DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for resolution in this Title VII employment discrimination action is a motion to dismiss or, alternatively, for summary judgment filed by Defendant U.S. Department of Veterans Affairs ("DVA"). (ECF No. 12). The issues are fully briefed, and the court now rules, no hearing being deemed necessary. See Local Rule 105.6. For the following reasons, Defendant's motion will be granted.
For purposes of this decision, the following facts are either uncontroverted or stated in the light most favorable to Plaintiff.
Plaintiff Fredia R. Alexander, an African-American female, has served as Business Manager for the Managed Care Clinical Center at the DVA since November 2002. (ECF No. 12-3, Alexander Dep., at 4, 24). Her responsibilities include budgeting, managing personnel, hiring, and ensuring that the permanent care clinics in several Maryland locations "are properly run and staffed." (Id. at 4). The Managed Care Clinical Center initially oversaw the Compensation and Pension ("C&P") program, which performs physical examinations of veterans requesting benefits from DVA's Veteran Benefits Administration. (ECF No. 1 ¶¶ 22-23). The C&P program is located at the DVA's Loch Raven clinic in Baltimore. (Id. ¶ 22). In August 2008, after April Jefferson, the prior C&P program supervisor left that position, Plaintiff assumed Jefferson's responsibilities as interim "Acting Supervisor" of the C&P program, while continuing to perform her other duties as Business Manager. (Id. ¶¶ 24, 26). Jefferson informed Plaintiff at the time of transition that Plaintiff should regularly monitor the file containing completed veterans' exams to ensure that the exams were released to DVA within thirty days and that the file never contained more than 200 exams. (ECF No. 12-4, Marshall Dep., at 6-7).
In late 2008, Dr. Sandra Marshall, Plaintiff's direct supervisor and Director of the Managed Care Clinical Center, and Dr. Frederick Kotler, Deputy Director of the Managed Care Clinic Center, learned that the C&P program file contained significantly more than 200 exams, causing the C&P program to fail its performance measures. (Id. at 6).
Plaintiff alleges that the discriminatory treatment began at this time. Initially, Plaintiff was excluded from departmental emails about improvements to the C&P program and from other decision-making efforts and "branded as the person responsible for the [program's] failure." (Id. ¶¶ 34, 50, 60). Plaintiff contends that Tyler, who accused her of sabotaging the C&P program, stated that he was "going to crack the whip" and later instructed the program staff not to speak with Plaintiff by late January 2009. (ECF No. 1 ¶¶ 37, 68; ECF No. 12-3, at 14-15). Tyler also gave this instruction to Regina Moore, one of Plaintiff's direct reports and the employee who aided Plaintiff in preparing a required report, and asked Moore to watch Plaintiff carefully and report any errors that she made in her work. (ECF No. 1 ¶¶ 38-39, 41). Plaintiff, however, knew how to prepare the report without Moore's assistance and was able to do so. (ECF No. 12-3, at 12).
When the C&P program had not attained satisfactory performance measures on January 22, 2009, the Office of the Chief of Staff realigned the C&P program from the Managed Care Clinical Center to its own office. (ECF No. 12-4, at 8; ECF No. 13 ¶ 10). Dr. Marshall then informed Plaintiff that she would no longer serve as interim "Acting Supervisor" and allegedly instructed Plaintiff not to return to the Loch Raven clinic. (ECF No. 12-3, at 6; ECF No. 12-4, at 9).
Plaintiff maintains that the problems she faced extended beyond the C&P program. Following a grievance that some positions, including those of the C&P staff, "did not meet the grade that they were given," the Office of Personnel Management ("OPM") began a consistency review of those positions. (ECF No. 12-4, at 19). A human resources specialist from OPM contacted Plaintiff as part of this process, and Plaintiff provided the specialist with the job descriptions that she requested. (ECF No. 1 ¶¶ 42-43). Plaintiff insists that Dr. Marshall initially accused her of contacting OPM to initiate this review, although both parties now agree that OPM in fact initiated contact with Plaintiff as part of a nationwide program unrelated to Plaintiff. (ECF No. 12-3, at 19-21; ECF No. 12-4, at 19-20).
