Barreto v. SGT, Inc.
Filing
91
MEMORANDUM OPINION. Signed by Judge Paula Xinis on 7/19/2019. (kns, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
AIMEE BARRETO,
Plaintiff,
*
*
v.
*
SGT, Inc.,
*
Defendant.
Civil Action No. 8:17-cv-02716-PX
*
***
MEMORANDUM OPINION
Pending before the Court is Plaintiff Aimee Barreto’s motion for sanctions (ECF No. 51)
and motion to compel (ECF Nos. 56 & 57), third-party National Aeronautics and Space
Administration (“NASA”)’s related motion to quash subpoena (ECF No. 68), Defendant SGT,
LLC, formerly SGT, Inc. (“SGT”)’s motion for summary judgment (ECF No. 69), and Barreto’s
motion to seal exhibits. ECF No. 81. Each motion is fully briefed, except the motion to seal,
and no hearing is necessary. See Loc. R. 105.6. For the following reasons, the Court denies
Barreto’s motions for sanctions and to compel, grants NASA’s motion to quash, grants SGT’s
motion for summary judgment and defers ruling on Barreto’s motion to seal.
I.
Background
SGT, an engineering and technology company that staffs federal government contracts,
hired Barreto as a human resources specialist in 2007. ECF No. 69-4 ¶ 2–3. Barreto, a woman
of Puerto Rican descent who identifies as Hispanic or Latina, earned her Master of Science in
government contracts and a Master of Business Administration. ECF No. 83 at 5; ECF No. 8220 at 1. In 2014, Barreto was promoted to a Group Lead. ECF No. 69-4 ¶ 4. Barreto also
received a 10% salary increase in consideration of her promotion, although her supervisor, Nora
Bozzolo, advocated for a 17% increase. Id.; ECF No. 69-6 at 2; ECF No. 82-10 at 1.
Bozzolo, who is from Argentina, had known Barreto since 2005. ECF No. 69-6 at 3.
The two women spent time together socially, and Barreto described Bozzolo as her friend. Id. at
5; ECF No. 82-7 at 3. Bozzolo knew that Barreto was of Puerto Rican descent. At some point
during the eleven years that Barreto and Bozzolo knew each other, Bozzolo, according to
Barreto, had “made general comments about Puerto Ricans,” such as, “‘That’s just Puerto
Ricans,’” and, “‘That’s the way Puerto Ricans are.’” ECF No. 83 at 31, 34. When pressed as to
when, how often, or under what circumstances Bozzolo made such comments, Barreto could not
recall any further detail.
Barreto worked under the Mechanical Systems Engineering Services IIA Bridge
(“MSES”) contract, which developed space flight hardware and other support for NASA
missions. ECF No. 69-5 ¶ 5. Barreto’s group, Materials Engineering, focused on one task,
which was comprised of approximately 30–50 subtasks. ECF No. 82-12 at 1; ECF No. 83 at 13.
Barreto supervised four SGT employees, as well as twelve subcontractor employees. ECF No.
69-5 ¶ 12. The MSES contract was scheduled to end, with the work transiting to a new contract
in December 2015. ECF No. 82-13 at 3. NASA awarded the new contract, known as
Mechanical Integrated Services and Technologies (“MIST”), to a different subcontractor, ATA
Aerospace (“Aerospace”). ECF No. 69-5 at 25. However, under MIST, SGT was still
responsible for approximately 33% of the work. Id. at 33.
By September 23, 2015, Barreto understood that she, like many others who had been on
the MSES contract, would not continue under MIST. ECF No. 69-5 ¶ 22; ECF No. 69-6 at 12–
13. Recognizing the possibility of future unemployment with SGT, Barreto sought guidance
from Bozzolo, who provided Barreto with temporary work to extend her time at SGT. ECF No.
69-5 at 40. But in December 2015, Barreto learned that, while SGT still intended to terminate
2
Barreto’s employment, SGT decided to retain certain employees from the MSES contract.
