Washington v. Burwell, No. 8:2016cv03638 - Document 17 (D. Md. 2017)
Court Description: MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 11/9/2017. (c/m 11/9/2017 tds, Deputy Clerk)
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Washington v. Burwell Doc. 17 / I / FILED IN TIlE UNITED STATES I>ISTRICT COURT FOR THE I>ISTRICT OF MARYLANI> Southern I>ivisiou i'>1~7SilUcI5nj)CT COURT l~".~I, l\ •.....ot"It ~"Y' , ,_ • :.;,) I. A ZOI1 NOV -9 P 3:2S * CL l"'''~r_ '... LISA WASHINGTON, 1.,~',' .-•. _~ • r, * 1)laintiff, ,. -_L. ' •..._. Case No.: G.J1J-16-36311 * * SYLVIA MATHEWS BURWELL, * Defendant. * * * * * * * * * MEMORANDUM Plaintiff Lisa Washington 8urwell. formcr Sccrctary 0 I' thc brings this ~~ 2000e ('/ Dismiss. or altcrnatively. Motion Loe. R. 105.6 (D. Md. 2(16). Motion for Summary I. I()I" * * Dcfcndant Summary * 0 I' llealth Sylvia Mathcws and Iluman Scrviccs in violation ofTitlc VII of the Civil Rights Now pending bel()rc the Court is Delendant's For the lollowing Judgment. s(' action against and retaliation S('(f. * OPINION U ni ted States Dcpartmcnt ("I II IS"). alleging race discrimination Act of 1964. 42 U.S.c. pI'li * Judgment. ECI' No.9. reasons. Delendant's Motion to No hearing is necessary. Motion. construed as a as a pcrioperative nurse in is granted. BACKGIWUND' PlaintilTwas hired by thc National the Clinical Center on under the requircments ovcmber Institute of Hcalth ("Nil''') 9. 200'!. ECF No. I of 42 U.S.c. '17. Plaintilrs ~ 209(1). separate from the civil service laws and lederal CiS payment scale. Id. Both Plaintiff. who is black. and Karen Iloicomb. Operating Room Nurse Coordinator position was established Michael Borostovik I Unless otherwise illdic~tcd. all 1~lcts arc taken lioOlll who is white. were hired by to the same position on the same day. Plaintiffs Complaint and assumed 10 be true. Dockets.Justia.com /d. ~ 8. Prior to being hired by NIH. PlaintilThad two years of operating and seventeen experience. years of operating had four years of operating /d. In establishing room nurse experience J Iiolcomb. 10. Comparatively. salary. and offered Iiolcomb Iiolcomb room technician NIlI calculated experience. each nurse's NIlI determined that pre-offer salary was $87.3(,(). Id. pre-offer salary was $63.544 and Iiolcomb's pre-offer '1 prior to their olTers of employment. 3. NIlI offered I'lainti ff a starting salary of $66.721. calculated Id. and no operating starting salaries fiJr both I'laintilLmd existing base salary immediately I'laintifrs room technician room nurse experience which represented ','i '>. a 5% increase ()\'er her a starting salary of $78.000. along with a $10.000 signing bonus. /d. ~~ 9. 22. Plaintiff alleges that her calculated pre-offer salary did not account I()r her true wages earned at that time. that her starting salary did not relleet her seventeen technician experience. include deductions and that Holcomb's years of operating pre-olTer salary was inflated because it did not j()r health benefits. /d. ~~ 13. 16. Based on this pay discrepancy. Plaintiff alleges that she was "not paid equal pay jor equal work" as a result of a discriminatory /d. ~~ 21. 22. In addition. evaluations temporary disparate I'lainti Irs second.line work "details that eouldlcad pay and promotion based onl'laintilrs disparate Plaintiff alleges that notwithstanding in 2010 and 20 I 1 and her performance Susan Marcotte. race./d. pay. her supervisor linal perl(mnance evaluation supervisor. her "Exeeptional" of technically-di pay scale. per!