Smith v. Vilsack, No. 8:2010cv02306 - Document 16 (D. Md. 2011)
Court Description: MEMORANDUM OPINION (c/m to Plaintiff 6/2/11 sat). Signed by Chief Judge Deborah K. Chasanow on 6/2/11. (sat, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : EILEEN Y. SMITH : v. : Civil Action No. DKC 10-2306 : THOMAS J. VILSACK : MEMORANDUM OPINION Presently pending and ready for resolution in this employment discrimination action is a motion to dismiss or, in the alternative, for summary judgment filed by Defendant Thomas J. Vilsack.1 (ECF No. 7). The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Defendant s motion will be granted. I. Background A. Factual Background Unless otherwise uncontroverted. noted, Smith has the following offered general facts are allegations contesting some of Vilsack s proffered facts, but she failed to offer admissible 1 evidence in support of those allegations. Vilsack is the Secretary of Agriculture. Smith sued him in his official capacity as the head of the agency that oversees the Animal and Plant Health Inspection Service. Consequently, Vilsack s facts are largely treated as undisputed for purposes of this motion. See Fed.R.Civ.P. 56(e)(2)-(3). Before July 2006, Plaintiff Eileen Smith worked for the United States Department of Agriculture ( USDA ) as a Program Facility/Director and California Sterile Coordinator in Los Alamitos, California. part of the Quarantine Western division Region of of the USDA s Inspection Service ( APHIS ). the Insect Technique Smith s position was Plant Animal Protection and Plant and Health In July 2006, Western Regional Director Phillip Garcia reassigned her to a new position because of organizational conflicts. 8). (ECF No. 7-7, Garcia Dep., at Smith then became Regional Program Manager ( RPM ) within the same division but remained in California. For her first supervised Smith. Manager Judy three months as an RPM, Steve Johnson In September 2006, Senior Regional Program Pasek replaced Johnson as Smith s supervisor. Sherry Sanderson, who was then supervised by Garcia, supervised Pasek. All of Smith s superiors were stationed in Fort Collins, Colorado. 1. Training and Travel While working as an RPM, Smith was offered several training opportunities. In January 2007, for example, authorized to take an irradiation training course. 2 Smith was A month later, in February 2007, she attended an agroterrorism training course. From February 2007 to May 2007, Smith completed a 90- day temporary duty assignment in Riverdale, Maryland as part of a leadership program. While on temporary duty in Maryland, she also received training at an APHIS Safety and Health Conference in Kansas City, Missouri in April 2007. Smith states that she had a meeting with Garcia during her trip that did not go well. In particular, Smith maintains that Garcia told her she had no future in the Agency or even in the western region and that she would have to start over. 21). (ECF No. 7-4, Smith Dep., at 20- Garcia denies making any such statement. After her temporary duty in Maryland ended, Smith travelled to Fort Collins for two weeks, from July 8 to July 20. There, she received additional training on websites and data analysis. During the trip, on July 16, she also supervisors, Pasek, Sanderson, and Garcia. her about her role and responsibilities, met again with her After talking with they asked her to return to Fort Collins for a 30-day temporary duty assignment to help her better understand the regional office. Smith pretty much left open the question of when she would return, as she needed to attend certain medical appointments every two weeks over the next several months. (ECF No. 7-4, Smith Dep., at 37). 3 The next day, on July 17, Smith requested permission to attend an Avian Influenza Conference in Bethesda, Maryland. Pasek denied her request for the training, as she felt Smith had other priorities for work assignments and travel. 5, Report of Investigation ( ROI ), at 237). (ECF No. 7- A week later, on July 24, Smith emailed Pasek and explained that she wanted to attend another Association $1,600. only course ( AMA ) a training three-day course in American August Management costing over Pasek denied the request, as her budget provided for $1,200 in training for each individual and already received $1,800 in training for the year. Smith had When Pasek told her that the training request was denied, Smith revealed that she had already purchased the program with her government credit card and believed that the fee was non-refundable.2 August 1, Smith renewed her request to attend the On Avian Influenza Conference, but Pasek again denied it, as she felt it was important that Smith complete assignment in Fort Collins first. her 30-day temporary duty Around the same time, Pasek suggested that Smith could break her 30-day visit into smaller trips to avoid conflicts with Smith s medical appointments. 