Dorothy Buchhagen v. ICF International, Inc., No. 15-1557 (4th Cir. 2016)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1557 DOROTHY L. BUCHHAGEN, PH.D., Plaintiff - Appellant, v. ICF INTERNATIONAL, INC.; ICF Z-TECH INC., Defendants - Appellees. Appeal from the United States District Court for the District of Maryland, at Greenbelt. J. Frederick Motz, Senior District Judge. (8:12-cv-02470-JFM) Argued: March 22, 2016 Decided: May 31, 2016 Before KING, AGEE, and FLOYD, Circuit Judges. Affirmed by unpublished opinion. Judge Agee wrote the opinion, in which Judge King and Judge Floyd joined. ARGUED: Alan Banov, ALAN BANOV & ASSOCIATES, Silver Spring, Maryland, for Appellant. Jeremy William Dutra, SQUIRE PATTON BOGGS (US) LLP, Washington, D.C., for Appellees. ON BRIEF: Stephanie Rapp-Tully, ALAN BANOV & ASSOCIATES, Silver Spring, Maryland, for Appellant. Merrell B. Renaud, SQUIRE PATTON BOGGS (US) LLP, Tysons Corner, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. AGEE, Circuit Judge: Dr. Dorothy Buchhagen, Ph.D., appeals the grant of summary judgment in favor of her former employer, ICF Z-Tech, Inc. (“ZTech”), 1 on her claim of retaliation under the Age Discrimination in Employment Act (“ADEA”), pursuant to 29 U.S.C § 623(d). Because Buchhagen failed to meet the causation standard for her claim, we affirm the district court’s judgment. I. In December 2006, Dr. Deborah Beebe, Ph.D., hired Buchhagen to work on Lockheed-Martin Corporation’s Cancer Information Analysis and Tracking (“CIAT”) contract with the National Cancer Institute (“NCI”). old, and her At that time, Buchhagen was sixty-four years primary responsibility was writing NCI’s Dictionary of Cancer Terms (“Glossary”). content for In June 2009, NCI awarded the CIAT contract to Z-Tech, and Buchhagen applied for her old position with the new contract carrier. 2 1 ICF International, the parent company of ICF Z-Tech, is also named as a defendant in this case. For ease of reference, the joint defendants shall be referred to as Z-Tech throughout this opinion. 2 Buchhagen claims that Beebe told her “no one will hire you at your age” in the summer of 2009, shortly before she applied for her position at Z-Tech. 2 Buchhagen negotiated a salary raise from $30.12 per hour to $60.00 per hour and accepted the position at the age of sixtyseven. Beebe continued as her supervisor. Shortly thereafter, when a colleague left the CIAT contract to work directly at NCI, Beebe confirmed Buchhagen’s promotion to be the Glossary and Multimedia Manager. Not long after Buchhagen began her new position, however, her relationship with Beebe deteriorated. The impetus for this change was Buchhagen’s failure to correctly upload a Spanish Hysterectomy Image (“SHI”) to the Glossary, which caused the Glossary entry to be defective. was a “glitch” problem was problem and contentious. rather eventually others’ than Buchhagen insisted this error her own corrected, involvement mistake. her in Although attitude the the toward the solution became The SHI issue initiated a trend of insubordination and overall problematic behavior by Buchhagen. Buchhagen met with Beebe and Human Resources personnel to sort out however, the internal Buchhagen strife believed arising that from Beebe was the SHI angry issue; with her because she had received a significant raise from Z-Tech when she was promoted. On October 12, 2009, she recorded notes from their meeting and stated, “I then realized [Beebe] was furious because I had gotten the raise. I also then realized that she would be finding an excuse to terminate me.” 3 J.A. 185. In March 2010, Buchhagen received a low proficient rating on her performance evaluation from Beebe. She vociferously contested this rating and provided a rebuttal to it. Shortly thereafter, she set up meetings with Human Resources and other management personnel to complain of what Buchhagen claimed was harassment by Beebe, which included yelling at Buchhagen and pounding her fists on the table. Resources issues, had but three meetings Buchhagen was Buchhagen, Beebe, and Human to discuss ultimately the interpersonal unsatisfied with the progress of Z-Tech’s investigation of her complaints. In June 2010, Z-Tech instituted a plan that would assist Buchhagen in managing the Glossary request to have a backup process. and that addressed NCI’s The proposed backup plan also created goals to strengthen the Glossary team and to present a unified front “replacement to the plan” and client. Buchhagen believed embarrass and harass her. considered it way was a for this Beebe a to The record, however, indicates that NCI specifically requested Z-Tech to have backup personnel on the Glossary project in the event of illness, absence, disability or other occurrences. As