Opinion
C/A 3:19-2863-MGL-PJG
02-23-2021
Ester Bullock, Plaintiff, v. Barbara M. Barrett, Secretary, Department of the Air Force, Defendants.
REPORT AND RECOMMENDATION
Paige J. Gossett UNITED STATES MAGISTRATE JUDGE
The plaintiff, Ester Bullock, filed this employment case alleging retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq., against the defendant, Barbara M. Barrett, the Secretary of the Department of the Air Force. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the defendant's motion for summary judgment. (ECF No. 34.) Bullock filed a response (ECF No. 36), and the defendant replied (ECF No. 40). Having reviewed the parties' submissions and the applicable law, the court finds that the defendant's motion should be granted.
BACKGROUND
The following facts are either undisputed or are taken in the light most favorable to the plaintiff, to the extent they find support in the record. Bullock worked at Shaw Air Force Base as a civilian employee with a good performance record for many years until her position was eliminated in 2012. As a result of the reduction in force, Bullock was transferred to a position in civil engineering. Bullock did not receive training, direction, or instruction as to her new position, and, at first, her supervisor was undetermined. Rather, Bullock was provided with an Air Force Core Personnel Document that listed the responsibilities, duties, and standards for her new position. Heyward Singleton ultimately became her supervisor.
For clarification, Bullock's supervisor in her previous position was Gerald Singleton, who offered testimony praising Bullock's performance in the job she held before her transfer that brought her under Heyward Singleton's supervision, when the trouble leading to this lawsuit began.
Things did not go well for Bullock after her transfer. Although Singleton gave her an overall performance rating of “acceptable” in April 2013, Singleton verbally informed her that she was not meeting the requirements of her new job, but that he did not want her to be penalized for the transition period so he gave her a “clean slate.” (Def.'s Mot. Summ. J. Ex. E, ECF No. 34-5 at 2; Ex. F, ECF No. 34-6 at 5-7.) In the months that followed, Singleton provided Bullock with two Civilian Progress Review Worksheets and a Letter of Counseling all indicating poor job performance. (Id. Ex. G, ECF No. 34-7 at 2; Ex. H, ECF No. 34-8 at 2; Ex. I ¶ 3, ECF No. 34-9 at 2.)
On December 19, 2013, Bullock filed an EEO complaint (“First EEO Complaint”) about her work environment. Bullock and Heyward Singleton engaged in an EEO mediation conference on January 21, 2014, which ultimately resolved the complaint. However, Singleton issued Bullock a Notice of Proposed Reprimand dated March 11, which relied on events all of which had occurred prior to the mediation conference and many of which took place before her First EEO Complaint. Bullock's union responded to the Proposed Reprimand on her behalf. A settlement agreement stemming from the January mediation was signed by the parties on April 1, 2014 in which Bullock agreed to withdraw her complaint and the Proposed Reprimand was withdrawn.
Bullock's yearly performance evaluation for the period ending March 31, 2014 was delayed for a few months, but in May, Bullock received an evaluation with a rating of “unacceptable.” Singleton contemporaneously placed her on a Performance Improvement Plan (“PIP”) for sixty days.
On July 9, 2014, Bullock filed another EEO complaint (“Second EEO Complaint”) asserting retaliation based on her prior EEO activity. On October 2, 2014, Singleton sent Bullock a Notice of Proposed Removal for failure to meet her PIP. The union responded again on her behalf. Bullock separated from employment on March 26, 2015.
By prior order entered July 8, 2020, the Honorable Mary G. Lewis, United States District Judge, adopted the recommendation of the assigned magistrate judge and dismissed any claims based on Bullock's termination because she failed to exhaust her administrative remedies with respect to her separation from employment. (ECF No. 30.)
DISCUSSION
A. Summary Judgment
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine [dispute] of material fact.” Ballinger v. N.C. Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir. 1987) (internal quotation marks and citation omitted). A fact is “material” if proof of its existence or non-existence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257.
In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court must determine whether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See id. at 148 (stating that “[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory”).