2 The government ultimately was able to recover the fee. 4 After taking three days of medical leave in August, Smith returned to work and began pressing her request to attend the Avian Influenza Conference once more. On August 30, for instance, Smith informed Pasek and Sanderson that she intended to approach the EEOC about the denial of her training request. In an August 31 telephone call with Pasek, Smith again raised the issue of the Avian Influenza Conference; Pasek refused to change her decision. During the same call, Smith insisted that she would not come to Fort Collins until 2008 because Pasek had denied her request to attend the Avian Influenza Conference. The day after her telephone conversation with Pasek, Smith emailed Pasek, Sanderson, and Garcia.3 she felt the Avian responsibilities. Influenza The email reiterated that Conference related to her job Smith also said: So until you make some effort to understand or learn to ask me for information before just deciding without understanding, we will just continue to be dysfunctional and disagreeable . . . which I find so unproductive, unreasonable and ridiculous, but that apparently is how you all want to operate . . . to find fault with everything 3 The email stemmed from a request by Pasek that Smith provide documentation evidencing that she was an APHIS Safety Officer. Pasek originally did not believe that Smith was such an officer because there was no documentation in Smith s personnel file. Smith argued that her position as a Safety Officer justified her attendance at the Avian Influenza Conference. 5 I say or try to do . . . and to use my medical and EEO situations against me . . . and prevent me from attaining anything related to my performance elements . . . I already anticipate that my end of the year evaluation will be very contentious . . . pretty sad state of affairs . . . And so there is no misunderstanding, and as I stated over the phone, I will not be coming to Colorado anytime before January at the earliest . . . also, I would like to be provided with exactly what I will be doing over a 30 day period because I don t see this time period to be very productive either . . . all of this is a good example of this . . . reading emails, documents, and giving an opinion and drawing pretty pictures with data off various websites is not my idea of a good time or even being remotely constructive . . . all of this and coming to Colorado for 30 days is apparently just a reason to be continually serving out Phil s life sentence because of the bogus circumstances of last year. (ECF No. 7-5, ROI, at 250 (ellipses and bold in original)). Pasek determined that the August 31 email merited a letter of caution in response. Accordingly, after consulting with Human Resources, Pasek sent Smith such a letter on September 7, 2007. was went The letter warned Smith that (1) the tone of her email inappropriate outside Sanderson and the and chain Garcia, disrespectful, of and command (3) (2) in she she sending inappropriately the wrongfully email to disregarded management decisions in refusing to travel to Colorado until January 2008. Smith refused 6 to sign the acknowledgement indicating that she had received the letter, as she felt her comments were taken out of context. Nevertheless, she apologized for the email and explained that she did not wish to be disrespectful or inappropriate. Following received some the issuance additional of the letter training. In example, she received ethics training. of caution, October Smith 2007, for Later, in February 2008, she attended classroom training in Oklahoma City. She was not permitted to attend the National Biocontrol Meeting in Colorado because, according to Pasek, [t]ravel to that conference was limited to two people per state . . . [a]nd biocontrol was not a program area that [Smith] had direct responsibility for. (ECF No. 7-6, Pasek Dep., at 46). 