Gillaspie v. Harker

Full title: Christina Gillaspie, Plaintiff, v. Thomas W. Harker, [1]Acting Secretary…

Court: United States District Court, D. South Carolina, Charleston Division

Date published: Jan 24, 2022

C. A. 2:19-cv-00453-DCN-MHC (D.S.C. Jan. 24, 2022)

Opinion

C. A. 2:19-cv-00453-DCN-MHC

01-24-2022

Christina Gillaspie, Plaintiff, v. Thomas W. Harker, [1]Acting Secretary of the Navy, Defendant.

Molly H. Cherry, United States Magistrate Judge

REPORT AND RECOMMENDATION

Molly H. Cherry, United States Magistrate Judge

Plaintiff, a former civilian employee of the Navy who worked at the Space and Naval Warfare Systems Command ("SPAWAR") in North Charleston, South Carolina, brings this action against her former employer, alleging claims of employment discrimination and retaliation pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 623(a) ("ADEA"); Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-16(c) ("Title VII"); and the Americans with Disabilities Act, 42 U.S.C. § 126, et seq. ("ADA"), as applied through § 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq. ECF No. 39.

Before the Court is Defendant's Motion for Summary Judgment, ECF No. 79 ("Motion"), filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff filed a Response, ECF No. 85, and Defendant filed a Reply, ECF No. 89. With leave of the Court, Plaintiff filed a Sur-Reply, ECF Nos. 91-1. ECF No. 92. The Motion is ripe for review.

All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), D.S.C. This Report and Recommendation is entered for review by the District Judge. For the reasons set forth below, the undersigned recommends that the Motion be granted.

FACTUAL BACKGROUND

Plaintiff is female, over the age of forty, and an Asian-Pacific Islander (Filipino). ECF No. 39 at ¶ 27. She is unable to hear in her left ear due to a degenerative condition. Id.

I. Plaintiffs Work as Lead of the Cloud Team

Plaintiff worked at SPA WAR from September 18, 2006, until her employment was terminated on November 1, 2019. Id. at ¶¶ 3, 28. She alleges that, "[d]uring the course of her SPAWAR employment, [she] established and created a managed service offering - a cloud brokerage - offering commercial cloud services to the Navy and the Department of Defense." Id. at ¶ 29.

Plaintiff met Ryan Gunst, a Caucasian male, in 2007. ECF No. 39 at ¶ 33; ECF No. 84-2, Gunst Dep. 17:18. For a time, they had a good working relationship. ECF No. 84-3, Gunst Dep. 133:20-25. In 2013, Gunst recommended that Plaintiff be brought into the work portfolio that he managed. ECF No. 79-1, Gillaspie Dep. 114:1-8, 122:10-22. In his role as portfolio manager, Gunst did not conduct Plaintiffs performance evaluations and was not responsible for appraising her work. Id. at 113:10-114:14. Gunst's only role in Plaintiffs performance evaluation was to provide input to Plaintiffs supervisor. Id.

A. Comments Regarding Plaintiffs Hearing Aid and Voice Level

During the time she worked on a project within Gunst's portfolio, Plaintiff obtained a hearing device that assisted her in the use of her telephone. ECF No. 79-1 at 44:15-45:22. The device went around Plaintiffs neck and was "like a speaker." Id. At a staff meeting in late 2013, Gunst "teased [Plaintiff] about [her] cybernetics increasing because of the device." Id. Plaintiff testified that Gunst made the comment "once or twice," and she does not recall whether other individuals were around when Gunst made the comment Id. at 46:7-9. Plaintiff testified that she was too embarrassed to "make a fuss" about the comment. Id.

Gunst testified that, during the referenced meeting, Plaintiff "was adjusting her hearing aid and [Gunst] said something to the effect that [Plaintiff] had been cybernetically enhanced." ECF No. 79-2, Gunst Dep. 66:17-67:7. According to Gunst, he "had no indication that [Plaintiff] was embarrassed" by his comment and, if he had, he "would have apologized." Id. Gunst subsequently made comments on other occasions regarding Plaintiff s hearing aid, such as "can't you hear me," "are you listening," or "you need to turn up your hearing aid." ECF No. 79-1 at 130:6-131:20.

B. Meetings in February and March 2014

Plaintiff testified that Gunst first began engaging in discriminatory and harassing conduct toward her after an incident in February 2014. ECF No. 84-1 at 121:13-123:2. All IPT leads, including Plaintiff, were required to attend a meeting in February 2014. Id. After the meeting, there was confusion as to how the IPT leads were to bill their time, as they typically did not charge overhead but instead charged direct work. Id. When Plaintiff asked Gunst for the overhead charge number, he told her to talk to John Thompson, who then sent an email to all senior leadership explaining that the portfolio managers-such as Gunst-should have the charge numbers for the meeting and should provide those numbers. Id. Plaintiff perceived that Gunst was embarrassed by Thompson's email and testified that "for some reason, my relationship with [Gunst] was damaged. Like, he felt that I was undermining him." Id.

Gunst spoke with Roy Lindsay, Plaintiffs competency supervisor, on several occasions to discuss Gunst's general assessment that Plaintiff was not performing well. ECF No. 84-2, Gunst Dep. 41:3-19. On or about March 4, 2014, Lindsay sent an e-mail to Plaintiff identifying "items for immediate improvement and items that need clarification" based on concerns Gunst had raised to Lindsay and Phil Leonard (another supervisor) regarding Plaintiff. ECF No. 85-2 at 3-4 (identifying, among other issues, concerns regarding "Portfolio communications and protocol," including "Recognize & respect the Leadership COCs, Professionalism, [and] Protocol"); see ECF No. 79-1 at 113:19-25. Lindsay directed Plaintiff to have "a one-on-one meeting with Ryan Gunst to discuss the communication issues he brought up via e-mail to [Lindsay] and Phil Leonard." ECF No. 85-2 at 2; see ECF No. 79-1 at 133:5-21.

Gunst and Plaintiff met on March 5, 2014, and Plaintiff sent an e-mail to Lindsay (copying Leonard) later that day summarizing the meeting. ECF No. 85-2 at 2-3. Gunst and Plaintiff discussed "his concerns over recognizing and respecting the Chain of Command," her teleworking arrangement, the location of her office, and how Plaintiff supports Gunst's "informational requests." Id. at 2-3.

Plaintiff testified that at the March 5 meeting, Gunst accused her of yelling at him previously, but Plaintiff did not recall being "overly upset" during the circumstance Gunst described, so she told him, "I didn't raise my voice at that time because, you know, understand, I have volume control issues due to my hearing disability. And he looked me straight in the eye and said, bullshit."² ECF No. 79-1 at 134:14-25. Plaintiff testified that Gunst never made a comment like that again about her disability and that that conversation "was basically the last time I spoke to Ryan Gunst." Id. at 135:10-13. In her email to Lindsay, Plaintiff summarized this part of the meeting as follows:

2 Gunst does not recall making this comment. ECF No. 79-2, Gunst Dep. 69:25-70:9. Gunst recalls occasions when Plaintiff cussed at him over the phone and was belligerent. ECF No. 79-2 at 36:9-38:7. Plaintiff does not deny there were times when she yelled at Gunst. ECF No. 79-1 at 38:17-25.

The initial part of the meeting covered his feeling that I had raised my voice to him (he says I yelled at him, a point I most definitely do not concur with). He concurred that he raised his voice to me first, but feels due to his positional authority as a senior leader that it is appropriate for him to raise his voice or speak any manner he chooses to lesser employees. This is a concerning matter to me from a personal and professional standpoint. As Mr. Gunst and my management are aware[, ] I wear a hearing aid (a point he has commented on by saying the he "sees my cybernetics have increased" in the past). I feel personally and professionally embarrassed to have my disability brought up to me in such a manner and I try not to let it impact my work. Given the heightened sensitivities of the situation[, ] it is very possible my voice raised as being forced into confrontational situations can impact my conscious control of my volume.

ECF No. 85-2 at 2.

According to Plaintiff, Lindsay felt strongly that Plaintiff should file an EEO complaint and offered to walk her over to the EEO office, and he suggested that she talk to David Monahan. ECF No. 79-1 at 135:14-23. She ultimately filed an EEO complaint months later after she was removed as Cloud Team Lead. Id.

C. June 2014 Complaints

In early June 2014, Plaintiff met with David Monahan, the Director of Management Operations in the division where Gunst and Gillaspie worked who, at that time, was serving as the acting Executive Director. ECF No. 85-1 at 2; ECF No. 84-17, Monahan Dep. at 10:9-24. Plaintiff told Monahan about her concerns regarding Gunst. ECF No. 84-1, Gillaspie Dep. at 80:4-10; ECF No. 85-1 (Verified Timeline stating that Plaintiff "reported hostile work environment, abuse of positional authority and discriminatory treatment. Talked about re-alignment of CSIIPT out of ICO."). After the meeting, Monahan told Peter Vandemeulebroecke, Plaintiffs third-level supervisor, that Plaintiff was having problems with Gunst, and he asked Vandemeulebroecke to "look into it" without specifying how to look into it. ECF No. 84-17, Monahan Dep. 32:10-33:19.

On or around June 29, 2014, Plaintiff provided Lindsay, per his request, with the "list of events of concerns involving Ryan Gunst since being in his portfolio," noting that prior to the February 26 IPT meeting and the issues surrounding the overhead charge number, "everything had appeared to be going well and I was surprised to find that he complained up the chain in regards to this event." ECF No. 85-3, Lindsay Complaint (documenting concerns through June 20, 2014); see ECF No. 85-1 at 1. Plaintiff recommended that the Cloud work be mostly moved out of Gunst's portfolio or, alternatively, that a "senior-level intervention and facilitation [occur] to set up the Rules of Engagement for communication on this task." ECF No. 85-3 at 6.

D. Negative Feedback on 2014 Performance Appraisal

On or around July 10, 2014, Plaintiff received her performance appraisal for July 1, 2013, through June 30, 2014. See ECF Nos. 79-10; 85-1. The Performance Appraisal, which was completed by Plaintiff s then-supervisor Philip Leonard, noted the following areas where Plaintiff needed improvement:

• "[Plaintiff] displayed a tendency to communicate directly with customers and arrange support for customers without informing or gaining work acceptance from requisite seniors within the [portfolio]."

• "[Plaintiff] needs to focus more on communicating with customers in accordance with portfolio leader directions."

• "[Plaintiff] needs to gain acceptance for IPT-external work from the portfolio leadership (senior to her) prior to accepting/doing the work."

• Plaintiff should focus on "consistent maintenance of professional decorum expected of a NO-06 IPT Leader, since on occasion during meetings [Plaintiff] exhibited behavior lacking that standard."

• "[Plaintiffs] contribution did not display that she understands and complies with the follower-ship tenet that following direction of the leaders assigned above you in an

organization is not a choice where one need follow only the directions with which one agrees."

ECF No. 79-10 at 6, 2014 Performance Appraisal. Plaintiff received a Performance Rating of "Acceptable," and an "Overall Assessed Score" of 5.8, below the "Expected Score" of 6.0. Id. at 2. She received a salary increase and a bonus. Id.