(mnanee flicult operating room tasks. selected I Ioleomb over I'lainti ff I()r to promotion:' opportunities. room as compared '125. Finally. I'laintilTalleges 'i 19. I'lainti /d. to Iiolcomb. ITattributes both her to discrimination that alier complaining by NIl I about her retaliated against her by I~liling to provide a I~l\'orable rating on her upon her resignation in2013./d. 2 ~ 20. Specilically. she alleges that she suffered "severe retaliation \\hen [Borostovik] downgradcd thc PlaintiCflsicllinal evaluation li'OIl1a 4.6 in Fcbruary 2013 to a blank space whcrc lincs wcrc drawn through thc spacc:' Plaintiff tiled a complaint oC cmploymcnt DeCcndant with the U.S. Equal Employment 4.2016. alier summary judgmcnt PlaintiCC filed a complaint II. discrimination Opportunity and harassmcnt Commission was granted for her cmploycr in this Court. ECF Id. against ("'EEOC'). On Novcmbcr on hcr EEOC complain!. o. I. STANDARD OF REVIEW Dcfcndant's Proccdurc considers motion is styled as a motion to dismiss pursuant to Fcderal Rule of Civil 12(h)( 6). or in the alternative. only thc plcadings and the court considers motion as one lor summary judgment. information should not be granted if the non-moving that is essential dispute as to any material motion as to his opposition party has not had the opportunity iCthe movant shows that there is no genuine provides that the mere existence between the partics will not defeat an otherwise to to the motion). fact and the movant is entitled to judgment Civ. 1'. 56(a). "This standard the requirement that were disclosed as a part of process. the Court \\'ill treat Defendant's "The court shall grant summary judgment judgment: Complaint C{.'Anderson \', Uberty Lohhy. In<'-. 477 U.S. 242. 250 n.5 (19X7) one for summary judgment. discover 2016 WL 73X3873. at *2 (D. Md. Dec. 21. 2016). beyond Plaintiffs during the EEOC administrative (summary judgment those matters. the court \\'ill treat the See Gadsby \'. (JmslIlick. 109 F.3d 940. 949 (4th Cir. Kern'. No. DKC-15-3693. . As hoth parties rely on materials discovery pursuant to Rule 56. A court whcn deciding a Rule 12(h)(6) motion. Wherc the partics present matters outside of the pleadings. 1997): Mam/ield,'. . for summary judgment as a matter oC law:' Fed. R. ofsollle alleged Illctual dispute propcrly supported motion fc)r summary is that there be no genuine issuc of lila/erial Caet." Anderson. 477 U.S. 3 at 247-48 (1986) (cmphasis in original), motion for summary judgmcnt plcadings,' Thus, "[tJhc party opposing 'may not rcst upon thc mcrc allcgations a propcrly supportcd or dcnials of [his I but rathcr must 'sct f()I,th spccific ftlcts showing that there is a genuine issuc I()r trial. .. ' Bouchat\', Baltimore Rarells Foothall Cluh, fll('.. 346 1',3d 514, 525 (4th Cir. 2003) (quoting Fed, R. Civ. P. 56(e)) (alteration in original). On a motion for summary judgmcnt, Itlvorablc to ... the nonmovant. thc court must "vicw thc cvidcncc and draw all infercnccs credibility," in thc light most in her favor without wcighing the Dellllis l'. Columhia Colfetoll Jled Or .. fll(,.. cvidencc or assessing thc witness' 290 F3d 639, 644-45 (4th Cir. 2(02). Thc moving party hcars thc burdcn of showing that there is no gcnuinc issuc as to any matcrial fact. No gcnuine issuc of matcrial ItlCt cxists if thc nonmoving party ftlils to make a sufficicnt showing on an cssential c1cmcnt of hcr casc as to which she would have the burdcn of proof. See Celotex Corp. Thcrcl()rc, on thosc issues on which thc non-moving responsibility evidencc III. to confhmt the summary judgment I'. Catretl. 477 U.S. 317, 322-23 (1986). party has thc l)urdcn of proof. it is hcr motion with an affidavit or othcr similar showing that thcrc is a gcnuinc issue I()r trial. I)JSCUSSION A. Discrimination Title VII statcs in pcrtincnt employer conditions, ... to discriminatc or privilegcs part that "[ilt shall bc an unlawful cmploymcnt against any individual ofemploymcnt. ~ 2000e-2. "A plaintiff generally with respect to his compcnsation. because of such individual's may dcfcat summary judgmcnt discrimination through onc of two avcnucs ofproof"-by circumstantial evidence that racc was a motivating practicc f(lr an 4 ," 42 U.S.C. and cstablish a claim for racc prcscnting ItlCtor ofthc race ... tcrms, cithcr dircct or employcr's advcrsc action. Hol/wul,', Wash. Homes. Inc.. 487 FJd 208. 