Washington v. Burwell

Filing 17

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 11/9/2017. (c/m 11/9/2017 tds, Deputy Clerk)

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I

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FILED
IN TIlE UNITED STATES I>ISTRICT COURT
FOR THE I>ISTRICT OF MARYLANI>
Southern
I>ivisiou

i'>1~7SilUcI5nj)CT COURT
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A

ZOI1 NOV -9 P 3:2S
*

CL l"'''~r_
'...

LISA WASHINGTON,

1.,~',' .-•. _~
•

r,

*
1)laintiff,

-_L. ' •..._.

Case No.: G.J1J-16-36311

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SYLVIA

MATHEWS

BURWELL,

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Defendant.

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MEMORANDUM
Plaintiff Lisa Washington
8urwell.

formcr Sccrctary

0 I' thc

brings this

~~ 2000e ('/

Dismiss. or altcrnatively.

Motion

Loe. R. 105.6 (D. Md. 2(16).
Motion for Summary
I.

I()I"

*

*

Dcfcndant

Summary

*

0 I' llealth

Sylvia Mathcws

and Iluman Scrviccs

in violation ofTitlc

VII of the Civil Rights

Now pending bel()rc the Court is Delendant's

For the lollowing

Judgment.

s(' action against

and retaliation
S('(f.

*

OPINION

U ni ted States Dcpartmcnt

("I II IS"). alleging race discrimination
Act of 1964. 42 U.S.c.

pI'li

*

Judgment.

ECI' No.9.

reasons. Delendant's

Motion to

No hearing is necessary.
Motion. construed

as a

as a pcrioperative

nurse in

is granted.

BACKGIWUND'
PlaintilTwas

hired by thc National

the Clinical Center on
under the requircments

ovcmber

Institute of Hcalth ("Nil''')

9. 200'!. ECF No. I

of 42 U.S.c.

'17.

Plaintilrs

~ 209(1). separate from the civil service laws and lederal CiS

payment scale. Id. Both Plaintiff. who is black. and Karen Iloicomb.
Operating

Room Nurse Coordinator

position was established

Michael Borostovik

I Unless otherwise illdic~tcd. all 1~lcts arc taken

lioOlll

who is white. were hired by

to the same position on the same day.

Plaintiffs Complaint and assumed 10 be true.

,.

/d. ~ 8. Prior to being hired by NIH. PlaintilThad

two years of operating

and seventeen

experience.

years of operating

had four years of operating
/d. In establishing

room nurse experience

J

Iiolcomb.

10. Comparatively.

salary. and offered Iiolcomb

Iiolcomb

room technician
NIlI calculated

experience.

each nurse's

NIlI determined

that

pre-offer salary was $87.3(,(). Id.

pre-offer salary was $63.544 and Iiolcomb's

pre-offer

'1

prior to their olTers of employment.

3. NIlI offered I'lainti ff a starting salary of $66.721.

calculated

Id.

and no operating

starting salaries fiJr both I'laintilLmd

existing base salary immediately
I'laintifrs

room technician

room nurse experience

which represented

','i '>.

a 5% increase ()\'er her

a starting salary of $78.000. along with a

$10.000 signing bonus. /d. ~~ 9. 22.
Plaintiff alleges that her calculated

pre-offer salary did not account I()r her true wages

earned at that time. that her starting salary did not relleet her seventeen
technician

experience.

include deductions

and that Holcomb's

years of operating

pre-olTer salary was inflated because it did not

j()r health benefits. /d. ~~ 13. 16. Based on this pay discrepancy.

Plaintiff

alleges that she was "not paid equal pay jor equal work" as a result of a discriminatory
/d. ~~ 21. 22. In addition.
evaluations

temporary
disparate

I'lainti Irs second.line

work "details that eouldlcad
pay and promotion

based onl'laintilrs
disparate

Plaintiff alleges that notwithstanding

in 2010 and 20 I 1 and her performance

Susan Marcotte.

race./d.

pay. her supervisor

linal perl(mnance

evaluation

supervisor.

her "Exeeptional"

of technically-di

pay scale.

per!(mnanee

flicult operating

room tasks.

selected I Ioleomb over I'lainti ff I()r

to promotion:'

opportunities.

room

as compared

'125. Finally. I'laintilTalleges

'i 19. I'lainti

/d.

to Iiolcomb.