Plaintiff testified that this was the first "negative performance appraisal" that she had ever received. ECF No. 84-1 at 37:22-38:16. She also testified that Leonard "verbally conveyed" to her that her raising her voice at Gunst was a factor in her appraisal. Id. When asked if she did, in fact, raise her voice to Gunst, Plaintiff testified, "I'm not sure . . . because there were moments when I was upset. I really can't answer that." Id. at 38:17-25. Gunst testified that he does not recall providing a negative assessment of any IPT Lead working in his portfolio other than Plaintiff. Gunst Dep. at 80:14-81:14.

II. Plaintiffs Is Removed as the Lead of the Cloud Team

Plaintiff sent an e-mail to Monahan on July 14, 2014, attaching the list of concerns related to Gunst that she had provided to Lindsay at the end of June. ECF No. 85-24; see ECF No. 85-3. In the e-mail, she stated,

This abuse of positional authority needs to be addressed. I understand from my competency leadership that Mr. Gunst wants to remove me as the IPT Lead for Commercial Services in his Portfolio. Upon my departure, . . . ICO will have had 100% turnover of the Charleston based IPT Leads as well as no female IPT leads. I would like a meeting with Mr. Dunn to not only discuss the re-alignment of the CSI work out of ICO but to also discuss Mr. Gunst's harassment of me in the professional environment prior to launching a formal HR action.

Id. Three days later, she was informed that she was being removed as the CSI IPT Lead. See ECF No. 85-1 at 3.

In July 2014, SPAWAR's Executive Director, Steve Dunn (Plaintiffs fifth-level supervisor and the top civilian leader at SPAWAR), made the decision to move Plaintiff out of the cloud lead assignment and into another assignment. ECF No. 39 at ¶ 40; see also ECF No. 79-4, Dunn Dep. 51:13-20. Dunn testified that he "was made aware of concerns and criticism [about Plaintiffs work performance] by a Senior Stakeholder/Customer, Ms. Janice Haith, . . . that [Plaintiff] was not performing satisfactorily in her role as [cloud team] lead." ECF No. 79-7, Dunn Decl. p. 4; ECF No. 79-4, Dunn Dep. 25:1-20; see also ECF No. 79-5 Emails from Haith to Dunn (conveying concerns regarding Plaintiffs performance beginning in April 2014). In April 2014, Haith complained to Dunn that Plaintiff "has yet to provide any solid information to support the cost and I think it's creating negative impacts with the way-ahead." ECF No. 79-5 at 5. Haith complained again in June 20, this time to the Commanding Officer of SPA WAR, about not receiving a Cost Model. ECF Nos. 85-3 at 5, 85-4. This complaint set off a flurry of e-mails and discussions involving Plaintiff, Gunst, Vandemeulebroecke, and others at SPAWAR. ECF No. 85-3 at 5. There is evidence in the record that a Cost Model was not actually due at that time. ECF No. 85-5. Nonetheless, Haith felt that Plaintiff was "not responsive or wasn't listening to what [leadership] wanted." ECF No. 79-6, Haith Dep. 11:11-20; ECF No. 79-7, Dunn Decl. at 4. Dunn testified, "I made the decision to reassign her to somewhere else, and I didn't choose where she went. I just said, 'Hey, find another opportunity for her to be successful; and let's pull somebody in that's going to satisfy the [customer]." ECF No. 79-4, Dunn Dep. 51:13-20.

Brian Ratliff, who was the deputy portfolio manager directly under Gunst, testified that Plaintiffs removal as cloud team lead was "[performance related" and noted Plaintiff was unable "to put good programmatics and technical rigor around her service delivery," was "inconsistent] in terms of the overall performance and commitments made," and failed to "follow through." ECF No. 79-8, Ratliff Dep. at 49:6-21. He testified that he was aware of Haith's complaints about Plaintiff, he talked to Plaintiff about those complaints, and Plaintiff had previously had performance issues. Id. at 20:13-25:20. Similarly, Vandemeulebroecke, Plaintiffs third-level supervisor, testified that he received calls from the Commanding Officer and Executive Director Dunn "about complaints from the customers that [Plaintiff] wasn't delivering." ECF No. 79-9, Vandemeulebroecke Decl. p. 3.

Plaintiff was replaced as Lead by Tony Stafford, a thirty-one-year-old Caucasian male. ECF No. 39 at ¶ 48. She initiated an Equal Employment Opportunity (EEO) Complaint based on Gunst's treatment of her and her removal as Cloud Team Lead in August 2014, and she filed a formal EEO Complaint in December 2014. ECF Nos. 39-1, 39-2.

III. Plaintiffs OGE 450 Forms and Alleged Conflicts of Interest

The U.S. Office of Government Ethics (OGE) Confidential Financial Disclosure Report (OGE 450) form is a confidential document completed by certain employees of the federal government working on contracting matters to assist employees and their agencies in avoiding conflicts between official duties and private financial interests or affiliations. ECF No. 39 at ¶¶ 67, 70, 92; see ECF No. 79-12. The OGE 450, which is completed on a yearly basis, requires the filing employee to disclose all required information related to financial interests the employee, the employee's spouse, and the employee's minor children have, including sources of income, liabilities, and outside positions. See ECF No. 79-12, Gillaspie 2010 OGE 450.

Plaintiff was required to complete the OGE 450 on an annual basis. In February 2010, Plaintiff reported that her husband received a salary from Honeywell, a government contractor, and that she had a pension with her former employers CSC and JHU/APL. ECF No. 79-12 at 5-6. In February 2011, Plaintiff again reported her husband's income from Honeywell and her pensions with CSC and JHU/APL. ECF No. 79-13 at 5-6.

In January 2012, Plaintiff reported that she had pensions with CSC and JHU/APL and that her husband had a mutual fund with Honeywell. ECF No. 79-14. She also reported that her husband had a pension fund with Booz Allen Hamilton ("BAH"), a government contractor that employed her spouse from 2000 to 2005. Id; ECF No. 79-11 at 4, Tim Gillaspie Linkedln Profile. Plaintiff did not disclose the BAH pension in her 2010 and 2011 OGE form. See ECF Nos. 79-12, 79-13. Plaintiff testified that she did not know about the pension when she completed the OGE forms in 2010 and 2011. ECF No. 79-1 at 222:8-224:25.

Plaintiff also did not report any source of non-investment income, including any salary for her husband, on her 2012 OGE form. ECF No. 79-14. However, in January 2012 her husband was employed as a cyber-engineer for Computer Sciences Corporation (CSC) where he worked on a SPAWAR project. ECF No. 79-11 (showing Plaintiffs spouse worked as a cyber-engineer for CSC from December 2011 through December 2012). Plaintiff testified that she made an error in not disclosing this information but that it was not intentional. ECF No. 79-1 at 225:1-16.

Plaintiffs 2013 OGE form reported her CSC and JHU/APL pensions, her husband's BAH pension, and her husband's 4Ol(k) investments through CSC and Honeywell. ECF No. 79-15. Plaintiff again did not report any source of non-investment income, including any salary for her husband. Id. However, when Plaintiff signed her 2013 OGE form in February 2013, her husband worked as a Program Director for Sotera Defense Solutions, Inc., in a position "supporting the SPAWAR community." ECF No. 79-11 at 3 (showing employment with Sotera from December 2012 through October 2016).

Plaintiff submitted her 2014 OGE form in February 2014. ECF No. 79-16. Plaintiff again reported no source of non-investment income, including any salary for her husband. Id. Her husband was still employed by Sotera in February 2014. ECF No. 79-11 at 3. She reported her CSC and JHU/APL pensions, her husband's BAH pension, and her husband's 401(k) accounts with Honeywell, CSC, and Sotera. ECF No. 79-16 at 3.

On April 1, 2014, Jennifer Simmons, a paralegal in the Office of General Counsel at SPAWAR, sent Plaintiff a letter from Ethics Counselor M.S. Roys regarding his review of her 2014 OGE form. ECF No. 85-4 at 3-4. In response, Plaintiff sent an e-mail on May 8, 2014, to Simmons, copying Phil Leonard, in which Plaintiff stated, "My husband is currently a contractor who supports SPAWAR. I've listed his position in the past and typically had a paragraph reflecting caution in regards to contracting. Has something changed or is there something I missed?" Id. at 5. That same day Simmons responded (copying Leonard), "You do not have your Spouse's Income listed on your 2014 OGE 450 Form. Additionally, I note that you have several pension plans listed under assets which I don't see a letter for so let me speak to Ethics Counselor, Michael Roys, to see how he wants to handle." Id. Plaintiff quickly responded (copying Leonard), "I figured an error on my part.:-) Let me know what I need to fix." Id. at 6.

On October 20, 2014, Plaintiff sent an e-mail to Simmons (copying Kevin Holcomb):

Jennifer - I was archiving my e-mail. Did you hear back on how this is to be handled? I am just operating off my 2013 letter for now, that OGE had my spouse's income listed with his current company. I am still trying to figure out what happened in 2014 OGE. I simply copied 2013. Please note new supervisor, Kevin Holcomb. Again, please advise me of next steps.

Id.

The next day, Simmons responded:

Cristina, At any time you can pull down a copy of you Certified OGE 450 Forms. I have attached a copy of the 2014 Form you submitted. Note, [i]t does not have any income listed in the Non-investment Income for your spouse. It does referenced [sic] a BAH pension/retirement plan. I have also corrected your supervisor in FDM to Kevin, however, he will not have access to your previously submitted OGE 450 forms. Please call me with any additional questions.

Id. at 7. Plaintiff responded by asking, "What do I need to do to correct my husband [sic] income source not being shown?" Id. Simmons responded (copying Holcomb), "At this late juncture in the year, I would wait until January 2015 when you file a new OGE 450 Form. Based on these emails, your supervisor is fully aware of the Conflict of Interest with your husband's employment and that is the most important piece of disclosure." Id. at 8.

There is no copy of Plaintiff s 2015 OGE form in the record. However, there is evidence in the record that Plaintiff disclosed non-investment income for her husband from "Sotera Defense" on her 2015 OGE form, which she signed in February 2015. ECF No. 85-8 at 9 ¶ 22. There is also evidence that the electronic audit trail indicates that Plaintiff initially signed and submitted her report on February 9, 2015, at 1:15 p.m. and then amended her report to add income and re-signed the report around 2:00 p.m. Id. at 9 ¶ 23. According to a statement of probable cause prepared by an NCIS agent, Holcomb stated during an interview that after Plaintiff had initially submitted her 2015 OGE form, Holcomb "realized she had not disclosed that her husband worked for a USG contractor" and he contacted Plaintiff "to request she make the necessary entry on her OGE Form 450." Id. at 9 ¶ 24. Plaintiff submitted a Verified Timeline similarly noting that on February 9, 2015, "Kevin Holcomb ca[ught] error on OGE 450 per process. [Plaintiff] correct[ed] error in 5 minutes from e-mail notification of the missing salary information." ECF No. 85-1 at 3.

On March 4, 2015, Simmons sent Plaintiff an e-mail (copying Holcomb) with a letter regarding the legal review of Plaintiff s 2015 OGE form. ECF No. 85-4 at 10. Plaintiff responded the same day, copying Holcomb and noting, "This letter does not address Honeywell. My husband was employed there prior to joining CSC. Please advise on what I need to do to get this listed." Id. Simmons responded the next day (copying Holcomb), "Thank you for bringing this to my attention. It was a complete miss on our part to include your rental property. Therefore, I have added Honeywell and a paragraph addressing the rental property to your letter and attached it as version 2. Again, thank you for pointing this out." Id. at 11.