213-14 (4th Cir.2007): or, without dircct cvidcnce. the plaintilTmay procccd using the burden-shining Corp. ", Green. 411 U,S. 792.802 form of Icsscr pay and decreased analysis establishcd (1973), Plaintiffallcges promotion by McDonnell Douglas she was discriminated against in the opportunitics. i. 1)isparatc Pay Under the '\/cDonnel/ Douglas approach. discrimination regarding class: (2) satisltlctory compcnsation: compensation. PlaintilTmust job perlonnancc: treatment:' a prima facie easc of racial show: "(I) mcmbership (3) adverse cmployment and (4) that similarly-situated more favorable to establish See While I'. employees in a protectcd action with respcct to outside the protected class rcceivcd BFIWasle Serl'ices. LLe. 375 F,3d 288. 295 (4th Cir. 2004) (citing McDonnel/ Douglas, 411 U,S, at 802), If a plaintilTestablishes demonstrate a prima Itlcie case. then the burden shins to thc employer that it had a legitimate. Douglas. 41 I U.S. at 802-805: Kess non-discriminatory I'. reason for the pay disparity. discriminatory employer's U,S, at 802-805, intentional sets li.mh a legitimate. reason is merely a prctext li.Jrdiscrimination, To demonstratc fi.)r the employmcnt discrimination, prctcxt. a plaintilTcithcr non- action is "unworthy to cstablish ,11c/)01l11el/ Douglas. 411 must show that thc cmployer's of crcdcncc:' or offcr cvidencc probativc of Tsai \', '\/w:r/wul AI'ialion. 306 Fed, Appx, 1.5 (4th Cir. 2(08) (citing '\/ereish ,', Walker. 359 FJd 330. 336 (4th Cir. 2004)), Conclusory not suflicicnt Inc.. reason fi.lr its action. the burden then shi ns back to the plainti tT to show that the legitimate explanation '\/c/)01l11ell Municipal Employees Credil Union o/Ballimore, 319 F, Supp, 2d 637. 644 (D, Md, 2004), If the employer to discrimination, allegations or statcmcnts arc See Callsey \', Balog. 162 FJd 795. 801-02 (4th ('ir. 1998), 5 Ilere. Plaintiff alleges that Defendant to Holcomb. offered her a reduced starting salary. as compared because of her race. ECr No. 11-1 at3.2 a prima facie case of discrimination. that it had a legitimate Plaintiff-s non-discriminatory Even assuming that Plaintiff can establish claim I~lils because Defendant has del110nstrated reason for the pay disparity and PlaintifTcannot show that it is a pretext for discrimination:' The record sets forth a clear explanation fllr both I'laintiffand Holcomb. within a range corresponding including ..the qualifications of how Dcfendant Pursuant to NIH guidelines. an employee's to their position classification and competencies of the employee" from the verilication were calculated of salary documents provided a pay statement from Suburban ECF No. 9-2 at 13. The pay statement basc salary is set and depends on a variety of flletors. salary and benefit package."' ECF No. 9-2 at 5-6. Aeeording salaries fiJr Plaintiff and Iiolcomb arrived at the starting salaries and ..the individual's to Defendant. current the starting annual based on their pre-hire salaries. as determined that each submitted to NIH. ECF NO.9-I Hospital. a base hourly rate of pay 01'$30.55. indicating also included a hand-written at 3. Plaintiff notation indicating that Plaintiff received an extra $6.00 per hour for evening shins. Id. Holcomb provided a pay statement n'OI11Holy Cross Hospital. Defendant individual's then calculated indicating a base hourly rate of pay of $42.00. Id. at 16. Plaintiff and Iiolcomb's pre-hire salaries by multiplying base hourly rate of pay by 2.080 hours per year. ECF NO.9-I at 3. Plaintiffs each pre- hire salary did not reflect the extra $6.00 per hour Illr evening shins as noted on her salary 1 Pin cites to documents tiled on the Court"s electronic by that system . . t Arguably. Defendant's evidence of their legitimate. filing system (CM/ECF) non-discriminatory refer to the page Ilumbers generated reason for the pay disparity also calls into question whether Holcomb and Plaintirrwerc similar an all respects. which would undercut Plaintiffs prima facie casc. Recognizing the flexibility permitted by the ,\lcDo1/II('1/ Douglas framework. however. the COlirt. here. focuses the analysis 011 the Defendant's slated reasoning. S'f!