Matney v. Toro

Full title: Shawntelle Matney, Plaintiff, v. Carlos Del Toro Acting Secretary of the…

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

Date published: Jun 29, 2023

Civil Action 2:21-cv-02554-DCN-JDA (D.S.C. Jun. 29, 2023)

Opinion

Civil Action 2:21-cv-02554-DCN-JDA

06-29-2023

Shawntelle Matney, Plaintiff, v. Carlos Del Toro Acting Secretary of the United States Department of Navy, Defendant.[1]

JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Defendant's motion for summary judgment. [Doc. 52.] Plaintiff alleges discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”).² [Doc. 1 ¶¶ 90-130.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.

2 Plaintiff originally also asserted a First Amendment retaliation claim under 42 U.S.C. § 1983. [Doc. 1 ¶¶ 131-40.] On August 24, 2022, the Court construed the claim as one under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and dismissed it as time barred. [Doc. 40; see Doc. 31.]

Plaintiff filed her Complaint in this Court on August 11, 2021. [Doc. 1.] On December 5, 2022, Defendant filed a motion for summary judgment. [Doc. 52.] Plaintiff filed a response and a supplement to the response on January 10 and January 24, 2023, and Defendant filed a reply on January 31, 2023. [Docs. 58; 62; 63.] The motion is now ripe for review.

BACKGROUND

In ruling on a motion for summary judgment, this Court reviews the facts and reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007); see also Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 433 (4th Cir. 2013). Viewed in the light most favorable to Plaintiff, the summary judgment record reveals the following facts.

The Beginning of Plaintiff's Employment

Plaintiff began employment with the Department of the Navy's Space and Naval Warfare Systems Center Atlantic (“SSC Atlantic”) on August 8, 2016, as a Sensitive Compartmented Information Personnel Security Lead. [Doc. 58-8 at 2, 4; see 52-12 at 26.] Her primary duties pertained to personnel security, including ensuring that people's background checks were properly done, clearances were properly maintained, and incidents were properly reported. [Docs. 52-6 at 15; 52-12 at 27; 58-7 at 5.] Her office in Building 3414 was in a Sensitive Compartmented Information Facility (“SCIF”) filled with classified materials and subject to rigorous security protocols. [Docs. 52-6 at 19, 26; 52-7 at 19; 52-10.]

Plaintiff was hired by Willie Cantrell, who became her first-level supervisor and worked in the same building that she did. [Docs. 52-1 at 45; 52-6 at 17; 52-12 at 26; 58-8 at 4, 7.] Her hiring was approved by Gary Caldwell, who became her second-level supervisor. [Docs. 52-6 at 17-18; 52-7 at 4; 58-8 at 4, 6-7.] Caldwell worked primarily from a different office building that was a 10-to-15-minute walk from Plaintiff's building although he also had an office in Plaintiff's building. [Docs. 52-1 at 45; 52-6 at 26.] Caldwell oversaw both Intelligence and Oversight (“the 87”)-which was Plaintiff's department-and Command Operations (“the 83”). [Docs. 52-6 at 25; 52-7 at 3; 58-9 at 2.]

Plaintiff is a black female, and Cantrell and Caldwell are white males. [Docs. 52-7 at 4; 52-13 at 4; 58-8 at 3, 6.] Plaintiff was extremely qualified and was the first black person hired in the 87. [Docs. 52-1 at 65; 52-6 at 18; 52-7 at 23.] Her appointment was subject to the satisfactory completion of a three-year probationary period. [Doc. 52-5 at 2.]

Plaintiff's Conflicts with Mary Bowen

During her time at SSC Atlantic, Plaintiff had repeated conflicts with fellow employee Mary Bowen, who is a white female. [Docs. 52-15 at 3-4; 58-8 at 11-14.] Bowen's poor treatment was not directed only at Plaintiff; rather, “[e]verybody in the unit [was] victimized by” Bowen. [Doc. 58-8 at 14; see Doc. 52-1 at 157; see also Doc. 58-11 at 6-8 (coworker Mason Montgomery's statement that Bowen yells at and is nasty to everyone; that it “is always a power struggle to get anything done with” her; and that “instead of talking about the situation she becomes very confrontational”); id at 27 (coworker Aldrich Camat's statement that Bowen “is accustomed to doing things a certain way and when someone attempts to do things differently she becomes defensive and . . . difficult to work with”).] Bowen specifically resented Plaintiff at least in part because Plaintiff had been hired for the job that Bowen had hoped her coworker and good friend Beverly Harmon would receive. [Docs. 52-1 at 43-44, 132-33, 143; 52-2 at 19.] Bowen and Plaintiff had difficult exchanges about once per week, with Bowen often yelling at Plaintiff. [Doc. 58-8 at 12.] These exchanges were also complicated by the fact that Plaintiff had a lower tolerance than others for Bowen's disrespectful manner and would not allow her simply to say whatever she wanted. [Doc. 52-1 at 48; see also Doc. 52-12 at 33 (Cantrell's testimony that Plaintiff's behavior was “a little aggressive”).]

An ongoing source of friction between Bowen and Plaintiff was Bowen's reluctance to physically provide Plaintiff with classified materials when Plaintiff requested them. [Docs. 52-1 at 37-43, 133-34; 58-8 at 12.] Indeed, on one occasion, Plaintiff had to go to Cantrell and have him direct Bowen to give Plaintiff material she had requested.³ [Docs. 52-1 at 70; 58-8 at 12.] Bowen was “nasty and rude” during the meeting at which this occurred. [Doc. 52-1 at 70.] Attempting to mitigate the situation, Cantrell told Plaintiff and Bowen that they could communicate through him in the future, and he thereafter “became kind of the conduit between” the two women. [Id. at 71.]

3 Cantrell testified he does not recall directing Bowen to give Plaintiff material under the circumstances Plaintiff described. [Doc. 58-10 at 13.]

Even after Cantrell took on this role as a conduit, Bowen and Plaintiff continued to have difficulties. [Id. at 71-72.] Bowen would often tell Plaintiff that she thought she was so smart and knew everything but that in reality she was not as smart as she thought she was. [Docs. 58-8 at 12; 58-11 at 7.] Near the beginning of 2017, Plaintiff was selected to develop and implement the Sensitive Compartmented Information Security Program in addition to continuing her original position as the Sensitive Compartmented Information Personnel Security Lead. [Docs. 52-1 at 72-75; 58-1 ¶ 10; 58-8 at 4.] Bowen's work fell within the scope of the Information Security Program. [Docs. 52-1 at 72-75; 58-8 at 5.] That caused problems as Bowen delayed meeting with Plaintiff about information matters and Plaintiff objected to how Bowen did her work. [Doc. 52-1 at 73-75.] As Plaintiff attempted to force Bowen to change her methods, Bowen resisted. [Id.] Plaintiff did not always respond in the most constructive manner. On one occasion, for example, she mocked Bowen for the fact that the two of them were at the same pay level even though Bowen had been working there for about as long as Plaintiff had been living. [Id. at 72-73.]

