Petrovsky v. United States Attorney General

Filing 195

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT DKT. NO. 110 , DENYING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT DKT. NO. 113 ,AND DISMISSING THE CASE WITH PREJUDICE. Court GRANTS the plaintiffs motion for leave to file un der seal Dkt. No. 134 ; GRANTS the plaintiffs motion to amend/correct response Dkt. No. 135 ; and DISMISSES this case with PREJUDICE, and ORDERS that it be stricken from the Courts active docket. Signed by Senior Judge Irene M. Keeley on 4/24/2018. (copy counsel of record)(jmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ROBERT PETROVSKY,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:16CV44
(Judge Keeley)

UNITED STATES ATTORNEY GENERAL,
Dept. of Justice - Bureau of Prisons,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
This case arises under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., and the Back Pay Act, 5 U.S.C.
§ 5596. Pending before the Court are cross motions for summary
judgment filed by the plaintiff, Robert Petrovsky (“Petrovsky”),
and the defendant, United States Attorney General, Department of
Justice, Bureau of Prisons (“BOP”). For the reasons that follow,
the Court DENIES Petrovsky’s motion (Dkt. No. 113) and GRANTS the
BOP’s motion (Dkt. No. 110).
I. BACKGROUND
A.

Factual Background
Petrovsky is an employee of the Federal Bureau of Prisons at

a Federal Correctional Institute in Gilmer, West Virginia (“FCIGilmer”). While a Lieutenant at FCI-Gilmer, Petrovsky served as the
designated representative for co-worker Deborah Rankin (“Rankin”)
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PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
during

her

Equal

Employment

Opportunity

Commission

(“EEOC”)

grievance. Petrovsky alleges that, following his representation of
Rankin, he was subjected to “several adverse employment actions
which constituted retaliation” (Dkt. No. 1 at 13). Specifically,
Petrovsky alleges that, beginning in October 2010, FCI-Gilmer
Warden Kuma Deboo (“Warden Deboo”) and Assistant Warden William
Odom (“AW Odom”) retaliated against him for his involvement in
Rankin’s grievance process. In his complaint, Petrovsky describes
numerous incidents of alleged retaliation.
1.

Verbal Confrontation

Petrovsky first alleges that AW Odom retaliated against him by
“permitting” another FCI-Gilmer employee to “verbally attack” him
(Dkt. No. 1 at 4). On October 21, 2010, Petrovsky, then a GS-11
Lieutenant, entered the Warden’s conference room for a scheduled
meeting with FCI-Gilmer staff and visitors, including AW Odom (Dkt.
Nos.

111-1

at

11;

111-2

at

1).

Before

the

meeting

began,

Petrovsky’s co-worker, Lieutenant Matthew Whinnery (“Whinnery”),
entered the room and began questioning Petrovsky about an out-ofwork event and certain emails exchanged among FCI-Gilmer employees.
Id.
The argument apparently culminated with Whinnery referencing
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PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
Petrovsky’s assistance to other employees regarding their EEO
complaints

and

grievances

(Dkt.

No.

111-2).

After

Whinnery

commented on Petrovsky’s involvement in the grievance process, but
before Petrovsky could respond to that comment, AW Odom intervened,
stating “not here, that is not the time nor place” for such a
discussion (Dkt. Nos. 111-1 at 11; 111-2 at 1). After the meeting,
AW Odom verbally reprimanded Whinnery for his behavior (Dkt. No.
111-1 at 36-36, 127).
2.

Annual Performance Evaluation

Petrovsky next alleges that AW Odom retaliated against him by
“lowering” his annual evaluation rating, which Petrovsky claims had
been issued to him by his immediate supervisor, Captain Vicky
Dupuis (“Captain Dupuis”) (Dkt. No. 1 at 5). Notably, employee
performance ratings are subject to BOP Program Statement 3000.03
(the

“Program

Statement”),

which

sets

forth

a

division

of

responsibilities regarding employee evaluation (Dkt. No. 111-5).
The Program Statement provides that the “Rating Official”
(here, Captain Dupuis) is an employee’s immediate supervisor and is
responsible

for

“maintaining

the

employee’s

performance

log,

conducting progress reviews and completing the annual performance
rating in accordance with the procedures” in the Program Statement.
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PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
Id.

The

“Reviewing

Official”

(here,

AW

Odom)

is

the

Rating

Official’s supervisor and is responsible for “assigning an overall
rating and approving or adjusting individual element ratings.” Id.
The

Reviewing

recommendations

Official
for

further

outstanding

“determine[s]

performance

ratings

whether
will

be

forwarded to the approving official.” Id. The “Approving Official”
(here, Warden Deboo) is responsible for approving “outstanding”
overall performance ratings. If the Approving Official approves the
outstanding rating, the Rating Official must “also recommend the
granting of additional recognition in the form of a cash or noncash award or a quality step increase.” Id.
Pursuant to the Program Statement, Captain Dupuis completed
Petrovsky’s
October

2009

performance
through

evaluation

September

for

2010.

the

employment

Captain

Dupuis

period

assigned

ratings on three elements of Petrovsky’s performance, marking one
element as “Excellent” and two as “Outstanding.” AW Odom reviewed
the evaluation and ultimately assigned Petrovsky an “Excellent”
overall performance rating. Thereafter, Captain Dupuis amended one
of

her

ratings,

changing

the

mark

for

“People/Workforce

&

Communication/Teamwork” from “Outstanding” to “Excellent,” and
initialed the change. Petrovsky received the maximum number of
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PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
points possible for an overall rating of “Excellent” (Dkt. No. 1114).
3.

