Williams v. City of Newport News
Filing
31
OPINION AND ORDER granting 11 Motion for Summary Judgment. Defendant's motion for summary judgment is hereby GRANTED, ECF No. 11, and the trial of this civil action shall be removed from the Court's calendar. Copies distributed as directed.Signed by District Judge Mark S. Davis on 10/23/2015. (bgra)
UNITED
STATES
DISTRICT
EASTERN DISTRICT
FILED
COURT
OF VIRGINIA
Newport News Division
EULA M.
OCT 2 3 2015
CLERK, US DISTRICT COURT
WILLIAMS,
••
•
OLK.VA
Plaintiff,
Civil
v.
No.
4:15cv7
CITY OF NEWPORT NEWS,
Defendant
OPINION
This
judgment
No.
matter
is
filed by
11.
After
before
the
AND
the
City of
examination
ORDER
Court
Newport
of
the
on
a
motion
News
briefs
arguments
are
adequately
summary
("Defendant").
and
the
Court determines that a hearing is unnecessary,
legal
for
presented,
record,
Civ.
P.
78(b);
E.D.
Va.
Loc.
Civ.
"Summary judgment procedure
disfavored procedural shortcut,
R.
and
the
decisional
just,
action.'"
speedy
and
Celotex Corp.
is properly regarded not
(quoting Fed.
construed with
R.
Civ.
due
P.
regard
Catrett,
1)).
as a
but rather as an integral part
inexpensive
v.
Fed.
7(J).
of the Federal Rules as a whole, which are designed
the
the
as the facts and
process would not be aided significantly by oral argument.
R.
ECF
determination
477
U.S.
Accordingly,
not only
for
the
317,
"Rule
rights
'to secure
of
every
327
(1986)
56 must
be
of persons
asserting claims and defenses that are adequately based in fact
to have those claims and defenses tried to a jury,
the
rights
of
persons
opposing
such
claims
and
demonstrate in the manner provided by the Rule,
that
the
claims
and
(emphasis added).
defenses
Here,
summary judgment brief
have
no
Defendant has
but also for
defenses
prior to trial,
factual
basis."
Id.
presented a well-argued
supported by countless
citations
evidentiary record in an effort to demonstrate that
claims have no factual basis.
to
to the
Plaintiff's
Plaintiff's abbreviated response,
containing minimal substance and no citation to the evidentiary
record,
Court
is
inherently inadequate,
therefore
clearly
and
demonstrate
the materials
that
summary
before
the
judgment
is
warranted in this case.
I.
The
M.
FACTUAL AND PROCEDURAL
undisputed facts
Williams
("Plaintiff")
for over twenty years
Services
("DHS").
in
ECF
before
the
BACKGROUND
Court
establish that
Eula
was previously employed by Defendant
the
No.
Newport News Department
12
H
4.
Plaintiff,
an
of
Human
African
American female, retired from her position at DHS in 2010 at the
age
of
62.
Id.
From
2009
until
her
retirement
in
2010,
Plaintiff was supervised by Karen Traylor ("Traylor), a younger
African American female who had less experience in the relevant
field than Plaintiff.
a
written
positive
evaluation
and
Id. H 7.
of
negative
In late 2010, Traylor provided
Plaintiff's
remarks,
performance
including
that
included
assertions
that
Plaintiff
"often
challenge[s]
those
in
position[s]
of
authority," and "needs to work on establishing a better working
relationship with staff members."
Plaintiff
wrote
evaluation
in
a
rebuttal
December
to
of
Id. 1 9; ECF No. 12-6.
the
2010,
negative
she
did
procedure in place to appeal such evaluation.
13;
ECF No.
portions
not
While
of
her
utilize
the
ECF No. 12 11 12-
12-6.
In 2012, Plaintiff re-applied for employment at DHS for a
part-time position without
16.
retirement benefits.
ECF No.
12
1
Such position required "positive interpersonal relationship
skills"
because
it
included
responsibilities
associated
with
training, coordinating third-party audits, working with multiple
internal units, working as an in-house consultant to workers and
supervisors,
consultants.
and
acting
as
a
liaison
to
regional
Id^ 1 18; ECF No. 12-5 11 4-5.
and
state
In early 2013,
Diana Clark ("Clark"), a Caucasian female who was 40 years old
at the time, was chosen to be the "hiring manager" for the part-
time position.1
ECF No.