Plaintiff suspected that Bowen treated her poorly because Plaintiff is black and has a white husband, and Plaintiff shared those suspicions with Caldwell and Cantrell several times. [Id. at 43-44, 81, 132-34; Doc. 52-2 at 7, 8, 25.] At one point in 2016, Plaintiff also shared with Cantrell and Caldwell that Harmon had told Plaintiff that Bowen did not like her because she was black. [Doc. 52-1 at 37, 44.] In fact, Plaintiff “always brought . . . up” to Bowen “in front of [Caldwell] and everyone” Plaintiff's view that Bowen did not like her because she was black, but Bowen would not respond to that allegation. [Id. at 80.] And Plaintiff's suspicions notwithstanding, Cantrell told Plaintiff that he did not believe that Bowen disliked her because of her race. [Id. at 43; Doc. 52-2 at 25.] Cantrell and Caldwell urged Plaintiff to just “tough it out [with Bowen] because she would be retiring in a couple of years.”⁴ [Doc. 58-8 at 13.] Cantrell told Plaintiff that he would speak to Bowen, but Plaintiff doubts that he ever did because nothing ever changed. [Id.] Nonetheless, the treatment from Bowen did not affect Plaintiff's work performance. [Id. at 26.] Indeed, Cantrell and Caldwell continued to praise her performance, and she was a good employee. [Id.; Doc. 58-5 at 5.]

4 Cantrell testified that he had not seen any out of the ordinary friction between Plaintiff and Bowen and that he had no knowledge of Plaintiff's requests being ignored. [Docs. 52-12 at 37; 58-10 at 12.] Caldwell testified he did not recall Plaintiff complaining about the work environment [Docs. 52-6 at 24; 52-7 at 39-40] and he had no knowledge of any disputes between Bowen and Plaintiff concerning classified materials [Doc. 52-7 at 11].

Plaintiff's Tension with Caldwell

On her first day at SSC Atlantic, Plaintiff met with Caldwell and Cantrell. [Doc. 58-8 at 7.] During the meeting, Caldwell told Plaintiff that she was lucky to have her job and that she should be thanking Cantrell because Caldwell was not going to hire her. [Id.; Doc. 5810 at 5.] Caldwell explained to Plaintiff, who is a retired Chief Petty Officer in the Navy, that “he d[id] not hire retired Chief Petty Officers because all [they] want to do is walk around and drink coffee.” [Doc. 58-8 at 7; see Doc. 52-1 at 108, 113.] He also told Plaintiff, who had made a counter-offer in response to SSC Atlantic's original offer [Doc. 52-1 at 100-02], that “he does not entertain counter-offers” and he hoped he was going to “get[] his money's worth”⁵ [Doc. 58-8 at 7]. Plaintiff was confused by Caldwell's comments and told him, “[W]ell, I'm black; I'm a retired chief; and I can't change any of that. But you hired me anyway.” [Doc. 52-1 at 108; see Doc. 58-8 at 7.] She also told him that she did “not drink coffee and that he w[ould] be able to see what he spent his money on.” [Doc. 58-8 at 7; see 52-1 at 111.] Caldwell also commented to Plaintiff at this meeting that he and she “wouldn't chief the same because [he is] a man” and she is a woman. [Doc. 52-1 at 111; see id. at 113.] Plaintiff responded, “[A]nd women run the world.” [Id. at 111.] By the end of the 25-to-30-minute meeting, Plaintiff was showing her irritation and annoyance with Caldwell and, indeed, she wanted him to see that response so that he knew she was standing up to him. [Id. at 117-18.]

5 Caldwell denied making all of these comments. [Docs. 52-7 at 6-7; 58-9 at 6.]

When she and Cantrell left Caldwell's office, Plaintiff asked Cantrell, “‘What the hell?'” [Doc. 58-8 at 8.] Cantrell told her that she would need to get to know Caldwell insofar as he “says what he wants and . . . everybody just kind of goes along with it.” [Id.] Plaintiff told Cantrell that she felt “threatened and intimidated” and commented that she “should not have to sell [her]self after [she had] already been hired.”⁶ [Id.] And by her second or third week she was telling Cantrell that she felt that her race was an issue with Caldwell. [Doc. 52-1 at 114-15.]

6 Cantrell denied that Plaintiff told him that Caldwell's statements made her uncomfortable. [Doc. 58-10 at 6-7.]

Caldwell “led by fear and intimidation.” [Id. at 105.] He“belittle[d] people and ma[de] them feel insignificant.” [Id. at 174.] For example, he would make “derogatory comments about men being better than women, smarter, stronger.” [Id.] He would also insult his underlings' appearance at meetings. [Id. at 121-22.] However, “nobody ever stood up to him because historically he has retaliated and caused some unfavorable situation[s] for those who would stand up to him.” [Doc. 58-8 at 9; see Doc. 52-1 at 175.] Nonetheless, Plaintiff decided she would be the person to do so. [Doc. 52-1 at 121, 175.] At their meetings, Plaintiff would “jab” at Caldwell, such as telling him that during their first meeting he had acted like “an ass.” [Id. at 119, 121.] Sometimes the people at the meeting would laugh at Plaintiff's put-downs. [Id. at 119-20.] When Caldwell would disparage the appearance of one of his underlings, Plaintiff would object and criticize him for that as well. [Id. at 121.]

Plaintiff was selected on three occasions in January 2017 to serve on hiring panels. [Docs. 52-2 at 18; 58-8 at 24.] Her office had been going through a command equal opportunity survey, which had indicated that the office was not sufficiently diverse. [Doc. 52-1 at 58-65.] For that reason, “Caldwell was in the mindset of trying to diversify 87,” so during one hiring phase, he placed Plaintiff on a hiring panel with Cantrell and Cantrell's deputy, Michael Burkart, and instructed them to select two particular candidates, both of whom were black. [Id. at 59; see id. at 60-64.] However, Plaintiff objected that hiring those candidates would be imprudent and unethical because they were not qualified. [Id. at 61-66.] Caldwell denied he wanted to hire the two candidates solely to increase diversity, but Plaintiff told him she did not believe him. [Id. at 66-68.]

Plaintiff also had concerns about Caldwell because she perceived him as “abus[ing his] authority and power as it pertained to security clearances.” [Id. at 83; see Doc. 58-2 at 3.] He would disregard applicable rules and regulations based on his own preferences. [Doc. 52-1 at 88-89.] For example, when an employee had an “incident and would require to have their clearance evaluated because they failed to maintain the adjudicative standard guidelines, [Caldwell] would use his authority to pull people's access.” [Id. at 83-84.] Plaintiff testified that Caldwell did that to “hundreds and hundreds of people.” [Id.] Plaintiff voiced her objections about Caldwell's abuses directly to Caldwell and also to Cantrell. [Id. at 86; see id. at 48 (“I'm not going to do what you want because you want me to do it. I'm going to do what's right in accordance with the guidance and policy that we have to follow.”).] Because of those objections, Caldwell perceived that Plaintiff was “questioning his authority, bucking up against him,” and “that really started to breed . . . animosity” by Plaintiff and Caldwell toward one another. [Id. at 89-90; see also Doc. 58-2 at 3 (Plaintiff's statement in her affidavit that her objections to Caldwell's security abuses “caused Caldwell to lash out against” her).]