Barreto, in turn, emailed Bozzolo to complain of “clear discrimination.” Id. at 43. Barreto did
not reference in the email either her race or ethnicity, nor could Barreto recall any specific
conversation that she ever had with Bozzolo about the nature of the alleged discrimination.
Around the same time, Bozzolo told Barreto that the reason why SGT was not keeping Barreto is
that she lacked an engineering or science degree. ECF No. 69-6 at 14.
After Barreto learned of SGT’s planned termination, her relationship with Bozzolo grew
tense. Bozzolo became concerned that the two suffered from communication breakdowns and so
Bozzolo arranged for her and Barreto to attend together counseling offered by the employee
assistance program. ECF No. 89 at 113. According to Bozzolo, the two women attended four
counseling sessions together. Bozzolo testified that she would not have gone to such lengths to
help any other employees as she did Barreto. Id. at 121–22.
In December 2015 and January 2016, Barreto requested from SGT a “charge number” so
that she could bill work she was doing to the MIST contract. Barreto explains that a charge
number is essential to properly billing her time under the various contracts. ECF No. 83 at 17.
She was not awarded such a number. ECF No. 69-5 at 58.
Approximately two months after Barreto’s email complaining of discrimination, Bozzolo
informed Barreto that her separation from SGT would be effective March 31, 2016. ECF No.
69-5 ¶ 41, p. 61. Barreto continued asking Bozzolo for work within SGT. ECF No. 69-5 at 51.
Although SGT discussed an internal corporate position with Barreto, Barreto was not offered the
job. Compare id. at 61 (stating that Barreto declined the position because of the compensation);
ECF No. 83 at 25 (Barreto denying that she disapproved of the compensation).
Barreto’s employment with SGT ended on March 31, 2016. In Barreto’s termination
3
memo, Bozzolo writes that Barreto was terminated because the role that she occupied as a
supervisor now fell under the responsibility of Aerospace rather than SGT. ECF No. 69-5 at 61.
Additionally, Bozzolo noted that Barreto’s job skills were confined to financial and
administrative matters, and so SGT could not use her in a technical capacity. Id.
Although SGT terminated Barreto, it kept two other employees who had been working
under the MSES contract. Bita Khoshvaghti, who had a doctorate in applied mathematics, was
retained to supervise 17 employees under the MIST contract to execute twenty tasks. ECF No.
69-7 at 3; ECF No. 69-5 ¶ 50; 82-7 at 10. Cheryl Jackson, a Caucasian woman with a bachelor’s
degree in business management (ECF No. 69-5 at 13; ECF No. 82-21 at 1), worked on the
winddown of the MSES contract and a separate contract, OMES. ECF No. 69-8 at 3. Under
MSES, Jackson occupied the position of task lead within a group, rather than a group lead. ECF
No. 82-16 at 4. During the transition from the MSES contract to the MIST contract, Jackson
kept only a third of her previous workload. Id. at 5. Beginning in November 2016, Jackson
returned to the OMES contract full-time to perform document verification and stayed on in that
capacity until March 2017. Id. at 6; ECF No. 69-8 at 3.
On June 6, 2016, Barreto contacted the Maryland Commission on Civil Rights to
complain of a discriminatory and retaliatory discharge. ECF No. 69-9 at 5–6. Barreto filed the
charge of discrimination, again only referencing her termination. Id. at 2. Barreto then filed this
action, alleging “racial/ethnic” and retaliatory discrimination in contravention of Title VII of the
Civil Rights Act of 1964, as amended (“Title VII”), 42 U.S.C. § 2000e et seq.; the Maryland Fair
Employment Practices Act (“MFEPA”), Md. Code, State Gov’t 20-601 et seq.; retaliation under
the False Claims Act, 31 U.S.C. § 3729 et seq.; and retaliation under Maryland common law.
ECF No. 2. Barreto now moves to compel discovery, for sanctions for spoliation of evidence,
4
and to seal exhibits; third-party NASA moves to quash a subpoena; and SGT moves for
summary judgment.
II.