/.! lI'arch \'. Ohio Cas. Ins. Co .. 435 F.3d 510. 517 (4th Cir. 2(06) (noting that the goal of JlcDol111I!/1 Douglas is "the inquiry into the clusive Hlctllal question of intcntion'll discrimination" and that the "shilling of burdens of ,\fcDmm/.!/IlJouglas arc meant only to aid courts 'llld litigants in alTanging the presentation of evidence") (internal citations 0111 itted). 6 document: however. Plaintiffs starting annual salary included a 5% increase over her calculated pre-hire salary. ECr No. 9-2 at 12. Because Holcomb's exceeded calculated the NIH range of pay for her position classification. at the top of the range. $78.000. 14. Detendant along with a one-time assel1s that the one-time pre-hire salary 01'$87.360 her starting annual salary was set signing bonus of $10.000. non-base pay bonus may be paid "when necessary an employee might not acceptor Center]:' continue employment or "when the base pay range is not surticientor candidate/employee's l signing bonus was in line with NIII guidelines. provide that a supplemental who otherwise ECF pay requiremcnt." appropriate 0.9-2 at which to recruit or retain with the [Clinical tomect thc ECr No. 9-2 at 7. These facts are not disputcd by Plaintiff Plaintiff contcnds cxpericnce that her seventeen was not given adequate considcration. for a registered nursc consist of graduating licensing boards and maintaining operating years of non-nursing room technician from an accreditcd current nursing license:' experience overall. she had more rclevant experience that Defcndant's to the salary. experience. PlaintilTstates passing statc ECF No. 9-2 at 19. Non-nursing under the qualilications explanation intent. In an attempt to show a pattcrn of disparate wholly unconvincing. nursing program. while Holcomb Thus. DelCndant has providcd a non-discriminatory vague references that "[q]ualilications licensed position with credentialing the other is no!." ECF No. 9-2 at 30. Accordingly. PlaintitTmaintains maintains room technician does not count towards mccting thc qualifications nursing position becausc "one is a registered. position. but Dclcndant operating for a privileges had less medical experience requircd by Defcndant fill' thc rcason fill' the pay disparity. is merely a pretext I<1I' its discriminatory pay practices. Plainti 1'1' makcs a number of and racc of other NIII nurses. but such refercnces that Ada Rivera. a Latina nurse with 30 years of nursing 7 and arc was paid less than Holcomb and rcceivcd a salary 01'$74,000. Id. experience. PlaintitTprovides no referencc career progression, In addition. to Rivera's PlaintilTolTers '112. salary inl(1I"Inationl()J" two additional PlaintilTstatcs I'inally. Plaintiff states that Defendant expericnce. Delendant's hircd Jardin Punzalan' lailure to count Plaintiffs was a pretext 1(11' racial discrimination. Plaintiff olTers no cxplanation Howevcr. lor any requircd nursing cxperience. nurse to Iiolcomb's room tcchnician expericnce Punzalan's racc. was used as a to the way in which Dcfcndant prc-hirc salary. arguing that DclCndant's Plaintiff does not articulate than PlaintilTwas salary in why Dclendant's hcr calculated calculation was dclicicnt or failure to such an omission cannot cstablish a also ignored Iioicoml1s hcr prc-hire salary. Eel' No. 9-2 at 