ITattributes

both her

to discrimination

that alier complaining

by NIl I

about her

retaliated against her by I~liling to provide a I~l\'orable rating on her
upon her resignation

in2013./d.

2

~ 20. Specilically.

she alleges that

she suffered "severe retaliation

\\hen [Borostovik]

downgradcd

thc PlaintiCflsicllinal

evaluation

li'OIl1a 4.6 in Fcbruary 2013 to a blank space whcrc lincs wcrc drawn through thc spacc:'
Plaintiff tiled a complaint

oC cmploymcnt

DeCcndant with the U.S. Equal Employment
4.2016.

alier summary judgmcnt

PlaintiCC filed a complaint

II.

discrimination

Opportunity

and harassmcnt

Commission

was granted for her cmploycr

in this Court. ECF

Id.

against

("'EEOC').

On Novcmbcr

on hcr EEOC complain!.

o. I.

STANDARD OF REVIEW
Dcfcndant's

Proccdurc
considers

motion is styled as a motion to dismiss pursuant to Fcderal Rule of Civil

12(h)( 6). or in the alternative.
only thc plcadings

and the court considers

motion as one lor summary judgment.

information

should not be granted if the non-moving
that is essential

dispute as to any material

motion as

to his opposition

party has not had the opportunity

iCthe movant shows that there is no genuine

provides that the mere existence

between the partics will not defeat an otherwise

to

to the motion).

fact and the movant is entitled to judgment

Civ. 1'. 56(a). "This standard

the requirement

that were disclosed as a part of

process. the Court \\'ill treat Defendant's

"The court shall grant summary judgment

judgment:

Complaint

C{.'Anderson \', Uberty Lohhy. In<'-. 477 U.S. 242. 250 n.5 (19X7)

one for summary judgment.

discover

2016 WL 73X3873. at *2 (D. Md. Dec. 21. 2016).

beyond Plaintiffs

during the EEOC administrative

(summary judgment

those matters. the court \\'ill treat the

See Gadsby \'. (JmslIlick. 109 F.3d 940. 949 (4th Cir.

Kern'. No. DKC-15-3693.
.

As hoth parties rely on materials
discovery

pursuant to Rule 56. A court

whcn deciding a Rule 12(h)(6) motion. Wherc the partics present

matters outside of the pleadings.

1997): Mam/ield,'.
.

for summary judgment

as a matter oC law:' Fed. R.

ofsollle alleged Illctual dispute

propcrly supported

motion fc)r summary

is that there be no genuine issuc of lila/erial Caet." Anderson. 477 U.S.

3

at 247-48

(1986) (cmphasis

in original),

motion for summary judgmcnt
plcadings,'

Thus, "[tJhc party opposing

'may not rcst upon thc mcrc allcgations

a propcrly supportcd
or dcnials of [his

I

but rathcr must 'sct f()I,th spccific ftlcts showing that there is a genuine issuc I()r

trial. .. ' Bouchat\', Baltimore Rarells Foothall Cluh, fll('.. 346 1',3d 514, 525 (4th Cir. 2003)
(quoting

Fed, R. Civ. P. 56(e)) (alteration

in original).

On a motion for summary judgmcnt,
Itlvorablc to ...

the nonmovant.

thc court must "vicw thc cvidcncc

and draw all infercnccs
credibility,"

in thc light most

in her favor without wcighing the

Dellllis l'. Columhia Colfetoll Jled Or .. fll(,..

cvidencc or assessing

thc witness'

290 F3d 639, 644-45

(4th Cir. 2(02). Thc moving party hcars thc burdcn of showing that there

is no gcnuinc issuc as to any matcrial fact. No gcnuine issuc of matcrial ItlCt cxists if thc nonmoving party ftlils to make a sufficicnt

showing on an cssential c1cmcnt of hcr casc as to which

she would have the burdcn of proof. See Celotex Corp.
Thcrcl()rc,

on thosc issues on which thc non-moving

responsibility
evidencc
III.

to confhmt

the summary judgment

I'.

Catretl. 477 U.S. 317, 322-23 (1986).

party has thc l)urdcn of proof. it is hcr

motion with an affidavit or othcr similar

showing that thcrc is a gcnuinc issue I()r trial.
I)JSCUSSION
A. Discrimination
Title VII statcs in pcrtincnt

employer
conditions,

...

to discriminatc

or privilegcs

part that "[ilt shall bc an unlawful cmploymcnt

against any individual

ofemploymcnt.