Shift Change

Petrovsky also alleges that AW Odom retaliated against him by
directing Captain Dupuis to assign Petrovsky to the “evening watch”
(Dkt. No. 1 at 5). On November 5, 2010, Petrovsky and the two other
Lieutenants then-assigned to the day shift were reassigned to the
evening shift at AW Odom’s direction (Dkt. No. 111-15 at 213-14).
Petrovsky ultimately did not work the evening watch, however,
because he traded shifts with another Lieutenant to remain on day
watch (Dkt. Nos. 111-3 at 113, 111-6 at 168).
4.

Demotion to Counselor

Petrovsky next asserts that his decision to apply for, and
accept,

a

GS-9

Counselor

position

constitutes

a

constructive

demotion from his position as a GS-11 Lieutenant. In early 2011,
Petrovsky applied for a vacant position as a Counselor at FCIGilmer (Dkt. No. 111-13 at 36-37). Upon review of the applicants,
Warden Deboo and AW Odom selected Petrovsky for the vacancy and
offered it to him in March of 2011. Petrovsky accepted the position
on

March

9,

2011,

and

began

working

5

as

a

Counselor

shortly

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
thereafter.
5.

Non-Selections for Vacancies

Finally, Petrovsky alleges retaliatory non-selection for three
BOP vacancies at the GS-11 (Lieutenant) or GS-12 (Unit Manager)
levels. Petrovsky points to the following three instances where he
applied but was not selected for the position:
1.

On September 16, 2011, he was not selected for a GS-11
Lieutenant vacancy at the Federal Correctional Institute in
Elkton, Ohio (“FCI-Elton”);

2.

On August 6, 2012, he was not selected for a GS-12 Unit
Manager vacancy at FCI-Gilmer; and

3.

On October 12, 2012, he was not selected for a GS-12 Unit
Manager vacancy at the Federal Medical Center in Lexington,
Kentucky (“FMC-Lexington”).

B.

Procedural Background
Based on the alleged retaliation by AW Odom and Warden Deboo,

Petrovsky filed his own EEOC complaint, claiming: (1) He had been
subject to a verbal attack, which was allowed by AW Odom; (2)
Warden Deboo had allowed AW Odom to retaliate against him; (3) AW
Odom had lowered his outstanding annual evaluation; (4) He had been

6

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
removed from day watch and placed on evening watch; and (5) He had
been demoted from the position of Lieutenant and immediately moved.
Petrovsky

appeared

pro

se

throughout

his

administrative

hearings and appeal. During the pendency of his case before the
Administrative Judge (“AJ”), Petrovsky twice moved to amend his
complaint to add claims of non-selection. First, he added a claim
that he had been passed over for the Unit Manager positions at FCIGilmer and FMC-Lexington. He next added a claim that he had been
passed over for the Lieutenant’s position at FCI-Elkton. The AJ,
however, did not add these claims to his complaint, and they were
never addressed during Petrovsky’s EEOC case.
According

to

the

complaint,

the

agency

representative

misrepresented Petrovsky’s position as to his constructive demotion
claim, resulting in his erroneous stipulation that he had accepted
the

lower

position

voluntarily,

rather

than

as

a

result

of

retaliation. Consequently, the AJ never addressed his constructive
demotion claim. Ultimately, the AJ ruled against Petrovsky, and he
timely appealed to the EEOC’s Office of Federal Operations (“OFO”).
On appeal, the OFO reversed the AJ’s ruling, finding that the
BOP

had

retaliated

against

Petrovsky.

determined that:
7

Specifically,

the

OFO

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
1.

The verbal attacks were likely to deter an employee from
engaging in EEO activity, and therefore, constituted per se
retaliation;

2.

The lower annual evaluation was retaliatory;

3.

The shift change was retaliatory, but Petrovsky was able to
switch with another employee and thus did not work the night
shift; and

4.

Because Petrovsky had stipulated that he voluntarily had
accepted the lower grade position, it was not “really an
issue” in the case.

The OFO did not address Petrovsky’s non-selection claims. The BOP
moved for reconsideration, which the OFO denied in its final
decision dated December 23, 2015.
Petrovsky claims that the BOP has not complied with the OFO
rulings,

and

furthermore,

that

he

is

entitled

to

have

his

constructive demotion claim heard by this Court because the AJ
never

addressed

complaint

with

it.
this

On

March

Court,

21,

2016,

asserting

Petrovsky

causes

of

filed

his

action

for

retaliation under Title VII of the Civil Rights Act of 1964, and
for back pay under the Back Pay Act (Dkt. No. 1).
Pursuant to Federal Rule of Civil Procedure 12(b)(1), the BOP
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PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
moved to dismiss the constructive demotion and non-selection claims
contained

in

Petrovsky’s

complaint

(Dkt.

