STORM v. BERRYHILL
Filing
41
MEMORANDUM OPINION. Signed by District Judge Liam O'Grady on 9/25/2018. (awac, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
Nevada Storm,
Plaintiff,
Civil No. l:17-cv-1183-LO-JFA
Hon. Liam G'Grady
V.
Hon. John P. Anderson
Nancy A. Berryhill,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter arises out of Plaintiffs allegations that her former supervisors retaliated
against her for having engaged in prior protected activity in violation of Title VII. Defendant
filed a Motion for Summary Judgment(Dkt. 30). The motion is fully briefed and the Court held
oral argument on August 31, 2018.
I. BACKGROUND
Plaintiff Nevada Storm is a former employee of the Office of the Chief Administrative
Law Judge, Division of Workload Management, at the Social Security Administration("SSA").
Defendant Nancy A. Berryhill is the Acting Commissioner ofthe SSA.
Plaintiff was an employee of the SSA from 2007 until her termination on June 3,2015.
Sherry Snow became Plaintiffs first-level manager in May 2012. In August 2012, Plaintiff filed
an Equal Employment Opportunity("EEO")complaint against co-worker Devon Brown alleging
sexual harassment. This was the fourth EEO complaint Plaintiff had filed while at the Social
Security Administration. The 2012 EEO complaint also named Snow because Plaintiff alleged
that after Plaintiff reported Brown's alleged sexual harassment, Snow laughed and started
requiring Plaintiff to work on assignments with Brown. Plaintiffinformed Snow that she
intended to file the 2012 EEO complaint as early as August 2012. Snow was therefore aware of
the 2012 EEO complaint as early as August 2012 and no later than March 12,2013, when Snow
was notified of the EEO investigation.
In or about October 2013, Snow informed Plaintiffs second-level manager, Donna
Sasser, that Plaintiff"needed to show significant improvement in herjob performance in order to
maintain a fully successful rating."
During the first half of2014,Snow consulted with Human Resources and Sasser about
Plaintiffs performance issues and the steps Snow needed to take to place Plaintiff on a
Performance Assistance plan("PA")if her performance did not improve.
On or about April 30, 2014, Snow met with Plaintiff to discuss her 2014 performance to
date. During that meeting. Snow identified concerns with Plaintiffs performance in two
"critical" categories and advised Plaintiff that she needed to show improvement in those areas.
On August 26,2014, Plaintiff testified in a deposition regarding the 2012 EEO complaint
against Brown and Snow. Plaintiff alleges, without a citation to the record, that Snow knew of
Plaintiffs deposition and the nature ofthe testimony.
On August 28,2014, Snow placed Plaintiff on a 30-day PA because Plaintiffs
performance in those "critical" categories had not improved. Snow advised Plaintiff that if her
performance did not improve during the thirty days,she would be placed on an Opportunity to
Perform Successfully plan("OPS")- SSA's version of a formal Performance Improvement Plan
("PIP")- and would be subject to removal. After this meeting. Plaintiff contacted the EEO office
to initiate a complaint alleging that she had been placed on the PA as a reprisal for testifying in
the deposition. Sasser's Declaration states that Snow was not able to issue a PA prior to August
28,2014 because "it takes time to document and prepare a PA, which is done in consultation
with DHR."
At the end of the PA period, on September 29,2014, Snow met with Plaintiff to discuss
her performance. Snow again determined that despite Plaintiffs placement on the PA,Plaintiffs
performance in the two critical categories at issue had not sufficiently improved. Snow then
placed Plaintiff on a formal 120-day OPS/PIP.
At the end ofthe OPS/PIP period, on January 26, 2015, Snow again determined that
Plaintiff had failed to improve her performance in the two critical categories to a successful
level. On February 6,2015,Snow issued Plaintiffs appraisal for the fiscal year 2014, concluding
that Plaintiffs performance was "not successful."
On May 1,2015, Snow issued Plaintiff a Notice of Proposed Removal,concluding that
Plaintiff had failed to achieve successful levels in the two relevant critical areas and her
performance warranted removal. The Notice ofProposed Removal included detailed examples of
Plaintiffs allegedly unacceptable work during the PA and OPS/PIP periods. It also explains why
Snow determined that neither reassignment nor demotion were appropriate alternatives to
termination. See Def.'s Ex. 14. Plaintiff submitted a Response to Notice of Proposed Removal.