2. Application for GS-13 Agriculturist Position Also in 2007, Smith applied for an Agriculturist (Assistant Trade Director) position Management ( PIM ) Staff. within the Phytosanitary Issues The position, a GS-13 position, was advertised in a vacancy announcement running from June 11 to July 2, 2007. The selecting official was Craig Fedchock, who received assistance in evaluating the applications from Fan-Li Chou, John Guidicipietro Tyrone Jones, also discussed and the 7 Jennifer Lemly; selection with Michael Fedchock. Neither Fedchock nor Guidicipietro were aware of Smith s prior EEO activity at the time the selection was made. Fedchock ultimately selected Judith Macias, a woman, for the agriculturalist position on August 22, 2007. Fedchock chose Machias because her experience and qualifications exceeded that of the other candidates. In particular, Machias had extensive experience working at the field level on many of the issues facing the PIM staff. application confirms related experience. In the end, (ECF No. 7-5, ROI, at 90). that she possessed Machias significant trade- (ECF No. 7-5, ROI, at 161-190). however, Smith was able to secure a position in February 2008 as a national program manager. new She was then stationed in Riverdale, Maryland.4 B. Procedural Background Smith filed an administrative complaint in November 2006 asserting claims not at issue in the present case, principally relating to a decision by Garcia to transfer her to a different position.5 She then filed a new complaint, raising seven new 4 The parties disagree over whether Garcia provided a good recommendation when contacted by the selecting official for this position. That dispute is irrelevant to the present case. 5 That case administrative appeal. was dismissed 8 and is pending on issues, on September May 24, 15, 2007 2007). (with The an amendment administrative following judge decided on to consolidate one of the issues in this new complaint with the earlier November 2006 filing, leaving six claims remaining in the later action. The judge dismissed those six claims in an August 11, 2009 decision that was affirmed on appeal to the Equal Employment Opportunity Commission s ( EEOC ) Federal Operations ( OFO ) on March 19, 2010. Office of See Smith v. Vilsack, Appeal No. 0120100039, 2010 WL 1178321 (E.E.O.C. Mar. 19, 2010), reconsideration denied, 2010 WL 2255030 (E.E.O.C. May 28, 2010). On August 23, 2010, Smith filed a pro se complaint in this court raising complaint. the six issues presented in her later EEO In particular, Smith maintains that she suffered six adverse employment actions because of gender discrimination and retaliation for prior EEO activity. actions included: (ECF No. 1). These adverse (1) the letter of caution she received on September 7, 2007; (2) denial of leadership training on August 9, 2007; (3) Pasek s refusal to let her attend the Avian Influenza Conference; (4) a management prohibition on training or travel beginning on July 24, 2007; (5) Garcia s comments on April 26, 2007 in Kansas City; and (6) her non-selection for the Agriculturalist position on August 22, 2007. 9 (Id. ¶¶ 1-6). She seeks a finding of discrimination, attorneys fees and costs, and emotional damages of $100,000. (Id. at 3). The Secretary moved to dismiss, and alternatively sought summary judgment, on January 7, 2011. (ECF No. 7). Pursuant to the requirements of Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Smith was notified by letter that the Secretary had filed a dispositive motion, the granting of which could result in the dismissal of her complaint. (ECF No. 8). The letter informed Smith that she was entitled to file materials in opposition to within 17 days, but that her case could be dismissed (or summary judgment entered) if she failed to illustrate, by affidavit or the like, a genuine dispute of material fact. filed an opposition on March 4, 2011. government replied shortly thereafter. II. (Id.). Smith (ECF No. 12). The (ECF No. 15). Standard of Review The government bases 12(b)(6), and Rule 56. Rule 12(b)(1) court s 6 motion subject matter its motion on Rule 12(b)(1), Rule The motion is not properly styled as a because no part jurisdiction.6 of it implicates In addition, a the court The Secretary likely anticipated that its administrative exhaustion argument, discussed below, would raise a jurisdictional issue. Although a plaintiff s failure to exhaust administrative remedies related to a Title VII claim deprives a federal court of subject matter jurisdiction, the untimeliness of an administrative charge does not affect federal 10 considers only the motion to dismiss. pleadings when deciding a Rule 12(b)(6) Because the parties rely on matters outside the pleadings, the court will construe the motion as one for summary judgment. F.3d 315, 319 See Fed.R.Civ.P. 12(b); Walker v. True, 399 n.2 (4th Cir. 2005); Offen v. Brenner, 553 F.Supp.2d 565, 568 (D.Md. 2008). A court may enter summary judgment only if there is no genuine issue as to any material fact and the moving party is entitled 56(a); to judgment Celotex Corp. as a matter v. Catrett, of 477 law. U.S. See 317, Fed.R.Civ.P. 322 Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). (1986); Summary judgment is inappropriate if any material factual issue may reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). In examining the record, the court must construe the facts presented in the light most favorable to the party opposing the motion. See Scott v. Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297. jurisdiction over a Title VII claim. Jones v. Calvert Grp., th Cir. 2009) (citing Zipes v. Trans Ltd., 551 F.3d 297, 301 (4 World Airlines, Inc., 455 U.S. 385, 393 (1982)). The Secretary s argument does not affect subject matter jurisdiction because it attacks only the timeliness of Smith s efforts. 11 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 showing that there is a genuine issue for trial. facts Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed.R.Civ.P. 56(e)). proof . . . will not suffice to A mere scintilla of prevent summary judgment. Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. 249-50. (citations omitted). Liberty Lobby, 477 U.S. at Moreover, unsubstantiated factual contentions found in the summary judgment briefs are simply not enough to stave off summary judgment. The court is not required to scour the record looking for factual disputes and such unsupported factual assertions will not be credited. Jurgensen v. Albin Marine, Inc., 214 F.Supp.2d 504, 510 (D.Md. 2002) (quotation marks and ellipses omitted). Although pro se litigants are to be given some latitude, the above standards apply to everyone. Thus, as courts have recognized repeatedly, even a pro se party may not avoid summary judgment arguments. by relying on bald assertions and speculative See, e.g., Price v. Reilly, 697 F.Supp.2d 344, 352- 53 (E.D.N.Y. 2010); Johnson v. Deloach, 692 F.Supp.2d 1316, 1323 12 (M.D.Ala. 2010); Benckini v. Hawk, 654 F.Supp.2d 310, 316 & n.1 (E.D.Pa. 2009); Hammad v. Bombadier Learjet, Inc., 192 F.Supp.2d 1222, 1229 (D.Kan. 2002). III. Analysis A. Timely Exhaustion of Administrative Remedies In this action, Smith asserts Title VII claims of gender discrimination and retaliation based on six different incidents. As a threshold matter, one of these incidents the comments allegedly made considered. by Garcia Federal on April employees 26, alleging 2007 - may not discrimination be under Title VII must exhaust their administrative remedies in a timely fashion. Among other things, federal employees must initiate contact with a Counselor within 45 days of the matter alleged to be discriminatory. 29 C.F.R. § 1614.105(1). Failure to comply with this timing requirement can result in dismissal (or, in this case, summary judgment).7 See Lorenzo v. Rumsfeld, 456 F.Supp.2d 731, 734 (E.D.Va. 2006) (citing Zografov v. Veterans Admin. Med. Ctr., 779 F.2d 967, 970 (4th Cir. 1985)); see also Moret v. Geren, 494 F.Supp.2d 329, 337-340 (D.Md. 2007). Smith apparently waited until August 31, 2007, more than 120 days 7 Equitable tolling or estoppel could apply, but there is no argument that it should in this case. There is no basis for these arguments evident in the record, either. 13 later, to raise an informal comments on April 26, 2007. complaint concerning Garcia s (ECF No. 7-5, ROI, at 1). Smith maintains that the comment-based claims were timely because they were part of an ongoing pattern of conduct. No. 12, at 4). (ECF This argument is likely an attempt to invoke the continuing violation theory, which allows for consideration of incidents incidents that are occurred part discrimination. of outside a the single, time bar ongoing when those pattern of Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (citing Nat l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002)). Such a theory only applies, however, when an employee asserts a hostile work environment claim. Id. ( . discrimination, hostile work Morgan, 536 . . i.e., part when environment U.S. at 122 of the a incidents claim. ( A single, (emphasis charge ongoing make pattern up part added)); alleging a of of a see also hostile work environment claim, however, will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period. ). even in the There is no indication in the complaint (or administrative proceedings below) intended to bring a hostile work environment claim. that Smith She cannot bring one now simply by hinting at it in her opposition to the 14 Secretary s F.Supp.2d motion. 