Pletz v. Hayden, No. 1:2008cv00539 - Document 32 (E.D. Va. 2009)
Court Description: MEMORANDUM OPINION re: 20 Motion For Summary Judgment. (See Memorandum Opinion For Details). Signed by District Judge Claude M. Hilton on 2/4/09. (nhall)
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UNITED FOR THE STATES DISTRICT EASTERN DISTRICT COURT OF VIRGINIA I ¢ Alexandria Division DEBRA A. PLETZ, cu.:, } Plaintiff, AL! ;, ) V. Civil Action No. ) MICHAEL V. HAYDEN, 08-0539 ) Defendant. ) MEMORANDUM OPINION This matter comes before the Court on Defendant's Motion for Summary Judgment pursuant 56(b). 30, Plaintiff's 2008, to Federal Rule of Civil second Amended Complaint includes three claims Procedure filed on September against Defendant: (1) discrimination in violation of Title VII of the Civil Rights Act of sex and reprisal 1964; (2) discrimination on the basis of participating in the Equal Employment Opportunity and by taking away Plaintiff's overtime; on the basis of to and, (3) ("EEO") for process discrimination a hostile work environment based on sex from 2004 present. Plaintiff ("CIA") a Captain in the Central Security Protective Director of At all in the is the Service Intelligence Agency's ("SPS"). Defendant is the CIA. relevant CIA's SPS as times to this suit, Plaintiff was employed a Captain and her immediate supervisor was David L., of SPS a Major in the SPS. was Paul At all relevant times, the Chief D. In early 2006, Plaintiff consulted with David L. and Paul D. regarding a subordinate employee whose behavior had become disruptive to other employees. For the purpose of Plaintiff's suit against Defendant and this particular Motion, sufficient it is to say that Plaintiff felt at odds with her supervisors' decisions related to disciplining this subordinate, and Plaintiff was suspicious that David L.'s friendship with the subordinate somehow eased the disciplinary action taken against that subordinate. After consulting with Paul D. and David L., Plaintiff's initial disciplinary action against the subordinate was to prohibit his attendance at any training session where a particular other employee was also in attendance. action, the subordinate contacted an EEO counselor because he believed he had been slandered by Plaintiff. found that the subordinate had no grounds and the situation was David L. Following this An EEO officer for claiming slander referred back to David L. for an inquiry. modified Plaintiff's corrective action against the subordinate employee by allowing the subordinate to attend training sessions where this other employee was present if subordinate gained prior approval In August 2006, Plaintiff for attendance. informed Paul D. that the the subordinate had a alcohol abuse problem. In September 2006, Plaintiff's supervisors removed the subordinate status. During this period, the subordinate from armed lost police powers and was involuntarily committed to an alcohol abuse program for a short time. the Consistent with SPS and CIA policy and procedures, subordinate returned to duty one month later. On August 16, 2 006, an evaluation panel promotion of GS-13 officers to the GS-14 comprised of at the panel performance of SPS, grade. regarding the The panel was four males and four females and included minority and disability representatives. practice, met Paul D., Consistent with SPS each senior manager spoke about the officers in his or her division. presented Plaintiff voting member of the employment panel for promotion. and the panel's the The Chief of Paul D. was a disability representative. In his discussion, a solid but not Paul D. high performer, told the group that that she took personally and that her interpersonal to be improved. criticism communication skills needed Based on Plaintiff's difficulty in managing the disbanding of an SPS Branch under her supervision, recommended that the panel wait had another year of evaluation level. 2005 to June The panel Paul D. to promote Plaintiff until solid performance. from March expectations" Plaintiff was 2006 she Plaintiff's performance was rated at agreed with Paul D.'s the "meets assessment and did not recommend Plaintiff At the time Paul D. promoted, for a promotion. informed Plaintiff that she would not be he confused her with another employee and mistakenly told her that she would be considered for promotion again at mid-cycle panel in six months. During the time period at issue, Agency could receive pre-scheduled, for operational duties construction sites, officers Over a span of overtime where such as routine business this limitation on compensation was periodically discussed at SPS meetings Plaintiff was present. attended an Most proximate "all-hands" to the incident at meeting on September 21, reiterated the Agency's overtime policy for personnel. In November 2006, Stephen D., a Chief primary Certifier and Authorizer for SPS records, reviewed Plaintiff's immediate supervisor, D. These type of overtime compensation for eight years prior to 2006, 2006 where David L. SPS staffing new could be conducted during normal business hours. Plaintiff issue, pre-authorized overtime pay and supervising special events. conducting administrative duties that security officers at the such as manning line posts, could not receive this activities the discovered that Plaintiff time and attendance time sheets David L., in the SPS and a was out of since Plaintiff's the office. had claimed overtime on a Stephen recurring basis without explanatory comments and without gaining prior approval. After supervisor, investigating the matter with Plaintiff's