~ 2000e-2. "A plaintiff generally

with respect to his compcnsation.

because of such individual's

may dcfcat summary judgmcnt

discrimination

through onc of two avcnucs ofproof"-by

circumstantial

evidence

that racc was a motivating

practicc f(lr an

4

," 42 U.S.C.

and cstablish a claim for racc

prcscnting

ItlCtor ofthc

race ...

tcrms,

cithcr dircct or

employcr's

advcrsc action.

Hol/wul,',

Wash. Homes. Inc.. 487 FJd 208. 213-14 (4th Cir.2007): or, without dircct cvidcnce.

the plaintilTmay

procccd using the burden-shining

Corp. ", Green. 411 U,S. 792.802
form of Icsscr pay and decreased

analysis establishcd

(1973), Plaintiffallcges
promotion

by McDonnell Douglas

she was discriminated

against in the

opportunitics.

i. 1)isparatc Pay
Under the '\/cDonnel/ Douglas approach.
discrimination

regarding

class: (2) satisltlctory
compcnsation:

compensation.

PlaintilTmust

job perlonnancc:

treatment:'

a prima facie easc of racial

show: "(I) mcmbership

(3) adverse cmployment

and (4) that similarly-situated

more favorable

to establish

See While

I'.

employees

in a protectcd

action with respcct to

outside the protected class rcceivcd

BFIWasle Serl'ices. LLe. 375 F,3d 288. 295 (4th Cir.

2004) (citing McDonnel/ Douglas, 411 U,S, at 802),
If a plaintilTestablishes
demonstrate

a prima Itlcie case. then the burden shins to thc employer

that it had a legitimate.

Douglas. 41 I U.S. at 802-805: Kess

non-discriminatory
I'.

reason for the pay disparity.

discriminatory
employer's

U,S, at 802-805,

intentional

sets li.mh a legitimate.

reason is merely a prctext li.Jrdiscrimination,

To demonstratc

fi.)r the employmcnt
discrimination,

prctcxt. a plaintilTcithcr

non-

action is "unworthy

to cstablish

,11c/)01l11el/
Douglas. 411

must show that thc cmployer's

of crcdcncc:'

or offcr cvidencc

probativc

of

Tsai \', '\/w:r/wul AI'ialion. 306 Fed, Appx, 1.5 (4th Cir. 2(08) (citing

'\/ereish ,', Walker. 359 FJd 330. 336 (4th Cir. 2004)), Conclusory
not suflicicnt

Inc..

reason fi.lr its action. the burden then shi ns back to the plainti tT to show that the

legitimate

explanation

'\/c/)01l11ell

Municipal Employees Credil Union o/Ballimore,

319 F, Supp, 2d 637. 644 (D, Md, 2004), If the employer

to

discrimination,

allegations

or statcmcnts

arc

See Callsey \', Balog. 162 FJd 795. 801-02 (4th ('ir.

1998),

5

Ilere. Plaintiff alleges that Defendant
to Holcomb.

offered her a reduced starting salary. as compared

because of her race. ECr No. 11-1 at3.2

a prima facie case of discrimination.
that it had a legitimate

Plaintiff-s

non-discriminatory

Even assuming

that Plaintiff can establish

claim I~lils because Defendant

has del110nstrated

reason for the pay disparity and PlaintifTcannot

show

that it is a pretext for discrimination:'
The record sets forth a clear explanation
fllr both I'laintiffand

Holcomb.

within a range corresponding
including

..the qualifications

of how Dcfendant

Pursuant to NIH guidelines.

an employee's

to their position classification
and competencies

of the employee"

from the verilication

were calculated

of salary documents

provided a pay statement

from Suburban

ECF No. 9-2 at 13. The pay statement

basc salary is set

and depends on a variety of flletors.

salary and benefit package."' ECF No. 9-2 at 5-6. Aeeording
salaries fiJr Plaintiff and Iiolcomb

arrived at the starting salaries

and ..the individual's

to Defendant.

current

the starting annual

based on their pre-hire salaries. as determined

that each submitted

to NIH. ECF NO.9-I

Hospital.

a base hourly rate of pay 01'$30.55.

indicating

also included a hand-written

at 3. Plaintiff

notation indicating

that

Plaintiff received an extra $6.00 per hour for evening shins. Id. Holcomb provided a pay
statement

n'OI11Holy Cross Hospital.

Defendant
individual's

then calculated

indicating

a base hourly rate of pay of $42.00. Id. at 16.