Discovery Motions
A. Sanctions
Barreto sought sanctions for SGT’s spoliation of monthly meeting minutes. ECF No. 51.
Although all meeting minutes besides two—January 2015 and April 2016—have now been
produced, Barreto asks this Court (or the eventual fact finder) to draw a negative inference from
the missing meeting notes, and to reopen discovery so that she may to depose the witnesses to
the meetings at SGT’s expense. ECF No. 65 at 1, 4. The Court retains inherent authority, as
well as the discretion as circumscribed by Rule 37 of the Federal Rules of Civil Procedure, to
sanction discovery violations. Victory Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 517
(D. Md. 2010). Before imposing sanctions for spoliation of evidence, the movant must
demonstrate that:
(1) [T]he party having control over the evidence had an obligation
to preserve it when it was destroyed or altered; (2) the destruction or
loss was accompanied by a “culpable state of mind;” and (3) the
evidence that was destroyed or altered was “relevant” to the claims
or defenses of the party that sought the discovery of the spoliated
evidence, to the extent that a reasonable factfinder could conclude
that the lost evidence would have supported the claims or defenses
of the party that sought it.
Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494, 509 (D. Md. 2009) (quoting Thompson v.
U.S. Dep’t of Hous. & Urban Dev., 219 F.R.D. 93, 101 (D. Md. 2003)).
SGT contends that its difficulty producing the meeting minutes stemmed from a recent
upgrade to its electronic file system. ECF No. 59 at 1. SGT ultimately located all meeting
minutes for at least thirteen months, besides the two months in question, and further represents
that the meeting minutes for January 2015 and April 2016 simply never existed. Id. at 2; ECF
5
No. 65 at 1. Barreto has generated no evidence, or even any good faith basis, to challenge SGT’s
representations. Nor has she demonstrated that SGT once had these meeting minutes and
destroyed them in bad faith.
Barreto vigorously contends that the missing minutes are critical to her case. ECF No.
51-1 at 4–6). Yet Barreto does not use any minutes from any other meeting in defending against
SGT’s summary judgment motions. See ECF Nos. 82–83. Barreto has also deposed five of the
six individuals who attended the meetings from which the minutes were generated, and yet she
can proffer no specific evidence that has been spoliated to her disadvantage. ECF No. 82-7; ECF
No. 82-9; ECF No. 82-15; ECF No. 82-16; ECF No. 82-19. Thus, the Court is unable to
conclude that the minutes from the two meetings, if they ever existed, would have supported her
causes of action. Barreto’s motion for sanctions is denied.
B. Third-Party Subpoena
Barreto also moves to compel third-party NASA to comply with a subpoena, which
NASA in turn moves to quash. ECF Nos. 56–57, 68. Barreto served NASA with a subpoena to
produce an employee for deposition. NASA declined to produce the employee, stating that the
subpoena did not “provide[] sufficient rationale to justify expending appropriated monies.” ECF
No. 68-2 at 1.
“When the government is not a party, the [Administrative Procedure Act (“APA”)]
provides the sole avenue for review of an agency’s refusal to permit its employees to comply
with subpoenas.” COMSAT Corp. v. Nat’l Sci. Found., 190 F.3d 269, 274 (4th Cir. 1999).
Administrative actions are presumed valid, and the Court’s scope of review is narrow. AndreasMyers v. Nat’l Aeronautics & Space Admin., No. GJH-16-3410, 2017 WL 1632410, at *4 (D.
Md. Apr. 28, 2017). A court may order the agency to comply with the subpoena if the agency
6
acted in an arbitrary, capricious, or otherwise unlawful manner. Bruno v. Nationwide Mut. Fire
Ins. Co., No. RDB 08-494, 2009 WL 10681974, at *1 (D. Md. Oct. 26, 2009). Actions are
arbitrary and capricious if the agency “relied on facts which Congress has not intended it to
consider, entirely failed to consider an important aspect of the problem, offered an explanation
for its decision that runs counter to the evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the product of agency expertise.” Spence v. NCI
Info. Sys., Inc., 530 F. Supp. 2d 739, 734–44 (D. Md. 2008) (quoting Motor Vehicle Mfrs. Ass’n
of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 44 (1983)) (internal quotation marks
omitted).