In March or April 2015, Brian Ratliff became aware that Plaintiff was involved in a Defense Contract Modification Request (DCMR) that provided incremental funding under a contract with Sotera. ECF No. 79-8, Ratliff Dep. 35:23-38:2; ECF No. 79-1, Gillaspie Dep. 124:17-125:2; ECF No. 85-1 at 3 (Certified Timeline documenting a Contract Action on March 4, 2015: "$ 10, 000 Unawarded DMCR [sic] Package to Sotera for the PEO Cloud Strategy engineering tasker; Gillaspie as requestor (no authority, non-signatory, not approver)."). Ratliff reported this DCMR to Gunst, his supervisor, noting that Plaintiffs husband worked for Sotera. ECF No. 79-8 at 37:12-24.

Gunst testified that Ratliff "showed [him] a delivery order that [Plaintiff] had submitted sending work to Sotera [and] pointed out that her husband worked at Sotera." ECF No. 79-2 at 140:12-20. Upon receiving this information from Ratliff, Gunst provided the information to the SPAWAR Inspector General and to SPAWAR's legal office. Id. at 141:16-142:15. Gunst testified he believed he had a duty to report potential unethical conduct. Id. at 143:3-12. He also testified that he has never reported any other person working for the Navy for potential unethical behavior. Id. at 143:13-23.

In April 2015, Plaintiff was removed from all cloud work and realigned to an entirely different area of SPAWAR with non-classified work. ECF No. 84-1, Gillaspie Dep. 184:12-185:24. Holcomb told Plaintiff that "SPAWAR Legal" directed the move, and she understood that this move took place because of the $10,000 DCMR package. Id.

In August 2015, Holcomb told Plaintiff that she was being denied NLP training, which was one of the "few GS-15 trainings for SES that [she] qualified for." ECF No. 84-1, Gillaspie Dep. 57:2-58:23; see ECF No. 85-1 at 4. According to Plaintiff, she was "GS-15 equivalent in the DOD, so in order to be considered for . . . above GS-15 positions, you have to have a training class that helps facilitate you getting an SES position or above that GS-15 level position." ECF No. 84-1, Gillaspie Dep. 57:23-58:2. Holcomb told Plaintiff that she would not be considered for the senior leadership training because of the EEO and OGE 450 issues. Id. at 58:7-23; ECF No. 85-1 at 4. Plaintiff also testified that there were no above GS-15 positions available at SPAWAR for her to compete on, noting that Dunn held the only SES position in the command and Andrew Mansfield held the only other above GS-15 position at SPAWAR. ECF No. 89-2 at 59:4-24.

In October 2015, the SPAWAR Inspector General notified the Naval Criminal Investigative Service (NCIS) of Plaintiff s possible conflict of interest, and NCIS made a decision to open a criminal investigation. ECF No. 79-17, Search Warrant p. 3.

IV. NCIS Executes a Search Warrant

In late January or early February 2017, NCIS executed a search warrant in Plaintiffs office at SPAWAR. ECF No. 79-17, Search Warrant p. 3. Plaintiff s computers and effects were searched and some were seized by NCIS. Id. According to Plaintiff, she was detained by six federal officers while she was working in her office at SPAWAR, and she was presented with an NCIS Statement of Probable Cause alleging that "Investigation revealed that you [Cristina Gillaspie] did not disclose potential financial conflict of interest on your [OGE 450] Forms as you are required to do, and you took official actions on contracts affecting your spouse's [Timothy Gillaspie] financial interest." ECF No. 39 at ¶ 92.

V. Plaintiffs Security Clearance and Accesses Are Suspended³

3 The suspension of Plaintiffs security access was the subject of a separate lawsuit that was dismissed with prejudice. See Gillaspie v. Spencer, No. 2:18-cv-2207-DCN-MGB, ECF No. 73.

On February 6, 2017, W.D. Cantrell, SPAWAR's Special Security Officer, determined Plaintiff was a potential security risk and initiated Defendant's process for possible suspension of Plaintiffs security clearance and accesses by providing Plaintiff with a Proposed Suspension of Security Access for Cause. ECF No. 79-18, Proposed Suspension of Access. The proposed suspension referenced the NCIS Statement of Probable Cause and Plaintiffs failure to "disclose potential financial conflicts of interest" and taking "official actions on contracts affecting [her] spouse's financial interests." Id.

On February 21, 2017, after Plaintiff had responded to the proposed suspension, Gary Caldwell, acting on behalf of SPAWAR's Commanding Officer, issued Plaintiff a Formal Suspension of Access for Cause. ECF No. 79-2, Suspension of Access. Under the suspension, Plaintiffs "access to classified information, classified spaces, unclassified controlled spaces, and all DoD/Navy/SPAWAR networks [was] suspended and [would] remain suspended until the Department of Defense Consolidated Adjudications Facility, (DoD CAF), Navy Division concludes its adjudication of [Plaintiff s] security clearance." Id. After the suspension, Shawntelle Matney, an employee in SPAWAR's security office, sent the information related to Plaintiff to the DoD CAF. ECF No. 79-20, Matney Dep. 43:7-21.

VI. Plaintiff Is Placed on Indefinite Suspension⁴

4 Both the proposed indefinite suspension and the indefinite suspension were part of the prior lawsuit that was dismissed with prejudice. See Gillaspie v. Spencer, No. 2:18-cv-2207-DCN-MGB, ECF No. 73.

On February 21, 2017, Holcomb issued Plaintiff a Notice of Proposed Indefinite Suspension from employment "pending a favorable decision by the [DoD CAF] on [Plaintiffs] security clearance." ECF No. 79-21, Proposed Indefinite Suspension. On March 29, 2017, after Plaintiff responded to the proposed suspension, Ann Rideout, Acting Manager of Plaintiffs competency, notified Plaintiff of her indefinite suspension. ECF No. 79-22, Indefinite Suspension.

VII. Plaintiffs 2017 Performance Appraisal

In July 2017, Holcomb completed Plaintiffs 2017 performance appraisal. ECF No. 79-23, 2017 Performance Appraisal. In that appraisal, Holcomb noted:

[Plaintiff] lost her access to DON networks about half way through the rating period. This prevented her from continue [sic] supporting the portfolio or competency. The result was the need for the IPT to rebalance the tasking with the IPT. This increased the programmatic risk to the Command and the Stakeholders by over tasking other resources.

Id. Holcomb gave Plaintiff an overall performance rating of "Acceptable." Id. Although her expected score was an 8.1, her overall assessed score was only a 3.5. Id. Plaintiff did not receive a salary increase during the appraisal period but also did not suffer any loss of pay or benefits. Id.

Plaintiff testified that based on her understanding of the appraisal process, she believed she should have been appraised for the six months that she worked during the appraisal period. ECF No. 84-1 at 253:15-255:15.

VIII. The U.S. Attorney's Office Declines to Prosecute Plaintiff

In July 2018, the U.S. Attorney's Office declined to prosecute Plaintiff based on the NCIS investigation, but not before Plaintiff incurred significant legal fees. ECF No. 39 at ¶¶ 100, 102; ECF No. 85-17. After the declination of prosecution, Plaintiff requested, through her counsel, to be reinstated. ECF No. 85-20. Michael Roys, SPAWAR's counsel, responded that "there are facts that came out during the investigation that we are reviewing with an eye toward what our next step in the process will be, which most likely will not result in reinstatement but rather other administrative action." Id. at 2.

IX. Plaintiffs Removal from Employment

On June 20, 2019, Rideout, the manager of Plaintiff s competency, issued Plaintiff a Notice of Proposed Removal. ECF No. 79-24. At the time this Notice was issued, Plaintiff was still on indefinite suspension, and Rideout had been named in an EEO complaint by Plaintiff about the decision to indefinitely suspend her. See Gillaspie v. Spencer, No. 2:18-cv-2207-DCN-MGB, ECF Nos. 1-1 at 2; 69 at 9.

The proposed removal identified five charges: (1) failure to disclose required information; (2) improper disclosure of protected information; (3) failure to follow instructions; (4) apparent conflict of interest; and (5) lack of candor. ECF No. 79-24. Each of the charges contained specifications identifying the misconduct supporting the charge. Id.

Charge 1 arose from Plaintiff s failure to accurately and fully complete her OGE 450 forms. Id. Charge 2 arose from Plaintiffs admitted actions of sending SPAWAR documents that were deemed "For Official Use Only" to her husband Tim Gillaspie's unsecured commercial email address. Id. Charges 3 and 4 addressed Plaintiffs interactions with contracting actions that concerned her husband's company that Rideout alleged created an appearance of a conflict of interest. Id. Charge 5 arose from Rideout's determination that Plaintiff had exhibited a lack of candor in responding to the Notice of Proposed Indefinite Suspension, particularly in attempting to explain the errors and omissions on her OGE 450 forms and the conflict of interest concerns related to Sotera. Id.

Plaintiff provided a written and oral response to the Notice of Proposed Removal. ECF No. 79-25, Plaintiffs Response to Proposed Removal; ECF No. 86-1, Reddy Dep. 21:5-12. Both Plaintiff and Rideout (through SPAWAR's Employee Relations Department) submitted documentation supporting their respective positions to the deciding official, Pete Reddy, then Acting Executive Director of SPAWAR. See ECF No. 79-26, Decision on Proposed Removal. In large part, Plaintiff did not contest the conduct in which she was alleged to have engaged, but argued either the conduct was inadvertent, the conduct should not have been considered wrongful, or the penalty was excessive. ECF No. 79-25, Plaintiffs Response to Proposed Removal.

On November 1, 2019, Reddy issued a Decision on Proposed Removal. ECF No. 79-26. Reddy, after considering the material provided by the proposing official and the material provided by Plaintiff, made the ultimate decision to remove Plaintiff from her employment with SPAWAR. Id. In his decision, Reddy addressed each of the charges and specifications. Id. Reddy declined to consider two specifications presented in the Notice of Proposed Removal-specifications based on alleged failures to disclose her CSC pension on her 2010 OGE and her 2011 OGE-finding that these specifications were unsupported by a preponderance of the evidence. Id.; see ECF No. 76-24. However, Reddy found the remaining 24 specifications to be fully supported by a preponderance of the evidence. ECF No. 76-26. Based on these findings, Reddy then determined that removal was the appropriate penalty for the proven charges in order to promote the efficiency of the service. Id.

Plaintiffs employment was terminated on November 1, 2019. Id.

PROCEDURAL HISTORY

Between August 2014 and November 2018, Plaintiff filed at least five different EEO complaints regarding various acts of alleged discrimination and retaliation at SPAWAR. As explained below, three complaints form the basis of this civil action, while the claims raised in two other complaints were dismissed with prejudice by this Court in a prior lawsuit.

I. First EEO Complaint - DON Number 14-65236-03429

On August 29, 2014, Plaintiff completed an EEO pre-complaint intake form in which she alleged discrimination based on sex (female), physical disability, age, race (Asian Pacific Islander), non-sexual harassment, and hostile work environment. ECF No. 39-2 at 3-4. On December 9, 2014, she filed a formal EEO Complaint pursuant to the ADEA, the Rehabilitation Act, and Title VII. Id. at 22-30; ECF No. 39-1 at 3. The Agency assigned number 14-65236-03429 to this Complaint ("First EEO Complaint").