Plaintiff and Iiolcomb's

pre-hire salaries by multiplying

base hourly rate of pay by 2.080 hours per year. ECF NO.9-I

at 3. Plaintiffs

each
pre-

hire salary did not reflect the extra $6.00 per hour Illr evening shins as noted on her salary

1 Pin cites to documents tiled on the Court"s electronic
by that system .
.
t

Arguably.

Defendant's

evidence of their legitimate.

filing system (CM/ECF)
non-discriminatory

refer to the page Ilumbers generated

reason for the pay disparity also calls into

question whether Holcomb and Plaintirrwerc similar an all respects. which would undercut Plaintiffs prima facie
casc. Recognizing the flexibility permitted by the ,\lcDo1/II('1/ Douglas framework. however. the COlirt. here. focuses
the analysis 011 the Defendant's slated reasoning. S'f!/.! lI'arch \'. Ohio Cas. Ins. Co .. 435 F.3d 510. 517 (4th Cir.
2(06) (noting that the goal of JlcDol111I!/1 Douglas is "the inquiry into the clusive Hlctllal question of intcntion'll
discrimination" and that the "shilling of burdens of ,\fcDmm/.!/IlJouglas
arc meant only to aid courts 'llld litigants in
alTanging the presentation of evidence") (internal citations 0111 itted).

6

document:

however.

Plaintiffs

starting annual salary included a 5% increase over her calculated

pre-hire salary. ECr No. 9-2 at 12. Because Holcomb's
exceeded

calculated

the NIH range of pay for her position classification.

at the top of the range. $78.000.
14. Detendant

along with a one-time

assel1s that the one-time

pre-hire salary 01'$87.360

her starting annual salary was set

signing bonus of $10.000.

non-base pay bonus may be paid "when necessary

an employee

might not acceptor

Center]:'

continue employment

or "when the base pay range is not surticientor

candidate/employee's

l

signing bonus was in line with NIII guidelines.

provide that a supplemental
who otherwise

ECF

pay requiremcnt."

appropriate

0.9-2 at

which

to recruit or retain

with the [Clinical
tomect

thc

ECr No. 9-2 at 7. These facts are not disputcd

by

Plaintiff
Plaintiff contcnds
cxpericnce

that her seventeen

was not given adequate considcration.

for a registered

nursc consist of graduating

licensing boards and maintaining
operating

years of non-nursing

room technician

from an accreditcd

current nursing license:'

experience

overall. she had more rclevant experience

that Defcndant's

to the salary. experience.
PlaintilTstates

passing statc

ECF No. 9-2 at 19. Non-nursing

under the qualilications

explanation

intent. In an attempt to show a pattcrn of disparate

wholly unconvincing.

nursing program.

while Holcomb

Thus. DelCndant has providcd a non-discriminatory

vague references

that "[q]ualilications

licensed position with credentialing

the other is no!." ECF No. 9-2 at 30. Accordingly.

PlaintitTmaintains

maintains

room technician

does not count towards mccting thc qualifications

nursing position becausc "one is a registered.

position.

but Dclcndant

operating

for a

privileges

had less medical experience
requircd by Defcndant

fill' thc

rcason fill' the pay disparity.

is merely a pretext I<1I' its discriminatory

pay practices.

Plainti 1'1' makcs a number of

and racc of other NIII nurses. but such refercnces

that Ada Rivera. a Latina nurse with 30 years of nursing

7

and

arc

was paid less than Holcomb and rcceivcd a salary 01'$74,000. Id.

experience.

PlaintitTprovides

no referencc

career progression,

In addition.

to Rivera's

PlaintilTolTers

'112.

salary inl(1I"Inationl()J" two additional
PlaintilTstatcs

I'inally. Plaintiff states that Defendant

expericnce.