See Def.'s Ex. 15. After reviewing Plaintiffs response, Division Director Sasser determined that
Plaintiff had not performed at an acceptable level in the areas identified in her OPS/PIP and
issued a decision on June 3,2015 terminating Plaintiffs position.
Plaintiff argues that SSA violated Title VII by placing her on the PA and ultimately
terminating her in reprisal for her prior protected EEO activity: filing the 2012 EEO complaint
and participating in the August 26, 2014 deposition.
Defendant moved for summary judgment. Defendant argues that Plaintiff cannot
establish a primafacie case for retaliation because Plaintiff cannot show a causal connection
between the protected activities and the adverse employment actions. Specifically, Defendant
argues Plaintiff cannot prove causation because either(a)the decision to take adverse
employment actions preceded the claimed protected activity, or(b)the claimed protected activity
was too remote in time from the adverse employment actions. Alternatively, Defendant argues
that SSA had non-pretextual, legitimate, non-retaliatory justifications for placing Plaintiff on the
PA and ultimately terminating her.'
11. LEGAL STANDARD
Summary judgment will be granted where, viewing the facts in a light most favorable to
the non-moving party, there remains no genuine issue of material fact. Fed. R. Civ. P. 56(c);
Marlow v. Chesterfield Cty. Sch. Bd.. 749 F. Supp. 2d 417,426(E.D. Va. 2010). A party
opposing a motion for summary judgment must respond with specific facts, supported by proper
documentary evidence, showing that a genuine dispute of material fact exists and that summary
judgment should not be granted in favor of the moving party. Anderson v. Liberty Lobby, Inc.,
All U.S. 242,250(1986). Conclusory assertions of state of mind or motivation are insufficient.
Goldberg v. B. Green & Co., Inc., 836 F.2d 845,848(4th Cir. 1988). As the Supreme Court has
held,"the mere existence ofsome alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact." Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514,
519 (4th Cir. 2003)(quoting Anderson,447 U.S. at 247—48)(emphasis in original).
'The Equal Employment Opportunity Commission determined that"the Agency did not subject Petitioner to
disparate treatment based on reprisal" because even assuming for the sake ofargument that Plaintiff established a
primafacie case,"the Agency articulated a legitimate nondiscriminatory reason for removing her" and Plaintiff"did
not prove, by a preponderance of the evidence, that the Agency's articulated reasons was a pretext for reprisal."
Compl. at 22(EEOC Decision).
III. DISCUSSION
McDonnell Douglas Corp. v. Green,411 U.S. 792(1973), establishes a burden-shifting
framework for evaluating Title VII retaliatory discrimination claims where, as here, there is no
direct evidence of discrimination. Foster v. Univ. ofMd E. Shore, 787 F.3d 243,249-50(4th
Cir. 2015). To prevail under this framework, the Plaintiff must first establish a primafacie case
of discrimination. Id. at 250. To establish a primafacie case of discrimination. Plaintiff must
show:"(i) that she engaged in a protected activity,(ii) that her employer took adverse action
against her, and (iii) that a causal relationship existed between the protected activity and the
adverse employment action." Id. (quoting Price v. Thompson, 380 F.3d 209,212(4th Cir. 2004))
(internal quotation marks omitted).
If Plaintiff establishes a primafacie case of discrimination, the burden shifts to the
Defendant "to show that its purportedly retaliatory action was in fact the result of a legitimate
non-retaliatory reason." Id.
If the Defendant makes this showing, the burden shifts back to the Plaintiff to
demonstrate that the Defendant's purported nonretaliatory reasons were a pretext for
discrimination. Id. To show pretext. Plaintiff must establish both that the Defendant's purported
reasons for the adverse employment actions were false and that retaliation was the "real reason"
for those actions. Id. at 252. At this stage in the burden-shifting framework. Plaintiff must satisfy
her ultimate burden of proving that the alleged retaliation was a "but for" cause ofthe challenged
adverse employment action. Id.
A. There Is No Genuine Issue of Material Fact
As an initial matter. Plaintiff failed to respond sufficiently to certain facts set forth in
Defendant's Statement of Undisputed Material Facts. The Local Rules instruct that a party
responding to a Motion for Summary Judgment "shall include a specifically captioned section
listing all material facts as to which it is contended that there exists a genuine issue necessary to
be litigated and citing the parts ofthe record relied on to support the facts alleged to he in
dispute." Local Civ. R. 56(B)(emphasis added). In determining a motion for summary judgment,
the Court may assume that facts identified by the moving party in its listing of material facts are
admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition
to the motion. The Fourth Circuit has explained that a party opposing a motion for summary
judgment"may not rest upon the mere allegations or denials of his pleadings," but must "set
forth specific facts showing there is a genuine issue for trial." Bouchat, 346 F.3d at 522(quoting
Fed. R. Civ. P. 56(e)). Additionally,"[mjere speculation by the non-movant cannot create a
genuine issue of material fact." JKC Holding Co. v. Washington Sports Ventures, Inc., 264 F.3d
459,465 (4th Cir. 2001).