No.

55).

Following

briefing on several issues, including the constructive demotion
claim, the Court concluded that the AJ had erred in not hearing
Petrovsky’s constructive demotion claim and denied the BOP’s motion
to dismiss that claim (Dkt. No. 103). It further concluded that
Petrovsky’s non-selection claims, while unexhausted, reasonably
related to his underlying allegation of retaliation by the BOP and,
therefore, could be heard by this Court (Dkt. No. 109).
Petrovsky has now moved for summary judgment on his annual
evaluation, constructive demotion, and non-selection claims (Dkt.
No. 113). The government has moved for summary judgment on all
claims (Dkt. No. 111). The motions are fully briefed and ripe for
disposition.
II. STANDARDS OF REVIEW
A.

De Novo Review
District courts review de novo Title VII suits brought after

a final administrative disposition. Chandler v. Roudebush, 425 U.S.
840 (1976). Therefore, a district court “is not bound by the
results of the administrative process . . . .” Morris v. Rumsfeld,

9

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
420 F.3d 287, 294 (3rd Cir. 2005).
B.

Summary Judgment
Summary

judgment

is

appropriate

only

"if

the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law." Fed.R.Civ.P. 56(c). When ruling on
a motion for summary judgment, the Court reviews all the evidence
"in the light most favorable" to the nonmoving party. Providence
Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir.
2000). The Court must avoid weighing the evidence or determining
its truth and limit its inquiry solely to a determination of
whether genuine issues of triable fact exist. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of informing the
Court

of

the

basis

for

the

motion

and

of

establishing

the

nonexistence of genuine issues of fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party has made the
necessary showing, the non-moving party "must set forth specific
facts showing that there is a genuine issue for trial." Anderson,
477 U.S. at 256 (internal quotation marks and citation omitted).
10

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
The "mere existence of a scintilla of evidence" favoring the
non-moving party will not prevent the entry of summary judgment;
the evidence must be such that a rational trier of fact could
reasonably find for the nonmoving party. Id. at 248–52.
A court “must take special care” when considering a summary
judgment motion in an employment discrimination case because the
employer's “motive is often the critical issue.” Beall v. Abbott
Labs.,

130

F.3d

614,

619

(4th

Cir.

1997);

Evans

v.

Techs.

Applications & Serv. Co., 80 F.3d 954, 958 (4th Cir. 1996).
Nevertheless, summary judgment remains an appropriate disposition
when the plaintiff is unable to prevail on his claims as a matter
of law. Beall, 130 F.3d at 619; Evans, 80 F.3d at 958–59.
III. DISCUSSION
Title VII of the Civil Rights Act prohibits discrimination
against

“any

individual

with

respect

to

compensation,

terms,

conditions or privileges of employment because of such individual’s
race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e2. Federal agencies are prohibited from retaliating against an
employee who opposes “any practice made unlawful by Title VII of
the Civil Rights Act (Title VII) . . . or for participating in any
stage

of

administrative

or

judicial
11

proceedings

under

those

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
statutes. 29 C.F.R. § 1614.101(b); see also 42 U.S.C. § 2000e-3(a).
A.

Discrete Acts of Retaliation
1.

Prima Facie Formulation and Burden-Shifting Framework

Discrimination claims brought under Title VII are governed by
the burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973). In order to set forth
a prima facie case of impermissible retaliatory discrimination
under Title VII, a plaintiff must establish the following: (1) that
he engaged in protected activity; (2) that his employer took an
adverse action against him; and (3) that a causal relationship
existed between the protected activity and the adverse action.
Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 250 (4th Cir.
2015).
Under McDonnell-Douglas and its progeny, once the plaintiff
establishes a prima facie case, the burden shifts to the employer
to advance a non-discriminatory reason for the adverse action. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993). After the
employer

explains

its

decision,

the

employee

may

rebut

the

employer’s legitimate, non-discriminatory reason. The burden then
shifts back to the plaintiff to prove that the facially legitimate

12

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
reason given by the employer for the employment decision was merely
a pretext for a retaliatory motive. See id. at 507-08; see also
Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000).
2.

Analysis

Under the McDonnell-Douglas framework, the first step in the
Court’s analysis is to determine whether Petrovsky has sufficient
prima facie evidence of retaliation to survive summary judgment.
Here, he has clearly established the first element of his claims;
he served as his co-worker’s designated EEOC representative, and
accordingly, engaged in protected activity. At issue is the second
prong of Petrovsky’s prima facie case, whether the BOP took an
adverse action against him.
An adverse action is a discriminatory act which "adversely
affect[s] ‘the terms, conditions, or benefits' of the plaintiff's
employment." Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir.
2001) (quoting Munday v. Waste Mgmt. of North America, Inc., 126
F.3d 239, 243 (4th Cir. 1997)). Notably, the action must be
“materially

adverse”

because

“it

is

important

to

separate

significant from trivial harms.” Burlington Northern & Sante Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006).
Indeed, the Fourth Circuit has observed that establishing an
13