Delendant's

hircd Jardin Punzalan'

lailure to count Plaintiffs

was a pretext 1(11' racial discrimination.
Plaintiff olTers no cxplanation

Howevcr.

lor any requircd nursing cxperience.

nurse

to Iiolcomb's

room tcchnician
expericnce

Punzalan's

racc.

was used as a

to the way in which Dcfcndant

prc-hirc salary. arguing that DclCndant's

Plaintiff does not articulate

than PlaintilTwas

salary in

why Dclendant's

hcr

calculated

calculation

was dclicicnt

or

failure to

such an omission cannot cstablish a

also ignored Iioicoml1s

hcr prc-hire salary. Eel' No. 9-2 at 16 (showing

calculatcd

receiving at her

that Plaintiff objccts to Dcfcndant's

her ovel1ime ratc into thc calculation.
intent bccausc Defendant

experience

nursc

salary 01'$71.108. Eel' No. 11-17 at 2.

what her actual pre-hirc salary was. Assuming

discriminatory

operating

in addition to not idcntifying

pre-hire salary resultcd in a lowcr level of compensation
tOrlner job. Howevcr.

as a pcriopcrativc

years of non-nursing

non-nursing

salary. Eel'

and thc record indicates thatPunzalan's

Plainti 1'1' also raises a number of objections
pre-hire salary as comparcd

seventeen

as to how Punzalan's

2010 was $62.085 as comparcd to Plaintiffs

incorporate

cmployecs

that Thcrcsa Granillo. a

nurse that was hired earlier in 2009. hadl(Htr years of rcgistercd

in July 20 I 0 and argucs that because Punzalan only had non-nursing

substitute

salary. or

and received a starting salary 01'$60.500. which is lower than Plaintiffs

expericnce
No. I

Howcvcr.

starting salary. hirc date. pre-cmployment

that serve to undercut her theory of racial discrimination.
white registered

'i 21.

Holcomb's

ovcrtime

overtimc

ratc whcn calculating

ratc as approximatcly

$43.00 pCI' hour) .

..\Plaintiffspclls this name "Punzalill" in her Complaint. ECF No. I ~ 3, and "Punzulan" in her opposition hrief: ECF
No, I I-I al 10. blll it is spelled "Punzalan"
in the exhibil altached 10 the brief. Eel' No. I 1-17 at 2.

8

Plaintiff also asserts that Holcomb's
her decision

to forgo employer-sponsored

Plaintiff points to intcrrogatorics
Iioleomb's
determine

whether Borostovik

Irom Defendant

to suggest that l3orostovik knew that

state in a eonversation
Irom her salary.")).

knew this information

by Borostovik

to me [Borostovikj

discovery

at the time he hired Ilolcomb.

to

Eel' No. 11-

at ECF 11-5 at 9 ("The pay stubs that Karen Iiolcomb

do not state ifbenelits

were dedueted or not. Karen Holcomb did

over the phone that she did not have health insuranee benelits deducted

However,

even if Borostovik

inflated because it did not account
have received a windfallirom
employer.;

health benelits at her previous placc of cmployment.

pre-hire salary did not include health bcnelits and rcqucsts additional

I at 3 (eiting statement
provided

pre-hire salary was inflated because it did not reflect

Even ifunlair,

1<.11"

knew that Holcomb's

health benclits,

pre-hire salary was

such facts only suggest that Iloicomb

NIII based on the structuring

of her compensation

Plaintiff has not provided any indication

related to race and, thus. evidence of pretext. See Williallls

t •.

may

with her prior

that such a windlall was at all

Carolina Hea/ll1mre Syslelll. /nc.,

452 Fed. Appx. 392, 394 (4th Cir. 201 I) ("'Titlc VII does not require I~lirness or the promotion
the most qualilied

candidate:

negating an inference

it only prohibits discrimination")

201 I. and April 2012 as compared

to onc 2.5% pay

in April 2011. ECF No. 9-2 at 21.

As such, while PlaintilTalleges
in the lace of evidence
disparity,

Further

of pretext. the record indicates that PlaintilT received a 2.5-5% bonus or

raise in July 2010, April 2011. September
raise for Holcomb

(internal citation omitted).

of

that Defendant

that she was treated diflcrently
had a legitimate

than her white co-worker.

non-discriminatory

reason Illl"thc

Plaintiff cannot present lacts to suggest that she was treated unlairly hemllse other

race and show that Delcndant" s stated reason Il)r the disparity

was a pretext. See McCiel//:r-

Defendant maintains that "Plaintiff has presented no evidence that IHolcomb was receiving a higher salary in lieu
of health benefits I or that the Agency believed this to be true:' ECF No.9-I at 12.
.'i

9

E\'lII1S \'.

Mw:r/and

2(15) (providing

[)"jJl. of'TI'lII1.IJi.

that a Title VII plaintiffmust

action was taken "because
judgmcnt

/figllll'(/Y Admin .. 780 1'.3d 582. 585-86 (4th Cir.