Plaintiff does not directly respond to Defendant's Statement of Undisputed Material
Facts. Instead, Plaintiff sets forth fourteen facts she believes are disputed material facts. As such,
all facts not referenced in Plaintiffs list of fourteen are deemed admitted. Ofthe fourteen facts
Plaintiff alleges are disputed. Plaintiff fails to cite to any record evidence to support the alleged
dispute for facts 1,2,3,4, 5, and 6. The corresponding statements or omissions offact by
Defendant are thus deemed admitted.
Plaintiffs disputed facts 7, 8,11,12, and 14 are related to specific instances of poor
performance alleged by the SSA. Plaintiff does not, however, dispute the vast majority of the
alleged instances of unsatisfactory work performance cited by SSA. These allegedly disputed
facts also do not show evidence of either causation or pretext. Accordingly, Plaintiffs disputed
facts 7, 8, 11, 12, and 14 are not material.
Plaintiffs disputed facts 9 and 10 allege that Plaintiff was given a larger workload than
similarly situated employees after being placed on the PA. Plaintiff cites an assignment log as
evidence of disputed fact 10: "Plaintiff had 9 reports where she was primary, while similarlysituated employees had, 3,3,4, and 6 reports each." While Plaintiff does not cite evidence in the
record to support fact 9, the assignment log is some evidence of Plaintiffs claim that she was
assigned more tasks than similarly situated employees. But, the assignment log does not state the
difficulty or time-intensiveness ofeach assignment. Hence, while the assignment log shows that
Plaintiff was given a larger number of assignments than co-workers, it does not support
Plaintiffs claim that her overall workload was disproportionately high. Moreover, the
assignment log does not contain evidence ofeither causation or pretext. For these reasons,
Plaintiffs disputed facts 9 and 10 are not material.
Plaintiffs disputed fact 13 references an email Plaintiff alleges thanks her for successful
completion of an assignment. Plaintiffs disputed fact 13 is not material because "[o]ne positive
email does not demonstrate that [Defendant] was satisfied with Plaintiffs performance as a
whole, and it fails to raise a genuine dispute of fact with respect to the issue of whether Plaintiff
met [Defendant]'s legitimate expectations at the time of her termination." Bart-Williams v.
Exxon Mobile Corp., 2017 WL 4401463, at *15(E.D. Va. Sept. 28, 2017)(Lee, J.).
B. Defendant is Entitled to Summary Judgment as a Matter of Law
Plaintiff concedes that Defendant asserted a legitimate basis for its adverse employment
actions against her. PL's Opp'n at 8. The Court therefore assumes for the sake of argument that
Plaintiff has established a primafacie case of retaliation and proceeds to the third phase ofthe
McDonnell Douglas burden-shifting framework. To survive summary judgment. Plaintiff"must
demonstrate a genuine dispute of material fact for trial on the issue of whether her alleged
protected activity was the 'but for' cause" of the adverse employment actions. Bart-Williams,
2017 WL 4401463, at *18 (citing Univ. ofTex. Sw. Med. Or. v. Nassar, 133 S. Ct. 2517,2534
(2013)).
Both parties agree that there were two relevant instances of protected activity in this case:
filing the 2012 EEO complaint and testifying in the August 26, 2014 deposition regarding that
complaint. Both parties also agree that the PA, OPS/PIP, and ultimate termination were adverse
employment actions. ^ The parties' primary dispute is whether Plaintiff has established "but for"
causation based on temporal proximity alone.
Plaintiff filed her EEO complaint in August 2012 and Snow became aware ofthe
complaint no later than March 2013. Yet, Snow did not raise concerns regarding Plaintiffs work
until October 2013,seven months after the EEO complaint was filed. Plaintiff was also not
placed on the PA until August 2014, almost a year and a half after Snow learned of the EEO
complaint. In the Fourth Circuit, a three month or greater lapse between the protected activities
and the adverse employment actions is deemed "too long to establish a causal connection"
between the two events. Perry v. Kappas,489 Fed. Appx. 637,643(4th Cir. 2012)(quoting
Pascual V. Lowe's Home Ors., Inc., 193 Fed. Appx. 229,233 (4th Cir. 2006)(unpublished)).