In her First EEO Complaint, Plaintiff alleged that she was subjected to harassment and a hostile work environment based on race, sex, disability, and age in the following ways:

a. In February 2014, she attended a meeting for IPT (Integrated Product Team) leads and sub-portfolio leads and asked [Gunst] for a network activity to record her time, and he did not give her one, resulting in her feeling from this point on, she was on the "bad list";

b. Beginning in March 2014, she asked [Gunst] to copy her competency leadership on emails to avoid communication issues;

c. On March 5, 2014, she offered to provide [Gunst] documentation of her hearing impairment to explain she was not yelling at him, and he hung up the telephone;

d. On July 10, 2014, during a performance review, she was told [Gunst] had her written up because of "positional deference"; and e. During a meeting with her competency leadership on August 18, 2014, she became aware of "baseless claims" made by [Gunst] about her performance and disciplinary matters, and she believes these "baseless claims" had an impact

upon her competency leadership to remove her as the Integrated Product Team (CSIIPT) on July 17, 2014.

ECF No. 39-1 at 2-3. The Agency issued a Final Agency Decision for the First EEO Complaint on January 29, 2019, finding no discrimination. ECF No. 39-1. Thereafter, Plaintiff filed this civil action, asserting the claims of discrimination under the ADA, ADEA, and Title VII that she raised in her First EEO Complaint. ECF No. 1; see ECF No. 39 ¶ 13.

II. Second EEO Complaint - DON Number 17-65236-02624 - and Third EEO Complaint - DON Number 17-65236-2643

Plaintiff filed her second EEO Complaint on August 1, 2017, and her third EEO Complaint on August 14, 2017. ECF No. 39-2 at 31-38. In these complaints, Plaintiff alleged that she was discriminated against on the basis of reprisal and was subjected to a hostile work environment when:

a. On February 21, 2017, her security access (including access to all classified information, classified spaces, unclassified controlled spaces, and all DoD/Navy/SPAWAR networks) was suspended by [the Security Office] and she was issued a letter with the subject: Formal Suspension of Access for Cause;

b. On March 29, 2017, [Rideout] notified [Plaintiff] of her decision to indefinitely suspend her, effective April 22, 2017, pending adjudication of her security clearance by the Department of Defense Central Adjudication Facility (DoD CAF);

c. On April 7, 2017, [Plaintiff] was notified by a potential employer that the SPAWAR Security [O]ffice had recorded a search as a security incident in JPAS, and her "clearances" [access] were removed; and d. On April 22, 2017, she was indefinitely suspended.

See Gillaspie v. Spencer, No. 2:18-cv-2207-DCN-MGB, ECF Nos. 1-1 at 2; 69 at 9. The Agency issued a Final Agency Decision for both of these EEO Complaints on July 11, 2018, finding no discrimination based on reprisal. Id. at ECF No. 1-1 at 21.

Plaintiff subsequently filed a civil action in this Court based on the Second and Third EEO Complaints, alleging claims for violations of the ADA, ADEA, and Title VII. See Gillaspie v. Spencer, No. 2:18-cv-2207-DCN-MGB. She filed an Amended Complaint, narrowing her claims to challenge the revocation of only her accesses, as opposed to her security clearance.⁵ Id., ECF No. 73 at 6. On February 18, 2020, the Court dismissed all of Plaintiff s claims with prejudice. Id., ECF No. 73 (noting that Department of Navy v. Egan, 484 U.S. 518 (1998), and subsequent Fourth Circuit cases prevent a court from reviewing security clearance determinations; adopting magistrate judge's finding that Plaintiffs attempt to distinguish decisions related to security clearance and security access was unpersuasive; and finding that Plaintiff did not sufficiently allege a claim for procedural violations by the Agency in making its security access decisions).

5 Plaintiff attempted to distinguish "access" for "security clearance" as follows: "Access here involves the allowance of an individual to attend the jobsite in person, or, failing that, to allow an employee to work on unclassified materials from a remote worksite. [Plaintiff] was ready, willing, and able to do both, but was summarily denied the opportunity to do so." Gillaspie v. Spencer, No. 2:18-cv-2207-DCN-MGB, ECF No. 63 at 7 n.2. According to Plaintiff, "[t]he removal of unclassified access is an internal decision made by SPAWAR locally, not by any Federal Agency assigned to adjudicate [Plaintiff]'s security clearance and with special expertise on the matter that federal courts do not possess." Id. at 2.

III. Fourth EEO Complaint - DON Number 18-65236-02182

On July 1, 2018, Plaintiff filed her Fourth EEO Complaint, in which she alleged the following:

On April 19, 2018, Complainant became aware that her supervisor, [Holcomb], did not issue her a 2017 appraisal during the appraisal process and she was denied her right to participate in the grievance or appeal process for her rating; and

On April 19, 2018, Complainant became aware that [Holcomb] rated her in such a way that no pay raise occurred when he attributed her performance rating to the fact that she was suspended.

ECF No. 6 ¶ 4; see ECF No. 39 ¶ 9; ECF No. 39-6 at 2-3.

The Agency issued a Final Agency Decision for the Fourth EEO Complaint on April 22, 2019, finding no discrimination against Plaintiff based on reprisal. ECF No. 39-6. Thereafter, Plaintiff amended her Complaint in this action to incorporate the retaliation claims raised in the Fourth EEO Complaint. ECF No. 6; ECF No. 39 at ¶¶ 8-9, 13.

IV. Fifth EEO Complaint - DON Number 18-65236-00798

On November 29, 2018, Plaintiff filed her Fifth EEO Complaint. This Fifth Complaint, as amended, including the following claims:

4. On September 21, 2018, [Plaintiff] learned that [the Office of General Counsel] made false allegations about whether she had declared her husband's work with Sotera on her Office of Government Ethics (OGE) 450, which resulted in a Naval Criminal Investigative Service (NCIS) investigation (original NOA Claim d);

5. On July 25, 2018, [Plaintiff] learned that SSC LANT senior leadership (Naval Information Warfare Center (NTWC) Atlantic Executive Director [S3], Director of Corporate Operations [CORP-OPS], and Chief Engineer [S4]) did not conduct management inquiries into her previous claims of harassment and discrimination (original NOA Claim e); and

6. On July 20, 2019, [Plaintiff] was reprised against (prior EEO activity of December 9, 2014) when [Rideout] issued her a Notice of Proposed Removal dated June 20, 2019.

ECF No. 39 ¶ 12; see ECF No. 39-7 at 2-3.

The Agency issued a Final Agency Decision for the Fifth EEO Complaint on November 26, 2019, finding no discrimination based on sex, disability, national origin, age, race, or reprisal. ECF No. 39-7. Thereafter, Plaintiff amended her Amended Complaint in this action, asserting the above-enumerated claims that she raised in her Fifth EEO Complaint. ECF No. 39 at ¶¶ 10-12.

LEGAL STANDARD

Summary judgment should be granted when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "Facts are 'material' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor." See Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). However, "the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence." Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). When a party fails to establish the existence of an element essential to that party's case, there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991) ("[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate.").

DISCUSSION

In her Second Amended Complaint, Plaintiff alleges four causes of action: (1) a claim for age discrimination under the ADEA, ECF No. 39 at 18-19; (2) a claim for disability discrimination and hostile work environment under the Rehabilitation Act, id. at 19-21; (3) a claim for race and gender discrimination in violation of Title VII, id. at 21-22; and (4) a claim for retaliation under the ADEA, Rehabilitation Act, and Title VII, id. at 22-23. Defendant moves, pursuant to Rule 56, for summary judgment on all of Plaintiff s claims. ECF No. 79.

In her Response in opposition to Defendant's Motion, Plaintiff agrees to dismiss her age discrimination claim under the ADEA and her race and gender discrimination claim under Title VII. ECF No. 85 at 27. Accordingly, the undersigned recommends that the Court grant summary judgment as to Plaintiffs First and Third Causes of Action and that those claims be dismissed.

For the reasons that follow, the undersigned recommends that the Court also grant summary judgment as to Plaintiffs Second and Fourth Causes of Action and that those claims be dismissed, as well.

I. Discrimination Under the Rehabilitation Act

In the Second Cause of Action of the Second Amended Complaint, Plaintiff alleges a claim for disability discrimination and hostile work environment under the Rehabilitation Act based on the claims she raised in her First EEO Complaint, filed in 2014. ECF No. 39 at ¶¶ 111-13; ECF No. 39-1 at 2-3. Specifically, she alleges:

Plaintiff was discriminated against by defendant based on her hearing disability (total hearing loss, left ear) when defendant's agent, Ryan Gunst, made repeated comments regarding plaintiffs hearing disability including remarks that plaintiffs "cybernetics" were "increasing" regarding a new hearing aid enhancement that plaintiff was required to wear; making complaints about plaintiff being "disrespectful of his position" because she "raised her voice" at him; calling her disability "bullshit"; repeatedly bringing up the volume of plaintiffs voice; including the voice volume control matter in a performance appraisal that [a]ffected plaintiffs pay

ECF No. 39 at ¶ 113.

The Rehabilitation Act prohibits federal agencies from discriminating against its employees on the basis of disability. See 29 U.S.C. § 794; see Hannah P. v. Coats, 916 F.3d 327, 336 (4th Cir. 2019); Magazine v. Donahoe, No. 4:11-cv-2896-RBH, 2013 WL 4056313, at *14 (D.S.C. Aug. 12, 2013) ("The Rehabilitation Act prohibits discrimination 'against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.") (quoting 42 U.S.C. § 12112(a)). "[T]he Rehabilitation Act . . . provides the exclusive judicial remedy for claims based upon a federal employee's disability." Magazine, 2013 WL 4056313, at *14 (internal citations omitted). "Because the Rehabilitation Act and the ADA employ the same standards and purposes, courts may rely on case law addressing claims under either statute in analyzing a case of disability discrimination." Id.

A plaintiff may avoid summary judgment on a disability discrimination claim through two avenues of proof: by presenting direct evidence of discrimination or by relying on the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Jones v. Leavitt, 454 F.Supp.2d 459, 463 (M.D. N.C. 2006) (citing Ennis v. Nat'l Ass'n of Business & Educational Radio, Inc., 53 F.3d 55 (4th Cir. 1995)); see Coats, 916 F.3d at 342; Laber v. Harvey, 438 F.3d 404, 430 (4th Cir. 2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)); Marshall v. AT&T Mobility, 793 F.Supp.2d 761, 763 (D.S.C. 2011).

A. Direct Evidence of Discrimination

Plaintiff first argues that she has produced direct evidence of disability discrimination sufficient to establish her claim. A plaintiff can survive a motion for summary judgment by producing "direct evidence of a stated purpose to discriminate and/or indirect evidence of sufficient probative force to reflect a genuine issue of material fact." Rhoads v. F.D.I.C, 257 F.3d 373, 391 (4th Cir. 2001) (citations and internal quotation marks omitted). "Direct evidence is evidence that the employer announced, admitted, or otherwise indicated that the forbidden consideration was a determining factor" in the employer's challenged action. Bickford v. Denmark Tech. Coll., 479 F.Supp.2d 551, 564 (D.S.C. 2007) (internal quotation marks omitted) (citing Cline v. Roadway Express, Inc., 689 F.2d 481, 485 (4th Cir. 1982)). Meanwhile, indirect or circumstantial evidence must be "of sufficient probative force to reflect a genuine issue of material fact" and "includes conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision." Thomas v. Delmarva Power & Light Co., 715 Fed.Appx. 301, 302 (4th Cir. 2018) (internal quotation marks omitted); Rhoads, 257 F.3d at 391-92. Thus, to survive summary judgment on the basis of direct or circumstantial evidence, Plaintiff "must produce evidence that clearly indicates a discriminatory attitude at the workplace and must illustrate a nexus between that negative attitude and the employment action." Brinkley v. Harbour Recreation Club, 180 F.3d 598, 608 (4th Cir. 1999), overruled on other grounds by Desert Palace v. Costa, 529 U.S. 90 (2003).