12 11 19-20;
ECF No.
12-4 11 1,
3.
Clark chose seven applicants to be interviewed without regard to
age, race, gender or disability,
Kinser
("Kinser").
to include Plaintiff and Faith
ECF No. 12 11 21-22; ECF No. 12-4 11 4-5.
An interview panel of three individuals, including Clark and two
1 Clark's
responsibilities
included
selecting
and
interviewing
candidates and assembling "hiring packages" for further evaluation by
management.
ECF No. 12 51 20; ECF No. 12-4 51 3.
African American females in their early 4 0s,
as
23,
selected Plaintiff
its first choice and Kinser as an alternate.
26; ECF No. 12-3
1 10; ECF No.
12-4
ECF No.
11 6-8.
12 11
Kinser is a
Caucasian female who was 4 9 in early 2013 and who had 25 years
of prior service at DHS.
ECF No. 12 1 27; ECF No. 12-3 1 12.
Although Plaintiff was
the
interview panel's
first choice,
Defendant's written hiring policy required that reference checks
be completed before an employment offer is made,
further stating
that "[e]mployment reference checks are an integral part of the
selection process."
Plaintiff's
early
former
2013
provided
negative
individuals
in
with
to work with;
re-hire
supervisor,
regarding
a
interacted
ECF No. 12 1 29; ECF No. 12-5, at 12.
two
based
Plaintiff's
written
on
had
past
DHS
reference
different
Plaintiff
(2)
Karen Traynor,
contacted
employment,
indicating:
departments
indicated
was
that
When
who
she
was
in
she
(1) that
previously
difficult
that Traynor would not recommend Plaintiff for
her
past
employment
conduct;
and
(3)
that
Plaintiff's past employment conduct can be described as follows:
Ms.
Williams'
conduct did not always reflect the
Agency's
values
of
commitment,
caring
and
collaboration.
She
was
sometimes
uncooperative
requiring me to make multiple requests before she
would take the requested action.
Ms. Williams did
little to contribute to a positive working environment
within the unit.
ECF
No.
12
("Calloway"),
1
32;
ECF
No.
12-5,
at
8.
Lisa
Calloway
a 51 year old Caucasian female and "Chief"
of
the
DHS
department
informed of
obtain
to
hire
the
part-time
details.
ECF
No.
12-5
11
1,
9-11.
but
did
not
share
the
details
reference with all of the panel members due
concerns.2
Id.
11 16,
check
reference
results
released
parties.
After
such
to
20-21.
were
the
negative
to confidentiality
Pursuant to City policy,
"confidentially
Plaintiff,
of
and
were
not
the
maintained,"
available
were
to
third
the
other
ECF No. 12 11 44, 61; ECF No. 12-5, at 12.
Clark
members
was
Calloway asked the hiring panel to move on to the next
candidate,
not
employee,
the negative reference and she contacted Traynor to
more
inquiry,
seeking
reconvened
the
that Plaintiff
stated that
the panel
hiring
had received
informed
a negative reference,
should move on to
No. 12 1 49; ECF No. 12-4 1 11.
"Candidate Evaluation"
panel,
form
its
next
choice.
and
ECF
The panel members then signed a
indicating
that
Plaintiff
was
not
being recommended due to employment references, with one panel
member
writing
next
to
her
signature
"did
not
evaluate
Applicants references - Applicant was a good fit for position
2 Plaintiff disputes the fact that Calloway contacted Traynor to ask
for more details and disputes that Plaintiff's negative reference was
not shared with the interview panel due to confidentiality concerns.
However, as discussed below, Plaintiff cites to no contrary record
evidence, including circumstantial evidence or evidence that would
create an inference favorable to Plaintiff. Rather, she merely states
that such facts are "Disputed" with no further explanation.
ECF No.
17,
at
4.
Such
unsupported
Plaintiff's opposition
blanket
denial
to summary judgment
fails
to
advance
in any meaningful
Wilkins v. Montgomery, 751 F.3d 214, 220 (4th Cir. 2014).
way.
otherwise."
ECF No.
12 511 49-50;
ECF No.
12-4, at 6.
Faith
Kinser's application package was then forwarded up through the
chain
of
command
Department head,
and
a
Kinser
was
ultimately
approved
60-year-old African American male.
by
the
ECF No.