Agencies may promulgate regulations that govern their responses to subpoenas. Boron
Oil Co. v. Downie, 873 F.2d 67, 69 (4th Cir. 1989) (citing 5 U.S.C. § 301; United States ex rel.
Touhy v. Ragen, 340 U.S. 462 (1951)). NASA’s regulations require the party requesting
information from a NASA employee to “furnish the Office of General Counsel [with] a written,
detailed statement of the information sought and its relevance to the proceeding in connection
with which it is requested.” 14 C.F.R. § 1263.103; Andreas-Myers, 2017 WL 1632410, at *6.
Additionally, when deciding whether to honor the subpoena, the agency may consider “[w]hether
disclosure would violate a specific applicable constitutional provision, federal statute or
regulation, or executive order.” 14 C.F.R. § 1263.105(e).
Barreto’s subpoena requested “[t]estimony related to interactions with Ms. Barreto,
including but not limited to, her duties in interfacing with NASA, her role during MSES II/A
Bridge, Ms. Barreto’s work performed under MIST, SGT’s interfacing with NASA after March
2016.” ECF No. 57-2 at 1. NASA declined to produce its employee for deposition, noting that
the subpoena listed the topics on which testimony is requested, “but provides no further
7
explanation as to why his testimony is specifically required.” ECF No. 68-2 at 1. NASA
concluded that the subpoena did not give a “sufficient rationale to justify expending appropriated
monies for this non-federal purpose.” Id.
NASA’s decision bears a rational connection to the subpoena, which provides no
information about the underlying proceeding or how it relates to the information requested.
Thus, NASA’s decision was in accordance with its regulations and was not arbitrary, capricious,
or otherwise unlawful. The motion to quash is granted and the motion to compel is denied.
III.
Summary Judgment
A. Standard of Review
Summary judgment is appropriate when the Court, construing all evidence and drawing
all reasonable inferences in the light most favorable to the non-moving party, finds no genuine
dispute exists as to any material fact, thereby entitling the movant to judgment as a matter of law.
Fed. R. Civ. P. 56(a); see In re Family Dollar FLSA Litig., 637 F.3d 508, 512 (4th Cir. 2011).
Summary judgment must be granted “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“In responding to a proper motion for summary judgment,” the opposing party “must
present evidence of specific facts from which the finder of fact could reasonably find for him or
her.” Venugopal v. Shire Labs., 334 F. Supp. 2d 835, 840 (D. Md. 2004), aff’d sub nom.
Venugopal v. Shire Labs., Inc., 134 F. App’x 627 (4th Cir. 2005) (citing Anderson v. Liberty
Lobby, 477 U.S. 242, 252 (1986); Celotex, 477 U.S. at 322–23)). Genuine disputes of material
fact are not created “through mere speculation or the building of one inference upon another.”
Othentec Ltd. v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d
8
213, 214 (4th Cir. 1985)). Where a party’s statement of a fact is “blatantly contradicted by the
record, so that no reasonable jury could believe it,” the Court credits the record. Scott v. Harris,
550 U.S. 372, 380 (2007).
Barreto invokes Rule 56(d) of the Federal Rules of Civil Procedure, asserting that she
cannot fully oppose the motion for summary judgment because discovery remains pending. ECF
No. 82 at 1. Under Rule 56(d), a party may file an affidavit to attest to what additional discovery
is needed for the non-movant to challenge adequately a summary judgment motion. See Evans v.
Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996). However, because the Court
denies Barreto’s motions to compel and for sanctions, and discovery has closed, the Court finds
no basis to deny or defer ruling on the motion for summary judgment. See Crumb v.