Plaintiff argues that the evidence that Gunst called her disability "bullshit" and that he inserted "negative comments about the volume of Plaintiff s voice" in her performance review is sufficient to establish her disability discrimination claim through direct evidence. ECF No. 85 at 28. She points to her testimony that on March 5, Gunst accused her of yelling at him previously, but Plaintiff did not recall being "overly upset" during the circumstance Gunst described, so she told him, "I didn't raise my voice at that time because, you know, understand, I have volume control issues due to my hearing disability. And he looked me straight in the eye and said, bullshit." ECF No. 79-1 at 134:14-25.

The undersigned concludes that Plaintiff has not presented direct or circumstantial evidence of disability discrimination sufficient to survive summary judgment. As an initial matter, there is no mention of Plaintiffs hearing disability or the volume of her voice in the 2014 performance review. See ECF No. 79-10. Rather, the performance review discusses Plaintiffs failure to keep senior level employees informed, failure to communicate with customers in accordance with her portfolio leader's directions, failure to maintain "professional decorum," and failure to follow directions provided by leaders in the organization. Id. More importantly, Gunst's "bullshit" comment was made months before the July 2014 Performance Appraisal by Leonard. Thus, because this isolated comment was not made in connection with the alleged adverse action, it is insufficient to prove discriminatory animus. See Brinkley, 180 F.3d at 608 ("[T]o prove discriminatory animus, the derogatory remark cannot be stray or isolated and unless the remarks upon which plaintiff relies were related to the employment decision in question, they cannot be evidence of discrimination.") (internal quotation marks omitted).

Because Plaintiff has not established her disability discrimination claim through direct or circumstantial evidence, she must rely on the burden-shifting framework of McDonnell Douglas to establish her claim.

B. McDonell Douglas Burden-Shifting Framework

Under the McDonnell Douglas burden-shifting framework, Plaintiff must first establish a prima facie case of discrimination. 411 U.S. at 802. If Plaintiff establishes a prima facie case, the burden shifts to Defendant to provide a legitimate, nondiscriminatory reason for its conduct. See Coats, 916 F.3d at 342. If Defendant provides such a reason, Plaintiff "bears the ultimate burden of persuasion" and "must show by a preponderance of the evidence that the proffered reason was a pretext for discrimination." Id. (quoting Perry, 429 Fed.Appx. at 220).

1. Prima Facie Case of Discrimination

Plaintiff has the initial burden of establishing a prima facie case of discrimination by showing that: (1) she is disabled; (2) she was otherwise qualified for the position; and (3) she suffered an adverse employment action solely on the basis of her disability. Coats, 916 F.3d at 342 (citing Perry v. Comput. Scis. Corp., 429 Fed.Appx. 218, 219-20 (4th Cir. 2011); Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005)).

Plaintiff alleges that the 2014 Performance Appraisal was discriminatory. In its Motion, Defendant argues that Plaintiff cannot establish the third element of her prima facie claim. ECF No. 79 at 23-24. Specifically, Defendant contends that "there is no evidence Plaintiffs performance appraisal was, in fact, adverse," and that "Plaintiff is unable to show that any adverse employment action she may have suffered was solely based on her disability." Id. at 24. The undersigned agrees.

a. Plaintiff Has Not Produced Evidence of an Adverse Employment Action

"An adverse employment action is a discriminatory act that adversely affects the terms, conditions, or benefits of the plaintiffs employment." Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (internal quotation marks omitted). "[A] poor performance evaluation is actionable only where the employer subsequently uses the evaluation 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); see White v. Baxter Healthcare Corp., 533 F.3d 381, 402 (6th Cir. 2008) ("In general, a negative performance evaluation does not constitute an adverse employment action unless the evaluation has an adverse impact on an employee's wages or salary.") (internal quotation marks omitted); Grube v. Lau Indus., Inc., 257 F.3d 723, 729 (7th Cir. 2001) ("[N]egative performance evaluations, unaccompanied by some tangible job consequence, do not constitute adverse employment actions.").

Plaintiff points to her testimony regarding the 2014 Performance Appraisal as evidence of an adverse employment action sufficient to establish the third element, arguing that without the negative input from Gunst, she would have received a positive review and obtained a higher percentage pay raise. ECF No. 85 at 28-31. However, Plaintiffs deposition testimony does not establish that she would have obtained a higher percentage pay raise, as she suggests in her Response brief.

At her deposition, Plaintiff provided the following testimony:

I was written up in my performance appraisal by Phil Leonard ... for raising my voice to Ryan Gunst, which basically for the first time ever caused me to like have a negative performance appraisal, which in fact, affects my ability to get a raise. . . . It's actually in the performance appraisal saying that I raised my voice at Ryan, and then it was also verbally conveyed to me by Phil Leonard, that that was a factor in my negative performance appraisal ... in 2014.

ECF No. 84-1 at 38:1-16.

Although Plaintiff testified that "a negative performance appraisal . . . affects [her] ability to get a raise," the evidence shows that Plaintiff did, in fact, get both a raise and a bonus as a result of her 2014 Performance Appraisal. See ECF No. 79-10 at 6. Moreover, Plaintiff received a Performance Rating of "Acceptable," and an "Overall Assessed Score" of 5.8, just slightly below the "Expected Score" of 6.0. Id. at 2. Thus, to the extent that the 2014 Performance Appraisal can be considered a "negative performance appraisal," it does not appear to have "affect[ed] [Plaintiffs] ability to get a raise." See ECF No. 84-1 at 38:1-16. Indeed, the parties have not pointed to any evidence in the record regarding the size of Plaintiff s previous salary increases or bonuses, such that there is no evidence that her 2014 raise and bonus were any smaller than the ones she had received in the past. The undersigned thus finds Plaintiffs argument that "without the negative input from Mr. Gunst, Plaintiff would have received a positive review and obtained a higher percentage pay raise," ECF No. 85 at 29, to be "conjectural" and unsupported by the record. See James, 368 F.3d at 378. Because Plaintiff has not established that the 2014 Performance Appraisal "detrimentally alter[ed] the terms or conditions of [Plaintiff s] employment," id. at 377, Plaintiff has failed to establish that the 2014 Performance Appraisal constituted an adverse employment action.

b. Plaintiff Has Failed to Establish that Her Disability Was the Sole Basis for the Allegedly Negative 2014 Performance Appraisal

To establish the third element of her prima facie claim, not only must Plaintiff show that the 2014 Performance Appraisal was an adverse employment action, but she also must show that the adverse action was taken solely on the basis of her disability. See Coats, 916 F.3d at 342. Just as Plaintiff has not produced evidence establishing that the appraisal was an adverse action, she also has not demonstrated that it was based solely on her disability.

As an initial matter, contrary to her testimony, the 2014 Performance Appraisal does not contain any reference to or mention of her raising her voice to Gunst. See ECF No. 79-10. Rather, it contains multiple criticisms of Plaintiffs performance and conduct that are unrelated to Plaintiffs hearing disability, including her failure to keep senior level employees informed, failure to communicate with customers in accordance with her portfolio leader's directions, failure to maintain "professional decorum," and failure to follow directions provided by leaders in the organization. Id. The 2014 Performance Appraisal in no way indicates that the volume of Plaintiffs voice negatively impacted the rating she received.

Moreover, even if Leonard told Plaintiff that her raising her voice at Gunst "was a factor in [her] negative performance appraisal," ECF No. 84-1 at 38:11-13, Plaintiff has not produced evidence showing that she received the negative performance appraisal based solely on her disability. She has neither alleged nor shown how her hearing disability caused her to be unable to keep senior level employees informed, to communicate with customers, or to follow directions. Thus, in addition to not establishing a question of fact as to whether the 2014 Performance Appraisal constitutes an adverse employment action, Plaintiff has not produced sufficient evidence to establish that she suffered an adverse employment action solely on the basis of her disability. See Coats, 916 F.3d at 342.

Plaintiff has not identified any other adverse employment action for purposes of her disability discrimination claim. Because Plaintiff failed to establish her prima facie case of discrimination based on the 2014 Performance Appraisal, Plaintiffs disability discrimination claim is subject to summary judgment and dismissal.

2. Legitimate, Non-Discriminatory Reason and Evidence of Pretext

Even assuming, for purposes of this Motion, that Plaintiff could establish a prima facie case of disability discrimination, summary judgment would still be appropriate because Defendant has proffered legitimate, nondiscriminatory reasons for the negative performance evaluation, and Plaintiff has failed to submit evidence showing that the reasons are merely pretext for disability discrimination. Specifically, Defendant states that SPAWAR had legitimate business reasons for the negative feedback on Plaintiffs 2014 Performance Appraisal:

Plaintiff received some negative feedback on her appraisal document (but no loss of pay or benefits) in one performance appraisal because she failed to keep management apprised of project developments, failed to follow directives from her superiors, and failed to maintain appropriate decorum in some of her dealings with co-workers.

ECF No. 79 at 30 (citing ECF No. 79-10).

Because Defendant has met his burden of production regarding the alleged adverse action, the burden shifts back to Plaintiff to "show by a preponderance of the evidence that the proffered reason was a pretext for discrimination." Coats, 916 F.3d at 342 (quoting Perry, 429 Fed.Appx. at 220). Plaintiff bears the ultimate burden of persuading the Court that she has been the victim of intentional discrimination. Id.; Sanders v. McLeod Health Clarendon, No. 2:18-cv-1344-DCN-MGB, 2020 WL 3467886, at *3 (D.S.C. June 25, 2020) (citing Lettieri v. Equant, Inc., 478 F.3d 640, 646 (4th Cir. 2007)); see Merritt, 601 F.3d at 294 ("The final pretext inquiry merges with the ultimate burden of persuading the court that the plaintiff has been the victim of intentional discrimination, which at all times remains with the plaintiff") (internal quotation marks omitted).

In her Response, Plaintiff does not set forth any arguments or evidence of pretext with respect to the 2014 Performance Appraisal or her disability discrimination claim. See generally ECF No. 85. As such, the undersigned finds that Plaintiff has failed to meet her burden of persuading the Court that she has been the victim of intentional disability discrimination. Accordingly, the undersigned recommends granting summary judgment in favor of Defendant on Plaintiffs disability discrimination claim.

C. Claim for Hostile Work Environment Based on Disability

Plaintiff also alleges liability under the Rehabilitation Act based on a hostile work environment. To establish a hostile work environment under the Rehabilitation Act, Plaintiff must demonstrate the following elements: (1) she is a qualified individual with a disability; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her disability; (4) the harassment was sufficiently severe or pervasive to alter a term, condition, or privilege of employment; and (5) some factual basis exists to impute liability for the harassment to the employer." Fox v. Gen. Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001). Defendant moves for summary judgment on this claim, arguing that Plaintiff has failed to produce evidence sufficient to establish the "severe or pervasive" element of her claim. ECF No. 79 at 34. Accordingly, for purposes of this Motion, the undersigned assumes that there is a genuine question of material fact as to the other four elements.