Plaintiff noted that Caldwell's “back was really up against the wall when it came to” her because she was so knowledgeable about her job, particularly the applicable security rules and regulations. [Doc. 52-1 at 175-76.] That knowledge meant that Caldwell “couldn't force [Plaintiff] to do stuff that he wanted to do with people's clearances like he could do with [Cantrell].” [Id. at 176.]

Between her problems with Caldwell and the difficulties she was having with Bowen, Plaintiff decided that she wanted to resign and stated in an email to Burkart on June 29, 2017, that she was going to submit her two-week notice. [Id. at 82-84.] Plaintiff was persuaded not to resign, however. [Id. at 167.]

Plaintiff's Dialing into the Supervisory Meeting

Caldwell led weekly supervisory/manager video telephone conference (“VTC”) meetings from the conference room in the building where he had his primary office. [Doc. 52-19 at 4-5, 7.] Most invitees appeared in person, but some participating from remote sites joined the meeting telephonically. [Doc. 52-12 at 64.] When someone dialed in or left the call, the line beeped and the information identifying the new caller briefly appeared on the VTC screen. [Docs. 52-1 at 149; 52-12 at 64; 52-13 at 33; 52-19 at 5; 58-8 at 23.] In approximately November 2016, about three months after Plaintiff was hired, Caldwell instructed her that since Cantrell would not be participating in the upcoming meeting, she should participate telephonically so that she “would know what needed to be taken care of.” [Doc. 58-8 at 23; see Doc. 52-2 at 16-17.] Plaintiff received similar instructions for some subsequent supervisory meetings. [Docs. 52-1 at 148; 52-2 at 16.] As a result, Plaintiff called into the VTC meetings in November and December 2016 and January, March, May, and July 2017. [Doc. 58-8 at 23.] Plaintiff did not verbally identify herself on any of these calls because on each occasion, she was late and did not want to interrupt the meeting. [Docs. 52-1 at 149; 52-2 at 17; 58-8 at 23.] And, no one asked her to leave one of these meetings or told her that her participation was a problem before July 2017.⁷[Doc. 58-8 at 23-24.]

7 Plaintiff testified that she never actually listened to the meetings she dialed into, but rather put her headphones down and did other things while the meetings were taking place. [Doc. 52-2 at 17-18.] In fact, Caldwell once asked her about something specific that had occurred in a meeting he had asked her to join telephonically and she told him that she had been helping a customer and not listening at the time. [Id. at 18.]

On the morning of July 11, 2017, Caldwell once again instructed Plaintiff to dial into the supervisory meeting (the “July 11 Meeting”). [Doc. 52-1 at 146-48.] He told her that Cantrell and Burkart were going to be gone, so she should take notes for Cantrell, and if there were any Special Security Office questions, she would be responsible for answering them. [Id. at 147.] The meeting was scheduled to run from 8:30 until 9:30 in the morning. [Doc. 52-19 at 4.] During the meeting, at approximately 9:10, Caldwell's secretary, Debra Williams, noticed that someone had dialed into the meeting without announcing herself. [Id.; Doc. 52-7 at 34.] Williams wrote down the phone number and Plaintiff's name on a piece of paper and handed it to Caldwell, who had not been looking at the VTC screen. [Docs. 52-7 at 34; 52-19 at 4.] At the end of the meeting, Williams explained to Caldwell that she had been trying to let him know that Plaintiff had been on the call. [Doc. 52-7 at 34.]

The next day, Caldwell contacted his Command Investigator, Aaron Newbolt, and asked him to conduct an investigation regarding Plaintiff's dialing into the July 11 Meeting (“the Dial-In”), to include determining whether she had dialed into previous VTC meetings and, if so, how often. [Docs. 52-6 at 22; 52-7 at 34; 52-19 at 5.] During the ensuing investigation, Plaintiff told Newbolt that Caldwell had instructed her to dial into the meetings, whereas Caldwell denied ever authorizing Plaintiff to join the meetings, wherein sensitive personnel information was discussed among supervisors. [Docs. 52-6 at 22-23; 52-7 at 34-35; 52-19 at 6, 9.]

Plaintiff's Husband's Visit to Plaintiff's Office

On Friday, July 14, 2017, two days after Caldwell had initiated the investigation of the Dial-In, SSC Atlantic employee Michael Zeigler was on the phone with Caldwell when Bowen and her co-employee Elizabeth Bookout entered Zeigler's office. [Doc. 52-9 at 9.] The women told Zeigler that Plaintiff's husband was eating lunch with Plaintiff in her office; that they were concerned that Plaintiff's husband was not an SSC Atlantic employee; and that they had no way to know whether he had the proper clearance to be in the facility. [Id.] They stated that they felt strongly that he should not be in the SCIF and that Plaintiff was violating SCIF requirements by having him there. [Id.] When Zeigler passed this information on to Caldwell, Caldwell directed him to notify Burkart, who was serving as physical security manager for the SCIFs. [Id.] Having already directed Newbolt to investigate the Dial-In, Caldwell promptly directed him to investigate Plaintiff's husband's visit (the “Visit”) as well.⁸ [Id. at 5; Docs. 52-6 at 35; 58-12 at 13.]

8 The record is unclear as to exactly when Caldwell requested Newbolt to investigate. Newbolt had been out of the office on leave from July 14 through July 17. [Doc. 52-9 at 4.] Caldwell emailed Newbolt requesting an investigation regarding the Visit the day Newbolt returned, July 18. [Docs. 52-6 at 34-35; 58-12 at 13.] But Caldwell testified that he had spoken to Newbolt about the issue earlier and that the July 18 email was merely a follow-up to the prior communication. [Doc. 52-6 at 35.]

Caldwell Initiates Termination Proceedings

That same day, July 14, 2017, Caldwell consulted with Ray Rippey, counsel at the Space and Naval Systems Command (“SPAWAR”)⁹ and the Naval Information Warfare Center, to initiate Plaintiff's termination, during her probationary period, based on the DialIn and the Visit. [Docs. 52-6 at 23, 46; 52-7 at 16, 20, 32.] On the following Monday, July 17, at 10:32 a.m., Caldwell sent an email (“the July 17 Email”) to Lindsay Smith, Rippey, and Sandi Morris,¹⁰ with copies to himself and Cantrell, with the subject line “TERMINATION OF EMPLOYEE ([PLAINTIFF]) DURING PROBATION PERIOD.....” [Doc. 52-8 at 2.] It stated in relevant part:

9 In 2019, SPAWAR changed its name to Naval Information Warfare Systems Command. See SPAWAR Changes Name to Naval Information Warfare Systems Command-Aligns Identity with Mission, CHIPS, https://www.doncio.navy.mil/chips/ ArticleDetails.aspx?ID=12496 (last visited June 12, 2023).