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
adverse

employment

action

“is

still

a

heavy

burden

for

the

plaintiff: the alleged adverse action must be material.” Csicsmann
v. Sallada, 211 F. App’x 163, 168 (4th Cir. 2006) (emphasis in
original) (citing Burlington, 548 U.S. at 68). A “materially
adverse” action for purposes of a retaliation claim is one that
“could well dissuade a reasonable worker from making or supporting
a charge of discrimination.” Burlington, 548 U.S. at 57.
Here, the BOP contends that Petrovsky has failed to establish
that it took any adverse action against him. Petrovsky, however,
asserts that the following three instances constitute materially
adverse actions under Title VII: (1) AW Odom’s “permitting” of
Whinnery’s verbal attack; (2) AW Odom’s “lowering” of Petrovsky’s
annual performance evaluation; and (3) AW Odom’s directive that
Petrovsky’s supervisor, Captain Dupuis, place him on evening watch.
a.

Verbal Confrontation

Petrovsky asserts that, in October 2010, AW Odom “permitted”
Lieutenant Whinnery to verbally attack him in the presence of FCIGilmer staff and visitors. Because AW Odom stopped the argument
and, allegedly, did not allow Petrovsky to “defend [him]self,”
Petrovsky contends that AW Odom’s interference was a materially

14

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
adverse action sufficient to make out a prima facie case of
retaliation (Dkt. No. 111-3 at 98-99).
In

assessing

such

a

claim,

Burlington

emphasizes

that

“[c]ontext matters,” and that “the significance of any given act of
retaliation will often depend upon the particular circumstances.”
Burlington, 548 U.S. at 69. Accordingly, “[a]n employer's words and
other actions must be considered in context to determine whether
they would ‘dissuade a reasonable worker’ from filing a claim and
thus result in actionable retaliation.” Gaujacq v. EDF, Inc., 601
F.3d 565, 578 (D.C. Cir. 2010) (citing Burlington, 548 U.S. at 57).
In

the

context

of

this

case,

a

reasonable

worker

in

Petrovsky’s position would not have taken AW Odom’s brief and
minimal involvement in Petrovsky’s altercation with Whinnery as an
act or threat of retaliation. According even to Petrovsky, AW
Odom’s

participation

in

the

discussion

was

limited

to

two

statements: (1) “not here, this is not the place,” in response to
Petrovsky’s alleged attempt to “defend” himself from Whinnery’s
comments; and (2) “not here,” in response to Whinnery’s ongoing
attempt to engage Petrovsky (Dkt. Nos. 111-2 at 2; 111-3). In the
“particular circumstances” of this case, which include the fact
that Petrovsky, Whinnery and AW Odom were in the presence of
15

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
several other FCI-Gilmer employees and visitors immediately prior
to the start of a meeting in the Warden’s office, no reasonable
employee could have construed AW Odom’s conduct as an unlawful
retaliatory act or threat. Burlington, 548 U.S. at 69.
Moreover, mere hostility from a co-worker is not an adverse
employment action. See EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306,
315-16 (4th Cir. 2008) (“[C]omplaints premised on nothing more than
rude treatment by coworkers . . . are not actionable”). As the
Supreme Court observed in Burlington, “petty slights and minor
annoyances . . . often take place at work” but do not constitute
actionable conduct under Title VII. Burlington, 548 U.S. at 57
(observing that Title VII “does not set forth ‘a general civility
code for the American workplace’”) (quoting Oncale v. Sundowner
Offshore Services, Inc., 523 U.S. 75, 80 (1998)).
Other courts have found that isolated verbal statements, even
those that are threatening or made by supervisors, as opposed to
mere co-workers, do not constitute adverse employment actions. See,
e.g., Guajacq,
statement,

601

“Your

F.3d
career

at

578
is

(finding

dead

...

that

an

if

you

executive’s
file

the

[discrimination] claim” was, in context, “less a threat and more an
expression of exasperation over [the plaintiff’s] ongoing antics”
16

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
and thus not an adverse action); Lucas v. Cheney, 821 F. Supp. 374
(D. Md. 1992), aff'd, 991 F.2d 790 (4th Cir. 1993) (holding that a
supervisor’s verbal and written reprimands to employee, which did
not become part of employee's final employment record, were not
adverse employment actions).
Accordingly, the Court concludes that AW Odom’s involvement in
Petrovsky’s October 2010 verbal altercation with Whinnery did not
constitute a materially adverse action.
b.

Annual Performance Evaluation

Petrovsky points next to AW Odom’s issuance of an “Excellent”
overall performance rating, despite the marks for “Outstanding”
performance that had been issued to Petrovsky by Captain Dupuis.
The Fourth Circuit has consistently defined an adverse action as
“one that constitutes a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a
significant change in benefits.” Dufau v. Price, 703 F. App'x 164,
166 (4th Cir. 2017) (quoting Hoyle v. Freightliner, LLC, 650 F.3d
321, 337 (4th Cir. 2011) (internal quotation marks omitted)). In
contrast, a mere “poor performance evaluation is actionable only
where the employer subsequently uses the evaluation as a basis to
17

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
detrimentally alter the terms or conditions of the recipient's
employment.”