To establish that alleged harassment was sufficiently severe or pervasive, the plaintiff "must show that a reasonable jury could find that the . . . harassment was so severe or pervasive as to alter the conditions of her employment and create an abusive or hostile atmosphere." Perkins v. Int'l Paper Co., 936 F.3d 196, 207-08 (4th Cir. 2019) (citing E.E.O.C. v. Cent. Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009)). "The severe or pervasive element has both a subjective and objective component." Id. "Plaintiff must show that [she] did perceive, and a reasonable person would perceive, the environment to be abusive or hostile." Id.

Defendant does not contest that Plaintiff has satisfied the subjective component of this element. However, Defendant argues that Plaintiff has failed to produce sufficient evidence to establish the objective component of the severe and pervasive test.

"[W]hen determining whether the harassing conduct was objectively severe or pervasive, [the court] must look at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Perkins, 936 F.3d at 208 (citing E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008)). "Plaintiffs must clear a high bar in order to satisfy the [objective] severe or pervasive test." Id. (citing Sunbelt, 521 F.3d at 315). "Incidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard." Id. (citing Sunbelt, 521 F.3d at 315). "Rude treatment by coworkers, callous behavior by one's superiors, or a routine difference of opinion and personality conflict with one's supervisor, are not actionable." Id. (citing Sunbelt, 521 F.3d at 315-16).

"The Supreme Court has also reinforced the steep requirements of a hostile work environment claim." Id. "Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). "The standards forjudging hostility are sufficiently demanding to ensure that [the anti-discrimination statutes] do[] not become a general civility code." Id. (citing Faragher, 524 U.S. at 788).

Plaintiff testified that, over a period of several months, Gunst (1) referred to her hearing aid as "cybernetics" in a single meeting in 2013, which embarrassed her; (2) called her hearing disability "bullshit" on one occasion; and (3) accused Plaintiff of raising her voice at him and made other unspecified comments about Plaintiff needing to turn up her hearing aids. She also testified that she "lost count" of how many time Gunst brought up her disability, but that the March 5 meeting "was basically the last time [she] spoke to Ryan Gunst." ECF No. 79-1 at 135:10-13. Plaintiff must "clear a high bar" to satisfy the objectively severe or pervasive test, Sunbelt Rentals, Inc., 521 F.3d at 315-16, and the undersigned finds she has not done so.

Other courts have considered similar comments about an employee's hearing and have deemed those comments insufficiently severe or pervasive to support a claim for hostile work environment. See, e.g., Schiflett v. GE Fanuc Automation Corp., 151 F.3d 1030, 1998 WL 386116, at *4 (4th Cir. June 19, 1998) (finding comments regarding a plaintiffs hearing disability such as "You're not paying attention to me; you didn't hear what I said," "Pay attention," "Didn't you hear the phone ring?," "Is your hearing aid turned up," "Do you need a new battery?," and "Why do you go to meetings, you can't hear anyway?," not sufficiently severe and pervasive); Chadha v. Northrop Grumman Sys. Corp., C. A. No. RDB-16-1087, 2017 WL 3226861, at *5 (D. Md. July 31, 2017) (finding comments that the plaintiff should "turn his hearing aid up," and a comment written on a blackboard which stated that "hearing aids must be worn at all times in the VMDA, turned up and turned on so that you can stay tuned in" not sufficiently severe and pervasive); Ballard-Carter v. The Vanguard Grp., 703 Fed.Appx. 149, 152 (3d Cir. 2017) (finding comments such as "Oh, that's right, I forgot you were deaf," "you're supposed to be talking loudly at your desk," "we just said that you weren't listening," and quotations around the word "heard" in an e-mail to plaintiff regarding a client request not sufficiently severe and pervasive).

Plaintiff argues, however, that the "defining moment. . . that transforms these comments from mere 'rude treatment,' 'simple teasing,' 'offhand comments,' or 'isolated incidents,' is the intentional use of a symptom of Plaintiff s disability in a performance appraisal that had a direct effect on her salary increase and future promotional ability." ECF No. 85 at 32. According to Plaintiff, Gunst's additions of the criticism of the volume of Plaintiff s voice changed the "terms, conditions, and privileges of her employment by affecting her increase in salary and damaging potential promotional opportunities." Id. at 32. The undersigned is not persuaded.

As explained above, the 2014 Performance Appraisal does not mention Plaintiffs hearing disability or the volume of her voice in any way. Rather, the criticism in the Appraisal addresses Plaintiffs failure to keep senior level employees informed, to communicate with customers in accordance with her portfolio leader's directions, to maintain "professional decorum," and to follow directions provided by leaders in the organization. ECF No. 79-10. Moreover, Plaintiff received a bonus and salary increase pursuant to her 2014 Performance Appraisal, and she has not produced any evidence showing that the bonus or salary increase would have been higher absent the criticism. Nor has she produced evidence-beyond her speculation-that the 2014 Performance Appraisal damaged potential promotional opportunities.

Based on the totality of the circumstances and viewing the evidence in the light most favorable to Plaintiff, the undersigned concludes that no reasonable jury would find Plaintiffs working environment "to be so out of the ordinary as to meet the severe or pervasive criterion," such that the environment "was pervaded with discriminatory conduct aimed to humiliate, ridicule, or intimidate." See Sunbelt Rentals, Inc., 521 F.3d at 316 (internal quotation marks omitted). Accordingly, the undersigned recommends that Defendant's Motion be granted as to Plaintiffs Rehabilitation Act hostile work environment claim.

II. Claims for Retaliation under Title VII, the ADEA, and the Rehabilitation Act

In her Fourth Cause of Action, Plaintiff alleges retaliation under the ADEA, the Rehabilitation Act, and Title VII "based upon plaintiffs multiple EEO complaints and her participation in the administrative process and her filing of Complaints in Federal Court." ECF No. 39 at ¶ 116. She identifies the following "specific adjudicated claims" of retaliation:

On April 19, 2018, Complainant became aware that her supervisor, [Holcomb], did not issue her a 2017 appraisal during the appraisal process and she was denied her right to participate in the grievance or appeal process for her rating; and

On April 19, 2018, Complainant became aware that [Holcomb] rated her in such a way that no pay raise occurred when he attributed her performance rating to the fact that she was suspended.

On July 25, 2018, Complainant learned that SSC LANT senior leadership (Naval Information Warfare Center (NIWC) Atlantic Executive Director [S3], Director of Corporate Operations [CORP-OPS], and Chief Engineer [S4]) did not conduct management inquiries into her previous claims of harassment and discrimination (original NOA Claim e); and

On July 20, 2019, Complainant was reprised against (prior EEO activity of December 9, 2014) when [Rideout] issued her a Notice of Proposed Removal dated June 20, 2019.

Id. Plaintiff also alleges that her termination from government service without cause was retaliation. Id. at ¶ 117.

Title VII forbids an employer from taking action that discriminates against an employee because that employee either has "opposed any practice made an unlawful employment practice" by Title VII or has "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under Title VII. 42 U.S.C. § 2000e-3(a). The purpose of this anti-retaliation provision is to prevent "an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006). Similarly, 42 U.S.C. § 633a(a) prohibits retaliation against a federal employee who complains of age discrimination. Gomez-Perez v. Potter, 553 U.S. 474, 477 (2008). Likewise, the Rehabilitation Act incorporates the ADA's anti-retaliation provision, which prohibits "discrimination against any individual because [she] has opposed any act or practice made unlawful by" the ADA. 29 U.S.C. § 794(d); 42 U.S.C. § 12203(a).

Plaintiff may prove her retaliation claim through either direct evidence of retaliatory animus or the McDonnell Douglas burden-shifting framework. Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 122 (4th Cir. 2021); Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015).

A. Direct Evidence of Retaliation

Plaintiff first argues that she has presented direct evidence of retaliation. Specifically, she points to her testimony that Holcomb told Plaintiff in August 2015 that she would not be considered for a senior leadership training opportunity because of the EEO and OGE 450 issues. ECF No. 85 at 37-38; see ECF No. 84-1, at 57:2-58:23; ECF No. 85-1 at 4. Plaintiff argues that "Holcomb's comments are direct evidence of a retaliatory animus towards Plaintiff and are an express articulation of his motivations in refusing to allow Plaintiff to participate in key training that would have allowed Plaintiff the opportunity to gain the expertise and experience that were necessary for Plaintiff to seek promotions at an executive level at SPAWAR." ECF No. 85 at 38.

In Reply, Defendant first argues that Plaintiff did not present this claim during the administrative process and therefore may not pursue it in this case. ECF No. 89 at 9 (citing Abraham v. Rohoho, Inc., No. 3:18-CV-3082-MGL-KDW, 2019 WL 1715657, at *5 (D.S.C. Mar. 27, 2019) ("[F]actual allegations made in formal litigation must correspond to those set forth in the administrative charge."). Defendant also argues that "[n]ot only did Plaintiff fail to raise this claim in the administrative process, but she failed to plead it in this case." Id. ("Despite amending her complaint twice, Plaintiff never alleged that Holcomb retaliated against her by denying her training opportunities.") (citing ECF Nos. 1, 6, 39). Finally, Defendant argues that the alleged denial of a training opportunity, without more, does not qualify as an adverse action. Id.

In her Sur-Reply, Plaintiff argues that she is not required to exhaust administrative remedies for retaliatory conduct. ECF No. 91-1 at 2. But she also concedes that she did not include a claim for retaliatory denial of training in any of her Complaints in this lawsuit, and she explains that "[i]t is not a specific claim under which she is seeking recovery." Id. at 2. Rather she argues that she "points to this incident only as direct evidence of retaliation." Id.

Upon consideration of the parties arguments and the record, the undersigned finds that Plaintiff cannot establish a retaliation claim based on the alleged 2015 denial of training. First, Plaintiff did not make any allegations regarding the denial of training in any of her EEO Complaints, and it does not appear that this claim was developed during the EEO investigations. See Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005) ("Only those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent Title VII lawsuit.") (internal quotation marks omitted).

Moreover, she did not plead this claim in any of the three Complaints filed in this action, and it is well established that a "plaintiff may not amend her complaint through argument in a brief opposing summary judgment." Barclay White Skanska, Inc. v. Battelle Mem'l Inst, 262 Fed.Appx. 556, 563 (4th Cir. 2008) (quoting Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004); Reese v. S.C. Dep't of Mental Health, No. 3:16-3491-JFA, 2018 WL 4677714, at *6 (D.S.C. Sept. 28, 2018). More importantly, Plaintiff herself states that she does not seek recovery based on this claim. ECF No. 91-1 at 2.