10 Lindsay Smith was a supervisor of Employee Relations Competency [Doc. 58-14 at 2], and Sandi Morris was legal counsel for the Naval Information Warfare Center [Doc. 52-6 at 36].

Lindsay,

Since [Plaintiff] reported on board 8 August 2016, she has been involved with several inappropriate and disruptive incidents with other SSC [Atlantic] employees that required at least verbal [counseling] in an effort to correct.¹¹ Last week two different and separate events took place that are extremely concerning for someone that must be trustworthy and above

reproach. On Tuesday, 11 July 2017, at approximately 0900, during the 8.3 Supervisor VTC (0830-0930), [Plaintiff] (X2385) dialed into the meeting and stayed online until the end of the meeting. She was not invited to this meeting, did not identify herself as dialed in, she dialed in unbeknownst to me and the participants and conversations taking place during this meeting are with leads/supervisory personnel. On Friday 14 July 2017 I was notified that [Plaintiff] had escorted her spouse into her work area located in a SCIF to eat lunch together, he was signed in the visitors log; however, did not have appropriate badges, or clearances to be in the space. This is a serious security violation and contrary to how I expect my security professionals to protect these extremely sensitive spaces and associated information.

[Id. (footnote added); see Docs. 52-7 at 32-33; 58-14 at 4.]

11 Cantrell testified that he had verbally counseled Plaintiff “two or three times about conflicts she was having with other command personnel.” [Doc. 52-13 at 19.] Plaintiff denies that such counseling occurred. [Doc. 58-8 at 29.]

Smith agreed with Caldwell that terminating Plaintiff would be appropriate if the facts were as Caldwell believed them to be, but she believed they needed to investigate the incidents further before proceeding with termination. [Docs. 52-7 at 33; 58-14 at 5.] Caldwell disagreed with Smith that further investigation was needed, and noted that Rippey agreed with that assessment, and he refused to provide Smith the information she needed about the two incidents or allow her to speak to Cantrell about them. [Docs. 52-7 at 33; 58-14 at 4-5.] On this basis, Smith eventually asked Caldwell to recuse himself from the termination decision. [Docs. 52-7 at 33; 58-14 at 4-5.] When he declined, she recused herself from the process on the basis that “Caldwell was not following appropriate procedures.”¹² [Doc. 58-14 at 4-5; see Doc. 52-7 at 33.] Jackie Shamblin, who was Smith's boss and SPAWAR's human resources director, took Smith's place in the process following her recusal.¹³ [Docs. 52-7 at 33; 58-8 at 23; 58-15 at 2.] Shamblin agreed with Rippey and Caldwell that termination was warranted. [Doc. 58-15 at 5.]

12 Caldwell testified that appointing a factfinder was not necessary because he “already had indisputable evidence that [Plaintiff] had dialed into the supervisor meetings and that her un-cleared, un-badged husband was left unattended in a restricted classified area.” [Doc. 52-7 at 32-33.] Caldwell testified that Smith agreed with him that an investigation was not strictly required but she believed that one would be advisable. [Id. at 33.]

13 Shamblin's name is spelled differently in different parts of the record. The Court utilizes the spelling from Shamblin's declaration. [Doc. 58-15.]

Bowen's Alleged Race-Related Comments and Plaintiff's Meeting with EEO

Meanwhile, on Monday, July 17, 2017, Plaintiff received information that she believed confirmed her suspicions that Bowen's antagonism toward her was based on her race. [Docs. 52-1 at 139-41; 52-2 at 18-19; 58-8 at 14.] On that day, Harmon informed Plaintiff that Bowen had told her that Plaintiff had been hired because she was black (the “Racial Hire Comment”) and that Plaintiff was “bringing all [her] black friends with” her (the “Black Friend Comment”) (collectively, the “Race-Related Comments”).¹⁴ [Docs. 52-1 at 139; 52-2 at 18-19; 58-8 at 14.] Plaintiff confronted Bowen and asked her if she had made the Race-Related Comments, and Bowen denied that she had. [Doc. 52-1 at 139.] Plaintiff and Bowen then walked over to talk with Harmon. [Id.] When Harmon reaffirmed that Bowen had made the comments, Plaintiff again asked Bowen if she had said those things, and this time Bowen said she did not recall. [Id.] As for the Black Friends Comment, Bowen told Plaintiff that if she did say it, she “didn't mean it that way.” [Id. at 141.]

14 The Black Friend Comment was an apparent reference to the two black employees who had been hired when Plaintiff served on the hiring panel and possibly two other black employees who had been recently hired. [Doc. 52-1 at 140-41.]

Nonetheless, the exchange led to an aggressive argument between Plaintiff and Bowen in which Plaintiff “met or exceeded [Bowen's] level of aggression” and “probably dropped an F bomb or two,” before Montgomery finally interceded. [Id. at 76; see id. at 77-78, 160.] Plaintiff decided to make an appointment with the SPAWAR Equal Employment Opportunity (“EEO”) office for that same morning. [Id. at 151; Doc. 58-8 at 19.] At the meeting (“the EEO Meeting”), she complained that Bowen was subjecting her to a hostile work environment based on race and that her chain of command had not taken any action to resolve the situation.¹⁵ [Doc. 52-2 at 4-5.]

15 Plaintiff also complained that Bookout had contributed to the situation by several times telling people on her team who were black that they should not talk to or associate with Plaintiff. [Doc. 52-2 at 5.]

The Letter of Counseling

When Plaintiff returned to work in the early afternoon, after the EEO Meeting, she tried to speak with Cantrell. [Id. at 26; Docs. 58-1 ¶ 10; 58-8 at 19.] He asked her to give him a few minutes because he was in the middle of something, and in 20 minutes he told her that he was writing up a letter of counseling (the “Letter of Counseling”) for her and that he wanted to get Burkart to serve as a witness. [Docs. 52-3; 58-8 at 4, 19.] Cantrell told her that Caldwell had directed him to issue the letter.¹⁶ [Docs. 52-1 at 163; 58-8 at 17-19.] The letter addressed her disruptive behavior and use of offensive language in the workplace as well as her allowing her spouse into a secure area. [Docs. 52-3; 58-8 at 15-16.]

16 Cantrell testified that Caldwell did not direct him to issue the Letter of Counseling and that Cantrell did not tell Plaintiff otherwise. [Doc. 52-13 at 19-20, 23, 25.] And Caldwell testified that he learned of the letter only after it was issued and would not have agreed to issuance of the letter because he had already decided that Plaintiff was going to be terminated and thus the letter would not have served any purpose. [Docs. 52-6 at 31-32; 52-7 at 16, 21.]

During the meeting in which Cantrell issued the Letter of Counseling (“the Counseling Meeting”), Plaintiff told Cantrell that although she did not dispute that she was disruptive and used foul language, the criticism of the Visit was unwarranted because she had followed the proper procedures. [Doc. 52-1 at 160-64; but see Doc. 58-8 at 16.] Many people in the office had brought their spouses to visit previously, including Plaintiff and Cantrell. [Doc. 52-1 at 165.] Plaintiff also did not believe that a letter of counseling was the proper vehicle to address the Visit because Cantrell's criticism of her conduct amounted to a security issue and thus would be more properly addressed in an incident report. [Id. at 161.] And she questioned why Cantrell had waited three days to address the issue. [Id. at 163.]