12 11 55-56; ECF No. 12-5, at 5; ECF No. 12-8.
Plaintiff filed the instant civil action in January, 2015,
asserting discrimination claims
age,
and
as well as what appears to be a due process claim based on
Defendant's
failure
allow Plaintiff
1.
based on her race, gender,
to
to
conduct
challenge
based on
a
"name
clearing
hearing"
the negative evaluation.
The complaint also claims
against
a
that
Plaintiff was
"perceived disability"
to
ECF No.
discriminated
associated with her
being overweight, but it does not provide a legal basis for such
allegation nor advance a "cause of action" based on a disability
theory.
After discovery was
summary
judgment
completed,
motion
asserting
demonstrate that Plaintiff
of
discrimination,
and
Defendant filed the instant
that
the
undisputed
facts
cannot establish a prima facie case
that
even
effectively rebutted such showing.
if
she
could,
Defendant
has
Defendant also argues that
Plaintiff's due process claim fails as a matter of law based on
the undisputed facts.
Plaintiff, who is represented by counsel,
filed a brief in opposition to summary judgment;
brief
provides
no
citation
to
the record
or
however,
to any
such
relevant
legal authority that
would support denying Defendant's
Defendant recently filed its reply brief,
motion.
and with an impending
trial date, this matter is ripe for review.3
II.
The
Federal
STANDARD
Rules
of
OF
Civil
REVIEW
Procedure
district court "shall grant summary judgment if
provide
[a]
that
a
movant shows
that there is no genuine dispute as to any material fact and the
movant
Civ.
P.
dispute
is
entitled to
56(a).
judgment as
"[T]he mere
between
the
a matter of
existence
parties
will
of
not
some
that
there be no genuine
v.
Liberty Lobby Inc.,
"material"
if
it
dispute is
"genuine"
issue of
477 U.S.
"might affect
if
material
242,
247-48
an
R.
factual
otherwise
the requirement
fact."
(1986).
the outcome of
Fed.
alleged
defeat
properly supported motion for summary judgment;
is
law."
Anderson
A
fact
the suit,"
is
and a
"the evidence is such that a reasonable
jury could return a verdict
for the
nonmoving party."
Id.
at
248.
Rule 56(c) addresses the applicable procedure for pursuing,
and defending against,
summary judgment, explaining as follows:
3 The Court notes that the instant motion was not ripe until October
13, 2015, only fourteen days prior to the scheduled trial date, which
resulted in the issuance of this Opinion and Order just days prior to
trial.
As expressly stated in the Scheduling Order in this case, such
late-filing is discouraged.
See ECF No.
8 51
9(a)
(indicating that
"the Court encourages the parties to submit [summary judgment]
so that they will be ripe at least 45 days before trial").
motions
(c)
Procedures.
(1) Supporting Factual Positions. A party asserting
that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in
the
record,
including
depositions,
documents,
electronically stored information, affidavits or
declarations, stipulations (including those made
for purposes of the motion only),
admissions,
interrogatory answers, or other materials; or
(B)
showing that
the materials cited do not
establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
Fed.
R.
Civ.
that
" [i]f
fact
or fails
fact
as
a
P.
56(c) (emphasis added).
party
fails
to
properly
to properly address
required by
Rule
56(c),"
Rule
56
support
further states
an
assertion
another party's
the
Court
has
of
assertion of
discretion
to
"consider the fact undisputed for purposes of the motion" and to
"grant summary judgment if the motion and supporting materials-including the facts considered undisputed--show that
is entitled to it."
Although
the
Fed.
R.
initial
falls on the moving party,
Civ.
P.
the movant
56(e).
burden on summary
judgment obviously
once a movant properly files evidence
supporting summary judgment,
the non-moving party may not
rest
upon the mere allegations of the pleadings,
but instead must set
forth
exhibits
specific
affidavits
facts
in
illustrating
Corp.
v.
Catrett,
Auto.
Indus,
of
a
477 U.S.
Am.,
Inc.,
the
form
genuine
317,
issue
323-24
793
of
(1986);
F.3d 404,
8
for
408
and
trial.
sworn
Celotex
Butler v.
(4th
Cir.
Drive
2015).