Finally, even if Plaintiff had properly exhausted her remedies and pled this claim in her Complaint, the evidence in the record does not support a finding that the action was materially adverse. "[A]lthough an adverse action need not affect the terms and conditions of employment, there must be some direct or indirect impact on an individual's employment as opposed to harms immaterially related to it." Ray v. Int'l Paper Co., 909 F.3d 661, 670 (4th Cir. 2018) (citations and internal quotation marks omitted). While Plaintiff alleges that the training "would have allowed her to be promoted to an executive4evel position," Plaintiff cites no evidence to support this statement. See ECF No. 85 at 37. Moreover, Plaintiffs own testimony contradicts this claim. Plaintiff testified that there were no above GS-15 positions available at SPAWAR for her to compete on, noting that Dunn held the only SES position in the command and Andrew Mansfield held the only other above GS-15 position at SPAWAR. ECF No. 89-2 at 59:4-24. Accordingly, there is no evidence in the record of any specific promotional opportunities Plaintiff allegedly missed as a result of being denied training by Holcomb or that she was otherwise adversely affected by this action. For the foregoing reasons, the undersigned concludes that Plaintiff cannot establish her claim for retaliation based on the denial of training.

Plaintiff has not pointed to any other purported direct evidence of retaliation. Thus, the undersigned finds that Plaintiff must rely on the burden-shifting framework of McDonnell Douglas to prove her retaliation claim.

B. The Burden-Shifting Framework

To prevail under the McDonnell Douglas framework, a plaintiff must first establish a prima facie case of retaliation. Roberts, 998 F.3d at 122. After a prima facie case is made, the burden shifts to the employer to show that it took adverse action for a legitimate, non-retaliatory reason. Id. If the employer makes this showing, the burden shifts back to the plaintiff to rebut the employer's evidence by demonstrating the employer's purported non-retaliatory reasons were pretext for retaliation. Id.; see Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 148 (2000) ("[A] plaintiffs 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.").

To establish a prima facie case of retaliation, Plaintiff must point to evidence showing that (1) she engaged in a protected activity, (2) her employer acted adversely against her, and (3) there was a causal connection between the protected activity and the asserted adverse action. Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011). An adverse action is one that "well might have dissuaded a reasonable worker" from engaging in protected conduct. White, 548 U.S. at 68 (internal quotation and citation omitted); see Ray, 909 F.3d at 670 ("[A]lthough an adverse action need not affect the terms and conditions of employment, there must be some direct or indirect impact on an individual's employment as opposed to harms immaterially related to it.") (citations and internal quotation marks omitted).

Defendant generally does not dispute that Plaintiff engaged in protected activity (element 1). See ECF No. 79 at 26. However, Defendant argues that Plaintiff "has not demonstrated any causal connection between filing one or more EEO complaints and the adverse employment actions about which she complains." Id. Defendant also contends Plaintiff cannot demonstrate that Defendant's articulated legitimate, non-retaliatory reasons for the alleged adverse actions are pretext for retaliation.

To establish causation at the prima facie stage of a retaliation case, the employee must show "that (1) the employer either understood or should have understood the employee to be engaged in protected activity and (2) the employer took adverse action against the employee soon after becoming aware of such activity." Strothers v. City of Laurel, 895 F.3d 317, 335-36 (4th Cir. 2018) (citations omitted). "Fourth Circuit precedent addressing the causation prong of a prima facie case of retaliation requires that a plaintiff demonstrate that the decisionmaker imposing the adverse action have actual knowledge of the protected activity." Roberts, 998 F.3d at 124-25 (explaining that the Fourth Circuit's analysis "has centered on what the relevant decisionmaker knew at the time of the adverse employment action, not on any knowledge other employees may have had that could be imputed to the employer"). Thus, where a relevant decisionmaker is unaware of any prior complaints, a plaintiff cannot establish the necessary causal connection between her prior complaint and the adverse action." Id. at 124; see also Dowe v. Total Action Against Poverty, 145 F.3d 653, 657 (4th Cir. 1998) ("To satisfy the third element, the employer must have taken the adverse employment action because the plaintiff engaged in a protected activity. 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.").

Once a plaintiff establishes the decisionmaker's knowledge of the protected activity, causation can be established through the existence of relevant facts that "suggest that the adverse action occurred because of the protected activity," Roberts, 998 F.3d at 123, or by showing the decisionmaker took adverse action against the plaintiff "soon after learning of her complaint, as temporal proximity is sufficient to establish a causal connection at the prima facie stage," Strothers, 895 F.3d at 336-37 (citing Carter, 33 F.3d at 460). See Roberts, 998 F.3d at 123 ("The existence of relevant facts alone, or together with temporal proximity, may be used to establish a causal connection between the protected activity and the adverse action."); Lettieri, 478 F.3d at 650 (recognizing that "relevant evidence may be used to establish causation"). Although courts have declined to articulate a definitive rule as to what time periods qualify as close temporal proximity, the Fourth Circuit has held that two-and-a-half and one-month gaps are sufficiently narrow to satisfy causation for a plaintiffs prima facie case. See Foster, 787 F.3d at 253; King v. Rumsfeld, 328 F.3d 145, 151 & n.5 (4th Cir. 2003); see also Sempowich v. Tactile Sys. Tech., Inc., 19 F.4th 643, 654 (4th Cir. 2021) (finding temporal proximity where adverse action was taken one month after internal complaint).

"In cases where 'temporal proximity between protected activity and allegedly retaliatory conduct is missing, courts may look to the intervening period for other evidence of retaliatory animus.'" Lettieri, 478 F.3d at 650 (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000)). The Fourth Circuit has found that "evidence of recurring retaliatory animus during the intervening period can be sufficient to satisfy the element of causation." Id. (finding ongoing animus where plaintiff was stripped of significant job responsibilities, supervisory responsibilities, and the ability to meet with clients in the seven months between when she made her discrimination report and when her employment was terminated).

Plaintiff has alleged multiple acts of retaliation involving various decisionmakers over a five-year period. The undersigned will evaluate each act in turn. See Katz v. U.S. Dep't of Just., No. 1:20-CV-554, 2021 WL 3809034, at *11 n.19 (E.D. Va. Aug. 26, 2021) (concluding that although some of the alleged adverse actions "overlap in the resulting effect on plaintiff," it was "appropriate to consider the four alleged adverse actions separately" because "the adverse actions have separate dates involved and, at times, separate decision-makers").

1. 2014 Performance Appraisal

Although Plaintiff did not claim that the 2014 Performance Appraisal was retaliatory in either her 2014 EEO Complaint, see ECF No. 39-1, or her Second Amended Complaint, see No. 39 at ¶ 116, Plaintiff appears to argue in her Response that the 2014 Performance Appraisal was retaliatory. See ECF No. 85 at 42. In Reply, Defendant reiterates his arguments that 2014 Performance Appraisal did not constitute an adverse action. ECF No. 89 at 7-8. He also argues that Plaintiff has not established the causation element for this claim because the 2014 Performance Appraisal was issued a month before Plaintiff initiated her first EEO complaint and was prepared by Plaintiffs supervisor Phil Leonard, not by Monahan, to whom Plaintiff complained about Gunst. Id. at 11.

As explained above in the discussion of Plaintiff s disability discrimination claim, Plaintiff has not produced evidence to establish that the 2014 Performance Appraisal had any impact on her salary or promotional opportunities. Moreover, Plaintiff has not pointed to any evidence showing that the 2014 Performance Appraisal had any other "direct or indirect impact on [her] employment as opposed to harms immaterially related to it." See Ray, 909 F.3d at 670. Accordingly, the undersigned finds that Plaintiff has not established that the 2014 Performance Appraisal was an adverse action, such that she cannot establish a prima facie case of retaliation based on the 2014 Performance Appraisal.

Moreover, even if Plaintiff could establish her prima facie case, she has not produced evidence to show that Defendant's legitimate, non-retaliatory reason for the 2014 Performance Appraisal was pretext. Defendant notes that Plaintiff received an "Acceptable" performance rating for the period of July 1, 2013 through June 30, 2014, and explains that the reasons Plaintiffs performance rating was not higher are plainly set forth in the appraisal: "Plaintiff failed to follow instructions, failed to keep her supervisors informed, and failed to maintain professional decorum." ECF No. 89 at 4 (citing ECF No. 79-10). Because Defendant has articulated legitimate, non-retaliatory reasons for the Performance Appraisal, the burden shifts back to Plaintiff to show that the reasons are pretext for retaliation.

To demonstrate pretext, Plaintiff must show that her employer's assessment of her conduct was dishonest or not the real reason for the adverse action, rather than merely dispute the merits of the decision. See Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir. 2000). Such a showing is required because "it is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff." Id. (internal citations omitted). Here, Plaintiff has not produced any evidence showing that the areas of improvement identified in her 2014 Performance Appraisal were pretext for retaliation. Notably, the areas of improvement set forth in the Performance Appraisal closely track the issues raised by Lindsay in his e-mail dated March 4, 2014, a day before Plaintiff says she "first complained of Mr. Gunst's discriminatory comments about her hearing disability." ECF No. 85 at 42 (citing ECF No. 85-2, March 5, 2014 e-mail to Lindsay and Leonard); see ECF No. 85-2 at 4 (highlighting concerns about "Portfolio communications and protocol," recognizing and respecting the leadership chain of command," and "Professionalism," among others). Leonard was copied on Lindsay's March 4 e-mail, and Plaintiffs March 5 e-mail notes that Ryan Gunst had raised these "communication issues" with Lindsay and Leonard the day before. Id. at 2-3. Moreover, there is other evidence in the record documenting concerns about Plaintiffs communications with customers and following the chain of command. Accordingly, the undersigned finds that Plaintiff has failed to forecast evidence sufficient to prove that the 2014 Performance Appraisal was dishonest or pretext for retaliation.

2. Removal as Lead of Cloud Team

Plaintiff next alleges that her removal from the position of Cloud Team Lead was retaliatory. ECF No. 85 at 43. The undisputed evidence in the record shows that Steve Dunn, Executive Director of SPAWAR, made the decision to remove Plaintiff from the lead of the cloud team and reassign her based upon complaints about Plaintiffs performance raised by Janice Haith, a senior Department of the Navy manager and a stakeholder in the project on which Plaintiff worked. See ECF Nos. 79-4 at 25:1-20, 51:7-20; 79-5, 79-6, 79-7, 79-8 at 20:1-22:23, 79-9.

Plaintiff has neither alleged nor produced evidence that she had raised any EEO complaints to or regarding Dunn or Haith at the time of this action. Moreover, there is no evidence that either Dunn or Haith knew about any of the complaints that Plaintiff had made to Lindsay, Leonard, Monahan, or anyone else about discrimination or harassment. Because Plaintiff has not produced any evidence showing "that the decisionmaker imposing the adverse action ha[d] actual knowledge of the protected activity," see Roberts, 998 F.3d at 124-25, the undersigned finds that Plaintiff has failed to establish the causation element of her prima facie claim of retaliation based on her removal as Lead of the Cloud Team.

3. Complaints regarding Plaintiffs OGE 450 Errors and Conflicts of Interest

Plaintiff alleges that Ratliff s complaint to Gunst in March or April 2014 regarding the $10,000 DCMR package, and Gunst's subsequent report of this concern to SPAWAR's Inspector General and Office of General Counsel were retaliatory and led to Plaintiffs complete removal "from cloud work and place[ment] into an entirely different area of work in SPAWAR." ECF No. 39 at ¶¶ 60-66; ECF No. 85 at 43. She also appears to claim that accusations by the Office of General Counsel that she failed to properly complete her OGE 450 form were retaliatory and resulted in the NCIS criminal investigation. ECF No. 39 at ¶¶ 12, 67-88. Assuming, for purposes of this Motion only, that Plaintiff can establish her prima facie claim with respect to these actions, the undersigned finds that Plaintiff has failed to show Defendant's articulated legitimate, nondiscriminatory reasons for these actions were pretext for retaliation.