Given the day's events, Plaintiff told Cantrell that she did not feel she could work at SSC Atlantic any longer. [Id. at 167; Doc. 58-8 at 17.] In so doing, she referenced her earlier offer to resign on June 29, 2017. [Doc. 52-1 at 167.] However, Cantrell asked her not to leave and told her he would talk with Bowen and the situation would improve. [Id.; Doc. 58-8 at 17.]

During the Counseling Meeting, Plaintiff also informed Cantrell she had met with the EEO and that she would be filing a complaint naming both Cantrell and Caldwell in light of their failure to protect her from Bowen's harassment. [Docs. 52-1 at 153-54, 158; 52-2 at 26; 52-13 at 28; 58-8 at 6.] Cantrell said he was sorry that the dispute had reached that point and that he would inform Caldwell of Plaintiff's decision. [Doc. 52-1 at 154.]

Also during the Counseling Meeting, Plaintiff told Cantrell for the first time that Harmon had told her that Bowen had made the Race-Related Comments. [Docs. 52-2 at 18 (Plaintiff's testimony that she first became aware in July 2017 that Bowen had made a racial comment about her); 52-13 at 10-11, 16-17 (Cantrell's testimony that the first he heard of Bowen's alleged comments was July 17, 2017, at the Counseling Meeting).] Cantrell told Plaintiff he would initiate an investigation of her allegations [Doc. 52-13 at 22], and Caldwell proceeded to direct Newbolt to investigate [Doc. 52-7 at 9-10, 30].

At the close of the Counseling Meeting, Plaintiff told Cantrell that she would be taking leave the following day “to decompress.” [Doc. 58-8 at 19.]

Caldwell Removes Plaintiff's Access and Terminates Her Employment

Either on July 18, 2017, or July 19, 2017, Cantrell called Plaintiff at home to inform her that her access to classified media and spaces had been removed at Caldwell's direction.¹⁷ [Docs. 52-1 at 168; 58-1 ¶ 10; 58-8 at 19-20.] Cantrell told Plaintiff the removal was due to her personal conduct and the compromise of classified information. [Doc. 58-8 at 20.] Cantrell told Plaintiff he disagreed with removing her access but that it was Caldwell's decision. [Id.]

17 Caldwell explained that Plaintiff's access should have been removed when he told Cantrell on July 17 that he was going to terminate her but the fact that she took leave may have resulted in a delay. [Doc. 52-7 at 25.] The Court notes that although Plaintiff testified at times regarding her access being “suspended” [e.g., Doc. 52-1 at 168], Caldwell and Cantrell have explained that there are significant distinctions between suspending access and removing access locally. Namely, in accordance with naval regulations, the command can remove someone's local access for up to 30 days but that after that period, the command would need to go to DOD CAF, which is the controller of clearances for the Department of the Navy. [Docs. 52-6 at 27-28; 52-7 at 26; 52-13 at 26, 29.] When access is merely removed and not suspended, there is no rebuttal process available for the employee because the command can restore access at any time. [Doc. 52-13 at 26, 29.] Here, Caldwell testified that it made sense to remove Plaintiff's access because he had already decided to terminate her. [Doc. 52-7 at 25-26.] Thus, her access was locally removed, not suspended. [Id. at 25; Doc. 52-13 at 26.] Cantrell testified in fact that he never told Plaintiff that her access was suspended. [Doc. 52-13 at 28.] In the end, Plaintiff does not argue that the distinction between local removal of access or suspension of access has any effect on Defendant's entitlement to summary judgment.

Upon hearing that her access had been removed, Plaintiff decided she would take another day of leave. [Id.] The following day, July 20, a letter was delivered informing Plaintiff that her access to Sensitive Compartmented Information and collateral classified information, classified information technology systems, and classified spaces had been locally removed. [Docs. 52-1 at 95, 185; 52-4; 58-1 ¶ 10.] Also, Cantrell called Plaintiff to tell her not to come to the unit because Caldwell did not want her at the office. [Doc. 58-8 at 20.] Cantrell told her to meet him in an office space outside her unit to debrief her and discuss her access being removed. [Id. at 20-21.] An hour later, he called back and told her that Caldwell had agreed to allow her to enter the unit. [Id. at 21.] She went in, signed the debriefing paperwork, removed some of her personal items from the office, and then left to report to another office location. [Id.; Docs. 52-2 at 8-9; 52-7 at 28.] However, she could not perform any work because her access had been removed. [Doc. 58-8 at 21.]

Plaintiff was terminated on July 28, 2017, within her three-year probationary period. [Docs. 52-5; 52-7 at 32; 58-8 at 4, 22; 58-15 at 4.] She was informed of the termination during a meeting with Caldwell, Cantrell, and Shamblin. [Doc. 58-8 at 23.] Caldwell memorialized the decision in a memorandum to Plaintiff, which described the basis of the termination in relevant part as follows:

This action is based on the following instances of misconduct:

a. On Tuesday, 11 July 2017 at approximately 0911 you dialed in to the 8.3/8.7 supervisor/lead staff meeting and stayed online until the end of the meeting at 0932. You were not asked to participate in this meeting and at no time did you announce yourself as a participant. The nature of the discussions at this meeting is such that it is inappropriate for someone who is not specifically invited to attend. When asked about this incident you stated that I had previously instructed you

to dial in to this meeting when your supervisor was out of the office. I did not give you that direction. You also stated that you recently dialed in to this weekly meeting on two other occasions; based on VTC records I determined those dates to be 21 March 2017 and 2 May 2017. On both occasions your supervisor was an active participant in the meeting. Your actions on Tuesday, 11 July 2017 as described above constitute inappropriate conduct.

b. On Friday, 14 July 2017 at approximately 1320 you signed your spouse in to Building 3414, a SCIF, and ate lunch together in Room 103 for approximately 35 minutes. During your discussion with [Newbolt] you indicated that you left your husband for approximately 5 minutes while you prepared your lunch. Regarding family members visiting SPWARSYSCEN Atlantic spaces, [the SPAWARSYSCENLANTINST 5500.1A, Security Manual, dated January 2017] states that in general, individuals are not allowed to visit SSC Atlantic facilities for personal reasons. It further states that unofficial visitors must enter through the security office, must display the issued visitor badge, and be escorted at all times. You did not follow these basic procedures.¹⁸ [The Security Manual] also prescribes restrictions and requirements for visitors to areas that store, handle, process, or transmit classified materials, stating that access will be granted to those areas only after verification of eligibility, sufficient security access level, and need to know. Additionally, [SPAWARSYSCEN Atlantic Standard Operating Procedures for SCIFs, dated July 2016] states that visits by un-cleared personnel “should be a rare occurrence, operationally justified, and approved by the SCIF Security Manager.” You blatantly disregarded these procedures. As a security professional working in a classified space you are expected to know and comply with these policies. Your actions on Friday, 14 July 2017 as described above are in direct violation of [the rules cited above] and constitute failure to follow security policy.