B. Methods of Proof in Employment Cases
A plaintiff asserting a claim of unlawful employment discrimination may proceed through two avenues of proof. First, she may attempt directly to prove discrimination with direct or circumstantial evidence. Alternatively, when direct proof is lacking, a plaintiff may proceed under the McDonnell Douglas burden-shifting framework. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Smith v. First Union Nat'l Bank, 202 F.3d 234, 248 (4th Cir. 2000) (holding that the McDonnell Douglas framework applies to retaliation claims under Title VII). Pursuant to this framework, once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for the adverse action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010) (Title VII). The defendant's burden “is a burden of production, not persuasion.” Reeves, 530 U.S. at 142. Once a defendant meets this burden by producing affidavits or testimony demonstrating a legitimate, nondiscriminatory reason, “the McDonnell Douglas framework-with its presumptions and burdens-disappears], and the sole remaining issue [is] discrimination vel non.” Id. (internal quotation marks and citations omitted).
In other words, if the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason, the plaintiff must demonstrate by a preponderance of the evidence that the proffered reason was “not its true reason[], but [was] a pretext for discrimination.” Merritt, 601 F.3d at 294 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Accordingly, the plaintiff's burden of demonstrating pretext “merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination.” Merritt, 601 F.3d at 294 (quoting Burdine, 450 U.S. at 256) (alterations in original); see also Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 319 (4th Cir. 2005) (Title VII & 42 U.S.C. § 1981). To meet this “merged” burden, the employee may prove by a preponderance of the evidence that the decision maker's affidavit is untrue or that the employer's proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256.
“[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves, 530 U.S. at 148. However, “if the record conclusively reveal[s] some other, nondiscriminatory reason for the employer's decision, or if the plaintiff create[s] only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred, ” summary judgment is appropriate. Id. Accordingly, the court must evaluate “the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.” Id. at 148-49. “Notwithstanding the intricacies of proof schemes, the core of every [discrimination] case remains the same, necessitating resolution of the ultimate question of . . . whether the plaintiff was the victim of intentional discrimination.” Merritt, 601 F.3d at 294-95.
C. Plaintiff's Retaliation Claim
The United States Court of Appeals for the Fourth Circuit has held that a federal employee may raise a Title VII retaliation claim. See Bonds v. Leavitt, 629 F.3d 369, 384 (4th Cir. 2011). Claims of retaliation are generally analyzed under the McDonnell Douglas burden-shifting framework. Smith v. First Union Nat'l Bank, 202 F.3d 234, 248 (4th Cir. 2000).
Generally, the requisite elements for a prima facie case of retaliation include: (1) the employee engaged in a protected activity; (2) the employer acted adversely against her; and (3) there was a causal connection between the protected activity and the asserted adverse action. Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008); Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007). The parties appear to agree that Bullock engaged in protected activity when she filed EEO complaints on December 19, 2013 and July 9, 2014. Thus, only the second and third elements of the prima facie test are contested here.
To establish an adverse action with respect to a retaliation claim, a plaintiff must show that the adverse action was objectively material. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). The United States Supreme Court has held that, unlike the adverse employment action element for a disparate treatment claim, Title VII's prohibition of adverse actions taken in retaliation for protected activity “is not limited to discriminatory actions that affect the terms and conditions of employment.” Id. at 64. Rather, “[t]he scope of the antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.” Id. at 67. However, the anti-retaliation provision does not shield an employee from all retaliation, but rather only from retaliation that produces injury or harm. Id. Accordingly, to fall within the provision's protection, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.' ” Id. at 68 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). A plaintiff must show material adversity to separate the significant harms from the trivial, as “Title VII . . . does not set forth ‘a general civility code for the American workplace.' ” White, 548 U.S. at 68 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). The test is an objective one and considers the reactions of a reasonable employee. White, 548 U.S. at 68. Further, “[c]ontext matters, ” and the significance of the adverse action must be analyzed under the circumstances particular to the plaintiff. See id. at 69. Thus, “an ‘act that would be immaterial in some situations is material in others.' ” Id. (quoting Washington v. Ill. Dep't of Revenue, 420 F.3d 658, 661 (7th Cir. 2005)). The standard analyzes the challenged retaliatory act, not the underlying conduct that gave rise to the Title VII complaint. White, 548 U.S. at 69. The question is whether the challenged action was material from the perspective of a reasonable person in the plaintiff's position. Id. at 69-70.
