Edwards v. Vilsak

Filing 36

MEMORANDUM OPINION (c/m to Plaintiff 7/7/16 sat). Signed by Judge Deborah K. Chasanow on 7/7/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MARGUERITE E. EDWARDS
:
v.

:

Civil Action No. DKC 15-1823

:
THOMAS J. VILSACK, Secretary,
U.S. Department of Agriculture

:
:

MEMORANDUM OPINION
Presently

pending

and

ready

for

resolution

in

this

employment discrimination case is a motion for summary judgment
filed by Defendant Thomas J. Vilsack, Secretary of the United
States Department of Agriculture (“Defendant”).

(ECF No. 21).

The issues have been fully 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.
I.

Background
A.

Factual Background

Unless
undisputed

otherwise
and

noted,

construed

in

the

facts

outlined

the

light

most

Plaintiff Marguerite E. Edwards (“Plaintiff”).

here

favorable

are
to

On May 9, 2010,

Plaintiff, a fifty-nine year old, African-American woman, began
working

at

the

United

States

Department

“USDA”) as a temporary program assistant.

of

Agriculture

(the

(ECF No. 21-1, at 4).

Plaintiff was one of six 12-month temporary employees hired to
assist

permanent

Project”

to

staff

update

veterinarians.
to

Dr.

“required

a

huge

verification

the

(Id.

according

members

H.

data

process

USDA’s
3).1

at

Todd

on

a

The

Behre,

far

of

accredited

Accreditation

the

project’s

exceeded

the

Project,

supervisor,

cleansing,

capacity of [USDA] full-time staff personnel.”
5).

“Accreditation

database

acquisition,

that

large

entry,

time

and

and
work

(ECF No. 21-4 ¶

Four of the five other temporary employees were African

American.
that

she

another

(ECF No. 21-5, at 9).
was

the

temporary

Plaintiff.

oldest

Although Plaintiff contends

temporary

employee,

was

only

employee,
one

year

Shirley
younger

Bell,
than

(See ECF Nos. 21-4 ¶ 14; 21-5, at 10).

Following

an

orientation

session,

the

six

temporary

employees began working in cubicles on the fourth floor.
Nos. 21-1, at 4; 28, at 3).

(ECF

On approximately May 18 or 20,

Plaintiff began working in a workspace on the third floor, where
she sat in close proximity to Stephen Hood, another temporary
employee.

(ECF Nos. 21-4 ¶ 15; 28, at 4).

On May 27, Plaintiff

sent Dr. Behre and other supervisors an e-mail requesting that
either she or Mr. Hood be allowed to move because she was having

1

The USDA also utilized an employment agency to obtain
additional temporary contractor personnel “[w]hen the project
exceeded the capacity of the regular staff and the temporary
staff.” (ECF No. 21-4 ¶ 7).
2

allergy symptoms that she believed were caused by Mr. Hood.
(ECF No. 21-3, at 80).
On June 17, Plaintiff thought that Mr. Hood placed a chair
at her desk, and she confronted him and asked him to “stop
bothering around her desk.”

(ECF No. 28, at 5).

Dr. Behre

avers that Plaintiff believed Mr. Hood was “performing some sort
of witchcraft” on her.

(ECF No. 21-4 ¶ 15).

Plaintiff sent

another e-mail to Dr. Behre informing him that she did not feel
safe working with Mr. Hood.

(ECF No. 21-3, at 83).

Mr. Hood

informed his supervisors that Plaintiff said, in a threatening
tone, “one of us will leave this room.”
21-8, at 2).

(Id. at 84-85; ECF No.

Dr. Behre was not in the office, so Plaintiff

spoke with Betsy Sillers, another supervisor, about her concerns
with Mr. Hood.

(ECF No. 21-3, at 82).

Plaintiff informed Ms.

Sillers that she was worried about a powder that she believed
Mr. Hood was putting on her chair.

(Id.).

Ms. Sillers and Dr.

Behre instructed Plaintiff to leave the third-floor room and sit
in

the

office

library.

Despite

Dr.

Behre’s

instruction,

Plaintiff returned to the third-floor room the following day.
(ECF No. 21-1, at 8).
On

June

18,

Dr.

Behre

and

two

human

resources

representatives met with Plaintiff and Mr. Hood to discuss the
previous day’s incident.