2. As evidenced by the foregoing, you have demonstrated a blatant disregard for, and unwillingness to follow, security protocols when it comes to your personal behavior. This violation goes to the core function of your job as a Security Specialist and has caused me to completely lose confidence in your ability to competently administer SPAWAR's security program. As a Security Specialist, you set the standard of behavior and are therefore required to conduct yourself in strict accordance with the applicable security rules and regulations. Your decision to selectively enforce security policies as they apply to you not only undermines your credibility as a Security Specialist, but also undermines the credibility of SPAWAR's entire security program. Your knowing and deliberate breach of security protocol is completely unacceptable and cannot be tolerated. In addition, your surreptitious and unauthorized attendance at supervisory meeting casts serous doubt on your integrity [and] trustworthiness and demonstrates a complete lack of judgment on your part.

[Doc. 52-5 at 2-4 (footnote added).]

18 Plaintiff claimed that she asked Harmon to watch her husband when she left the room, but Harmon denied Plaintiff had asked her to do that. [Doc. 52-9 at 4.]

Plaintiff's EEO Complaint and Appeal and This Action

On October 5, 2017, Plaintiff filed a formal EEO complaint alleging race, color, and sex discrimination, as well as harassment and retaliation. [See Doc. 1-1 at 2.] The agency issued a final order on December 26, 2019, finding no discrimination. [See id. at 1.] Then Plaintiff appealed to the Equal Employment Opportunity Commission, which issued a decision affirming the agency's final order on July 19, 2021. [Doc. 1-1.]

Plaintiff filed this action on August 11, 2021. [Doc. 1.] Remaining in the case are Plaintiff's Title VII claims for race and sex discrimination based on her termination and the creation of a hostile work environment, and for retaliation based on her complaints of race and sex discrimination. [Id. ¶¶ 90-130.] She seeks money damages and equitable relief, attorneys' fees, and court costs. [Id. at 20-21.]

APPLICABLE LAW

Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:

The court shall grant summary judgment if the movant shows that 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). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), overruled on other grounds, 490 U.S. 228 (1989). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. Further, Rule 56 provides in pertinent part:

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.

DISCUSSION

Discrimination and Retaliation Claims Based on Plaintiff's Termination

Title VII makes it unlawful for an employer “to discriminate against any individual with respect to . . . compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Additionally, Title VII's retaliation provision forbids an employer from taking action that discriminates against an employee because that employee has either “opposed any practice made an unlawful employment practice by this subchapter” or has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”¹⁹ 42 U.S.C. § 2000e-3(a). The purpose of this antiretaliation 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).

19 Through the two clauses of the antiretaliation provision, Title VII protects activities that “fall into two distinct categories: participation or opposition.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998). “Employees engage in protected oppositional activity when, inter alia, they complain to their superiors about suspected violations of Title VII.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (en banc) (internal quotation marks omitted).

Absent direct or indirect evidence of discrimination, a Title VII plaintiff may proceed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to establish a claim of employment discrimination or retaliation.²⁰ Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015); Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005). Under the burden-shifting framework, an employee must first prove a prima facie case of discrimination or retaliation.²¹ McDonnell Douglas, 411 U.S. at 802. If the plaintiff succeeds, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory and nonretaliatory reason for the adverse employment action. Id. By providing such an explanation, the employer rebuts the presumption of discrimination or retaliation created by the prima facie case, and “[t]he presumption, having fulfilled its role of forcing the [employer] to come forward with some response, simply drops out of the picture.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993). If the employer articulates a legitimate, nondiscriminatory and nondiscriminatory reason, the burden shifts back to the employee to show that the articulated reason was actually a pretext for discrimination or retaliation. McDonnell Douglas, 411 U.S. at 804.

20 The briefing by the parties addresses only the McDonnell Douglas framework. [Docs. 52; 58; 63.]

21 To demonstrate the prima facie case of discriminatory termination, a plaintiff must show that “(1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) she was performing her job duties at a level that met her employer's legitimate expectations at the time of the adverse employment action; and (4) the position remained open or was filled by similarly qualified applicants outside the protected class.” Scott v. Health Net Fed. Servs., LLC, 463 Fed.Appx. 206, 208 (4th Cir. 2012). To establish a prima facie case of retaliation, a plaintiff must demonstrate “(1) she engaged in a protected activity; (2) an adverse action was taken against her by the employer; and (3) there was a causal connection between the first two elements.” Id.

Here, even assuming Plaintiff can establish a prima facie case of race or sex discrimination or retaliation, Mandengue v. ADT Sec. Sys., Inc., No. ELH-09-3103, 2012 WL 892621, at *16 (D. Md. Mar. 14, 2012) (“[I]t is a common practice of the Fourth Circuit to assume, without deciding, that the plaintiff has established a prima facie case in cases where the employer has proffered evidence of a legitimate reason for its adverse action in its motion for summary judgment.” (citing cases)), Defendant has articulated two legitimate, nondiscriminatory, and nonretaliatory reasons for terminating Plaintiff. Specifically, Defendant asserts that Plaintiff was terminated because “she admittedly permitted her spouse to enter the secure area in violation of the SCIF policies and she left him unattended” and “she, as a non-management employee, called into managers' meetings where privileged and confidential information about other employees was routinely discussed.” [Doc. 52 at 19.] Additionally, Defendant has produced documents and testimony demonstrating that Plaintiff was terminated for these reasons.²² Accordingly, the burden shifts back to Plaintiff to show that the proffered reasons are a pretext for animus against Plaintiff based on her race, sex, or protected conduct.

22 The Court notes that the employer's burden to articulate a legitimate, nondiscriminatory, and nonretaliatory reason for the challenged adverse employment action is one “of production, not persuasion.” Holland v. Washington Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007) (concluding that the employer had met its burden by producing affidavits and testimony supporting its proffered reason).

To prove an employer's articulated reason is a pretext for discrimination or retaliation, a plaintiff must “prove both that the reason was false, and that discrimination [or retaliation] was the real reason” for the challenged conduct. Adams v. Trs. of the Univ. of N.C. -Wilmington, 640 F.3d 550, 560 (4th Cir. 2011) (internal quotation marks omitted); see also Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 217 (4th Cir. 2016) (holding that the but-for standard of causation applies to Title VII retaliation claims). A “plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (emphasis added). However, such a showing will not always permit an inference of unlawful discrimination. Id. Ultimately, to survive summary judgment, a plaintiff must demonstrate ?a genuine dispute of material fact on the question of pretext sufficient to make [the employer's] proffered justification a triable issue.” Guessous, 828 F.3d at 217. As the Court has explained:

Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory.

For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. To hold otherwise would be effectively to insulate an entire category of employment discrimination cases from review under Rule 50, and we have reiterated that trial courts should not treat discrimination differently from other ultimate questions of fact.