Bullock relies on three alleged adverse acts to support her retaliation claim: the reprimand she received from Heyward Singleton on March 11, 2014 for conduct that occurred before the EEO mediation conference held on January 21, 2014; the negative performance review he gave her on May 13, 2014; and his placing her on a Performance Improvement Plan (“PIP”) following the negative evaluation.
To the extent that Bullock is relying on these events to establish a pattern of retaliatory hostile work environment, Bullock must “show that the harassment was “sufficiently severe or pervasive to alter the conditions of [ ] employment and [ ] create an abusive atmosphere[.]” Fordyce v. Prince George's Cty., 43 F.Supp.3d 537, 552 (D. Md. 2014) (citing Baqir v. Principi, 434 F.3d 733, 745-46 (4th Cir. 2006)) (alterations in original). Bullock has failed to meet this standard.
However, as the defendant argues, the reprimand Bullock relies on cannot constitute an adverse act as a matter of law because it is merely a proposal to act, rather than an actual adverse act. See Hornsby v. Watt, 217 F.Supp.3d 58, 68 (D.D.C. 2016) (holding that a proposal to remove ordinarily does not amount to a materially adverse act for a retaliation claim); see also Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C. Cir. 2008) (holding that a proposed suspension that was never served is not a materially adverse act for a retaliation claim). Here, the parties appear to agree that proposed reprimand never ripened into an actual reprimand, as Bullock's union filed a written response on her behalf and the defendant ultimately withdrew it. (See Def.'s Mem. Supp. Summ. J. at 12, ECF No. 34 at 12) (“[T]he Proposal to Reprimand was withdrawn less than a month after it was issued.”); (Pl.'s Dep. June 17, 2020 at 80-81, ECF No. 34-1 at 8-9).
The negative performance evaluation in May of 2014 similarly does not constitute an adverse act under the Burlington v. White test. See, e.g., Ferris v. Accuscribe Transcription Servs., No. 2:07-3281-JFA-BM, 2010 WL 360689, at *9 (D.S.C. Jan. 26, 2010) (collecting cases). And while the Fourth Circuit has not addressed the question, several circuits have held that placement on a PIP alone is not sufficiently adverse to support a retaliation claim. See Fields v. Bd. of Educ. of City of Chicago, 928 F.3d 622, 626 (7th Cir. 2019) (“[T]he performance improvement plans, even though they had the potential to lead to termination or other discipline, are not enough.”); Payan v. United Parcel Servs., 905 F.3d 1162, 1173-74 (10th Cir. 2018) (concluding, where the plaintiff was transferred to a different department, that placement on an employee improvement plan alone did not qualify as a materially adverse action as defined by White); Fiero v. CSG Sys., Inc., 759 F.3d 874, 880 n.2 (8th Cir. 2014) (finding placement on a PIP alone insufficient to support a claim of retaliation and therefore upholding the district court's consideration of the plaintiff's termination as the only adverse act); Hilliary v. FlightSafely Int'l, Inc., 778 Fed.Appx. 835, 841 (11th Cir. 2019) (looking at the terms of the PIP, which placed the plaintiff under additional scrutiny, and finding that the plaintiff failed to demonstrate that the PIP resulted in more than trivial injury or harm); Choulagh v. Holder, 528 Fed.Appx. 432, 438 (6th Cir. 2013) (“The placement on the performance improvement plan and the non-satisfactory work reviews had legitimate, non-retaliatory motivations and do not rise to the level of a materially adverse action.”); but see Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 596 (6th Cir. 2007) (“The retaliatory actions alleged by Michael, including her brief placement on paid administrative leave and the 90-day performance plan, appear to meet this relatively low bar.”).