(Id. at 6).

According to Plaintiff,

Dr. Behre told her that she could either work in the third-floor
3

room or could take leave without pay.

(ECF No. 28, at 6).

Plaintiff believed that she had retained leave from a previous
federal government job and filled out a request for leave or
approved absence, noting that it was “tentative” and that she
“may or may not take leave.”

(ECF No. 28-3, at 2).

Plaintiff’s

supervisors recall that they instructed Plaintiff to call Dr.
Behre if she decided not to report to work.
6; 21-3, at 86).

(ECF Nos. 21-1, at

Plaintiff did not report to work the next two

days and did not call Dr. Behre to inform him that she would not
be working.

(ECF Nos. 21-1, at 7; 28, at 6).

On the second

day, Plaintiff called Dr. Behre and asked if she could report to
work

for

the

rest

of

the

Plaintiff returned to work.

week

and

wear

a

dust

mask,

and

(ECF No. 28, at 6).

On June 29, a USDA database administrator informed one of
Plaintiff’s supervisors that Plaintiff had made mistakes in her
data entry.

(ECF Nos. 21-1, at 8-9; 21-3, at 54).

Plaintiff

had begun utilizing a new process that she believed was faster,
but which led to formatting problems and inaccurate entries.
Plaintiff’s supervisors later discovered that Plaintiff was, on
average, completing approximately 61% of the work as the other
temporary

employees.

Plaintiff’s

“continuing

(ECF

No.

21-3,

performance

at

and

Plaintiff was put on administrative leave.
9; 28-8).

44).
conduct

In

light

of

situations,”

(ECF Nos. 21-1, at

Plaintiff was paid while on administrative leave, but
4

was told to not report to the office or perform any official
duties.

(ECF No. 28-8).

Dr. Behre states that Plaintiff was

placed on administrative leave to provide time to formalize her
termination.

(ECF No. 21-3, at 44).

On July 7, Dr. Behre sent

Plaintiff a letter terminating her employment because she had
“failed

to

follow

instructions

and

[exhibited]

inappropriate

conduct” that “undermine[d] the basic employee/employer trust
and impede[d] the goals and objectives of the agency.”
28-9, at 2-3).

(ECF No.

Dr. Behre’s letter specifically noted that

Plaintiff: interrupted coworkers with questions that should have
been directed to Dr. Behre; ignored instructions on completing
time

and

attendance

reports;

failed

to

follow

instructions

regarding avoiding the third-floor room and Mr. Hood; failed to
inform Dr. Behre that she would be absent from work; and failed
to follow proper data entry procedures.
B.

(Id.).

Procedural History

On July 8, 2010, Plaintiff contacted an Equal Employment
Opportunity counselor at the USDA.
September

24,

Plaintiff

filed

(ECF No. 21-3, at 13).
a

formal

complaint

On
of

discrimination with the USDA, alleging that she was wrongfully
placed on administrative leave and terminated because of her age
and race.

(Id. at 9).

On October 23, 2012, an administrative

judge with the Equal Employment Opportunity Commission (“EEOC”)
granted the USDA’s motion for summary judgment (ECF No. 21-9),
5

which was affirmed by the USDA Office of Adjudication (ECF No.
21-13).

Plaintiff appealed the decision to the EEOC, which

affirmed.

(ECF No. 21-14).

On June 22, 2015, Plaintiff, proceeding pro se, filed a
complaint commencing this action (ECF No. 1), and the court
granted Plaintiff’s motion to proceed in forma pauperis (ECF No.
5).

The complaint asserts two counts: discrimination based on

age in violation of the Age Discrimination in Employment Act of
1967

(“ADEA”),

29

U.S.C.

§

621

et

seq.

(Count

I);

and

discrimination based on race in violation of Title VII of the
Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e et seq. (Count
II).

Following multiple extensions of time, Defendant filed the

pending motion for summary judgment.

(ECF No. 21).

Plaintiff

was provided with a Roseboro notice, which advised her of the
pendency of the motion for summary judgment and her entitlement
to

respond

within

17

days.

(ECF

No.

22);

see

Roseboro

v.

Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (holding that pro se
plaintiffs should be advised of their right to file responsive
material to a motion for summary judgment).