591, 615 See, e.g., (E.D.N.C. Bostic 2009) v. Rodriguez, ( Plaintiffs may not 667 use their response to amend their complaint. ); Caudill v. CCBCC, Inc., 651 F.Supp.2d 499, 510 (S.D.W.Va. 2009) ( Indeed, a plaintiff may not amend her complaint through argument in a brief opposing summary judgment. (quotation marks and brackets omitted)); Sensormatic Sec. Corp. v. Sensormatic Elec. Corp., 455 F.Supp.2d 399, 435-36 (D.Md. 2006); see also Barclay White Skanska, Inc. v. Battelle Mem l Inst., 262 F.App x 556, 563 (4th Cir. 2008). Even when a plaintiff is pro se, she must bring her claims in the complaint, not in ad hoc additions in the midst of summary judgment briefing. Smith also insists that the timeliness issue was already decided at the administrative level; she accuses the Secretary of trying to reverse a decision that has already been decided. (ECF No. 12, at 5). The decision of the OFO indicates otherwise, as the office determine[d] that [it was] unnecessary to address the agency s determination on appeal that complainant initiated untimely EEO Counselor contact regarding [the Garcia comments]. Smith, 2010 WL 1178321, at *4 n.3. Regardless, a federal employee who brings a civil action in the district court must put his employing agency s underlying discrimination issue [even] if the OFO accepts those allegations. 15 at Laber v. Harvey, 438 F.3d 404, 419 (4th Cir. 2006); accord Murchison v. Astrue, 689 F.Supp.2d 781, 789 (D.Md. 2010) ( After the employee chooses the second route - appealing the agency s underlying decision - and the OFO either rules against the employee or orders a remedy the employee finds unsatisfactory, the employee again has the opportunity to seek a de novo civil action in federal court (putting the entire issue of discrimination in front of the court). ). Thus, the Secretary is not trying to rehash an issue already decided, as the OFO s legal conclusions have no relevance at this stage. [A]dministrative res judicata does not operate in a Title VII suit. Astoria Fed. Sav. & Loan Ass n v. Solimino, 501 U.S. 104, 112 (1991) (quotation marks omitted). Because she failed to exhaust her administrative remedies in accordance with the applicable timing requirements, summary judgment must be entered on any claims premised on Garcia s alleged comments. B. Gender-Based Discrimination Title VII bars federal government employers from engaging in any discrimination based on race, color, religion, sex, or national origin. 8 42 U.S.C. § 2000e-16.8 In her complaint, Notwithstanding the differences in wording, sections 2000e-2 and 2000e-16 generally have been treated as comparable, 16 Smith argues that she was the victim of such discrimination by virtue of her gender. Her opposition to the government s motion for summary judgment makes little mention of this claim. Smith does not discrimination. present Therefore, any she direct would evidence need to of rely gender on the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to avoid summary judgment. Under that familiar standard, Smith establish a prima facie case encompassing four elements: must (1) membership in a protected group, (2) qualification for the job in question, (3) an adverse employment action, and circumstances supporting an inference of discrimination. (4) King v. Marriot Int l, Inc., 195 F.Supp.2d 720, 723 (D.Md. 2002). The burden then shifts to the employer to provide some legitimate, non-discriminatory reason for the disputed action. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004). If the employer can do so, the burden then shifts back to the employee, who must then demonstrate that the reason offered is in fact a pretext for discrimination. Id. with the standards governing private-sector claims applied to claims under section 2000e-16. Bhella v. England, 91 F.App x 835, 844 (4th Cir. 2004). 17 1. Adverse Employment Action: Letter of Caution As to the third element an adverse action the Secretary contends that some of the constitute adverse actions. discriminatory conditions, act or that events cited of Holland, 487 F.3d at 219. Smith do not An adverse employment action is a adversely benefits by the affect[s] plaintiff s the terms, employment. Although conduct short of ultimate employment decisions can constitute adverse employment action, there still must be a tangible conditions of employment. effect that makes an the terms and Geist v. Gill/Kardash P ship, 671 F.Supp.2d 729, 737 n.6 (D.Md. 2009). everything on employee Title VII does not remedy unhappy. Jeffers v. Thompson, 264 F.Supp.2d 314, 329 (D.Md. 2003). The letter of caution was not an adverse