Moreover, with respect to the third element of the prima facie case, to prove a causal connection, a plaintiff asserting a retaliation claim must be able to show that her employer took the adverse action “ ‘because the plaintiff engaged in a protected activity.' ” Holland, 487 F.3d at 218 (quoting Dowe v. Total Action Against Poverty in Roanoake Valley, 145 F.3d 653, 657 (4th Cir. 1998)). Further, a plaintiff must show that but for the protected activity, she would not have experienced the alleged adverse act. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360, 362 (2013) (“Title VII retaliation claims must be proved according to traditional principles of but-for causation, ” which means “a plaintiff making a retaliation claim under § 2000e-3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.”). In certain circumstances, temporal proximity between the protected activity and the adverse action can be probative of a causal connection. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (noting that to establish a causal connection based on temporal proximity alone, the time between the employer's knowledge of the protected activity and the adverse employment action must be “very close” and holding a twenty-month period to be insufficient). Courts generally agree that a time lapse of three to four months fails to establish an inference of causation in a retaliation case. Pascual v. Lowe's Home Centers, Inc., 193 Fed.Appx. 229 (4th Cir. 2006) (per curiam) (holding that the plaintiff had failed to establish a causal connection by temporal proximity alone when “at least three to four months” separated the claimed protected activities and the termination of the plaintiff's employment).
In her opposition memorandum, Bullock relies heavily on a case from the Eastern District of Virginia analyzing the plaintiff's placement on a PIP in connection with her prima facie showing. See Emami v. Bolden, 241 F.Supp.3d 673, 685 (E.D. Va. 2017). However, several factors distinguish the Emami case from this one.
The court in Emami concluded that placement on a PIP could be an adverse act for a retaliation claim. Recognizing that neither the Supreme Court nor the Fourth Circuit has resolved the question, the court considered Emami's placement on a PIP as a materially adverse action for his retaliation claim because (1) the PIP led to the plaintiff's eventual termination, and (2) the defendant in Emami did not object to the magistrate judge's finding that the PIP in that case could be considered to be materially adverse. See id. The district judge in Emami then elaborated that “placement on a PIP, alone, does not constitute a materially adverse action.” Id. But there, the conditions of the PIP subjected the plaintiff to a reduction in grade or removal without being afforded another PIP. Id. The court in Emami found it significant that the conditions of the PIP in that case led the plaintiff a step closer to his termination, which Emami also relied upon as an adverse act to support his retaliation claim. The Emami court then went on to find the requisite causal connection because of the four-day temporal proximity between Emami's email constituting protected activity and his placement on the PIP. The termination itself did not occur until many months later and was, therefore, not temporally proximate to the protected activity.
Here, although Bullock's placement on a PIP also ultimately led to her termination, several circumstances distinguish her situation from Emami's. First, Bullock filed her first EEO complaint on December 19, 2013; she was not placed on a PIP until nearly five months later. And significantly, unlike Emami, the defendant had informed Bullock at least three times of performance deficiencies before she filed her first EEO Complaint. Thus, any inference of causation is rebutted. See Horne v. Reznick Fedder & Silverman, 154 Fed.Appx. 361, 364 (4th Cir. 2005) (finding that any inference of causation from the temporal proximity is more than rebutted by the facts that, prior to the protected activity, the plaintiff had been told that her performance was sub-par and that she should prepare to leave the company and that her poor performance continued after her protected activity); Rease v. Zax, Inc., C/A No. 3:07-3601, 2009 WL 2998977, at *7 (D.S.C. Sept. 17, 2009) (“When performance problems exist before and after a protected activity, counseling on those performance problems is not sufficient to meet the prima facie case.”). Additionally, unlike the plaintiff in Emami, Bullock here cannot rely on both the PIP and her separation from employment as adverse actions, as she failed to exhaust any claims based on her termination. (See Order, ECF No. 30.) Recognizing this, Bullock argues that her separation from employment is still relevant evidence of the materiality of the PIP as well as Singleton's motive and intent. But even assuming it could be, neither timing nor any other evidence permits an inference of a nexus between her protected activity and her placement on the PIP. In any event, on this record, no evidence suggests that the defendant's reasons for placing her on the PIP were a pretext for retaliation. Glover v. Sw. Airlines, Co., No. 2:18-CV-729-RMG, 2019 WL 3282943, at *4 (D.S.C. July 22, 2019) (finding that a plaintiff's “repeated prior issues, predating any alleged protected activity, would prevent any reasonabl[e] jury from finding Defendant's explanation pretextual”). Nor could a jury reasonably determine that but for her EEO complaints, Bullock would not have separated from employment.
RECOMMENDATION
For all of these reasons, the defendant's motion for summary judgment (ECF No. 34) should be granted.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' ” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).