Filed: Jul. 06, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1604 CHERRIE HAYWOOD; THERESA L. WILLIAMS; KATHY L. NELSON; KAREN SMITH; MARIAN E. DAY; TUSHOMBE A. STOKES; DESHAWN D. DURHAM; ROXANNE RAWLS; ELEANOR KURTZ; JOHN DILL, Plaintiffs - Appellants, v. GARY LOCKE, Secretary, United States Department of Commerce, United States Patent and Trademark Office, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1604 CHERRIE HAYWOOD; THERESA L. WILLIAMS; KATHY L. NELSON; KAREN SMITH; MARIAN E. DAY; TUSHOMBE A. STOKES; DESHAWN D. DURHAM; ROXANNE RAWLS; ELEANOR KURTZ; JOHN DILL, Plaintiffs - Appellants, v. GARY LOCKE, Secretary, United States Department of Commerce, United States Patent and Trademark Office, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald B..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1604
CHERRIE HAYWOOD; THERESA L. WILLIAMS; KATHY L. NELSON;
KAREN SMITH; MARIAN E. DAY; TUSHOMBE A. STOKES; DESHAWN D.
DURHAM; ROXANNE RAWLS; ELEANOR KURTZ; JOHN DILL,
Plaintiffs - Appellants,
v.
GARY LOCKE, Secretary, United States Department of Commerce,
United States Patent and Trademark Office,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:08-cv-00981-GBL-JFA)
Argued: May 12, 2010 Decided: July 6, 2010
Before TRAXLER, Chief Judge, MOTZ, Circuit Judge, and Arthur L.
Alarcón, Senior Circuit Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Robert L. Bell, BELL LAW FIRM, Washington, D.C., for
Appellants. Bernard G. Kim, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Dana J.
Boente, United States Attorney, Kevin J. Mikolashek, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
The plaintiffs in this case (“the Haywood Group”) are ten
current and former employees of the United States Patent and
Trademark Office of Initial Patent Examination (“OIPE”). They
claim they were unlawfully discriminated against on the basis of
race and gender 1 in the denial of an “accretion-of-duties”
promotion. The district court found the Haywood Group did not
establish a prima facie case under Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C.A. § 2000e et seq. (West 2000)
(“Title VII”), or the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C.A § 621 et seq. (West 2008) (“ADEA”),
or rebut the U.S. Patent and Trademark Office’s (“USPTO”)
nondiscriminatory explanation for its failure to promote the
plaintiffs in accordance with the burden-shifting rules
established by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Additionally, the members of the
Haywood Group alleged they were subjected to an unconstitutional
hostile work environment in violation of their Fifth Amendment
rights to due process and equal protection under the law. The
district court dismissed the Haywood Group’s constitutional
claims for lack of subject matter jurisdiction, and, in the
1
Eight of the ten plaintiffs are black females, one
plaintiff is a Caucasian female, and the final plaintiff is a
black male.
3
alternative, for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). We agree with the district court that
the plaintiffs failed to establish a prima facie case of
discrimination and affirm the grant of partial summary judgment
on that basis. Because of this ruling we need not reach the
question of pretext. We also affirm the district court’s
dismissal of the Haywood Group’s constitutional claims.
I.
The Haywood Group consists of ten current and former
employees of the OIPE. OIPE receives incoming patent
applications and screens them before forwarding them to the
appropriate Patent Technology Center for examination. Around
2000 the OIPE underwent a reorganization that implemented a new
automated patent application processing system. Many functions
previously performed by federal employees were transferred to
contract personnel and the automated system. As a result, a
number of the OIPE’s Legal Instrument Examiners (“LIEs”) were
reassigned to various Patent Technology Centers. However, a
group of LIEs, including the Haywood Group, stayed within the
department and were temporarily promoted to “Lead LIEs” that
summer in order to help contract personnel transition into the
duties originally performed by the LIEs prior to reorganization.
The temporary promotion to Lead LIE meant an increase in pay
4
grade from GS-7 to GS-8. The primary operational difference
between the LIE position and the Lead LIE position was that the
Lead LIEs performed supervisory functions over a group of at
least three LIEs.