Dufau,

703

F.

App'x

at

166

(quoting

James

v.

Booz–Allen & Hamilton, Inc., 368 F.3d 371, 377 (4th Cir. 2004)
(citations and internal quotation marks omitted)).
In James, the plaintiff claimed that his annual performance
evaluation constituted an adverse employment action because it
contained false allegations, which led to the lowering of his
performance review from the “excellent” rating that he had received
the previous year to a “highly effective” rating.

368 F.3d at 377.

The plaintiff further alleged that this lower rating prevented him
from being considered for a promotion and denied him opportunities
for bigger bonuses. Id.
While
evaluation

acknowledging
could

that

effect

a

a

“downgrade

term,

of

condition,

a
or

performance
benefit

of

employment” if it has a tangible effect on the terms or conditions
of employment,” Von Gunten v. Maryland, 243 F.3d 858, 867 (4th Cir.
2001) (emphasis in original), the Court found that nothing in the
record

suggested

that

the

plaintiff’s

employer

had

used

the

performance evaluation as “a basis to detrimentally alter the terms
or conditions of [his] employment.” James, 368 F.3d at 377 (quoting
Spears v. Missouri Dep't of Corr. & Human Res., 210 F.3d 850, 854
18

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
(8th Cir. 2000)). It therefore concluded that the plaintiff’s
performance evaluation did not constitute an adverse action under
Title VII. Id. at 378-79 (observing that “the language of [Title
VII] requires the existence of some adverse employment action” to
establish a violation, and that “[t]he statute's wording makes
clear that Congress did not want the specter of liability to hang
over every personnel decision”).
Here,

Petrovsky

has

failed

to

establish

that

AW

Odom’s

issuance of an “Excellent” overall performance rating constitutes
an adverse action. Foremost, Petrovsky did not receive a “poor”
performance

evaluation,

but

rather

marks

indicating

that

his

performance was “Excellent” or “Outstanding” as to individual
elements of his job. And, his overall “Excellent” performance
rating was an improvement over his prior year’s rating of “Fully
Satisfactory” (Dkt. Nos. 111-4; 111-8).
Moreover, as in James, Petrovsky has failed to offer any
evidence that his performance evaluation had a “tangible effect” on
the terms or conditions of his employment. Von Gunten, 243 F.3d at
867. There is nothing in the record to suggest that the BOP used
that evaluation “as a basis to detrimentally alter the terms or
conditions of” Petrovsky’s employment. Rather, Petrovsky’s claim
19

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
that his evaluation precluded him from a quality step increase is
mere conjecture. James, 368 F.3d at 378. Pursuant to the relevant
Program Statement, even if AW Odom had issued Petrovsky an overall
“Outstanding” performance rating, and even if Warden Deboo had then
approved

the

rating,

the

Rating

Official

would

then

have

“recommend[ed] the granting of additional recognition” to Petrovsky
“in the form of a cash or non-cash award or a quality step
increase” (Dkt. No. 111-5) (emphasis added).1
A BOP employee, however, need not receive an Outstanding
evaluation

in

order

to

receive

“additional”

performance-based

recognition. Indeed, in September 2010, Petrovsky had received two
“Incentive Awards” in recognition of “extra efforts” made (Dkt.
Nos. 111-10; 111-11).
Accordingly, the Court concludes that AW Odom’s involvement in
Petrovsky’s

annual

performance

rating

did

not

constitute

a

materially adverse action under Title VII.

1

Pursuant to the Program Statement, any such recommendation
would then be subject to further consideration and review by the
Incentive Award Planning and Review Committee, which would then
make a recommendation regarding the approval, nature, and/or
amount of any such award (Dkt. No. 111-9).
20

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
c.

Shift Change

As to Petrovsky’s purported November 2010 “shift change” from
day watch to evening watch, the fact is that he never actually
incurred a shift change. It is undisputed that, because he was able
to trade shifts with another Lieutenant, Petrovsky remained on day
watch and ultimately never worked the evening watch (Dkt. Nos. 1113 at 113; 111-6 at 168). Because Petrovsky’s shift did not actually
change, no “action” took place, much less one that was materially
adverse

to

retaliation

him.

See

provision

Burlington,
protects

548
an

U.S.

at

individual

67

(“The

not

anti-

from

all

retaliation, but from retaliation that produces injury or harm.”).
Therefore,

Petrovsky

cannot

establish

a

prima

facie

case

of

retaliation based on AW Odom’s scheduling directive.
Further, even if Petrovsky had worked the evening watch, he
cannot demonstrate a viable claim that the shift change "adversely
affect[ed] the terms, conditions, or benefits of” his employment.
Von Gunten, 243 F.3d at 865. Of course,
a reassignment can “form the basis of a valid Title VII
claim if the plaintiff can show that the reassignment had
some significant detrimental effect.” Boone v. Goldin,
178 F.3d 253, 256 (4th Cir. 1999). However, a mere change
in an employee's job assignment, even if “less appealing
to the employee, ... does not constitute adverse
employment action.” Booz–Allen, 368 F.3d at 376. “Absent
21