employment action. Generally, a reprimand, whether oral or written, does not per se significantly affect the terms or conditions of employment, but only becomes an adverse action if it works a real, rather than speculative, employment injury. Jeffers, 264 F.Supp.2d at 330; accord Nichols v. Harford Cnty. Bd. of Educ., 189 F.Supp.2d 325, 342 (D.Md. 2002); Newman v. Giant Food, Inc., 187 F.Supp.2d 524, 528-29 (D.Md. 2002); see also Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 651 (4th Cir. 2002) (explaining that the imposition of discipline is not an adverse action unless it 18 materially alters the terms of employment). Much like a poor performance evaluation, the letter would only become an adverse action where the employer subsequently uses [it] as a basis to detrimentally alter the terms or conditions of the recipient s employment. James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 377 (4th Cir. 2004); accord Pulley v. KPMG Consulting, Inc., 348 F.Supp.2d 388, 394-95 (D.Md. 2004). Smith has not pointed to any bit of evidence indicating that the letter had any effect on her employment. Indeed, there were apparently no consequences stemming from the letter at all.9 Because it was not an adverse action, Smith cannot rely on the letter of caution to sustain a gender-based discrimination claim. 9 In much the same way, even if they could properly be considered, Garcia s alleged comments do not amount to an adverse employment action. There is no evidence that the comments had any impact on the terms of Smith s employment. The alleged comments might have been frank or even harsh, but there is no argument that the comments generated any of the typical forms of adverse action: discharge, demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, or reduced opportunities for promotion. Bonne v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999). And as a general matter, disparaging remarks made by a supervisor do not state an adverse employment action. Blount v. Dep t of Health & Human Servs., 400 F.Supp.2d 838, 842 (D.Md. 2004). 19 2. Circumstances Supporting Inference of Discrimination: Training, Travel, and Non-Selection The Secretary also asserts that Smith has not established the fourth element of the prima facie case circumstances supporting an inference of discrimination with regard to the remaining claims. One of the most common ways to establish such circumstances is to point to a similarly situated comparator outside of the protected class who was treated differently. Of course, Smith is not required to summon such evidence; she may also point to any discrimination. other circumstantial evidence suggesting Bryant v. Aiken Reg l Med. Ctrs. Inc., 333 F.3d 536, 545-46 (4th Cir. 2003). Here, Smith has failed to provide similarly situated comparators or any other circumstantial evidence supporting an inference of discrimination with regard to her non-selection for the Agriculturalist position. non-selection in passing, Indeed, Smith only references her suggesting that (1) her lack of training and travel impacted all future potential promotions, including the GS-13 Trade position ; and (2) Garcia might have talked to Guidicipietro about her. Such speculative arguments are woefully insufficient, especially given that an inference of gender discrimination is undermined by the fact that another woman was selected for the position. See Foreman v. Weinstein, 485 F.Supp.2d 608, 610 n.1 (D.Md. 2007) (explaining, in the 20 failure to promote context, that the claim is essentially moot if the person promoted is in the same protected class as the plaintiff); Sonpon v. Grafton Sch., Inc., 181 F.Supp.2d 494, 500 (D.Md. 2002) ( [C]ourts have held that a plaintiff did not satisfy the fourth prong of the test for failure to promote where applicants of the same race and gender as the plaintiff filled the positions for which he had applied. ). Smith also has not identified any circumstances giving rise to an inference of discrimination with regard to her alleged denial of training. a safety officer She notes that a male employee who was not was allowed to attend the Avian Influenza Conference, while she was not allowed to attend despite her relevant status as a safety officer. Unfortunately, Smith fails to provide any evidentiary support for the existence of this comparator. Moreover, even if the court were permitted or inclined to consider Smith s unsubstantiated view of the facts, the mere assertion that training is not enough. a male was permitted to attend the Putting aside the fact that it is not clear who exactly permitted the male employee to attend, Smith must provide some indication that the male employee was in a comparable position to Smith. To be similarly situated and thus permit a valid comparison, the [male] employee[] must have dealt with the same supervisor, 21 been subject to the same standards, and have engaged in the same conduct as Smith. Duggan v. Sisters of Charity Providence Hosps., 663 F.Supp.2d 456, 468 (D.S.C. relevant facts. 