Plaintiff initially sought EEO counseling on February 18, 2009, claiming that she had suffered discrimination on the basis of sex and race and had been subjected to a hostile work environment. (Id. ¶ 10). She filed a formal complaint with the EEOC on or about June 1, 2009 and made similar allegations. (ECF Nos. 12-5, 12-6). The agency considered the following issue and five instances when evaluating Plaintiff's complaint:
(Id.). When the EEO official charged with investigating Plaintiff's case asked Plaintiff why she believed that the above instances resulted from race-and sex-based discrimination, Plaintiff stated only "[b]ecause I'm African-American" and "because I'm female." (ECF No. 12-3, at 13-14). The EEOC subsequently issued a report of investigation on November 9, 2009, concluding that no unlawful discrimination had occurred, and Plaintiff then requested the appointment of an EEOC Administrative Judge, who ruled against Plaintiff. (ECF No. 1 ¶ 13). Plaintiff later requested leave to file a civil action in district court, and she filed her complaint on November 30, 2010, advancing two claims under Title VII: (1) "Sex and Race Discrimination in Terms and Conditions of Employment", and (2) "Disparate Discipline based on Sex and Race/Color Discrimination." (ECF No. 1). Defendant filed a motion to dismiss or, alternatively, for summary judgment on April 28, 2011 (ECF No. 12), and Plaintiff opposed this motion on May 12, 2011 (ECF No. 13). Defendant subsequently replied to Plaintiff's opposition on May 31, 2011. (ECF No. 15).
Defendant has moved to dismiss or, alternatively, for summary judgment. A court considers only the pleadings when deciding a Rule 12(b)(6) motion. Where, as here, the parties present matters outside of the pleadings and the court considers those matters, the motion is treated as one for summary judgment. See Fed.R.Civ.P. 12(b); Gadsby by Gadsby v. Grasmick, 109 F.3d 940, 949 (4
A court may enter summary judgment only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4
"A party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4
Plaintiff's complaint includes two counts: (1) "Sex and Race Discrimination in Terms and Conditions of Employment," and (2) "Disparate Discipline based on Sex and Race/Color Discrimination." Despite the apparent simplicity of these count titles, it is far from clear what actions Plaintiff contends constitute discriminatory actions and the precise nature of the claims that she intends to allege. In its motion, Defendant construed count one as alleging disparate treatment resulting from the removal of Plaintiff's C&P program duties and count two as alleging disparate discipline stemming from the loss of these duties and Plaintiff's 2009 performance evaluation downgrade.
In evaluating both claims, there are two overarching principles to keep in mind. First, the federal courts do "not sit as a kind of super-personnel department weighing the prudence of employment decisions made by [employers] charged with employment discrimination." Amirmokri v. Abraham, 437 F.Supp.2d 414, 424 (D.Md. 2006) (quoting DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4
Title VII bars federal government employers from engaging in "any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16.
Under the familiar McDonnell Douglas framework, Plaintiff bears the initial burden of establishing a prima facie case, and only if she does so will the burden shift to Defendant to proffer a legitimate, non-discriminatory reason for its actions. Pitter v. Cmty. Imaging Partners, Inc., 735 F.Supp.2d 379, 390 (D.Md. 2010). To establish a prima facie case of hostile work environment from racial and sexual harassment, Plaintiff must show the following four elements: (1) she was subjected to unwelcome conduct; (2) the unwelcome conduct was based on race and sex; (3) the conduct was sufficiently pervasive or severe to alter the conditions of employment and create a hostile work environment; and (4) some basis exists for imputing liability to the employer. See, e.g., Smith v. First Union Nat'l Bank, 202 F.3d 234, 241-42 (4
As an initial matter, even if Plaintiff demonstrates that she faced unwelcome conduct, it is unlikely that she could demonstrate that this conduct occurred because of her race and sex. It is axiomatic that a plaintiff's mere speculation as to racial or gender animus will not suffice to prove that she suffered unwelcome conduct due to race and sex. See, e.g., Nicole v. Grafton Sch., Inc., 181 F.Supp.2d 475, 482-93 (D.Md. 2002); Sonpon v. Grafton Sch., Inc., 181 F.Supp.2d 494, 500 (D.Md. 2002); cf. Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 959 (4