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
any decrease in compensation, job title, level of
responsibility,
or
opportunity
for
promotion,
reassignment to a new position commensurate with one's
salary level does not constitute an adverse employment
action even if the new job does cause some modest stress
not present in the old position.” Id. (internal quotation
marks and alteration omitted).
Webster v. Rumsfeld, 156 F. App'x 571, 579 (4th Cir. 2005).
Changes to an employee’s work schedule thus are generally not
actionable under Title VII. See, e.g., Edmondson v. Potter, 118
Fed. App’x 726, 729 (4th Cir. 2004) (concluding that employer’s
denial of plaintiff’s request for temporary schedule changes “did
not affect a term, condition, or benefit of” her employment, and
therefore, was not an adverse employment action); Benningfield v.
City of Houston, 157 F.3d 369, 377 (5th Cir. 1998) (“Merely
changing [an employee’s] hours, without more, does not constitute
an adverse employment action”).
Here, the reassignment from day watch to evening watch would
not

have

adversely

affected

the

conditions

or

benefits

of

Petrovsky’s employment. Notably, because Petrovsky’s evening watch
hours would have been subject to ten percent “Night Differential”
pay, the

shift

change

would

have entitled

him

to additional

compensation. (Dkt. No. 111-113). And, as Petrovsky effectively
conceded in his deposition testimony, a GS-11 Lieutenant assigned
22

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
to evening watch assumes a position of greater responsibility than
one assigned to day watch:
Q.

. . . [B]ut what is the difference between a GS-9
lieutenant and a GS-11 lieutenant?

A.

The
GS-11
lieutenant
is
the
actual
shift
supervisor, and they’re deemed the warden after
hours, that they’re the decision maker when no
higher ranking staff is at the institution, with
the exception of the duty officer, but the duty
officer is generally floated throughout the week on
off shift. They are the shift supervisor.
The 9 is a lieutenant and a supervisory lieutenant,
but it ultimately falls on GS-11 supervisory
lieutenant.

Q.

When you say after hours, do you mean evening
watch?

A.

After 4:00 p.m. and prior to 7:30, 8 o’clock.

(Dkt. No. 111-12 at 13) (emphasis added).
For these reasons, particularly the fact that Petrovsky never
actually worked the evening watch as a result of AW Odom’s November
2010 directive, the Court concludes that the purported “shift
change” did not constitute a materially adverse action under Title
VII.
d.

Conclusion

Viewing the evidence in the light most favorable to Petrovsky,
the Court concludes that he has failed to offer sufficient evidence
23

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
that the BOP took a materially adverse employment action against
him so as to withstand summary judgment. Because Petrovsky has not
demonstrated an adverse action, he has failed to establish a prima
facie case of retaliation under Title VII. See James, 368 F.3d at
375 (noting that “[r]egardless of the route a plaintiff follows in
proving

a

Title

VII

action,

the

existence

of

some

adverse

employment action is required”) (internal citation and footnote
omitted). Accordingly, the Court GRANTS the BOP’s motion for
summary judgment on Petrovsky’s first, second, and third claims of
alleged retaliation.
B.

Constructive Demotion
Petrovsky next asserts that his decision to apply for, and

accept,

a

GS-9

Counselor

position

constitutes

a

constructive

demotion from his position as a GS-11 Lieutenant. He contends that
he was forced to take a demotion, at least in part, “because of the
relation that [he was] incurring from AW Odom and Warden Kuma
Deboo” (Dkt. No. 111-3 at 126).
The Fourth Circuit has recognized constructive demotion as a
natural extension of constructive discharge. See Carter v. Ball, 33
F.3d 450,

459

(4th

Cir.

1994)

24

(“[D]emotion

can

constitute

a

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
constructive

discharge,

especially

where

the

demotion

is

essentially a career-ending action or a harbinger of dismissal.”).
In addition, other courts of appeal, as well as district courts
within this Circuit, evaluate constructive demotion claims as they
do discharge claims, holding that the same standards apply. See,
e.g., Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 717 (8th
Cir. 2003); Simpson v. Borg–Warner Auto., Inc., 196 F.3d 873, 876
(7th Cir. 1999); Sharp v. City of Houston, 164 F.3d 923, 933 (5th
Cir. 1999); Cuffee v. Tidewater Cmty. Coll., 409 F. Supp. 2d 709,
718 (E.D. Va.), aff'd, 194 F. App'x 127 (4th Cir. 2006).
In order to prove a constructive discharge, a plaintiff must
at the outset show that his employer “deliberately made [his]
working conditions intolerable in an effort to induce [him] to
quit.” Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 262 (4th
Cir. 2006) (citing Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d
261, 272 (4th Cir. 2001)). A plaintiff therefore must demonstrate
(1) that the employer's actions were deliberate, and (2) that the
working

conditions

were

intolerable.

Id.

(citing

Honor

v.

Booz-Allen & Hamilton, Inc., 383 F.3d 180, 186-87 (4th Cir. 2004));
Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 244 (4th Cir.
1997)). Based on the record before it, the Court concludes that
25

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
Petrovsky has failed to establish either element.
1.