2009). Smith has not established these In her opposition, Smith would seem to protest that she cannot present valid comparators because her work place was too small. If that is indeed the case, she must provide other circumstantial evidence or seek direct evidence. Having failed to do either, her claim cannot proceed. Consequently, Smith s gender-based discrimination claims premised on her denials of training and travel and her nonselection for the GS-13 Agriculturalist position fail. 3. Pretext Given that Smith has not established a prima facie case of gender-discrimination, there is no need to move through the rest of the McDonnell Douglas framework. Even if Smith had met her initial still failed. burden, however, her claim would have largely As the statement of facts makes clear, the Secretary has offered legitimate explanations for most of the challenged actions; while they need not be repeated in full, a brief survey confirms the point. Smith s requested training and travel was denied because of budget limitations and because her superiors placed higher priority on her visit to Fort Collins. Smith received a letter of caution because of an insubordinate email, 22 which even Smith now admits was a mistake. the Agriculturalist position candidate was selected. because She did not receive another more-qualified While Smith labels these explanations excuses, she has not provided any evidence in support of that view. [A] plaintiff demonstrates pretext by showing the employer s proffered nondiscriminatory reason is a lie and the real reason is based on discriminatory intent. Hobbs v. City of Chicago, 573 F.3d 454, 462 (7th Cir. 2009). Smith has done neither. Judgment will be entered for the defendant on the entire gender-based discrimination claim. C. Retaliation Title VII also prohibits an employer from retaliating against an employee who exercises his Title VII rights. U.S.C. § 2000e-3. Smith claims the agency violated 42 that prohibition by retaliating against her after she filed her first EEOC complaint. Just like the discrimination claim, without any direct evidence, Smith may employ the McDonnell Douglas burden-shifting framework. 2004). needs See Price v. Thompson, 380 F.3d 209, 212 (4th Cir. To survive summary judgment under McDonnell Douglas, she to demonstrate three elements: (1) she engaged in protected activity; (2) the agency took an adverse employment 23 action against between the action. her; and protected (3) there activity and was a the causal connection adverse employment See Davis v. Dimensions Health Corp., 639 F.Supp.2d 610, 616 (D.Md. 2009); accord Holland, 487 F.3d at 218. Once that challenge is met, the Secretary must then provide a nondiscriminatory explanation for the adverse action. The burden would then shift back to Smith to show the reason is pretextual. Recognizing that Smith engaged in protected activity in filing her first EEOC action, the Secretary focuses on the second and third elements of the prima facie retaliation case. First, the government argues that several of the disputed events were not materially adverse. The definition of an adverse action is simply not reducible to a comprehensive set of clear rules[,] . . . [but] judging harm must be objective. the provision s standard for Thompson v. N. Am. Stainless, LP, 131 S.Ct. 863, 868 (2011) (quotation marks omitted). Thus, an action is materially adverse if, from an objective point of view, it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Burlington N. Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (quotation marks omitted). On the other hand, [t]he anti-retaliation provision of Title VII does not protect against petty slights, minor 24 annoyances, and simple lack of good manners. Geist, 671 F.Supp.2d at 738 (quoting Burlington, 548 U.S. at 68). In opposing the Secretary s motion for summary judgment, Smith has suggested that the six discrete instances underlying these claims actually were discrimination and pretext. part of an ongoing (ECF No. 12, at 4). pattern of The Secretary reads this argument as an attempt to amend the complaint to include a retaliatory hostile work environment claim (which, as noted above, Smith cannot do). such an argument essentially The government maintains that concedes [its] arguments, as there is no hostile work environment claim in the complaint and Smith did not argue that any single act was materially adverse. The Secretary s argument likely misconstrues the nature of an adverse action in the retaliation context. As the Supreme Court bluntly reminded courts in Burlington, [c]ontext matters in retaliation cases. 