she

was

not

disciplined

refusal to work on Fridays.

or

terminated

for

her

Id.; see Mehar v. 7-Eleven, Inc.,

No. AW-06-1776, 2007 WL 8045972, at *5 (D.Md. May 29, 2007)
(holding that because the plaintiff did not leave work to attend
a religious ceremony, “she was not disciplined for her failure
to

comply”

with

accommodation
disciplined

the

claim
or

company

policy,

fails”).

terminated

and

Here,
for

playing

“her

religious

Plaintiff

was

religious

not

music.

Conversely, Mr. Rice requested that Plaintiff limit the hours he
played

religious

complied.

music

at

the

reception

desk

and

Plaintiff

Accordingly, Plaintiff cannot establish a prima facie

case for failure to accommodate.
3.

Denial of Training

Plaintiff alleges that he was discriminated against by Mr.
Rice when he was denied training in July 2010.
1).

Defendant

counters

claim is time-barred.

that

Plaintiff’s

(ECF No. 1, at

denial

of

(ECF No. 19-1, at 21-22).

Prior
to
pursuing
Title
VII
discrimination and retaliation claims in
district court, a federal employee must
timely exhaust all available administrative
remedies. See 42 U.S.C. § 2000e-16(c); 29
C.F.R. § 1614.407; Blount v. Shalala, 32
F.Supp.2d. 339, 341 (D.Md. 1999).
EEOC
regulations
require
a
federal
employee
complaining of discrimination in employment
28

training

to initiate contact with an EEO counselor
within 45 days of the alleged discriminatory
act, or in the case of a personnel action,
within 45 days of the effective date of the
action.
29 C.F.R. Part 1614.105(a)(1).
A
complainant’s failure to make this contact
within the 45-day window is tantamount to
failure to timely exhaust all administrative
remedies.
This failure ordinarily results
in
dismissal
of
a
complaint
of
discrimination. See e.g. Jakubiak v. Perry,
On the
101 F.3d 23, 26-27 (4th Cir. 1996).
other hand, the timely filing of a complaint
with the EEOC is not a jurisdictional
requirement and the Government’s argument of
untimeliness may be subject to the doctrine
of equitable estoppel. Zografov v. Virginia
Medical Center, 779 F.2d 967, 969 (4th Cir.
1985). However, the Government will only be
estopped from asserting the time limit as a
defense if plaintiff provides proof of
affirmative misconduct on the part of the
agency which prevented an employee from
timely filing a complaint.
Id.; Nealon v.
th
Stone, 958 F.2d 584, 589 (4 Cir. 1992).
Blount v. Dep’t of Health & Human Servs., 400 F. Supp.2d 838,
840-41 (D.Md. 2004),

aff’d sub nom. Blount v. Thompson, 122

F.App’x 64 (4th Cir. 2005).

Here, Plaintiff did not initiate

contact with an EEO counselor until April 2011, well over 45
days after he was allegedly denied training.

Plaintiff asserts

that “[w]hen he spoke to [his] colleagues nobody knew [he] was
entitled to file a complaint under Title VII” because he was a
contractor.

(ECF

No.

25-2).

These

assertions

do

not

affirmatively allege misconduct on behalf of the NIH sufficient
to invoke equitable estoppel.

Accordingly, Defendant’s motion

29

for summary judgment will be granted as to Plaintiff’s denial of
training claim.
C.

Hostile Work Environment

Plaintiff

contends

that

he

was

harassed

because

of

Mr.

Rice’s “use of derogatory comments about [Plaintiff’s] accent,
purported lack of proficiency and lack of competence.”
1,

at

1).

Defendant

argues

that

Plaintiff

has

(ECF No.
failed

to

establish a prima facie case because he has not shown that Mr.
Rice’s conduct was motivated by race or national origin and
because the conduct was not sufficiently severe.

(ECF No. 19-1,

at 37-42).
To

establish

a

prima

facie

case

of

hostile

work

environment, a plaintiff must show that there is: (1) unwelcome
conduct; (2) that is based on the plaintiff’s race [or national
origin]; (3) which is sufficiently severe or pervasive to alter
the

plaintiff’s

conditions

of

employment

and

to

create

an

abusive work environment; and (4) which is imputable to the
employer.

Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264,

277 (4th Cir. 2015); Okoli v. City Of Baltimore, 648 F.3d 216,
220 (4th Cir. 2011).
sufficiently

Courts determine whether an environment is

hostile

or

abusive

by

looking

at

all

of

the

circumstances, “including the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating,

or

a

mere

offensive
30

utterance;

and

whether

it

unreasonably interferes with an employee’s work performance.”
Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)
(citation and internal quotation marks omitted).
Although

Title

VII

“surely

prohibits

an

employment

atmosphere that is permeated with discriminatory intimidation,
ridicule, and insult, it is equally clear that Title VII does
not

establish

a

general

civility

code

for

the

American

E.E.O.C. v. Sunbelt Rentals, 521 F.3d 306, 315 (4th

workplace.”

Cir. 2008) (citations and internal quotation marks omitted).
determining

whether

the

offending

conduct

was

In

sufficiently

severe or pervasive, the court must consider: “(1) the frequency
of the discriminatory conduct; (2) its severity; (3) whether it
is physically threatening or humiliating, or a mere offensive
utterance; and (4) whether it unreasonably interferes with an
employee’s work performance.”

Smith v. First Union Nat. Bank,

202 F.3d 234, 242 (4th Cir. 2000); see also Sunbelt Rentals, 521
F.3d at 315.

Plaintiff must show not only that he subjectively

believed that his workplace environment was hostile, but also
that an objective, reasonable person would have found it to be
hostile.

Sunbelt Rentals, 521 F.3d at 315.

“The behavior need

not be both severe and pervasive: the more severe the conduct,
the

less

pervasive

the

plaintiff

need

prove

that

it

is.”

Williams v. Silver Spring Volunteer Fire Dept., 86 F.Supp.3d

31

398,

413

(D.Md.

2015)

(citing

Reed

v.

Airtran

Airways,

531

F.Supp.2d 660, 669 n.15 (D.Md. 2008)).
Even

if

Plaintiff

could

establish

that

Mr.

Rice’s

comments were based on Plaintiff’s race or national origin, the
isolated comments do not meet the “high bar in order to satisfy
the severe or pervasive test.”
315-16.

Sunbelt Rentals, 521 F.3d at

The comments were not pervasive and were related to

Plaintiff’s performance.

In short, Mr. Rice’s conduct falls far

short of establishing an objectively severe or pervasive hostile
work environment.

See Khoury v. Meserve, 268 F.Supp.2d 600, 614

(D.Md. 2003) (holding that a plaintiff’s allegations that her
supervisor

“yelled

at

[her],

told

her

she

was

incompetent,

pushed her down in her chair, and blocked the door to prevent
[her] from leaving while he continued to hell at her” were not
sufficient

to

Accordingly,

establish
Defendant

a
is

hostile

work

entitled

to

environment
summary

claim).

judgment

on

Plaintiff’s hostile work environment claim.
IV.

Conclusion
For the foregoing reasons, Defendant’s motion to dismiss

or, in the alternative, for summary judgment will be granted.
separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge
32

A