Sial"

ofthc

in favor of Defendant

allege Illcts sufticicnt

relevant decisionmakers'
is appropriate

regarding

to claim that thc advcrsc

bias against" race), Thus. summary
Plaintilrs

disparatc pay discrimination

claim.

ii, Promotion Opportunities
PlaintilTalso
discrimination"

alleges that "NlIrsjustifieation

becausc thc "Dcfendant

for the disparity

does not cxplain why Ms, Iioicomb

[Plaintiff1 li,r nursing dctails that increased the likelihood
experiencc

and cxpertisc

However.

in the form of disparate

a discrete discriminatory

that it happened.

this allegation

work assignments

and decreased

act. such as non-selection

and thus. an cmploycc

IiII' a promotion.

rcmedies

chargc delines the scope of the plaintiff's
omitted).

Therefore.

Plaintiff

opportunity.

occurs on the clay

process or lose the

Plaintiffhas

process related to this allcgation."

8<.'/1
All. Md .. Inc .. 288 1'.3d 124. 132 ("Be!ilre a plaintilThas
he must cxhaust his administrative

promotion

must timely initiate EEO complaint

that she initiated the 10100 complaint

support lilr

to be a separate claim. alleging

ability to recover IiII' the claim . .'1""/fo/land. 487 1'.3d at 219-220.
indication

evcn though hcr superior

ECI' No. 1 ~~ 4. 17-19. In addition to providing

pay claim. the Court construcs

discrimination

of promotion.

was choscn ovcr

Icd to [Plaintiff1 being choscn to perf 01111 very complex and skillcd

nursing tasks ovcr Ms. Holcomb."
her disparate

[in payj is prctext lill' racial

provided no

S,,"

B,:mn \'.

standing to file suit under Title VII.

by filing a charge with the EEOC. The EEOC

right to institute a civil suit.") (internal citations

Illiled to exhaust her administrative

rcmedies.

and the Court lacks

Plaintirrnotes that the facts were placed before the Administrative Lnw Judge C"AL.rO) but the ALl noted this
claim of discrimilHJtioll was a new claim Ihal pJaintifT failed to present 10 the NIH EEO Office in either her prc-

It

complain! intake form or her fonnal complaint of discrimination:" ECF No. I-I at 10.

10

subject-matter
794-95

jurisdiction

over that claim. See flicks r. Hall. (las & Elec. Co .. 829 F. Supp. 791.

(D. Md. 1992), atfi/. 998 F.2d 1009 (4th Cir. 1993), cerl. denied. 5\ 0 U.S. 1059 (1994).7
B. Retaliation
Finally, !,Iainti ff states that .., a ]tier complaining

to experience

a hostile work environment:'

a elaim of hostile work environment
retaliation.8
against'

(or job applicant)

I()rbids, or has 'made a charge, testitied,
proceeding,

ECF No. 1 ~ 20. Plaintin-s

and are morc appropriately

"Title VII's anti-retaliation

an employee

provision

because he has 'opposed'
assisted, or participated

*

2000e-3(a».

show that: (1) she engaged
and (3) a causal relationship

To establish

performance

as a elaim of

actions that 'discriminate
a practice that Title VII

in' a Title VII 'investigation.

a prima !llcie case of retaliation.

in a protected activity: (2) her employer

PlaintitTmust

acted adversely

against her:

existed between the protected activity and the adverse employment
787 F.3d 243, 250 (4th Cir. 2(15).

that between her 2012 year-end evaluation.

20 J 3, and her llnal performance
PlaintitTs

do not support

Ry. Co. \'. IVhile, 548 U.S. 53, 59 (2006)

activity. FOSler r. Vnil'. o(J/iu)'fand-EaslemShore.
I'laintifTalleges

allegations

construed

forbids employer

or hearing. ". Burlinglon N. & Sanla Fe

(citing 42 U.S.c.

about her disparate pay, 1!,lainti ffj began

evaluation.

completed

completed

on February 28.