548 U.S. at 69. Thus, it behooves courts to consider whether based upon the combined effect of alleged events, a reasonable worker could be dissuaded from engaging in protected activity. Test v. Holder, 614 F.Supp.2d 73, 84 (D.D.C. 2009) (quotation marks and ellipses omitted; emphasis in original); see also Caldwell v. Johnson, No. 1:09CV707, 2009 WL 2487850, at *10 n.13 (M.D.N.C. cases). In other words, a court may consider the cumulative 25 Aug. 13, 2009) (collecting effect of several allegedly retaliatory acts without converting the claim into a hostile work environment claim. before Burlington, retaliation rather courts may a than come single in seemed the form discrete willing of a act. to Indeed, even recognize pattern See, of e.g., that behavior, McKenzie v. Illinois Dep t of Transp., 92 F.3d 473, 483 n.7 (7th Cir. 1996) ( We do not foreclose the possibility that another plaintiff might have a cognizable claim of retaliation based on acts which, although seemingly appropriate and nondiscriminatory when considered in together. ). isolation, Smith may bespeak retaliation therefore rely when the on considered collective retaliatory force of these acts without having to amend her complaint. The problem for Smith, though, is that even if one assumes that she suffered a materially adverse employment action, she has not established any causal activity and the adverse action. link between the protected This is principally so because none of the relevant decisionmakers here Pasek, Sanderson, Fedchock, or Guidicipietro apparently had knowledge of her prior EEO activity. Smith argues that two of the decisionmakers (Pasek and Sanderson) were on Garcia s staff and asserts that Guidicipietro sometimes talked with Garcia. She infers from these relationships that the decisionmakers must have known of 26 her protected activity because Garcia was aware of it; in fact, she goes so far as to accuse Garcia of recruiting and directing his staff to retaliate against her. without any particularly evidence, given that that the is too (ECF No. 12, at 5). speculative relevant sworn to their lack of knowledge.10 an decisionmakers Yet inference, have all Since, by definition, an employer cannot take action because of a factor of which it is unaware, the employer s knowledge that the plaintiff engaged in a protected activity is absolutely necessary to establish the third element of the prima facie case. Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998); accord Baqir v. Principi, 434 F.3d 733, 748 (4th Cir. 2006); Hooven-Lewis v. Caldera, 249 F.3d 259, 278 (4th Cir. 2001).11 10 Pasek says she learned in September 2007 that Smith had filed a complaint against Garcia, but she did not understand that it was EEO-related. (ECF No. 7-6, Pasek Dep., at 38-39). That event happened after all of the allegedly retaliatory events. In 2006, she also heard rumors that Smith might file a complaint against past supervisors, but did not understand that Smith had filed any such complaint. (Id. at 3738). 11 Even if the court were to assume knowledge, there is nothing hinting at a connection between the protected activity and the adverse actions. The adverse actions here are separated by several months and the passage of time tends to negate an inference of retaliation. See Price, 380 F.3d at 213. Although other relevant evidence may be used to support a causal connection where temporal proximity is lacking, Lettieri v. 27 It also Secretary bears has repeating provided that, legitimate, for many of the challenged actions. as explained above, non-discriminatory the reasons As with her discrimination claim, Smith has failed to provide evidence (or even a forecast of evidence) that these reasons are pretext. Judgment for the Secretary will be entered on the retaliation claim. IV. Conclusion For the foregoing reasons, Defendant s motion, construed as a motion for summary judgment, will be granted. /s/ DEBORAH K. CHASANOW United States District Judge Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007), Smith has not provided such evidence here. 28
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