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