Defendant argues that the concerns raised by the complaints regarding Plaintiff s OGE 450 form and possible conflicts of interest were legitimate, pointing to evidence-including Plaintiffs own testimony-showing that Plaintiff failed to accurately complete her annual confidential financial disclosure and was involved in a contract modification that authorized funding under an existing contract with Plaintiffs husband's employer. ECF No. 89 at 4-5 (citing ECF Nos. 79-11, 79-12, 79-13, 79-14, 79-15, 79-16, 79-17, 79-18, 79-19). According to Defendant, Plaintiffs actions resulted in the NCIS/DCIS criminal investigation into potential conflicts of interest and the SPAWAR Security Office's decision to suspend Plaintiffs security clearance and accesses. Id.

Plaintiff argues that these reasons are pretextual as she self-reported the income error on her 2014 OGE 450 form. ECF No. 85 at 43, 49. According to Plaintiff, any suggestion that Holcomb discovered an error on her OGE 450 form is false. To be sure, the evidence shows that it was Plaintiff who first flagged a possible error on her 2014 OGE 450 form and was advised by paralegal Simmons in October 2014 to wait until 2015 to update that information. However, the undisputed evidence also shows that when Plaintiff first submitted her 2015 OGE 450 form on February 9, 2015, she once again did not report any income for her husband. Holcomb caught the error and notified Plaintiff via e-mail of the omission that same day, and Plaintiff corrected the "error in 5 minutes from e-mail notification of the missing salary information." Verified Timeline, ECF No. 85-1 at 3; ECF No. 85-8 at 9 ¶¶ 22-24. Thus, Plaintiff has not pointed to any evidence demonstrating that Defendant's reason for raising concerns about omissions on the OGE 450 form was false or pretextual.

Moreover, Plaintiff has not produced any evidence suggesting that she was not involved in a $10,000 DCMR Package to Sotera. To the contrary, her Verified Timeline describes Plaintiff as the "requestor (no authority, non-signatory, not approver)" of that contract action on March 4, 2015. ECF No. 85-1 at 3. Although Plaintiff produced evidence that she recused herself from other activities involving Sotera, see ECF No. 85-14 at 15-23, she has not produced evidence suggesting that she did so on this package. On this record, the undersigned finds that Plaintiff has not created a question of fact as to whether Defendant's articulated reasons for the 2015 complaints and actions related to the OGE 450 Form and DCMR Package were pretext for retaliation.

4. Execution of the Search Warrant by NCIS and DCIS

Plaintiff appears to allege that the execution of the search warrant by NCIS and DCIS was retaliatory. ECF No. 85 at 44 (arguing that although "about a year and a half elapsed between August 2015 and the January 18, 2017 raid, it is important to note that Plaintiffs EEO complaint and the investigation into her allegations of discrimination had been proceeding nearly the entire time"). However, Plaintiff has not produced any evidence demonstrating that the NCIS or DCIS agents had knowledge of Plaintiff s EEO activities at that time. The search warrant application was completed by NCIS Special Agent Anthony Luckman and does not mention any EEO activity or complaints of any kind by Plaintiff. ECF No. 79-17. Based upon the evidence in this case, ⁶ the undersigned finds that Plaintiff has failed to establish the causation element of her prima facie case of retaliation based on the execution of the search warrant. See Roberts, 998 F.3d at 124-25.

6 The undersigned notes that the criminal investigation into Plaintiff is now the subject of another lawsuit filed by Plaintiff in this Court. See Gillaspie v. United States, Luckman, and Mullis, No. 2:21-cv-1935-DCN-MHC.

5. Suspension of Plaintiffs Security Clearance and Accesses, and Her Subsequent Indefinite Suspension

Plaintiff alleges that the suspension of her security clearance and accesses, as well as the decision to indefinitely suspend her beginning in 2017, were retaliatory. ECF No. 85 at 43-44. However, these claims of retaliation were the subject of a prior lawsuit that was dismissed by this Court with prejudice. See Gillaspie v. Spencer, No. 2:18-cv-2207-DCN-MGB, ECF No. 56 at 17-19 (Amended Complaint alleging retaliation claims based on "the removal of her accesses, the indefinite suspension of Plaintiff, the recording of the search of her office as a 'security incident' in the JPAS system, and indefinitely suspending Plaintiff without reasonable justification"); id. at ECF No. 73 at 6 (Order dismissing all of Plaintiff s claims with prejudice). As these claims have been dismissed with prejudice by the Court in a different lawsuit, Plaintiff cannot establish a viable retaliation claim based on these alleged adverse actions in this lawsuit.

6. Plaintiffs 2017 Performance Appraisal and the Failure to Conduct a Management Inquiry

Plaintiff alleges that her 2017 Performance Appraisal was adverse action in that she "was given a less than half-score directly because of the suspension" and she did not receive the Appraisal in a timely manner. ECF No. 85 at 23. Defendant argues that Plaintiff cannot establish the causation element of this claim through inferences drawn from temporal proximity because Plaintiff filed her First EEO Complaint in December 2014, more than two and a half years before "she received the slightly delayed 2017 performance appraisal about which she complains." ECF No. 79 at 28. Defendant also articulates a legitimate reason for the Appraisal: "Plaintiffs 2017 performance appraisal was impacted by the fact that Plaintiff 'lost her access to DON networks about halfway through the rating period [which] prevented her from continue [sic] supporting the portfolio or competency.' Still, Plaintiff received an 'Acceptable' performance rating." Id. (quoting ECF No.79-23).

Assuming for purposes of this Motion that Plaintiff can establish her prima facie case based upon the 2017 Appraisal, the undersigned nonetheless concludes that Defendant has articulated legitimate, non-retaliatory reasons, and Plaintiff has not shown pretext. Indeed, Plaintiff does not put forth any arguments regarding pretext related to the 2017 Performance Appraisal. See generally ECF No. 85. Accordingly, the undersigned concludes that Plaintiff has failed to carry her ultimate burden of persuasion as to this claim.

Similarly, Plaintiff appears to have abandoned her retaliation claim based upon the alleged failure to conduct a management inquiry. Plaintiff raised this claim in both her Fifth EEO Complaint and in her Second Amended Complaint. ECF No. 39 ¶ 12; see ECF No. 39-7 at 2-3. However, she does not put forth any arguments in support of this claim in her Response, instead mentioning such an inquiry only briefly in her recitation of the facts. See ECF No. 85 at 11 & n.3. As such, the undersigned finds that Plaintiff has abandoned this claim. See Coker v. Int'l Paper Co., No. 08-1865, 2010 WL 1072643, at *2 (D.S.C. Mar. 18, 2010) (noting that plaintiff can abandon claims by failing to address them in response to a dispositive motion); Jones v. Family Health Center., Inc., 323 F.Supp.2d 681, 690 (D.S.C. 2003) (noting that claim not addressed in opposition memorandum had been abandoned).

7. Plaintiffs Termination

Plaintiff argues that the Proposed Notice of Removal and her actual termination in 2019 were retaliatory. See ECF No. 85 at 44-45. Ann Rideout prepared the Proposed Notice of Removal, and Pete Reddy made the decision to remove Plaintiff. ECF No. 79-26. Assuming without deciding that Plaintiff can establish a prima facie case of retaliation based on her termination, the undersigned concludes that Plaintiff has not established that Defendant's articulated reasons for her termination are pretextual or that retaliation was the real reason for her termination.

According to Defendant, as set forth in Reddy's Decision on Proposed Removal, Plaintiff was removed from employment with SPAWAR based upon omissions in her conflict-of-interest disclosures, improper disclosure of protected information, failure to follow instructions, apparent conflict of interest, and lack of candor. ECF Nos. 79-24, 79-26. Reddy declined to consider two specifications presented in the Notice of Proposed Removal-specifications based on alleged failures to disclose her CSC pension on her 2010 OGE and her 2011 OGE-finding that these specifications were unsupported by a preponderance of the evidence. Id. However, Reddy found the remaining 24 specifications to be fully supported by a preponderance of the evidence. Id.

Plaintiff, in large part, did not contest the conduct in which she was alleged to have engaged. ECF No. 79-25. Rather, she argued that the conduct was inadvertent, the conduct should not have been considered improper, or the penalty was excessive. Id. Plaintiff has forwarded similar arguments before this Court. However, "it is not a court's province to decide whether an employer's reason for terminating an employee was wise, fair, or even correct, ultimately, so long as it truly was the reason for the employee's termination." Walker v. Mod-U-Kraf Homes, LLC, 775 F.3d 202, 211 (4th Cir. 2014) (internal quotation marks omitted). "Merely questioning the wisdom or correctness of a personnel action does not show that the proffered reason was false or unsupportable." Cornelius v. City of Columbia, 663 F.Supp.2d 471, 478 (D.S.C. 2009), affd sub nom. Cornelius v. Columbia, City of, S.C, 399 Fed.Appx. 853 (4th Cir. 2010). "Federal courts 'do not sit as a super-personnel department weighing the prudence of employment decisions' made by the defendants." Id. (citing Anderson v. Westinghouse Savannah River Co., 406 F.3d 248 (4th Cir. 2005)); see also Row e v. Marley Co., 233 F.3d 825, 831 (4th Cir. 2000) ("The decision to discharge [plaintiff] and retain [other employees] is the kind of business decision that we are reluctant to second-guess.").

Plaintiff attempts to show pretext by arguing that the NCIS agents lied during their investigation into her and that Rideout and Reddy should have conducted an independent investigation into the NCIS findings, rather than relying on those findings. ECF No. 85 at 49 (conceding that whether the NCIS agents lied is "not a part of this lawsuit"). However, Plaintiff does not present any evidence that either Rideout or Reddy lied about their own reasoning or motivations. "If instead of producing evidence that shows the supervisor's assessment of her performance was dishonest or not the real reason for her termination-as the law requires-the plaintiff disputes the merits of the evaluations, then the plaintiffs objections are immaterial." Palomino v. Concord Hosp. Enters. Co., 126 F.Supp.3d 647, 654-55 (D.S.C. 2015) (internal quotation marks omitted) (citing Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir. 2000)); see Dawson v. United States, 549 F.Supp.2d 736, 754 (D.S.C. 2008), aff'd, 368 Fed.Appx. 374 (4th Cir. 2010) ("[I]t is not enough [for] a plaintiff to show that the suspension or demotion was based on groundless complaints, or that the employee did not, in fact, violate the employer's rules prior to the adverse action.") (internal citations omitted). The undersigned concludes that Plaintiff has not presented evidence from which a reasonable factfinder could find that the reasons for her termination were pretext for retaliation.

For the foregoing reasons, the undersigned concludes that Plaintiff has not set forth sufficient evidence to support any of her retaliation claims. Accordingly, the undersigned recommends that Defendant's Motion for Summary Judgment as to Plaintiffs retaliation claims be granted.

CONCLUSION

For the reasons set forth above, it is RECOMMENDED that Defendants' Motion for Summary Judgment, ECF No. 79, be GRANTED.

The parties are referred to the Notice Page attached hereto.

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 & Ace. 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

Post Office Box 835

Charleston, South Carolina 29402

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).