The temporary promotion of each employee to Lead LIE was
supposed to terminate at the end of one year; however,
plaintiffs’ third-line supervisor and the director of OIPE,
Thomas Koontz, persuaded the USPTO to extend and renew the
temporary promotions for an additional year. Later, around July
2002, all of the temporary GS-8 Lead LIEs were informed that
their temporary positions would expire in August and they would
return to their original GS-7 pay grade. At that time,
plaintiffs sought accretion-of-duties promotions 2 to maintain
their GS-8 pay grade. In response, the USPTO’s Office of Human
Resources (“OHR”) conducted a desk audit of plaintiffs’ work
tasks to determine whether such a promotion was warranted. A
desk audit is an evaluation used by OHR, according to standards
developed by the United States Office of Personnel Management,
to determine if employees are being paid fairly for the duties
2
An accretion-of-duties promotion is a “promotion resulting
from an employee’s position being classified at a higher grade
because of additional duties and responsibilities.” 5 C.F.R. §
335.103(c)(3)(ii) (2009). This type of promotion allows
employees to obtain a higher GS level without having to go
through the competitive process. See id. § 335.103(c)(3)
(2009).
5
they actually perform. OHR determined after the desk audits
that the plaintiffs’ positions were appropriately categorized
within the GS-7 pay grade. The Haywood Group then filed a claim
of discrimination. Upon investigation, USPTO’s Office of Civil
Rights and the EEOC found no discrimination and issued a right
to sue letter.
Thereafter, in September 2008, the plaintiffs filed their
complaint against Carlos Gutierrez, United States Department of
Commerce Secretary, 3 in the United States District Court, Eastern
District of Virginia, alleging constitutional violations and
race and gender discrimination in violation of Title VII and the
ADEA. After discovery, the defendant moved for partial summary
judgment as to plaintiffs’ discrimination claims. The district
court concluded the plaintiffs failed to show they were treated
differently than a similarly situated employee and therefore
could not establish a prima facie case of discrimination.
Haywood v. Gutierrez, 2009 WL 1208111, at *6 (E.D. Va. Apr. 30,
2009). The district court granted the motion for partial
summary judgment on that basis and, in the alternative, found
the plaintiffs also failed to show defendant’s nondiscriminatory
reason for denying the promotion was pretextual.
Id. at *8.
3
Gary Locke, the current Secretary of Commerce, is
automatically substituted for former Secretary Gutierrez as the
defendant-appellee to this action. Fed. R. App. P. 43(c)(2).
6
Additionally, the court granted defendant’s partial motion for
dismissal of the remaining claims, holding that the plaintiffs’
constitutional claims failed under Federal Rule of Civil
Procedure 12(b)(1) and, alternatively, under Rule 12(b)(6)
because the United States did not waive its sovereign immunity
and the plaintiffs could not bring Bivens claims against an
agent of the federal government in his official capacity. Id.
at *9; see Bivens v. Six Unknown Named Agents,
403 U.S. 388
(1971); FDIC v. Meyer,
510 U.S. 471 (1994).
II.
The court reviews the district court’s grant of summary
judgment de novo. Hill v. Lockheed Martin Logistics Mgmt.,
Inc., 354 F.3d 277, 283 (4th Cir. 2004). A motion for summary
judgment should be granted if “there is no genuine issue as to
any material fact and [] the movant is entitled to judgment as a
matter of law.” Celotex Corp. v. Catrett,
47 U.S. 317, 322
(1986) (quoting Fed. R. Civ. P. 56(c)(2)).
To establish a prima facie case of discrimination in the
failure-to-promote context, the Haywood Group must show that
they are members of a protected class who applied for a
promotion for which they were qualified, and were denied the
promotion despite their qualifications, under circumstances that
give rise to an inference of discrimination. Tex. Dep’t. of
7
Comty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); McDonnell
Douglas
Corp., 411 U.S. at 802. Plaintiffs argued below that
the OIPE subjected them to discriminatory treatment on the basis
of race while making promotion determinations by treating a
similarly situated white employee (“comparator”) in a
substantially different and more favorable manner than they were
treated.
In appealing the district court’s grant of summary
judgment, plaintiffs argue the district court erred in finding
their comparator’s position and job duties were substantially
different from theirs and hence that the comparator was not
similarly situated. Plaintiffs are not required as a matter of
law to point to a similarly situated comparator to succeed on a
discrimination claim. Bryant v. Aiken Reg’l Med. Ctrs., Inc.,
333 F.3d 536, 545 (4th Cir. 2003). However, in this case, the
plaintiffs have based their allegations completely upon a
comparison to an employee from a non-protected class, and
therefore the validity of their prima facie case depends upon
whether that comparator is indeed similarly situated.
Burdine,
450 U.S. at 258 (citing McDonnell
Douglas, 411 U.S. at 804)
(“[I]t is the plaintiff’s task to demonstrate that similarly
situated employees were not treated equally.”)
Accordingly, plaintiffs are required to show that they are
similar in all relevant respects to their comparator. Mitchell
8
v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1982); Smith v.