June progressed, the relationship between Buchhagen and Beebe continued internal to Z-Tech implementation of deteriorate. matters the by backup Buchhagen raising plan. 4 involved questions She further NCI about in the undermined Beebe’s authority harass her. by questioning the plan as a mechanism to In response, Beebe drafted a Process Improvement Plan (PIP) for Buchhagen and sent it to Human Resources. Before it was approved, however, Buchhagen filed a complaint with Human Resources accusing Beebe of harassment in violation of Z-Tech’s policy, but made no age-related claim. After review, Human Resources and Z-Tech management approved the PIP for Buchhagen. The PIP was finalized Buchhagen the next day. on June 23, 2010, and presented to It specifically stated, “Failure to demonstrate immediate and sustained improvement in these areas will result in termination of employment.” Almost immediately after receiving attempted to take unscheduled leave. J.A. 323. the PIP, Buchhagen Although she and Beebe resolved the issue, Z-Tech considered this to be a continuation of Buchhagen’s defiance and insubordination. On July 14, 2010, Buchhagen failed to organize her back ups for a Glossary meeting with the client and did not inform Beebe about the meeting. Beebe prepared a draft email for Human Resources that reminded Buchhagen of the terms of her PIP and indicated performance was not fulfilling those expectations. that her In short, she cautioned, “This email is to remind you that your employment will be terminated J.A. 351. according to the PIP if this continues.” Beebe sent the approved email to Buchhagen on July 20, 2010. 5 Shortly before receiving Beebe’s email, however, Buchhagen sent a document thoroughly detailing all of her complaints of harassment and discrimination to Human Resources. In this document, she noted for the first time her status as a member of a protected class due to her age, among a multitude of other employment practice complaints. Z-Tech decided to end Buchhagen’s employment on or around July 21, 2010, and she was informed of this decision a few days later. II. In 2013, raising Buchhagen claims of brought hostile this action work environment, termination, and retaliation under the ADEA. ICF Int’l, Inc., 545 F. App’x. against 217 (4th Z-Tech, unlawful See Buchhagen v. Cir. 2013). The district court dismissed her complaint in full, and Buchhagen appealed to this Court. Id. at 219. failed sufficient to allege facts We agreed that Buchhagen to state a hostile work environment claim and affirmed the district court’s dismissal of that count. wrongful Id. discharge at and 219–20. As retaliation, to Buchhagen’s however, we claims of reversed on grounds that her complaint alleged sufficient facts to raise a plausible claim to relief. Id. at 220-21. 6 On remand discovery. to the district court, the parties completed Z-Tech moved for summary judgment on the remaining claims, and after considering the parties’ briefs along with the record evidence, the district court granted Z-Tech’s motion. Buchhagen v. ICF Int’l, Inc., No. JFM–12–2470, 2015 WL 727947 (D. Md. Feb. 18, 2015). The district court concluded, “there is no that evidence to suggest defendants discriminated against plaintiff because of her age or that plaintiff has been able to demonstrate either that she was meeting the legitimate expectations of ICF or that the reasons ICF articulated for the termination of her employment were pretextual.” Id. at *2. Buchhagen timely appealed, contesting only the dismissal of her ADEA retaliation claim. We now consider whether she presented sufficient evidence on that claim to survive Z-Tech’s motion for summary judgment. III. We review a grant of summary judgment de novo. Univ. of “Summary Md.-E. Shore, judgment is 787 F.3d 243, 248 (4th appropriate when there is Foster v. Cir. no 2015). genuine dispute as to any material fact and the movant is entitled to 7 Id. 3 judgment as a matter of law.” “A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party.” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013). Further, “[a] fact is material if it might affect the outcome of the suit under the governing law.” must view “the facts and all justifiable Id. The Court inferences arising therefrom in the light most favorable to the nonmoving party.” Id. at 312. Generally speaking, the ADEA creates a cause of action for employees who allege adverse employment action on the basis of age. 29 U.S.C. § 623(a). An employer can also violate the ADEA by retaliating against an employee for engaging in protected activity, such as filing a complaint of age discrimination. at § 623(d). [under the Id. “To establish a prima facie case of retaliation ADEA], a plaintiff must demonstrate that: (1) he engaged in protected activity; (2) an adverse employment action was taken against him; and (3) there was a causal link between the protected activity and the adverse action.” Laber v. Harvey, 438 F.3d 404, 432 (4th Cir. 2006) (en banc). When there discrimination, is which no is direct the case 3 evidence here, the of retaliatory Fourth Circuit This opinion omits internal marks, alterations, citations, emphasis, or footnotes from quotations unless otherwise noted. 