Plaintiff responded

to Defendant’s motion (ECF No. 28), and Defendant replied (ECF
No. 33).
II.

Standard of Review
Summary judgment is appropriate under Federal Rule of Civil

Procedure Rule 56(a) when there is no genuine dispute as to any
6

material

fact,

and

the

moving

party

is

plainly

judgment in its favor as a matter of law.

entitled

In

to

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), the Supreme Court
of the United States explained that, in considering a motion for
summary judgment, the “judge’s function is not himself to weigh
the

evidence

determine

and

determine

the

there

a

whether

is

truth

of

genuine

the

issue

matter

for

but

to

trial.”

A

dispute about a material fact is genuine “if the evidence is
such

that

nonmoving

a

reasonable

party.”

jury

Id.

at

could

248.

return
Thus,

a

verdict

“the

judge

for

the

must

ask

himself not whether he thinks the evidence unmistakably favors
one

side

return

or

a

the

other

verdict

presented.”

but

for

the

whether

a

[nonmoving

fair-minded
party]

on

jury

the

could

evidence

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

support

The mere existence of a “scintilla” of

Lobby,

477

of

U.S.

the

at

nonmoving

252.
7

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.

See Drewitt v. Pratt, 999

1993)

(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
judgment
arguments.

by

relying

on

bald

assertions

and

speculative

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

2011) (citing cases).
III. Analysis
Plaintiff asserts that she was discriminated against on the
basis of her race and age when she was placed on administrative
leave

and

Defendant

when

her

counters

employment
that

the

at

the

USDA

USDA
placed

was

terminated.

Plaintiff

on

administrative leave and subsequently terminated her employment
because “she was ‘imperiling the data entry project’ that she
was hired to complete.”

(ECF No. 21-1, at 3).

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.
8

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

employers

prospective

from

employees

U.S.C. § 623(a).

discriminating

because

of

the

against

The ADEA

employees

individual’s

age.

or
29

The ADEA’s protections apply to individuals at

least forty (40) years of age, 29 U.S.C. § 631(a), and do not
permit “a mixed-motives age discrimination claim.”
Fin. Servs., Inc., 557 U.S. 167, 175 (2009).
must

“establish

that

age

employer’s adverse action.”
To

survive

a

motion

was

the

Gross v. FBL

Instead, Plaintiff

‘but-for’

cause

of

the

Id. at 177.
for

summary

judgment,

a

plaintiff

asserting a Title VII or ADEA claim 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

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

Here,

Plaintiff provides no direct evidence of discrimination for her
Title VII or ADEA claims.

Accordingly, she must rely on the

McDonnell Douglas framework.

9

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

reason

for

the

adverse

employment

action.”

Id. at 285.

Once the employer meets this burden of production,

“the

shifts

burden

back

to

the

plaintiff

to

prove

by

a

preponderance of the evidence that the employer’s stated reasons
‘were

not

its

discrimination.’”

true
Id.

reasons,

were

Reeves

(quoting

but

v.

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

a

pretext

Sanderson

for

Plumbing

“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).
To

establish

a

prima

facie

case

of

discriminatory

discipline, Plaintiff must show that: (1) she is a member of a
protected class; (2) the prohibited conduct in which she engaged
was comparable in seriousness to misconduct of employees outside
the

protected

class;

and

(3)

disciplinary

measures

enforced

against her (i.e., administrative leave) were more severe than
those enforced against other employees.

Jenkins v. Baltimore

City Fire Dep’t, 862 F.Supp.2d 427, 452 (D.Md. 2012) (citing
Cook v. CSX Transp. Corp., 988 F.2d 507, 510 (4th Cir. 1993)).
10

To

satisfy

comparators

the
and

third
the

element,

seriousness

“[t]he
of

similarity

between

their

respective

offenses

must be clearly established” by Plaintiff.

Lightner v. City of

Wilmington, N.C., 545 F.3d 260, 265 (4th Cir. 2008).
‘[s]uch
dealt

a

with

showing
the

would

same

include

supervisor,

evidence
[were]

that

the

subject

“Indeed,
employees

to

the

same

standards and . . . engaged in the same conduct without such
differentiating

or

mitigating

circumstances

that

would

distinguish their conduct or the employer’s treatment of them
for it.’”