McDonald’s Corp., No. DKC 15-1719, 2017 WL 6055501, at *3 (D. Md. Dec. 6, 2017) (denying
plaintiff’s motion to deny or defer summary judgment because plaintiff “had the opportunity to
pursue discovery within the limits of the rules and the discovery period set by the court’s
scheduling order”). The Court turns to SGT’s summary judgment motion.
B. Disparate Treatment
SGT argues that summary judgment as to Barreto’s disparate treatment claim based on
under-compensation must be granted because Barreto failed to exhaust administrative remedies.
The Court agrees.
The Amended Complaint contends that SGT violated Title VII and the Maryland Fair
Employment Practices Act (“MFEPA”) by paying her a comparatively lower compensation than
similarly situated group leads. ECF No. 17-1 ¶ 40. Because MFEPA is the “‘state analogue to
Title VII,’” the Court analyzes Barreto’s MFEPA and Title VII claims together. See Brennan v.
Deluxe Corp., 361 F. Supp. 3d 494, 498 n.2 (D. Md. 2019) (quoting Alexander v. Marriott Int’l,
9
Inc. RWT-09-2402, 2011 WL 1231029, at *6 (D. Md. Mar. 29, 2011)); Marshall v. Anne
Arundel Cty., Maryland, No. ELH-18-74, 2019 WL 568676, at *10 (D. Md. Feb. 12, 2019).
Barreto’s claims before this Court are confined to those preserved in the initial formal charge put
before the EEO or its state analogue. See Jones v. Calvert Grp., 551 F.3d 297, 300 (4th Cir.
2009), abrogated on other grounds by Fort Bend Cty., Texas v. Davis, 139 S. Ct. 1843 (2019)
(holding that failure to exhaust is not jurisdictional); Abadi v. Mecklenburg Cty. Gov’t, No. 3:17CV-00435-FDW-DCK, 2019 WL 2546732, at *3 (W.D.N.C. June 20, 2019). Only claims
“reasonably related” to the administrative charge and flowing “from a reasonable administrative
investigation,” are preserved for federal adjudication. Sydnor v. Fairfax Cty., Va., 681 F.3d 591,
594 (4th Cir. 2012).
Barreto did not include in her administrative charge or intake questionnaire any
allegations of discriminatory compensation. ECF No. 69-9. Nor is the question of Barreto’s
compensation reasonably related to her preserved allegation that she had been terminated on
account of her “race/ethnicity.” Accordingly, Barreto’s allegations of discriminatory
compensation cannot proceed for failure to exhaust administrative remedies. See Fort Bend, 139
S. Ct. at 1851; Klicka v. The Diocese of Charleston, No. 3:3:05-1320, 2006 WL 2927653, at *5
(D.S.C. Oct. 12, 2006).
SGT next challenges Barreto’s disparate treatment claim for having been assigned menial
work after the contract transition and not given a MIST contract charge number. Barreto’s claim
in this respect fails because she has not generated sufficient evidence that SGT’s acts constitute
an “adverse employment action” cognizable as a discrimination claim. An essential element of a
disparate treatment claim is that the plaintiff suffered an adverse employment action on account
of her protected status. Holland v. Wash. Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007). “An
10
adverse employment action” constitutes any act that “‘adversely affect[s] the terms, conditions,
or benefits of the plaintiff's employment.’” James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371,
375 (4th Cir. 2004) (quoting Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir. 2001)).
Although reassignment of job function may constitute an adverse employment action, Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742, 761–62 (1998), that is so only when the reassignment
visited “significant detrimental effect” on the plaintiff. Boone v. Goldin, 178 F.3d 253, 256 (4th
Cir. 1999).
Viewing the evidence most favorably to Barreto, the Court finds no support for how
“menial work” and failure to be given a charge number on the MIST contract constituted an
adverse employment action as to Barreto. Barreto does not generate evidence that she was not
credited for the time she worked, or that the “menial” tasks put her at any disadvantage in pay or
benefits. Put differently, Barreto’s characterization that such employment decisions were
unwelcome in her view does not amount to evidence supporting an adverse employment action.
Summary judgment is granted in favor of SGT in these claims.