8 applies the McDonnell Foster, 787 F.3d at 250. 5 Douglas 4 burden-shifting “Under this framework, the plaintiff must first establish a prima facie case.” 430. framework. Laber, 438 F.3d at “Once a plaintiff makes this prima facie case, he creates a presumption of [retaliation], and the burden of production shifts to the defendant to articulate a legitimate, discriminatory reason for its adverse employment decision.” “If the defendant satisfies this burden, the nonId. presumption disappears[,] and the plaintiff must show that the articulated reason is a pretext for [retaliation]. To do so, the plaintiff must do more than simply show the articulated reason is false; he must also show that the employer [retaliated] against him on the basis of” the proffered protected activity. Id. at 430–31. IV. A. Z-Tech first presents a procedural argument that it claims forecloses this appeal. 4 According to Z-Tech, Buchhagen waived McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 5 Buchhagen argues that Beebe’s comment while at LockheedMartin “about my age” and that ”it would be difficult . . . to get another job,” coupled with her later complaints of age discrimination are direct evidence of retaliation. Cf. J.A. 913. We do not find this to be persuasive, as it is taken out of context. Moreover, Beebe had already hired her at age sixtyfour and later promoted her at age sixty-seven. 9 her ability to appeal the district court’s grant of summary judgment as to her retaliation claim because she did not appeal the district court’s findings of law as to the wrongful discharge claim, which, they argue, apply to the retaliation claim as well. While We do not find this argument persuasive. perhaps maladroit, Buchhagen’s issue statement directly addressed the necessary aspects of a retaliation claim: “Whether the District Court erred by dismissing [Buchhagen’s] reprisal claim retaliatory shifting, when motive she for pretextual presented her reasons abundant termination; for her evidence Defendants termination; of offered material issues surrounding her discharge were in dispute; and the Court made credibility resolutions against [Buchhagen].” 1–2. Opening Br. Her issue statement, along with the evidence and argument presented throughout her opening and reply briefs, directly appeals the district court’s findings as to each element, which is sufficient to pursue review of this claim. For these reasons, we determine that Buchhagen did not waive her right to appeal. B. Turning to the merits, to survive summary judgment Buchhagen must have presented a prima facie case by showing (1) that she engaged in protected activity, (2) that Z-Tech took adverse employment action against her, and (3) that the adverse 10 action was causally connected to her protected activity. See S.B. v. Bd. of Edu. of Harford Cnty., No. 15–1474, 2016 WL 1391787, at *6 (4th Cir. Apr. 8, 2016). contest that Buchhagen’s termination employment action against her. The parties do not constituted an adverse At issue here, then, are the first and third elements of Buchhagen’s claim. 1. Buchhagen argues she engaged in protected activity by lodging complaints of age discrimination throughout her tenure with Z-Tech. working To be sure, Buchhagen frequently objected to her environment. complaints were But largely contrary silent to her position about age and now, were her instead directed at what Buchhagen considered to be harassment or other unfair treatment by Beebe. As best we can tell, Buchhagen brought her age and its protective status to Z-Tech’s attention only once, in her July 20 e-mail to Human Resources. read in context, her cursory statement seems And when to be an afterthought in a laundry list of other complaints rather than the driving force behind any fear of age discrimination or agerelated termination. Although the bar to show protected activity is rather low, see EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005), we are hard pressed to credit this stray reference as carrying the day. 11 Nevertheless, for purposes of efficiently adjudicating this case, we activity will as assume required that by the Buchhagen ADEA. We engaged thus in move protected on to the remaining element in contention. 2. To reiterate, a plaintiff raising a retaliation claim must show a causal connection between the adverse employment action and the protected activity. Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998). As this Court has previously explained, the traditional principles of but-for causation apply here, which simply means that the retaliation employment action. the employee must was the “real reason” for Foster, 787 F.3d at 252. show that he would not the adverse Put differently, have suffered adverse employment action “but for” the protected activity. an Id. Because this case is proceeding under the burden-shifting framework of McDonnell Douglas, Buchhagen “must establish both that [Z-Tech’s proffered legitimate business] reason was false and that conduct.” retaliation was the real reason Foster, 787 F.3d at 252. for the challenged We conclude she failed to meet this burden. As noted in the first appeal, “some of Buchhagen’s behavior as described in the complaint could be construed as problematic or even insubordinate.” Buchhagen, 12 545 F. App’x. at 220. Discovery proved this statement to be true, and in light of the undisputed evidence of Buchhagen’s continued insubordination, no reasonable jury could conclude she was terminated for any reason other than Z-Tech’s legitimate business interests. Z-Tech presents a clear and long train of frustration with Buchhagen’s noncompliance. Buchhagen’s interactions with Beebe after the October 2009 SHI incident demonstrated a troubling pattern of obstinate behavior to the point where Buchhagen’s ability to perform her job. Beebe lost trust in As early as March 2010, Z-Tech noticed that Buchhagen repeatedly refused to acknowledge Beebe’s authority as her supervisor. In addition, she failed to recognize the common sense business practice of implementing a back-up process, even though NCI specifically requested one. sum, the record behavior, despite fully documents repeated Buchhagen’s warnings from In contumacious Beebe and Human Resources. Further, dissatisfaction the with complaints about age. record details Buchhagen’s work Z-Tech’s ethic prior growing to any The decision to place her on a PIP, and Beebe’s July 20 e-mail warning Buchhagen of the effects of not following the PIP’s terms, predate her protected activity. Although Buchhagen colors this July 20 e-mail as a reaction to her complaints of age discrimination and other harassment, the record indicates that the e-mail and its language were drafted 13 well before she engaged in protected activity. As this Court and others have stated, an employment action cannot be adverse when the action was contemplated before the protected activity occurred. See Baqir v. Principi, 434 F.3d 733, 748 (4th Cir. 2006) (recognizing that employee must show that the employer knew of his protected activity to constitute retaliation); see also Leitgen v. Franciscan Skemp Healthcare Inc., 630 F.3d 668, 676 (7th Cir. 2011) (“A claim of retaliation based on suspicious timing depends on what the relevant decision-makers knew and when . . . .”). We further determine that Buchhagen’s argument based on the temporal proximity between her termination and her protected activity is insufficient to persuade a reasonable jury that she was fired because of her age. As this Court recently held, While the temporal proximity between [an employee’s] protective activity and the [adverse employment action] may be sufficient to make an initial prima facie showing of causation, see Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 579 (4th Cir. 2015), timing alone generally cannot defeat summary judgment once an employer has offered a convincing, nonretaliatory explanation. See Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052, 1066 (10th Cir. 2009). Without more than his own assertions, [an employee] cannot meet his burden at summary judgment. See Haulbrook v. Michelin N. Am., Inc., 252 F.3d 696, 705–06 (4th Cir. 2001) (rejecting plaintiff’s retaliation claim at summary judgment because no reasonable jury could find the employer’s explanation pretextual). 14 S.B., 2016 WL 1391787, at *7. The same is true here. The district court fittingly summarized Buchhagen’s claims: [t]his case provides an unfortunate example of an employee who, though talented, came to believe she was indispensible because of her experience. In effect, plaintiff seeks to turn the ADEA on its head by arguing that her age and experience gave her the right to work on her own, unsupervised and without the backup her employer thought was essential. The ADEA is intended to prevent discrimination based on age, not to confer increased status upon those who become older. Buchhagen, 2015 WL 727947, at *2. V. For these reasons, we affirm the judgment of the district court. AFFIRMED 15

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