Stephen D. determined that Plaintiff's claimed overtime work did not qualify for increased compensation under the SPS policy. Specifically, Stephen D. found that Plaintiff claimed overtime compensation for routine business activities. As a consequence, and, Stephen D. once David L. did not certify this discussed this with Plaintiff, removed this overtime from her time records. overtime pay Plaintiff Male officers who received overtime compensation during this period had sought preapproval not for this compensation for performing in an operational, administrative, capacity. In October 2 006, Plaintiff raising allegations of other claims. complaint. Plaintiff contacted an EEO counselor gender discrimination, On January 3, 2007, Plaintff retaliation, filed her EEO After an EEO investigation had been conducted, informed the Administrative wished to withdraw her request Plaintiff's request, Law Judge for a hearing. ("ALJ") In this Decision, prima but facie that case she The ALJ granted the hearing. On March 14, Agency issued a Final Decision denying Plaintiff's to promote, that and ordered the Agency to issue a Final Agency Decision without failure and hostile work environment, 2008, claims the for and retaliation. the ALJ found that Plaintiff had established a of failure to promote in violation of Title VII, Plaintiff failed to rebut Defendant's non-discriminatory reason for failing to promote her. Plaintiff did not appeal this Decision. » Plaintiff filed the present suit on May 28, her second Amended Complaint on September 30, Pursuant judgment genuine is if to Rule issue as views to any material judgment as "that fact and that a matter of law." summary there party. facts in a Anderson v. light most favorable Fed. Liberty Lobby, Inc.. to is no the moving party R. In reviewing a motion for summary judgment, the and filed 2008. this Court must grant the moving party demonstrates entitled to 56(c). 56(c), 2008, Civ. this P. Court the non-moving 477 U.S. 242, 255 (1986) . Once a motion for supported, the opposing party then has a genuine dispute as Elec. 87 Indus. (1986). summary judgment Co.. to any material Ltd. v. is properly made the burden of fact does Zenith Radio Corp., The mere existence of showing that exist. 475 and U.S. Matsushita 574, 586- some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; there be no genuine issue of material U.S. 56(e) at 248. "Rule requires beyond the pleadings and by depositions, to designate answers specific facts [her] the the fact. requirement Liberty Lobby, 477 nonmoving party to go own affidavits, interrogatories, showing that is that or by and admissions there is a genuine the on file, issue for trial." Celotex Corp. v. Catrett. 477 U.S. 317, 324 (1986)(internal citation omitted). Under Title VII, the plaintiff bears the initial burden of proving a prima facie case of discrimination in which disparate treatment is alleged. To establish a prima facie case, plaintiff must demonstrate by a preponderance of the evidence that belongs to a protected class; (2) and (4) from similarly situated employees. Green, 411 presented, U.S. 792, 800-04 reason for the disparate then demonstrate pretextual "meet discrimination" a prima that Corp. facie some v. case is legitimate The articulated and the the explanation is the ultimate burden of proving intentional 754 burden of proof never St. Id. by a preponderance of the City of Charlotte, case. Once "presumptively valid," plaintiff must and she suffered she was treated differently then articulate treatment. nondiscriminatory reason is (3) McDonnell Douglas (1973). the defendant must she she was qualified for the job for which the employer was seeking applicants; an adverse employment action; (1) F.2d 1100, shifts Mary's Honor Ctr. 1106 evidence. (4th Cir. Moore v. 1985). The from the plaintiff in a Title VII v. 502, Hicks. 509 U.S. 506-07 (1993) . It a motion is well-established in the Fourth Circuit for summary judgment "specific facts showing that that to survive the non-moving party must produce there is a genuine issue for trial rather than resting upon the bald assertions of his pleadings." Ross v. 1985), 490 Commc'ns Satellite Corp.. 759 F.2d 355, (4th Cir. overruled on other grounds by Price Waterhouse v. U.S. 228 Hopkins. (1989). Plaintiff has failed to present facts burden of proof on her Title VII While 364 that would satisfy her claim for failure to promote. Plaintiff may have established a prima facie case of discrimination under the McDonnell Douglas failed to rebut Defendant's framework, she has legitimate non-discriminatory reason for not promoting her. Defendant's rationale for not promoting Plaintiff based on job performance and relative qualifications, was not qualified for promotion to the GS-14 level, were promoted to the position were qualified. and relative employee valid, non-discriminatory bases decision." F.3d 954, v. qualifications Evans v. 960 Burdine. U.S. for any adverse Technologies Applications (4th Cir. 450 are widely 1996) 248, 258 citing Tex. (U.S. is that, Plaintiff and those who "Job performance recognized as employment & Serv. Dep't of Co., Cmtv. 80 Affairs 1981). The eight-person evaluation panel that Plaintiff's possible promotion to the GS-14 convened to consider level included minority and disability representatives, and half the panelists were Chief the D., female. This panel agreed with and found that Plaintiff the required at of SPS, Paul least another year of solid performance before promotion. concerned with reports performer, that she that the panel was Plaintiff was a solid but