Accordingly, Plaintiff has failed to show that Defendant retaliated against her for filing the 2012
EEO Complaint.
Plaintiff has similarly failed to show that her testimony in the August 26,2014 deposition
was the "but for" cause of her placement on the PA,subsequent placement on the OPS/PIP, and
ultimate termination. The record contains evidence that Snow became concemed with Plaintiffs
- PlaintifFalso alleges that Defendant retaliated by assigning her extra work, giving her assignments for which she
lacked training, and treating her differently from her colleagues by not completing her assignments during her
absences. As noted above, these allegations are not supported by evidence in the record and are therefore irrelevant
for the purposes of determining Defendant's Motion for Summary Judgment.
performance in late 2013 and was working on placing Plaintiff on the PA during the first halfof
2014. This evidence demonstrates that SSA had made the decision to place Plaintiff on the PA
prior to her testifying in the August 26, 2014 deposition. As a result, no inference of retaliation
arises from Plaintiffs placement on the PA subsequent to her testimony at the deposition.
Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299,309(4th Cir. 2006)("Where timing is the
only basis for a claim of retaliation, and gradual adverse job actions began well before the
plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.")
(quoting Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87,95(2d Cir. 2001)); Campbell v.
Esper, 2018 WL 1794724, at *3(E.D. Va. April 16,2018)(Hilton, J.)(finding that Plaintiff
failed to establish "but for" causation because the defendant had already preliminarily decided to
take the adverse employment action before the protected activity occurred).
Plaintiffs arguments regarding pretext do not alter this analysis. First, many ofPlaintiffs
arguments lack factual support in the record, including her arguments that:(1)Snow knew ofthe
deposition and the nature of Plaintiffs testimony at the deposition,(2)Plaintiff was given a
disproportionate amount of work,(3)Plaintiff was given assignments for which she lacked
training,(4)Plaintiffs assignments were not completed during her absences as were other
employees' assignments, and(5)on numerous occasions Snow declined to provide Plaintiff with
the documents Snow claimed had errors.
Second, Plaintiff argues that Defendant's assertions lack credibility because Snow made
positive statements about Plaintiffs work performance while Plaintiff was on the OPS/PIP.
Plaintiff only provides evidence ofone such statement. As noted earlier, this single instance ofa
positive email does not rebut Defendant's evidence that Defendant was dissatisfied with
Plaintiffs performance as a whole at the time it undertook the adverse employment actions.
Bart-Williams, 2017 WL 4401463, at *15.
Similarly, Plaintiff cites two discrete instances where Snow's comments regarding her
work were allegedly unfounded. Even assuming Plaintiffs characterizations ofthe two instances
are true, this evidence does not establish pretext because the record shows extensive
documentation of Plaintiffs unsatisfactory performance beyond those two instances.
Finally, Plaintiff argues that Defendant's reasons are pretextual because "[pjrior to
engaging in any protected activity. Plaintiff was performing at a satisfactory level and never
received any negative feedback about her work." This argument fails to prove pretext because
"acceptable job performance in the past does not establish acceptable job performance at the time
of termination." Diamond v. Bea Maurer, Inc., 128 Fed. Appx. 968,973 (4th Cir. 2005).
Essentially, Plaintiff has pointed to little more than her own assertions and the fact that
her supervisors had knowledge of her 2012 EEO complaint at the time ofthe adverse
employment actions to meet her burden of proving "but for" causation and pretext. By contrast.
Defendant's evidence shows that SSA (1)documented the deterioration in Plaintiffs work,
(2)complied with standard procedure in giving Plaintiff multiple opportunities to improve her
performance prior to termination, and(3)decided to initiate adverse employment action several
months after Plaintiff filed her 2012 EEO complaint and several months before Plaintiff testified
in the August 2014 deposition. The evidence in the record therefore does not reasonably support
the inference that retaliation was the "but for" motive ofthe adverse employment actions at
issue. Cf. Williams v. Cerberonics, Inc., 871 F.2d 452,457,459(4th Cir. 1989).
10
IV. CONCLUSION
For the reasons slated above, the reasons stated from the bench, and for good cause
shown. Defendant's Motion for Summary Judgment is GRANTED.
It is SO ORDERED.
September'3^2018
LiamoWady
Alexandria, Virginia
Unite3^«tes District Judge
11
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