Reeves, 530 U.S. at 148 (internal quotation marks and citations omitted).²³ See also Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 649 (4th Cir. 2002) (explaining that Reeves “instructs . . . that factors on which the appropriateness of a [summary judgment] will depend in any case will include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for [summary judgment]” (internal quotation marks omitted)).

23 The Reeves Court was considering the appropriateness of a judgment as a matter of law but noted that “the standard for granting summary judgment mirrors the standard for judgment as a matter of law, such that the inquiry under each is the same.” Id. at 150 (internal quotation marks omitted).

Both Plaintiff's statement of facts and her legal arguments are scattershot and poorly organized and she does not provide adequate page citations to the record.²⁴ It is therefore difficult for the Court to discern exactly what arguments she is making, and those that she does make are not well developed. However, reading the memorandum generously, the Court construes Plaintiff to be arguing that she has created a genuine dispute of material fact regarding whether the proffered reasons are the true reasons because (1) prior to the Dial-In and the Visit, Plaintiff was performing her responsibilities well²⁵ [Doc. 58 at 10, 14]; (2) as to the Dial-In, she forecasted evidence that Caldwell asked her to join the meetings [id. at 2-3]; and (3) as to the Visit, the policies she was alleged to have violated either did not exist at the time or were not enforced as to other employees and her conduct was not as Caldwell described [id. at 25-26]. On the question of whether sex, race, or retaliation was the real reason for her termination, Plaintiff appears to believe that she is entitled to avoid summary judgment so long as she forecasts evidence sufficient to support a reasonable inference that Defendant's proffered reasons are false. [See Id. at 25 (“The rule . . . is that summary judgment should be denied if this court believes, when all inferences are taken in favor of the plaintiff, that a reasonable jury or trier of fact could infer . . . that [Defendant's proffered reasons for the termination] are not worthy of belief.”).] Accordingly, at least in the argument section of her brief, she does not identify facts that she contends would support an inference that either Plaintiff's sex or race was the true reason for her termination.²⁶ [See id. at 23-26.] As to retaliation, Plaintiff relies on Cantrell's issuance of the Letter of Counseling, which she claims addresses the same conduct on which Caldwell based her termination. [Id. at 27-29.] Plaintiff contends that the temporal proximity between Caldwell's learning of the EEO Meeting and his deciding to terminate her tends to show retaliatory motive and creates a question of fact as to whether Caldwell was planning merely to issue a written warning until he learned of the EEO Meeting. [Id.]

24 As for her arguments, in the fact section of her memorandum, Plaintiff often includes parts of the record that she appears to believe help her case, but she does not explain in the argument section how she believes the facts help her. [E.g., Doc. 58 at 17-18 (noting Smith's testimony that she believed Caldwell did not like to work with strong-willed women and that she recused herself because she believed Caldwell was not following policies and procedures).] Regarding Plaintiff's record citations, the Court notes that footnotes 16 through 20, 22 through 90, 109 through 112, and 119 reference documents without identifying a particular page or paragraph. [Doc. 58 at 10-20, 26, 29 nn. 16-20, 22-90, 109-12, 119.]

25 This fact is part of Plaintiff's prima facie case. However, as noted, facts that may support a prima facie case may also support a reasonable inference that the employer's proffered reasons are actually pretext for unlawful discrimination or retaliation. Reeves, 530 U.S. at 148.

26 The one exception is that Plaintiff notes that she was “the only African American employed with Caldwell up and until others were hired when she was part of the hiring panel.” [Doc. 58 at 26.] Plaintiff does not explain how she believes this fact helps establish that Caldwell bore racial animus toward her, particularly considering her testimony that Caldwell was generally interested in hiring black employees and specifically instructed her to hire two particular black candidates. [See Doc. 52-1 at 59-64.]

In the end, as the Court will discuss, Plaintiff has not forecasted evidence that her termination was based on her race or her sex or that she would not have been terminated but for her protected conduct. Although Plaintiff attempts to call into question-largely based on her self-serving testimony-whether the Dial-In and the Visit were genuine reasons for her termination, the evidence she has forecasted regarding the Visit is insufficient to raise a factual issue regarding whether the Visit was a genuine reason for her termination and the evidence she has forecasted regarding the Dial-in is sufficient to create only a fairly weak issue of fact. See Reeves, 530 U.S. at 148. Additionally, she has not forecasted evidence that Caldwell bore any animus toward her based on her sex or race that could support a reasonable inference that sex or race were genuine reasons for her termination. And, as for retaliation, the forecasted evidence indicates that Caldwell had begun the process of terminating Plaintiff for the Dial-In and the Visit before she even decided to meet with the EEO. Accordingly, the record does not support a reasonable inference that she would not have been terminated but for the EEO Meeting.

The Court will now discuss some of the components of this analysis.

Whether the Visit was a Genuine Reason for Plaintiff's Termination

In the Court's view, Plaintiff's forecasted evidence is insufficient to create a genuine dispute of material fact concerning whether the Visit was a true reason for Caldwell's decision to terminate Plaintiff's employment.

According to the security manual for SSC Atlantic in effect as of January 20, 2017 (“the SPAWAR Manual”), “[i]n general, individuals are not allowed to visit SSC Atlantic facilities or employees for personal reasons.” [Doc. 52-10 at 5; see id. at 2, 6; Docs. 52-5; 52-6 at 13; 52-9 at 10.] Nonetheless, “[e]mployees may request permission from their supervisor to receive a visitor and provide a short tour through unclassified and nonindustrial areas.” [Doc. 52-10 at 6.] Separately, the Standard Operating Procedure for SCIFs (“the SCIF SOP”) for July 2016 states that visits by those without proper clearance “should be a rare occurrence, operationally justified, and approved by the SCIF Security Manager.” [Id. at 9; see Docs. 52-5 at 2; 52-7 at 18-19.]

Plaintiff does not dispute that Caldwell genuinely believed that Plaintiff brought her husband into the SCIF for entirely personal reasons, that Cantrell did not approve the Visit, and that Plaintiff's husband was left unsupervised in the SCIF for several minutes. However, in a deposition taken in March 2019 (the “March 2019 Deposition”), Plaintiff suggested that because policies in the SCIF SOP applied to visitors to SCIFs, the SPAWAR Manual did not apply.²⁷ [Doc. 52-2 at 11 (stating that the SPAWAR Manual “pertains to the collateral side”).] Plaintiff does not offer any explanation, however, for why she would not be responsible for complying with both sets of restrictions. Indeed, Newbolt concluded in his incident report that the SPAWAR Manual policies were applicable and that the Visit violated them.²⁸ [Doc. 52-9 at 10.] The Court therefore concludes that regardless of what Plaintiff believed, she has not forecasted evidence that Caldwell did not genuinely believe that the policies in the SPAWAR Manual and the SCIF SOP were applicable to the Visit and that Plaintiff's bringing her husband into the SCIF for personal reasons, without Cantrell's approval, was a blatant violation of the applicable policies and a genuine basis for her termination.²⁹ See Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 444 (4th Cir. 1998) (stating that when determining whether an articulated reason is pretextual, “[i]t is the perception of the decision maker which is relevant.”), overruled on other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002).