16 (showing calculatcd receiving at her that Plaintiff objccts to Dcfcndant's her ovel1ime ratc into thc calculation. intent bccausc Defendant experience nursc salary 01'$71.108. Eel' No. 11-17 at 2. what her actual pre-hirc salary was. Assuming discriminatory operating in addition to not idcntifying pre-hire salary resultcd in a lowcr level of compensation tOrlner job. Howevcr. as a pcriopcrativc years of non-nursing non-nursing salary. Eel' and thc record indicates thatPunzalan's Plainti 1'1' also raises a number of objections pre-hire salary as comparcd seventeen as to how Punzalan's 2010 was $62.085 as comparcd to Plaintiffs incorporate cmployecs that Thcrcsa Granillo. a nurse that was hired earlier in 2009. hadl(Htr years of rcgistercd in July 20 I 0 and argucs that because Punzalan only had non-nursing substitute salary. or and received a starting salary 01'$60.500. which is lower than Plaintiffs expericnce No. I Howcvcr. starting salary. hirc date. pre-cmployment that serve to undercut her theory of racial discrimination. white registered 'i 21. Holcomb's ovcrtime overtimc ratc whcn calculating ratc as approximatcly $43.00 pCI' hour) . ..\Plaintiffspclls this name "Punzalill" in her Complaint. ECF No. I ~ 3, and "Punzulan" in her opposition hrief: ECF No, I I-I al 10. blll it is spelled "Punzalan" in the exhibil altached 10 the brief. Eel' No. I 1-17 at 2. 8 Plaintiff also asserts that Holcomb's her decision to forgo employer-sponsored Plaintiff points to intcrrogatorics Iioleomb's determine whether Borostovik Irom Defendant to suggest that l3orostovik knew that state in a eonversation Irom her salary.")). knew this information by Borostovik to me [Borostovikj discovery at the time he hired Ilolcomb. to Eel' No. 11- at ECF 11-5 at 9 ("The pay stubs that Karen Iiolcomb do not state ifbenelits were dedueted or not. Karen Holcomb did over the phone that she did not have health insuranee benelits deducted However, even if Borostovik inflated because it did not account have received a windfallirom employer.; health benelits at her previous placc of cmployment. pre-hire salary did not include health bcnelits and rcqucsts additional I at 3 (eiting statement provided pre-hire salary was inflated because it did not reflect Even ifunlair, 1<.11" knew that Holcomb's health benclits, pre-hire salary was such facts only suggest that Iloicomb NIII based on the structuring of her compensation Plaintiff has not provided any indication related to race and, thus. evidence of pretext. See Williallls t •. may with her prior that such a windlall was at all Carolina Hea/ll1mre Syslelll. /nc., 452 Fed. Appx. 392, 394 (4th Cir. 201 I) ("'Titlc VII does not require I~lirness or the promotion the most qualilied candidate: negating an inference it only prohibits discrimination") 201 I. and April 2012 as compared to onc 2.5% pay in April 2011. ECF No. 9-2 at 21. As such, while PlaintilTalleges in the lace of evidence disparity, Further of pretext. the record indicates that PlaintilT received a 2.5-5% bonus or raise in July 2010, April 2011. September raise for Holcomb (internal citation omitted). of that Defendant that she was treated diflcrently had a legitimate than her white co-worker. non-discriminatory reason Illl"thc Plaintiff cannot present lacts to suggest that she was treated unlairly hemllse other race and show that Delcndant" s stated reason Il)r the disparity was a pretext. See McCiel//:r- Defendant maintains that "Plaintiff has presented no evidence that IHolcomb was receiving a higher salary in lieu of health benefits I or that the Agency believed this to be true:' ECF No.9-I at 12. .'i 9 E\'lII1S \'. Mw:r/and 2(15) (providing [)"jJl. of'TI'lII1.IJi. that a Title VII plaintiffmust action was taken "because judgmcnt /figllll'(/Y Admin .. 780 1'.3d 582. 