on June 10. 2013. Defendant

downgraded

rating lI'om a 4.6 ..to a blank space where lines were drawn through the

Even if Plaintiff timely raiscd this claim. the record UOCS 110t indicate that Holcomb's selection to the tcrnporar).'
work detail was based on race; rather. it was based on the input received from surgeons. nOllc of whol11 requested
Plaintiff to fill (he temporary position. ECF No. 9-2 at 31: sct! ,,/so Blue \', Unilf!d Slales Dt!J,'/ (~fl!J(! Army. 914 F.2d
525.541 (4th CiT. 19(0) (preselection for a promotion. even if unfair. does not demonstrate racial discrilllimHion).
II To establish a Title VII claim of hostile work environmenl. Plaintifflllllst
prove that the offending conduct was I)
unwelcome, 2) based on race, 3) suniciently severe or pervasive to alter the terms and conditions of her employment
and create an abusive environment. and (4) imputable to her employer. Spriggs \'. DiumOlul..lwo GllISS, 2...• F.3d
2
7

179, 183-8-1 (4th Cir. 200 I). Plaintiff's nllegation of a poor evaluation is not the type of conduct considered hy
courts as satisfying the clements of hostile work environment. .)'f!I!.JOI1I!S \', 11('..1, 16 F, Supp, 3d 622, 630-31 (E,n.
Va. 2014) (finding that negative performance reviews werc not sufficient to maintain a hostile work cllvironment
claim without any evidence that such reviews were a pm1 of"a pattern of extremely abusive language or otherwise
pervasive conduct based on plaintiff's race") (internal quotations omitted).

II

spacc" on Junc 10.2013. ECF No. I ~ 20." Plaintilfs claim !tlils bccausc this pcrformancc
cvaluation was not an advcrsc action-it

would not dissuadc "a rcasonablc workcr Ii'om making

a chargc of discrimination:'

548 U.S. at 68. First. thc rccord indicates that cven

Burlillg/oll.

though Plainti!rs Junc 10.2013 pcr!tmnancc cvaluation did not ineludc a numcrical rating. it
statcd that "[PlaintifrsJ

pcr!tmnancc at this time mects thc succcssfullcvcl."

thc samc commcnt

providcd on Fcbruary 28. 2013. ECF No. 9-2 at 42. Thc numcrical rating was Icn blank mcrely
bccausc Plaintilrs

supcrvisor. Borostovik. assumcd that hc did not nccd to providc a rating sincc

PlaintifTwas rcsigning. ECF No. 9-2 at 46. Oncc PlaintitTexprcsscd conccrn. Dcfcndant issucd
an amcndcd performance evaluation rcflccting a numerical rating of 4.6. and backdatcd thc
perfonnance evaluation to Junc 10.2013. ECF No. 9-2 at47.
Moreover. Plaintifrs 2012 year-end pcrftmnance cvaluation. which rcflectcd a
perfonnancc rating of 4.6. was complctcd on Fcbruary 28. 2013. well ancr Plaintifr s supcrvisors
wcrc first aware of her protected activity (i.e .. her disparatc pay complaint). ECF No. 9-2 at 31
(noting that Plaintifrs supcrvisors were first madc awarc of Plaintifrs complaint in MayoI'
2(12). Thus. even ifhcr Junc 10.2013 performance evaluation could bc construcd to bc an
adverse action. it seems unlikely to hm'c bcen casually related to her protccted activity whcn thc
rating immediately aner the protcctcd activity was positivc.
Plainti fr s allcgations regarding discrimination bascd on assignmcnts and rcduccd
opportunities !t)r promotion do not survive summary judgment.

Plaintiff also alleges that she was given an "exceptional" rating in 20 I() and 20 II. but was downgraded to
"successful'" in 1012 ancr initiating her disparate pay complain!. ECf No. 11-1 at 5. Plaintiffs 20 I 0 and 10 II
performance
evaluations include a "Sulllmary Rating" section. where her rating was marked as "Exceptional:'
the
highest of four categories. ECF Nos. 11-10 and II-II. In20l:L it appears that Nll-lutilizcd a different"Sulllmary
RiJting" format. \vhcrcby employees were given a numerical score correspondillg 10 on\! of live Level Ratings.
Plaintiff was awarded a 4.6. which corresponds to a Level 5 "Outstanding Result." the highest level possible. ECF
No. I 1-12. As such, PlaintifT has no basis to suggest that her pcrfonnancc evaluation was downgraded in 2012.

'l

12

IV.

CONCLUSION
For the foregoing

for Summary

Judgmcnt.

Dated: November.

't

reasons. Dcfcndant's

Motion to Dismiss. or in thc Altcrnativc.

Motion

ECF NO.9. shall bc grantcd. A scparatc Ordcr 11.,110\\'5.

&&-

2017

•
GEORGE J. IIAZEL

United States District Judgc

13