Stratus Computer, Inc.,
40 F.3d 11, 17 (1st Cir. 1994) (citing
The Dartmouth Review v. Dartmouth College,
889 F.2d 13, 19 (1st
Cir. 1989)). Such a showing would include evidence that the
employees “dealt with the same supervisor, [were] subject to the
same standards and . . . engaged in the same conduct without
such differentiating or mitigating circumstances that would
distinguish their conduct or the employer’s treatment of them
for it.”
Mitchell, 964 F.2d at 583.
Plaintiffs identified Kevin Little, a white male, as their
comparator. Little, another OIPE employee, applied for an
accretion-of-duties promotion in 2000. In June 2000, OHR
determined Little’s position and duties warranted a promotion.
Subsequently, Koontz submitted the appropriate form to personnel
in support of Little’s application. The promotion was approved
and went into effect in July 2000.
The plaintiffs contend Little and the members of the
Haywood Group were similarly situated because they both
performed increased duties at a higher grade level over a
substantial period of time. They argue “that a disparate
application of the accretion-of-duties criterion resulted in Mr.
Little receiving the same type of promotion denied plaintiffs.”
Haywood, 2009 WL 1208111, at *6. However, the performance of
additional work-related duties is not the only relevant factor.
9
After considering the nature of their respective job duties and
positions within the USPTO, we agree with the district court
that the named comparator was actually quite dissimilar to the
members of the Haywood Group. Little’s position, management and
program analyst, belonged to a separate Office of Personnel
Management job family and series than the position of LIE, which
fell within the Legal Instruments Examiner Series and Legal and
Kindred Group job family. While Little was responsible for
program management, development, and execution of automated
systems within OIPE, as well as coordination with government
contractors and various departments, LIEs primarily processed
patent applications and reviewed the work of contractors
involved in pre-examination processing. Little’s position,
prior to his promotion, was six grades above the LIEs. Koontz
was Little’s immediate supervisor, but Koontz, as Director of
OIPE, was three managerial levels above the LIEs and Lead LIEs.
Though a comparator need not be an exact match, the only
similarities between Little and the Haywood Group plaintiffs are
that they all worked for the USPTO in the early 2000s and
applied for accretion-of-duties promotions. This is simply not
enough. There are by no means “enough common features between
the individuals to allow [for] a meaningful comparison.”
Humphries v. CBOCS West, Inc., 474 F.3d 387, 405 (7th Cir.
2007), aff’d on other grounds,
553 U.S. 442 (2008).
10
As the Haywood Group failed to show their comparator was
similarly situated, they failed to make out a prima facie case
of discrimination. Because the Haywood Group cannot establish a
prima facie case of discrimination, the district court properly
granted summary judgment to the defendant.
III.
The Haywood Group also argues the district court erred in
dismissing its due process claims for lack of subject matter
jurisdiction, and, in the alternative, for failure to state a
claim upon which relief may be granted. See Fed. R. Civ. P.
12(b)(1), (b)(6). In Count V of their complaint, the Haywood
Group alleged they were subjected to an unconstitutional hostile
work environment in violation of their Fifth Amendment rights to
due process and equal protection under the law. The district
court found the plaintiffs could not obtain a damages award
against the defendant as an agency official in his official
capacity under FDIC v. Meyer, 510 U.S. 471, 73 (1994). See also
Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971).
Because the plaintiffs were suing the United States, through the
Commerce Secretary, named in his official capacity and, because
the United States did not waive its sovereign immunity, the
district court found it had no subject matter jurisdiction to
hear plaintiffs’ constitutional claims.
11
Nevertheless, no matter how the plaintiffs try to
characterize their Fifth Amendment claims, the claims are
premised on the assertion that the plaintiffs were intentionally
discriminated against in their employment because of race and
gender. As explained by this Court in Middlebrooks v. Leavitt,
Title VII provides plaintiffs’ exclusive remedy. 525 F.3d 341,
349 (4th Cir. 2008) (holding that if an employee has a
cognizable claim against federal officials under Title VII, then
Title VII is his exclusive remedy for intentional discrimination
in employment). Because the United States has clearly waived
its sovereign immunity as to Title VII claims, see 42 U.S.C.A. §
2000e-16, the district court had subject matter jurisdiction
over what were merely Title VII claims dressed in constitutional
language. However, as we have previously held, plaintiffs’
Title VII claims fail on the merits. Accordingly, we affirm the
district court’s dismissal of Count V of plaintiffs’ complaint. 4
IV.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
4
Although the district court ruled in favor of the
defendant on a different ground, we may affirm on any basis
appearing in the record. See United States v. McHan, 386 F.3d
620, 623 (4th Cir. 2004).
12