585-86 (4th Cir. Sial" ofthc in favor of Defendant allege Illcts sufticicnt relevant decisionmakers' is appropriate regarding to claim that thc advcrsc bias against" race), Thus. summary Plaintilrs disparatc pay discrimination claim. ii, Promotion Opportunities PlaintilTalso discrimination" alleges that "NlIrsjustifieation becausc thc "Dcfendant for the disparity does not cxplain why Ms, Iioicomb [Plaintiff1 li,r nursing dctails that increased the likelihood experiencc and cxpertisc However. in the form of disparate a discrete discriminatory that it happened. this allegation work assignments and decreased act. such as non-selection and thus. an cmploycc IiII' a promotion. rcmedies chargc delines the scope of the plaintiff's omitted). Therefore. Plaintiff opportunity. occurs on the clay process or lose the Plaintiffhas process related to this allcgation." 8<.'/1 All. Md .. Inc .. 288 1'.3d 124. 132 ("Be!ilre a plaintilThas he must cxhaust his administrative promotion must timely initiate EEO complaint that she initiated the 10100 complaint support lilr to be a separate claim. alleging ability to recover IiII' the claim . .'1""/fo/land. 487 1'.3d at 219-220. indication evcn though hcr superior ECI' No. 1 ~~ 4. 17-19. In addition to providing pay claim. the Court construcs discrimination of promotion. was choscn ovcr Icd to [Plaintiff1 being choscn to perf 01111 very complex and skillcd nursing tasks ovcr Ms. Holcomb." her disparate [in payj is prctext lill' racial provided no S,," B,:mn \'. standing to file suit under Title VII. by filing a charge with the EEOC. The EEOC right to institute a civil suit.") (internal citations Illiled to exhaust her administrative rcmedies. and the Court lacks Plaintirrnotes that the facts were placed before the Administrative Lnw Judge C"AL.rO) but the ALl noted this claim of discrimilHJtioll was a new claim Ihal pJaintifT failed to present 10 the NIH EEO Office in either her prc- It complain! intake form or her fonnal complaint of discrimination:" ECF No. I-I at 10. 10 subject-matter 794-95 jurisdiction over that claim. See flicks r. Hall. (las & Elec. Co .. 829 F. Supp. 791. (D. Md. 1992), atfi/. 998 F.2d 1009 (4th Cir. 1993), cerl. denied. 5\ 0 U.S. 1059 (1994).7 B. Retaliation Finally, !,Iainti ff states that .., a ]tier complaining to experience a hostile work environment:' a elaim of hostile work environment retaliation.8 against' (or job applicant) I()rbids, or has 'made a charge, testitied, proceeding, ECF No. 1 ~ 20. Plaintin-s and are morc appropriately "Title VII's anti-retaliation an employee provision because he has 'opposed' assisted, or participated * 2000e-3(a». show that: (1) she engaged and (3) a causal relationship To establish performance as a elaim of actions that 'discriminate a practice that Title VII in' a Title VII 'investigation. a prima !llcie case of retaliation. in a protected activity: (2) her employer PlaintitTmust acted adversely against her: existed between the protected activity and the adverse employment 787 F.3d 243, 250 (4th Cir. 2(15). that between her 2012 year-end evaluation. 20 J 3, and her llnal performance PlaintitTs do not support Ry. Co. \'. IVhile, 548 U.S. 53, 59 (2006) activity. FOSler r. Vnil'. o(J/iu)'fand-EaslemShore. I'laintifTalleges allegations construed forbids employer or hearing. ". Burlinglon N. & Sanla Fe (citing 42 U.S.c. about her disparate pay, 1!,lainti ffj began evaluation. completed completed on February 28. on June 10. 2013. Defendant downgraded rating lI'om a 4.6 ..to a blank space where lines were drawn through the timely raiscd this claim. the record UOCS 110t indicate that Holcomb's selection to the tcrnporar).' 