In other words,
while the movant must carry the burden to show
the
a
absence
burden
is
of
met,
genuine
it
is
up
issue
to
existence of such an issue.
referenced above
summary
judgment
the
material
fact,
non-movant
Celotex,
III.
As
of
to
when
establish
the
477 U.S. at 322-23.
DISCUSSION
in the Factual Background,
motion
such
is
well-supported
by
Defendant's
citations
to
multiple affidavits,
documents associated with Plaintiff's prior
DHS
documents
employment,
process,
judgment
and
motion
sets
specific
sworn
circumstantial
forth
a
to why Plaintiff was
part-time DHS position,
including
with
as well as other record evidence.
explanation as
through
associated
affidavits.
evidence
citations
hired
to
Moreover,
demonstrating
hiring
non-discriminatory
and Defendant supports
pinpoint
2013
Defendant's summary
clear
not
the
in
2013
such explanation
direct
Defendant
the
for the
evidence,
cites
absence
of
to
a
discriminatory animus at DHS as to age, race, and gender.4
4 Defendant's circumstantial evidence includes the fact that the person
hired for the part-time position was nearly 50 years old and was a
woman.
Additionally, Defendant advances evidence that in April of
2013, the month in which Kinser was hired, six out of ten DHS hires
were over 40 (two were over 50) , seven out of ten hires were African
American, and nine out of ten were woman.
ECF No. 12-3 51 24.
As to
the "unit" hiring the part-time employee in early 2013, two out of the
three employees in such unit were African American women, one aged 60
and the other 58.
ECF No. 12 51 72; ECF No. 12-5 51 27.
Moreover,
Defendant presents evidence that, in April of 2015, the demographics
of DHS were as follows: at least 40% of employees were over 40, 73%
were African American,
and 93% were women.
ECF No.
12-9.
Having
carefully
reviewed
the
record,
it
is
readily
apparent that Defendant's well-supported summary judgment motion
satisfies
Defendant's
preliminary
burden
to
demonstrate:
that there are no genuine issues of material fact;
(2)
(1)
that the
undisputed facts demonstrate that Plaintiff fails to make even a
prima
facie
showing
of
discrimination on
any
of
the asserted
grounds,-5 (3) that even assuming that a prima facie case had been
made,
Defendant
evidence
has
rebutting
nondiscriminatory
pointed
advanced
to
no
explanation was
such
reason
record
direct
showing
for
its
evidence
pretextual,
5 As argued by Defendant,
both
and
by
articulating
action"
and
suggesting
Laing v.
Fed.
circumstantial
Exp.
Plaintiff
that
"a
has
Defendant's
Corp.,
with respect to age and gender,
703
F.3d
Plaintiff
fails to demonstrate that the position was filled by someone outside
the protected class, as is ordinarily required in this Circuit, Miles
v. Dell, Inc., 429 F.3d 480, 485-86 (4th Cir. 2005), nor does she make
the
"critical"
showing that her non-hiring was
"'under
circumstances
giving rise to an inference of unlawful discrimination'"
as to any
claimed basis, E.E.O.C. v. Sears Roebuck & Co., 243 F.3d 846, 851 n.2
(4th Cir. 2001) (quoting Texas Dept. of Comty. Affairs v. Burdine, 450
U.S. 248, 253 (1981)), with the evidentiary record demonstrating an
absence of any discriminatory animus based on job applicants being
female, over 40, or African American.
Additionally, Plaintiff does
not contest Defendant's
summary judgment arguments asserting that:
(1) Plaintiff fails to identify a valid legal basis for asserting a
"perceived disability" claim based on her weight (unlike the race,
gender, and age discrimination claims, the complaint does not even set
forth a "cause of action" based on perceived disability nor does it
cite to the ADA or any other legal authority that would support such a
theory of recovery); and (2) Plaintiff fails to identify any evidence
that could support a jury verdict as to her gender discrimination or
"perceived disability" claims.
Such uncontested matters are likewise
resolved in Defendant's
favor.
10
713,
719
(4th
Cir.
2013);
and
(4)
that
Plaintiff
fails
to
demonstrate a due process right to a "name clearing hearing"
to
refute
no
the
negative
employment
evidence indicating that:
personnel
file
that
(a)
was
reference
available
otherwise disseminated to the public;
"stigma"
(c)
such reference was false.