Williams v. Silver Spring Volunteer Fire Dep’t, 86

F.Supp.3d 398, 420 (D.Md. 2015) (quoting Haywood v. Locke, 397
F.App’x 355, 359 (4th Cir. 2010)).
Here, Plaintiff has failed to identify a similarly situated
employee.

Although Plaintiff alleges that other employees made

mistakes and yet were not placed on administrative leave, there
is no evidence that any other employee repeatedly failed to
follow

explicit

instructions

regarding

data

entry

and

other

procedures, or had issues working with colleagues that “created
a

continuous

distraction

(ECF No. 21-4 ¶ 15).

and

disruption”

within

the

office.

Plaintiff cannot establish a prima facie

case of discriminatory discipline because she cannot show that
any other employee had similar performance and conduct issues.
See Martin v. Montgomery Cty. Public Schools, 223 F.Supp.2d 742,
744 (D.Md. 2002) (granting summary judgment for the defendant
11

because the “plaintiff . . . presented no objective evidence
that a similarly situated [person outside his class], i.e., one
having

substantial

performance

differently than he”).

difficulties,

was

treated

any

Accordingly, Defendant is entitled to

summary judgment on Plaintiff’s discriminatory discipline claims
under Title VII and the ADEA.
To

establish

a

prima

facie

case

of

discriminatory

discharge, Plaintiff must show that: (1) she is a member of a
protected

class;

(2)

she

suffered

adverse

employment

action,

which is satisfied by her termination; (3) she was performing
her job duties at a level that met her employer’s legitimate
expectations at the time of the adverse employment action; and
(4)

the

qualified

position

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).
her

Here, Plaintiff has provided no evidence supporting

conclusory

assertions

that

her

Behre’s legitimate expectations.

job

performance

met

Dr.

“It is the perception of the

decision maker which is relevant, not the self-assessment of the
plaintiff.”

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

Cir. 2000) (citation and internal quotation marks omitted).
outlined

in

Dr.

correspondence
misconduct,

Behre’s

from

Dr.

failure

to

letter
Behre

to

to

follow
12

Plaintiff

his

and

colleagues,

instructions,

and

in

As

e-mail

Plaintiff’s
data-entry

mistakes

did

not

meet

his

job

performance

expectations

for

Plaintiff, particularly given the scale and short duration of
the Accreditation Project.

Accordingly, Plaintiff has failed to

establish a prima facie case of discriminatory discharge.
Even assuming Plaintiff could establish a prima facie case
of discriminatory discipline or discharge, she has failed to
show that Defendant’s nondiscriminatory reasons for placing her
on administrative leave and for terminating her employment were
pretext for discrimination.
employment

due

continued

failure

interactions

to

a

combination

to

with

Dr. Behre terminated Plaintiff’s

follow

Mr.

of

her

performance

instructions,

Hood

and

other

and

issues,

disruptive

colleagues

that

“undermine[d] the basic employee/employer trust and impede[d]
the goals and objectives of the agency.”
3).

(ECF No. 28-9, at 2-

Dr. Behre was also concerned that Plaintiff’s conduct might

put Mr. Hood or other employees in danger.
84).

(ECF No. 21-3, at

Federal courts do “not sit as a kind of super-personnel

department weighing the prudence of employment decisions made by
[employers] charged with employment discrimination.”

DeJarnette

v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) (citation and
internal quotation marks omitted).

A court’s role is not to

“decide whether the reason was wise, fair, or even correct,
ultimately,

so

long

as

plaintiff’s termination.”

it

truly

was

the

reason

for

the

Id. (citation and internal quotation
13

marks

omitted).

Here,

there

is

no

evidence

whatsoever

supporting Plaintiff’s conclusory assertions that Dr. Behre’s
decision was motivated by discriminatory animus.

Thus, even if

Plaintiff was meeting Dr. Behre’s job performance expectations
or could point to similarly-situated comparators, she has not
shown that Dr. Behre’s belief that her performance and conduct
were

negatively

impacting

the

success

of

the

Accreditation

Project was pretext for discrimination.
IV.

Conclusion
For the foregoing reasons, the motion for summary judgment

filed

by

Defendant

will

be

granted.

A

separate

order

follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

14

will