not high lacked the the higher position, Specifically, and that communication skills required of she had had some difficulty in managing the disbanding of an SPS branch under her supervision. Further, Plaintiff's most designated at fatal the recent performance "meets expectations" to her promotion prospects, facts of Plaintiff's performance level added to evaluation was which, while not the already stated to weaken her candidacy for promotion. Defendant's articulated reason for the employment action is presumptively valid and, in order to overcome this presumption, Plaintiff must demonstrate pretextual "meet and discrimination" at that Defendant's rationale the ultimate burden of proving by a preponderance of evidence. is intentional Moore, 754 F.2d 1106. Plaintiff "meets argues expectations" promoted. Plaintiff that a supervisor once rating would not prevent her from being reasons that since performance rating was promoted to promotion is Plaintiff evidence of "must qualifications Westinqhouse told her that her compete a male peer with the the GS-14 level, gender discrimination. her own non- However, for the promotion based on the established by her Savannah River Co., employer." 406 F.3d 248, Anderson v. 269 same (4th Cir. 2005). In making promotion decisions, Defendant has decided to review more information than just a candidate's performance review rating. That Plaintiff's entire application for promotion did not surpass that of a male co-applicant with the same performance rating does not establish intentional discrimination by Defendant. Plaintiff also argues that she had received positive comments from supervisors evaluations which were at promotion. Plaintiff and in some of her recent performance odds with the suggests evidence of discrimination, long recognized that however, for her non- these discrepancies are courts in this Circuit have "the performance evaluation is a review of an employee's performance process of that reasons in her current position, selecting a person for a promotion while involves the a consideration of how that employee will perform in a different position." Westinghouse, received positive 406 F.3d at 272. feedback on her work does That not Plaintiff establish that she was qualified for promotion to another position. This feedback does not establish by a preponderance of evidence that Defendant intentionally discriminated against decision not to promote Plaintiff violation of claims Plaintiff in the her. that Defendant retaliated against her in Title VII because a subordinate and because she took corrective action against she pursued an EEO claim against 10 Defendant. The Complaint alleges that this retaliation took the form of not promoting Plaintiff and by prohibiting her from claiming overtime hours In order to Title VII, for certain activities. state a prima facie a plaintiff must protected activity,-" action against her; (2) show that 487 F.3d 208, and, established a prima her claim is 218 (3) discrimination cases. (4th Cir. she "engaged in a "the protected activity was causally Holland v. (4th Cir. facie subject (1) the Defendant took an adverse employment connected to the adverse action." Inc.. claim of retaliation under case 2007). of Washington Homes, Once a plaintiff has retaliation under Title VII, to the same burden-shifting scheme as gender King v. Rumsfeld. 328 F.3d 145, 2003). Plaintiff claims that Defendant retaliated against her for taking corrective action against a subordinate. the record that Plaintiff's action was to Plaintiff's against a subordinate VII's claim, is not is that as importantly, § Therefore, a matter of and 2000e-3(a) "making charges, testifying, or participating in enforcement proceedings" claims). fails More taking corrective action 42 U.S.C.A. (listing protected activities as VII from a protected activity under Title anti-retaliation section. assisting, It appears supported even if her corrective action was ultimately adjusted. fatal 150-51 this portion of law. 11 Plaintiff's of Title complaint Plaintiff alleges that her supervisors retaliated, adverse action, However, i.e. i.e. took against her for participating in the EEO process. Plaintiff fails to show that the protected activity, her participation in the EEO process, "was causally connected to the adverse action." Holland. 487 F.3d at 218. Even if Plaintiff were able to establish this prima facie case of retaliation, she has not rebutted Defendant's legitimate, discriminatory reason for denying Plaintiff's request overtime compensation. See King, same burden-shifting scheme 328 F.3d at from a Title VII discrimination claim to a Title VII claim of Defendant denied Plaintiff's overtime seeking. compensation during for operational tasks for routine business activities regular working this hours. Plaintiff retaliation). the kind Plaintiff that could be conducted alleges for this that two months prior where this to the she had type of work before the Defendant retaliated against compensation in the meetings line post. which was not pre- fall of 2006. should not have been a surprise to Plaintiff; in numerous just rate does not establish that her by denying this denial gender such as manning a compensation, been compensated at an overtime but (applying Defendant's policy allows pre-approved overtime Plaintiff was seeking overtime approved, for compensation because of an employment policy prohibiting overtime pay of was 150-51 non- This she had been policy had been communicated, denial 12 of her request one for overtime pay. the Plaintiff, ability to like all other male earn overtime