Barreto complains that SGT discriminated against her when terminating her. Title VII
and MFEPA make unlawful the discharge of any individual on the basis of race or national
origin. 42 U.S.C. § 2000e-2; Md. Code, State Gov’t § 20-606.1 Where a plaintiff marshals no
direct evidence of discrimination, the Court evaluates her claims using the burden-shifting
framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Stoyanov v.
Mabus, 126 F. Supp. 3d 531, 541 (D. Md. 2015).
If the plaintiff was ostensibly terminated because of a reduction in workforce, the
Although Barreto contends that she suffered “race/ethnicity” discrimination throughout the Amended
Complaint, the plain language of the applicable statutes does not expressly cover “ethnicity.” For purposes of this
analysis only, the Court assumes, without deciding, that Barreto’s claim is proper.
1
11
plaintiff must first make a prima facie case of discriminatory termination by demonstrating that
(1) she is a member of a protected group; (2) she suffered adverse employment action; (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) her job duties were absorbed by employees not
in the protected class or the employer otherwise did not treat her protected characteristics
neutrally when deciding to terminate her. Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208,
219 (4th Cir. 2016). If the prima facie case is made, the burden shifts to SGT to offer a
legitimate, non-discriminatory reason for the adverse employment action. See Langerman v.
Thompson, 155 F. Supp. 2d 490, 496 (D. Md. 2001). If SGT provides such a reason, the burden
then shifts back to Barreto to raise a genuine dispute as to whether SGT’s proffered reason is
mere pretext for discrimination. See E.E.O.C. v. Sears Roebuck & Co., 243 F.3d 846, 852 (4th
Cir. 2001); Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996).
Although the framework “involves a shifting back and forth of the evidentiary burden,
[Barreto], at all times, retains the ultimate burden of persuading the trier of fact that the employer
discriminated in violation of” the law. Venugopal v. Shire Labs., 334 F. Supp. 2d 835, 841 (D.
Md. 2004); see also Moore v. Mukasey, 305 F. App’x 111, 115 (4th Cir. 2008). The “crucial
issue” is “an unlawfully discriminatory motive for a defendant’s conduct, not the wisdom or
folly of its business judgment.” Jiminez v. Mary Washington Coll., 57 F.3d 369, 383 (4th Cir.
1995); see also Propst v. HWS Co., Inc., 148 F. Supp. 3d 506, 528 (W.D.N.C. 2015) (“[I]t is not
the Court’s province to decide whether the reason was wise, fair, or even correct, ultimately, so
long as it truly was the reason for” the defendant’s action) (quoting DeJarnette v. Corning Inc.,
133 F.3d 293, 299 (4th Cir. 1998)) (internal alterations omitted).
The Court assumes, without deciding, that Barreto established a prima facie case of
12
discrimination. The burden of production thus shifts to SGT to offer a legitimate, nondiscriminatory reason why Barreto was terminated. SGT “need only articulate ‘reasons for its
actions which, if believed by the trier of fact, would support a finding that unlawful
discrimination was not the cause of the employment action.’” Moore, 305 F. App’x at 115
(quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)) (emphasis in Hicks).
SGT produced evidence that it terminated Barreto because it did not make fiscal sense to
retain the position of group lead that Barreto occupied after the transition to the MIST contract.
Under MIST, Aerospace was responsible for managing all subcontractors previously managed by
Barreto. ECF No. 69-5 ¶ 17. SGT remained responsible only for supervising the SGT
employees in Barreto’s group, of whom only two SGT was able to keep. ECF No. 82-28 at 2;
ECF No. 69-5 ¶ 20. Thus, SGT decided to eliminate the supervisory role and migrate
supervision of the two SGT employees to a different group lead. ECF No. 69-5 ¶ 23. SGT
further generated evidence that Barreto’s options as to continued employment with SGT were
limited by her lack of science, engineering, or technical background, and SGT offered a lower
paying position that Barreto rejected. ECF No. 69-5 at 61; ECF No. 69-6 at 14. Accordingly,
SGT has marshalled sufficient evidence demonstrating legitimate, non-discriminatory reasons for
Barreto’s discharge. See Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011).