Here, Plaintiff's contention that she faced harassment due to race and sex is factually analogous to the situation in Khoury. First, she presents no derogatory statement from her supervisors or any other employee with whom she worked regarding her race or sex. In fact, the only statements in the record even mentioning Plaintiff's race and sex come from Plaintiff herself — when she asserted during her deposition with the EEO investigator that she faced harassment "because [she was] African-American" and "because [she was] female." (ECF No. 12-3, at 13-14). Such speculation by Plaintiff, however, simply will not suffice to demonstrate that she experienced racial or sexual harassment; concrete facts demonstrating racial and gender animus are required. To the extent Plaintiff intends to allege that Defendant's interference with her role as Business Manager and "Acting Supervisor" of the C&P program demonstrates harassment based on race or sex, such an argument is "circumstantial at best." Khoury, 268 F.Supp.2d at 613. Given Plaintiff's acknowledgement that the C&P program she supervised was consistently failing to meet its performance measures, "[t]his circumstantial evidence . . . is insufficient to support a reasonable inference that, but for Plaintiff's membership in a protected class, she would not have [faced] the entire pattern of treatment she claims constituted a hostile work environment." Id.; see also Daso v. Grafton Sch., Inc., 181 F.Supp.2d 485, 492-93 (D.Md. 2002) (rejecting a plaintiff's circumstantial evidence of racial harassment stemming from his repeated placement on probation where the plaintiff "admitted to the truth of the circumstances stated by [the employer]" as the reasons for those probations).
Even if Plaintiff could demonstrate that the unwelcome conduct occurred because of her race and sex, her hostile work environment claim would fail because she cannot demonstrate that the conduct was sufficiently severe or pervasive to alter the conditions of her employment. See Cent. Wholesalers, 573 F.3d at 175; Thorn v. Sebelius, 766 F.Supp.2d 585, 601 & n.19 (D.Md. 2011). Plaintiff's complaint suggests that eight separate instances allegedly combined to create a hostile work environment: (1) exclusion from emails and decision-making; (2) loss of control over her budget when Tyler obtained the ability to appropriate certain funds related to the C&P program; (3) Tyler's instruction to Moore to watch Plaintiff and report any errors that she made; (4) Tyler's instruction to the C&P program staff not to communicate with Plaintiff; (5) blame Plaintiff believes she absorbed for the C&P program failure; (6) animosity Plaintiff experienced from her staff following Dr. Marshall's accusation that Plaintiff initiated the OPM consistency review; (7) Dr. Marshall's alleged instruction to Plaintiff to abstain from visiting the Loch Raven clinic; and (8) Plaintiff's removal as interim "Acting Supervisor" for the C&P program.
While hostile work environment claims generally involve the cumulative effect of discrete acts that may not be individually actionable, the harassing actions must nonetheless combine to permeate the workplace with "discriminatory intimidation, ridicule, and insult" in order for a plaintiff to succeed in presenting a prima facie case. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002). The United States Court of Appeals for the Fourth Circuit has explained this standard as follows:
EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315-16 (4
Plaintiff fails to meet this standard. The record is devoid of any evidence of intimidation, ridicule, or insults that Plaintiff suffered. At most, the instances cited above indicate a combination of disagreement between Plaintiff and her co-workers regarding the failure of the C&P program and a potentially rude reaction from these co-workers in response to that disagreement. Federal court, however, is not the appropriate forum to resolve such disputes. Amirmokri, 437 F.Supp.2d at 424; see also Thorn, 766 F.Supp.2d at 600-01 (using similar reasoning to reject a hostile work environment claim stemming from a plaintiff's loss of management duties, numerous reprimands, and marginalization due to his exclusion from a project team and his supervisor's instruction to another employee to refrain from working with him). Plaintiff fails to present a prima facie case for racial and sexual harassment due to hostile work environment.