Deliberate Intent

An employer's actions are deliberate only if they “were
intended by the employer as an effort to force the plaintiff to
quit.” Matvia, 259 F.3d at 272. To establish deliberateness, the
plaintiff must provide “proof of the employer's specific intent to
force [him] to leave.” Bristow v. Daily Press, Inc., 770 F.2d 1251,
1255 (4th Cir. 1985). This can be demonstrated either “by actual
evidence of intent by the employer to drive the employee from the
job” or by providing “circumstantial evidence of such intent,
including a series of actions that single out a plaintiff for
differential treatment.” Johnson v. Shalala, 991 F.2d 126, 131 (4th
Cir. 1993). Importantly, the doctrine of constructive discharge
“protects an employee ‘from a calculated effort to pressure him
into resignation through the imposition of unreasonably harsh
conditions, in excess of those faced by his co-workers.’” Carter,
33 F.3d at 459 (quoting Bristow, 770 F.2d at 1255).
Here, Petrovsky has not demonstrated a deliberate intent on
the part of AW Odom and Warden Deboo to force him to give up his
position as a GS-11 Lieutenant. Notably, it was Petrovsky himself
who initiated the events that ultimately led to his demotion. In
26

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
early 2011, Petrovsky submitted an application on “USA Jobs” for a
vacant GS-9 Counselor position at FCI-Gilmer (Dkt. No. 111-13 at
36-37). After reviewing all of the submissions, Warden Deboo and AW
Odom determined that Petrovsky was the best qualified applicant for
the position and selected him to fill the vacancy (Dkt. No. 111-6
at 177). On March 8, 2011, Warden Deboo and AW Odom notified
Petrovsky of their decision and offered him the position. The next
day, after requesting time to consider his decision, Petrovsky
accepted the offer and began working as a Counselor approximately
two weeks later.
Petrovsky

has

no

other

evidence,

either

direct

or

circumstantial, of his employer's “specific intent” to force him to
accept the demotion from Lieutenant to Counselor. Bristow, 770 F.2d
at

1255.

For

instance,

rather

than

proving

that

the

Wardens

“single[d] out [Petrovksy] for differential treatment,” Johnson,
991 F.2d at 131, the evidence is that, in the case of the purported
shift change from day watch to evening watch, all three Lieutenants
then-assigned to day watch, including not only Petrovsky but also
Whinnery, were removed from their posts at the same time (Dkt. No.
111-15 at 213-14).

27

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
2.

Intolerable Working Conditions

Even

if

Petrovsky

could

establish

that

the

Wardens

deliberately intended to force him to accept a demotion, he still
cannot

show

that

his

working

conditions

at

environment

is

FCI-Gilmer

were

objectively intolerable.
“Whether

an

employment

intolerable

is

determined from the objective perspective of a reasonable person.”
Heiko, 434 F.3d at 262 (citing Williams v. Giant Food Inc., 370
F.3d 423, 434 (4th Cir. 2004)). Notably, “[i]ntolerability is not
established by showing merely that a reasonable person, confronted
with

the

same

choices

as

the

employee,

would

have

viewed

resignation as the wisest or best decision, even that the employee
subjectively felt compelled to resign[;]...[r]ather, intolerability
is assessed by the objective standard of whether a reasonable
person in the employee’s position would have felt compelled to
resign–-that is, whether he would have had no choice but to
resign.” Blistein v. St. John’s College, 74 F.3d 1459, 1468 (4th
Cir. 1999) (quoting Bristow, 770 F.2d at 1255)(emphasis added).
Thus,

perhaps

unsurprisingly,

the

burden

of

proving

objectively intolerable conditions is a heavy one. The Fourth
Circuit has

made

clear that,

in
28

the

context

of

constructive

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
discharge, “[d]ifficult or unpleasant working conditions” do not
qualify as intolerable conditions. Carter, 33 F.3d at 459. In fact,
“[e]ven truly awful working conditions may not rise to the level of
constructive discharge.” Hill v. Verizon Md., Inc., No. RDB-073123,

2009

WL

2060088,

*13

(D.Md.

July

13,

2009);

see

also

Williams, 370 F.3d at 434 (holding that, even if true, plaintiff’s
allegations that her supervisors “yelled at her, told her she was
a poor manager and gave her poor evaluations, chastised her in
front of customers, and once required her to work with an injured
back”

did

not

establish

the

objectively

intolerable

working

conditions necessary to prove constructive discharge).
Here, Petrovsky has not established the intolerable working
conditions necessary for his constructive demotion claim to survive
summary judgment. By his own admission, Petrovsky “put in for the
Counselor

position

because

of

the

retaliation

that

[he

was]

incurring from AW Odom and Warden Kuma Deboo, based upon [his]
earlier complaint of what they were doing to retaliate against
[him],” specifically “the reduction in [his] evaluations” and “the
moving [him] off the post [he] was assigned to by [his] supervisor”
(Dkt. No. 111-3 at 116). These circumstances, more fully discussed
above, are simply not the kind of intolerable working conditions
29

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
that support a claim for constructive demotion or charge. In short,
“mere dissatisfaction with work assignments, a feeling of being
unfairly criticized, or difficult or unpleasant working conditions
are not so intolerable as to compel a reasonable person to resign.”
James, 368 F.3d at 378.
Accordingly, the Court concludes that Petrovsky has failed to
establish that AW Odom and Warden Deboo deliberately made his
working conditions intolerable for the purpose of forcing him to
seek a demotion. Because Petrovsky cannot establish a viable claim
of constructive demotion, the Court DENIES his motion for summary
as to that claim and GRANTS the BOP’s motion for summary judgment
on the same.
C.