Va. ,
480
necessary to
F.3d
642,
Governors Marshall Univ.,
As
Defendant
summary
judgment,
Plaintiff has set
or
sworn
Celotex,
Plaintiff
negative,
trial
has
has
(b)
to
third-parties
(4th
liberty interest claim;
Cir.
2007);
447 F.3d 292,
Ridpath
308
(4th Cir.
advanced
question
evidence
for
illustrating
322-24;
carried
such
or
the
Court
a
Butler,
burden
genuine
793
is
is
v.
supporting
whether
issue
easily
of
2006).
form of
F.3d at
Bd.
exhibits
for
408.
answered
the
trial.
Whether
in
the
as even with discovery complete and a fast approaching
date,
transcript,
existence
Plaintiff
or
of
other
a
cites
form
genuine
Montgomery,
751
party
demonstrate
must
F.3d
no
of
document,
evidence
issue
214,
220
that
for
affidavit,
that
trial.
(4th Cir.
a
would
triable
2014)
issue
See
deposition
suggest
Wilkins
Stroud,
13
F.3d 791,
798
11
(4th Cir.
the
v.
("'The opposing
of
fact
[s]he may not rest upon mere allegations or denials.'"
Shaw v.
or
such reference created
forth specific facts in the
at
is
Sciolino v. City of Newport News,
properly
the
affidavits
477 U.S.
support a
646-50
there
such reference was maintained in a
made
the
because
1994));
E.D.
exists;
(quoting
Va.
Loc.
Civ. R.
56(B)
(requiring that a brief in opposition to 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
of
the
record relied on
dispute.")
law
(emphasis added).
demonstrating
inadequate,
and
that
in
primarily consists
as
a
"Disputed"
supporting
conclusory
such
discrimination
cites
chart
in
claims
no
case
to be
in
somehow
legal
law or
is
standard
Plaintiff's brief in opposition
citation
dispute,
support
and
Plaintiff's complaint is
alleged
evidence
identifying
without
claimed
argument
facts
Plaintiff also does not cite case
Rather,
of
the
Defendant's
fact,
anywhere in her brief.
labels
to support
any
followed
of
her
to
facts
"verified,"
process
Plaintiff
record
by
Plaintiff's
due
that
evidence
limited
race
and
and
claim.
age
While
Plaintiff does not cite to
any portion of the verified complaint in opposition to summary
judgment.
The
court
consider
complaint
factual
occurred.
Cf_^ Fed. R.
need
other
consider
Civ. P.
only
materials
consists
statements
56(c)(3)
the
in
largely
broadly
cited
the
of
("Materials Not Cited.
materials,
record.").
legal
asserting
it
Moreover,
conclusions
that
but
and
may
the
vague
discrimination
Plaintiff's brief in opposition to summary judgment,
filed after the close of discovery,
12
plainly fails to identify a
genuine issue of material fact that could support a jury verdict
in Plaintiff's favor as to any of the claims in her complaint.6
IV.
For the foregoing
judgment
civil
hereby
Clerk
to all
IT
IS
SO
reasons,
GRANTED,
action shall be
The
Order
is
Defendant's
ECF No.
11,
removed from the
is DIRECTED
counsel
CONCLUSION
of
to
send a
motion
and
the
for summary
trial
of
this
Court's calendar.
copy of
this
Opinion and
record.
ORDERED.
/S
Mark
M£r
S.
Davis
United States District Judge
October 9>2> , 2015
Norfolk,
Virginia
After advancing a
merits-based attack
to Defendant's
gender
discrimination claim, Defendant advances an abbreviated, but wellformulated, argument asserting that this Court should not even reach
the
merits of
the
gender claim because it was not
included in
Plaintiff's EEOC "Charge of Discrimination."
ECF No. 12-15; see
Bryant v. Bell Atl. Maryland, Inc., 288 F.3d 124, 133 (4th Cir. 2002)
(concluding that several claims, including a gender discrimination
claim, that were not included in the EEOC charge were "barred" from
the civil action because "(t]he EEOC charge defines the scope" of the
civil suit).
Although this Court has limited facts and argument
before it regarding the EEOC process,
Plaintiff does not refute
Defendant's
argument
on
this
point,
and
the
Court
therefore
alternatively
dismisses
the
gender
discrimination
claim
as
procedurally barred.
13
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