and female compensation SPS Captains, had for pre-approved operational work. Plaintiff alleges environment by (1) that Defendant belittling Plaintiff's taking away Plaintiff's overtime; (3) positions over several years while were allowed to Plaintiff created a hostile work "homestead" to snide remarks job performance; moving Plaintiff to various Plaintiff's.male counterparts in their positions; from SPS personnel; Plaintiff from correspondence and meetings; supervisor distancing himself (2) (4) (5) (6) from Plaintiff; subjecting excluding Plaintiff's and (7) Plaintiff's supervisor making mis-truths and contradictory statements regarding her performance. In order for her claim of environment to survive, about which she based on gender; a gender-based hostile work Plaintiff must show that: complains was unwelcome; (3) the conduct was (2) that (1) the conduct conduct was sufficiently severe or pervasive to create an abusive work environment; and some basis employer. Carter v. for imposing liability on Plaintiff's Ball, 33 F.3d 450, 461 (4th Cir. 1994). (4) there is Additionally, the work environment must be both objectively and subjectively offensive; that would find it it as such. is, it must be hostile, and Faraqher v. such that a reasonable person Plaintiff City of herself Boca Raton. 13 must 524 have perceived U.S. 775 (1998). "Unlike other, practices, more direct and discrete unlawful hostile work environments generally result only after an accumulation of Alternative Res. discrete Corp., instances of harassment." 458 F.3d 332, sum, whether a work environment is a function of issue; employment the whether it is and, whether In the conduct at as opposed to such conduct unreasonably job performance. failed to 2006). actionably hostile or abusive threatening or humiliating, interfered with Plaintiff's has (4th Cir. frequency and severity of being merely offensively; Plaintiff is 339 Jordan v. Id. show that Defendant's conduct created a hostile work environment. Plaintiff argues performance fails supports her hostile work environment to establish the sufficient to Specifically, abusive that that Defendant's belittling of her job satisfy level the these comments were severe or hostile work environment rude she the Jordan case. not established threatening or directed toward her, with her job performance. but severe or pervasive belittling requirements of Plaintiff has comments of claim, she established frequent enough to interfere Moreover, "complaints treatment by coworkers, nor has callous this Circuit has stated that based on nothing more behavior by one's than superiors, or a routine difference of opinion and personality conflict with one's v. supervisor, Sunbelt are Rentals. not Inc.. actionable under Title 521 F.3d 306, 14 315 VII." (4th Cir. E.E.O.C. 2008)(citations Plaintiff away" omitted). claims because of that her overtime her gender but fails compensation was "taken to establish any correlation between her gender and Defendant's policy not compensate employees administrative at tasks. compensated for this an overtime rate Plaintiff argues for conducting that type of overtime work Defendant's adherence to the policy this to she had been in the past but time does not establish gender-based hostility. Regarding allowed to Plaintiff's "homestead" that her male co-workers were in their positions and she was not, Plaintiff has failed to Moreover, the record shows position changed were claim show that that this was due to her gender. the reasons why Plaintiff's in reaction to a program reorganization, and in order to expand Plaintiff's responsibilities. Plaintiff claims that from SPS personnel but imposing the 521 she has liability on Defendant Sunbelt Rentals treatment she was is outside F.3d at are outside 315 case, for these comments. Circuit deemed that (holding that rude Plaintiff snide comments failed to show any basis the purview of Title VII. the purview of Finally, this subjected to for Further, this type of Sunbelt Rentals, treatment and callous behavior Title VII). argues that several other types of behavior establish her claim of a gender-based hostile work 15 in environment. Plaintiff's examples include that her. "made mis-truths" Each of these examples for the same reasons Plaintiff has not gender. these conjunction with all severe fail from her, the fail Plaintiff has these actions examples, other Plaintiff's were related to her even when viewed in examples enough to create of allegedly hostile behavior an abusive failed to rebut Defendant's compensation. For these claim Primarily they fail because discriminatory reason for not promoting her, overtime reasons, sufficiently work environment. legitimate non- and for denying her Plaintiff's claims of gender-based discrimination and retaliation in violation of VII fail to establish a genuine for trial. favorable Further, claim also fails trial. issue of material even viewing the to Plaintiff, that and that her to support to evidence a pattern of or pervasive correspondence, and contradictory statements about cited above. shown that Moreover, behavior, this workplace behavior she was excluded from workplace her supervisor distanced himself supervisor of facts Title fact remaining in the light most her gender-based hostile work environment to establish any material For the reasons stated above, summary judgment. 16 facts Defendant remaining for is entitled to An appropriate Order shall issue. 1st Claude M. Hilton United States District Judge Alexandria, Virginia February -¥ ,2009 17
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