Accordingly, Barreto can defeat summary judgment by presenting some evidence that
SGT’s proffered reasons were pretextual. In this respect, Barreto relies on Bozzolo’s “general
comments about Puerto Ricans,” to include, “‘That’s just Puerto Ricans,’” and, “‘That’s the way
Puerto Ricans are.’” ECF No. 83 at 31, 34. These statements construed most favorably to
Barreto, are not sufficient evidence of pretext. Barreto could not testify when the statements
were made and in what context. Divorced of any further detail, the Court cannot reasonably
13
infer that they reflect Bozzolo’s discriminatory animus against Puerto Ricans. Indeed, the
comment “[t]hat’s just Puerto Ricans” and “[t]hat’s the way Puerto Ricans are” certainly reflects
an attempt to ascribe to persons of Puerto Rican descent a monolith of traits. But no evidence
suggests that such traits are unfavorable, disparaging or negative. Put differently, these
statements could just as easily reflect overgeneralizations in a positive, employee-friendly light
as not.
Compounding the problem, Barreto offers no evidence as to when in their eleven-year
working relationship Bozzolo made such statements or how often. Although the women agree
they enjoyed a frank, open working relationship where they talked often about many work and
personal topics, Barreto could marshal no additional detail that permits the reasonable inference
the statements were related to Bozzolo’s decision to terminate Barreto. By contrast, the record
evidence reflects that prior to the MSES contract ending, Bozzolo had promoted Barreto and
advocated for her to receive a 17% pay raise. Cf. Proud v. Stone, 945 F.2d 796, 797 (4th Cir.
1991) (“[I]n cases where the hirer and the firer are the same individual and the termination of
employment occurs within a relatively short time span following the hiring, a strong inference
exists that discrimination was not a determining factor for the adverse action taken by the
employer.”).
Nor can Barreto’s proposed comparators, even when considered in conjunction with the
above statements, demonstrate pretext. Whether two employees are proper comparators turn on
whether they “(i) held the same job description; (ii) were subject to the same standards; (iii) were
subordinate to the same supervisors; and (iv) had comparable experience, education, and other
qualifications—provided the employer considered these latter factors in making the personnel
decision.’” Spencer v. Va. State Univ., 919 F.3d 199, 207 (4th Cir. 2019) (quoting Bio v. Fed.
14
Express Corp., 424 F.3d 593, 597 (7th Cir. 2005)). To be sure, comparator employees will never
be “‘precisely the same.’” Haynes v. Waste Connections, Inc., 922 F.3d 219, 223 (4th Cir. 2019)
(quoting Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993)). However, even
viewing the evidence most favorably to Barreto, neither of the two retained employees are proper
comparators.
Unlike Barreto, Bita Khoshvaghti earned her doctorate in applied mathematics, making
her more qualified than Barreto to supervise technical work. See ECF No. 69-7 at 4; ECF No.
69-5 ¶ 5. SGT’s decision to retain Khoshvaghti is thus consistent with its determination that
Barreto’s lack of a technical degree limited the work she could perform for SGT. See, e.g., ECF
No. 69-6 at 14; ECF No. 69-5 ¶ 27; ECF No. 82-7 at 15. Furthermore, in the transition to the
MIST contract, Khoshvaghti’s group retained 17 SGT employees, rather than the mere two that
were retained in Barreto’s group. Thus, Khoshvaghti and Barreto were not similarly situated.