7 Even if Plaintiff work detail was based on race; rather. it was based on the input received from surgeons. nOllc of whol11 requested Plaintiff to fill (he temporary position. ECF No. 9-2 at 31: sct! ,,/so Blue \', Unilf!d Slales Dt!J,'/ (~fl!J(! Army. 914 F.2d 525.541 (4th CiT. 19(0) (preselection for a promotion. even if unfair. does not demonstrate racial discrilllimHion). II To establish a Title VII claim of hostile work environmenl. Plaintifflllllst prove that the offending conduct was I) unwelcome, 2) based on race, 3) suniciently severe or pervasive to alter the terms and conditions of her employment 2 and create an abusive environment. and (4) imputable to her employer. Spriggs \'. DiumOlul..lwo GllISS, 2...• F.3d 179, 183-8-1 (4th Cir. 200 I). Plaintiff's nllegation of a poor evaluation is not the type of conduct considered hy courts as satisfying the clements of hostile work environment. .)'f!I!.JOI1I!S \', 11('..1, 16 F, Supp, 3d 622, 630-31 (E,n. Va. 2014) (finding that negative performance reviews werc not sufficient to maintain a hostile work cllvironment claim without any evidence that such reviews were a pm1 of"a pattern of extremely abusive language or otherwise pervasive conduct based on plaintiff's race") (internal quotations omitted). II spacc" on Junc 10.2013. ECF No. I ~ 20." Plaintilfs claim !tlils bccausc this pcrformancc cvaluation was not an advcrsc action-it would not dissuadc "a rcasonablc workcr Ii'om making a chargc of discrimination:' 548 U.S. at 68. First. thc rccord indicates that cven Burlillg/oll. though Plainti!rs Junc 10.2013 pcr!tmnancc cvaluation did not ineludc a numcrical rating. it statcd that "[PlaintifrsJ pcr!tmnancc at this time mects thc succcssfullcvcl." thc samc commcnt providcd on Fcbruary 28. 2013. ECF No. 9-2 at 42. Thc numcrical rating was Icn blank mcrely bccausc Plaintilrs supcrvisor. Borostovik. assumcd that hc did not nccd to providc a rating sincc PlaintifTwas rcsigning. ECF No. 9-2 at 46. Oncc PlaintitTexprcsscd conccrn. Dcfcndant issucd an amcndcd performance evaluation rcflccting a numerical rating of 4.6. and backdatcd thc perfonnance evaluation to Junc 10.2013. ECF No. 9-2 at47. Moreover. Plaintifrs 2012 year-end pcrftmnance cvaluation. which rcflectcd a perfonnancc rating of 4.6. was complctcd on Fcbruary 28. 2013. well ancr Plaintifr s supcrvisors wcrc first aware of her protected activity (i.e .. her disparatc pay complaint). ECF No. 9-2 at 31 (noting that Plaintifrs supcrvisors were first madc awarc of Plaintifrs complaint in MayoI' 2(12). Thus. even ifhcr Junc 10.2013 performance evaluation could bc construcd to bc an adverse action. it seems unlikely to hm'c bcen casually related to her protccted activity whcn thc rating immediately aner the protcctcd activity was positivc. Plainti fr s allcgations regarding discrimination bascd on assignmcnts and rcduccd opportunities !t)r promotion do not survive summary judgment. Plaintiff also alleges that she was given an "exceptional" rating in 20 I() and 20 II. but was downgraded to "successful'" in 1012 ancr initiating her disparate pay complain!. ECf No. 11-1 at 5. Plaintiffs 20 I 0 and 10 II performance evaluations include a "Sulllmary Rating" section. where her rating was marked as "Exceptional:' the highest of four categories. ECF Nos. 11-10 and II-II. In20l:L it appears that Nll-lutilizcd a different"Sulllmary RiJting" format. \vhcrcby employees were given a numerical score correspondillg 10 on\! of live Level Ratings. Plaintiff was awarded a 4.6. which corresponds to a Level 5 "Outstanding Result." the highest level possible. ECF No. I 1-12. As such, PlaintifT has no basis to suggest that her pcrfonnancc evaluation was downgraded in 2012. 'l 12 IV. CONCLUSION For the foregoing for Summary Judgmcnt. Dated: November. 't reasons. Dcfcndant's Motion to Dismiss. or in thc Altcrnativc. Motion ECF NO.9. shall bc grantcd. A scparatc Ordcr 11.,110\\'5. &&- 2017 • GEORGE J. IIAZEL United States District Judgc 13
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