The second count of Plaintiff's complaint alleges that Defendant subjected Plaintiff to "disparate discipline" based on race and gender following the C&P program's failure to meet its performance measures. To establish a prima facie case for disparate discipline, Plaintiff must set forth three elements: (1) she is a member of a protected class; (2) the prohibited conduct in which she engaged was comparable in seriousness to that of employees outside the protected class; and (3) the disciplinary action taken against her was more severe than the action taken against other employees. Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4
Ultimately, while Plaintiff qualifies as a member of a protected class due to her race and gender, her disparate discipline claim must fail because the record fails to set forth any prohibited conduct for which she was disciplined. The disparate discipline framework generally applies to situations in which employees have faced discipline after engaging in workplace misconduct, such as violations of policies and rules, or criminal activity. See, e.g., Cook, 988 F.2d at 511-12 (considering a disparate discipline claim where an employer had dismissed an employee after five violations of corporate policy); Jenks v. City of Greensboro, 495 F.Supp.2d 524, 530 (M.D.N.C. 2007) (applying disparate discipline framework following a police officer's assault of a civilian); Manning v. Foodarama, Inc., 195 F.Supp.2d 741, 744 (D.Md. 2002) (analyzing a disparate discipline claim stemming from a physical fight between employees). Indeed, it appears that no court in the Fourth Circuit has applied this framework to a claim stemming solely from an employee's underperformance in the workplace. See Abrams v. Wachovia Corp., No. 3:08-4073-JFA-PJG, 2010 WL 2622437, at *6 (D.S.C. June 25, 2010) (rejecting a disparate discipline claim where the facts indicated only that the plaintiff "underperformed, he did not misconduct himself").
Here, Plaintiff bases her disparate discipline claim on allegedly discriminatory treatment that stemmed from her supervision of the failing C&P program. (See ECF No. 1 § 54 ("Plaintiff was discriminated against when she was . . . disparately disciplined for the failure of the C&P program."). Inadequate supervision of the failing program on its own, however, cannot serve as the basis of a disparate discipline claim because it involves neither workplace misconduct nor criminal activity — the forms of prohibited conduct on which 10disparate discipline claims are generally based. Cf. Abrams, 2010 WL 2622437, at *6.
In a final attempt to avoid summary judgment, Plaintiff contends that summary judgment at this stage is premature because she has not had the opportunity to "obtain necessary discovery of information possessed by her opponent." (ECF No. 13-1, at 3). As a general matter, "summary judgment [must] be refused where the nonmoving party has not had the opportunity to discover information that is essential to the motion." Anderson, 477 U.S. at 250 n.5. To render this general rule applicable, however, the nonmovant must clearly demonstrate the need for discovery pursuant to Rule 56(d), which allows a court to deny summary judgment or delay ruling on the motion until discovery has occurred if the "nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition." Fed.R.Civ.P. 56(d).
"The Fourth Circuit has strictly interpreted the requirements of Rule 56[(d)]," previously holding that "the failure to file an affidavit under Rule 56[(d)] is itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate." Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4
Even setting aside this significant procedural error and assuming that Plaintiff could satisfy one of the two limited exceptions to the affidavit requirement, Plaintiff cannot demonstrate that discovery would enable her to create a genuine issue of material fact. Plaintiff states that discovery would enable her to depose other business managers "regarding the oversight over their direct reports and budget, as well [as] Dr. Sandra Marshall regarding her reasons for denying Plaintiff's ability to approve her direct reports' [time and leave], view their grade and step, and for taking on responsibilities belonging to [Plaintiff]." (Id.). First, as previously explained, further investigation of Plaintiff's budget allegation would create no material factual dispute because that allegation demonstrates neither unwelcome conduct sufficient to create a hostile work environment nor misconduct sufficient to support a disparate discipline claim. Second, Plaintiff alleges for the first time in her opposition that Dr. Marshall took away job responsibilities, such as interaction with direct reports, which belonged to Plaintiff. It is well-established that a plaintiff may not amend her complaint through argument in a brief opposing summary judgment, Sensormatic Sec. Corp. v. Sensormatic Elecs. Corp., 455 F.Supp.2d 399, 436 (D.Md. 2006) (citing Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996)), which is precisely the result that would obtain if the court permitted Plaintiff to take discovery of this newly raised issue. Plaintiff thus cannot sustain her case by invoking the protections of Rule 56(d).
For the foregoing reasons, Defendant's motion for summary judgment will be granted. A separate Order will follow.