Non-Selection Claims
Finally, Petrovsky alleges three instances of retaliatory non-

selection for vacant positions at the GS-11 (Lieutenant) or GS-12
(Unit

Manager)

levels.

The

BOP

contends

that

all

three

of

Petrovsky’s non-selection claims are time-barred.
It is well settled that “state statutes have repeatedly
supplied the periods of limitations for federal causes of action”
when the federal legislation made no provision.’” See N. Star Steel

30

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
Co. v. Thomas, 515 U.S. 29, 34 (quoting Automobile Workers v.
Hoosier Cardinal Corp., 383 U.S. 696, 703–04). In West Virginia,
employment discrimination actions are generally governed by a twoyear statute of limitations. See W. Va. Code § 55-2-12 (two-year
limitations
limitation

period
is

for

otherwise

“every

personal

prescribed”).

action

To

for

determine

which

no

when

the

relevant limitations period began, the “proper focus is on the time
of the discriminatory act.” Chardon v. Fernandez, 454 U.S. 6, 8
(1981).
Here, the causes of action grounded in Petrovsky’s nonselections accrued, if at all, on the dates when he was notified of
each decision not to hire him: September 16, 2011 (Lieutenant, FCIElkton); August 28, 2012 (Unit Manager, FCI-Gilmer); and October
16, 2012 (Unit Manager, FMC-Lexington). Therefore, in the absence
of some circumstance that tolled the running of the limitations
period, Petrovsky’s claims were time barred after September 16,
2013,

August

28,

2014,

and

October

16,

2014,

respectively.

Petrovsky filed his complaint in this Court on March 23, 2016 (Dkt.
No. 1).
Ordinarily, a plaintiff’s pursuit of administrative remedies
tolls the relevant statute of limitations. The Supreme Court of the
31

PETROVSKY V. U.S. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
United States, however, has held that a limitations period does not
toll, and thus the statute of limitations continues to run, on a
claim that requires no administrative exhaustion while a plaintiff
pursues administrative remedies on other claims that do require
exhaustion. Johnson v. Ry. Express Agency, Inc., 421 U.S. 454
(1975). As the BOP argues, this is true even where the plaintiff’s
claims are factually related and involve the same conduct. Id. at
462 (holding that timely filing of employment discrimination charge
with EEOC pursuant to Title VII did not toll running of limitation
period applicable to action based on same facts instituted under 42
U.S.C. § 1981).
The Fourth Circuit has “declined to extend the limitations
periods for discrete acts of discrimination merely because the
plaintiff asserts that such discrete acts occurred as part of a
policy of discrimination.” Holland v. Washington Homes, Inc., 487
F.3d 208, 220 (4th Cir. 2007) (citing Williams, 370 F.3d at 429).
At bottom, “discrete discriminatory acts are not actionable if
time-barred.” Id. (quoting Nat'l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 113 (2002)).
This Court has previously held that Petrovsky was not required
to administratively exhaust his non-selection claims (Dkt. No.
32

PETROVSKY V. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113], AND DISMISSING
THE CASE WITH PREJUDICE
109).

The

statute

of

limitations

for

those

claims

therefore

continued to run while Petrovsky exhausted his other claims.
Consequently, although his non-selection claims were time barred as
of September of 2013, and August and October of 2014, Petrovsky did
not file his complaint until March of 2016. Therefore, his claims
of non-selection being time barred by the applicable statute of
limitations, the Court GRANTS the BOP’s motion for summary judgment
as to those claims and DENIES Petrovsky’s motion for summary
judgment on the same.
IV. CONCLUSION
In summary, for the reasons discussed, the Court:
1.

GRANTS the defendant’s motion for summary judgment (Dkt.
No. 110);

2.

DENIES the plaintiff’s motion for summary judgment (Dkt.
No. 113);

3.

GRANTS the plaintiff’s motion for leave to file under
seal (Dkt. No. 134);

4.

GRANTS the plaintiff’s motion to amend/correct response
(Dkt. No. 135); and

5.

DISMISSES this case with PREJUDICE, and ORDERS that it be
33

PETROVSKY V. ATTORNEY GENERAL

1:16CV44

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113], AND DISMISSING
THE CASE WITH PREJUDICE
stricken from the Court’s active docket.
It is so ORDERED.
The

Court

DIRECTS

the

Clerk

to transmit

copies

of

this

Memorandum Opinion and Order to counsel of record and to enter a
separate judgment order.
DATED: April 24, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

34