Likewise, Cheryl Jackson is a poor fit. Although Jackson was similar to Barreto in that
they both lacked a technical educational background, Jackson’s role in SGT at the time of
Barreto’s termination was distinctly different. Jackson was a task lead, not a group lead like
Barreto. Jackson also worked for years on a separate contract, OMES, and would continue that
work once MSES ended. By contrast, Barreto had not worked on OMES nearly as extensively as
Jackson. Compare ECF No. 82-16 at 6 (noting that Jackson worked on OMES “for several
years”), with ECF No. 85 at 251 (noting that Barreto worked on OMES “at times”). The Court
also notes that Jackson’s MSES work dwindled, and when the OMES work ended, she too lost
her job at SGT. ECF No. 82-21 at 3, 6. Accordingly, drawing all reasonable inferences in the
light most favorable to Barreto, no reasonable finder of fact could conclude that SGT fired
Barreto for discriminatory reasons. Summary judgment is entered in SGT’s favor on this claim.
15
C. Retaliation
Barreto claims unlawful retaliation under Title VII, MFEPA, the False Claims Act, and
Maryland common law. To succeed on each of these claims, Barreto must demonstrate that a
causal link exists between her protected activity and her termination. See Strothers v. City of
Laurel, 895 F.3d 317, 327 (4th Cir. 2018); Carlson v. DynCorp Int’l LLC, 657 F. App’x 168, 170
(4th Cir. 2016); Adler v. Am. Standard Corp., 291 Md. 31, 47 (1981). Barreto is unable to
establish the causal link. “‘When an employer contemplates an adverse employment action
before an employee engages in protected activity, temporal proximity between the protected
activity and the subsequent adverse employment action does not suffice to show causation.’”
Phillips v. Raytheon Applied Signal Tech., Inc., No. ELH-11-3230, 2013 WL 5440802, at *28
(D. Md. Sept. 27, 2013), aff’d, 556 F. App’x 265 (4th Cir. 2014) (quoting Drago v. Jenne, 453
F.3d 1301, 1308 (11th Cir. 2006)). It is undisputed that, as of September 23, 2015, Barreto knew
she would be terminated. ECF No. 69-6 at 12–13. Barreto did not engage in any protected
activities until November 30, 2015, when she emailed Bozzolo to complain about her
termination. ECF No. 69-5 at 43.2 Drawing all reasonable inferences in the light most favorable
to Barreto, no reasonable juror could conclude that Barreto was terminated on account of her
protected activity. Summary judgment is granted in SGT’s favor.
IV.
Motion to Seal
Barreto filed a motion to seal three exhibits because they “contain highly confidential
information regarding Defendant’s current and/or former employees.” ECF No. 81 at 1. Barreto
further states that the information is “extremely confidential” such that “there is no alternative to
sealing that would provide sufficient protection.” Id. at 1–2. Before granting a motion to seal,
Barreto’s purported protected activity under the False Claims Act—requesting a charge number to ensure
proper billing to the federal government— occurred even later, in December 2015. ECF No. 69-5 at 58.
2
16
the parties must rebut the general presumption that the public enjoys free and unfettered access
to court records. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). The presumption
of access may be rebutted when the proponent demonstrates sealing is necessary to protect
individual privacy concerns or corporate confidential, proprietary information. Interstate Fire &
Cas. Co. v. Dimensions Assur. Ltd., No. GJH-13-3908, 2014 WL 6388334, at *1 (D. Md. Nov.
13, 2014).
Although some exhibits may very well include confidential information, the Court notes
that parts of ECF No. 83 are already included in the public record. Compare ECF No. 69-6 at 3,
with ECF No. 83 at 11. Furthermore, Barreto has provided no details supporting the grounds for
maintaining confidentiality. Accordingly, the Court defers ruling on Barreto’s motion to seal for
thirty days. Within thirty days of the date of this Memorandum Opinion, either party may submit
supplemental briefing in support of continued sealing. If the Court does not receive
supplemental briefing, it will construe silence as assent to unsealing the documents. ECF No.
83, ECF No. 83-1, and ECF No. 83-2.
V.
Conclusion
For the foregoing reasons, the Court denies Barreto’s motion for sanctions, denies
Barreto’s motion to compel, grants NASA’s motion to quash, defers ruling on Barreto’s motion
to seal, and grants SGT’s motion for summary judgment. A separate Order follows.
July 19, 2019
Date
/S/
Paula Xinis
United States District Judge
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?