27 Plaintiff testified that visitors were allowed into the SCIF for wholly personal reasons so long as particular procedures were followed during such visits. [Doc. 52-1 at 52-54.] She described those procedures:

If [the visitor is] uncleared, we call the person that is here to escort [the visitor], but then we let the rest of the office know that there is an uncleared person in the building by flicking a switch which turns on . . . yellow flashing lights that are strategically placed throughout the building . . . and it indicates that there are uncleared people in the space.... [W]hen an uncleared person comes in, . . . they sign . . . the visitor log [and] you sanitize the space[, meaning] you make sure there is no classified material out or present. And then you take that person wherever you're going to go and conduct business.... When that person leaves, you sign them out, . . . they get . . . the visitor badge back, . . . [a]nd then they give you back your stuff, and you get your electronics.

[Id.] She testified that because she was in charge of personnel security, she did not need anyone else's approval to bring an uncleared visitor into the SCIF so long as she followed those procedures, including that an uncleared visitor would be escorted at all times by a cleared person who works in the building. [Id. at 54-55.] She explained that no rule prohibited an escort passing a visitor off to a different escort during the visit. [Id. at 55.] The Court notes that Plaintiff's testimony that she did not need anyone else's approval to bring an uncleared visitor into the SCIF seems in tension with her testimony that she got authorization from Cantrell the first time she brought her husband into the office. [Doc. 522 at 11.]

28 Montgomery also testified that “no uncleared guests [were] allowed in [their] area.” [Doc. 58-11 at 9.] And, both Smith and Shamblin concluded, after considering the applicable facts, that Plaintiff's termination was warranted. [Docs. 58-14 at 5-6; 58-15 at 5.]

29 During the investigation into the Visit, Plaintiff stated that to the extent her husband ended up unattended, she had asked Harmon to watch him while she warmed up her lunch. [Doc. 52-9 at 4, 8.] However, Harmon denied agreeing to watch him. [Id.] In the end, whether Caldwell believed Plaintiff was solely at fault for her husband being left alone is not a critical point. Regardless of whether Harmon shared part of the blame, the fact remains that Caldwell concluded Plaintiff brought her husband into the SCIF for a personal visit not approved by her supervisor, in clear violation of the applicable rules. That her husband ended up unattended increased the severity of the security breach that resulted from the improper visit, regardless of whether the blame fell entirely on Plaintiff. Moreover, despite her assertion that Harmon agreed to watch her husband while Plaintiff walked away, Plaintiff has not forecasted any evidence that Caldwell believed her selfserving account over Harmon's contrary statement. The Court also notes that in the memorandum setting out the reasons for her termination, Caldwell includes the fact that Plaintiff's husband failed to obtain and display a visitor's badge. [See Doc. 52-5 at 3-4.] Camat testified that “[a]t the time of this incident, [the SCIF SOP] did not identify the necessity of visitor[s] to have a Command badge; however, since this incident took place it has been revised to state visitors must be cleared by Visitor Control and issued a Command badge.” [Doc. 58-11 at 33-34.] The Court concludes that this issue is not material to the outcome here because the Visit was a blatant violation of the policies at issue aside from any issue regarding a visitor's badge. The Court further notes that Plaintiff appears to argue that the SCIF SOP did not exist until after Plaintiff was terminated. [Doc. 58 at 25-26 & n.108.] However, for this proposition, Plaintiff cites only to Camat's testimony, which pertains to the badge requirement only, not to the SCIF SOP as a whole. [Id. at 26 n.108; Doc. 58-11 at 33-34.]

Plaintiff also argues that, regardless of what the applicable policies actually said, they were not followed in practice concerning visitors to the SSC Atlantic SCIF. Plaintiff specifically points to evidence of particular occasions when she and other employees had brought family members into the SCIF for personal visits.³⁰ [Docs. 58 at 19, 26; 52-1 at 165; 52-2 at 11-14.] Again, it is the perception of the decision maker that matters. See Tinsley, 155 F.3d at 444. Caldwell testified that he had no knowledge of any such visits except for one by Cantrell's wife that had occurred a couple of years before and that Caldwell had not learned about until after the Visit. [Doc. 52-6 at 12-13; 52-7 at 23.] Additionally, he testified that he had no knowledge that employees other than Plaintiff ever brought visitors beyond the entry control point just inside the door of the building or ever left a visitor unattended in the restricted classified area. [Doc. 52-7 at 23.] Plaintiff has failed to direct the Court to any evidence disputing Caldwell's testimony. Given Caldwell's knowledge that Plaintiff brought her husband well past the initial entry point of the SCIF, that the Visit was unauthorized by Cantrell, and that Plaintiff's husband was left unattended, the Court concludes that even had Caldwell known of the other visitors, Plaintiff's forecasted evidence of purportedly similarly situated comparators would be insufficient to avoid summary judgment on the issue of pretext.³¹ See Lightner v. City of Wilmington, 545 F.3d 260, 265 (4th Cir. 2008) (“The similarity between comparators and the seriousness of their respective offenses must be clearly established in order to be meaningful.”); Navaez v. Timken Co., No. 7:18-cv-1906-DCC-KFM, 2020 WL 1067153, at *20 (D.S.C. Jan. 9, 2020) (“In order for the plaintiff's comparator evidence to succeed, she is required to show that she is similar in all respects to her comparator.” (alterations and internal quotation marks omitted)), Report and Recommendation adopted by 2020 WL 1065902 (D.S.C. Mar. 5, 2020); Oglesby v. Itron Elec. Metering, Inc., No. 8:17-cv-00216-TMC-JDA, 2018 WL 4519394, at *7 (D.S.C. Jun. 26, 2018) (noting that, when analyzing comparators, courts should consider factors such as whether the employees dealt with the same supervisor, were subject to the same standards, and engaged in the same conduct), Report and Recommendation adopted by 2018 WL 3853558 (D.S.C. Aug. 14, 2018).

30 Plaintiff argues that Montgomery and Camat both testified that Caldwell's wife had been in the area. [Doc. 58 at 19 (citing Doc. 58-11).] However, Plaintiff provides no record page citation for such evidence, and the Court's review of the entire cited exhibit did not confirm that Montgomery or Camat testified that Caldwell's wife had been in the SCIF.

31 The Court notes as well that Plaintiff did not forecast any evidence that any other employee who brought visitors into the SCIF was a probationary employee.

Plaintiff also asserts in a February 2018 Declaration (the “February 2018 Declaration”) that, as to the Visit, other employees were just as culpable as she was-and thus were treated more favorably by Caldwell-because they did not “stop or prevent” her from violating the applicable policies and yet they were not punished. [Doc. 58-1 ¶ 9; see also Doc. 52-7 at 20 (Caldwell's statement that “other employees should have prevented [Plaintiff] from taking her spouse beyond the entry control point and into the restricted SCIF area and should have informed her that it was in fact a gross security violation”).] However, Plaintiff cannot show adequate equivalence between a probationary security specialist who brings an unauthorized person into the SCIF and other employees who, when unexpectedly presented with that situation, merely failed to prevent her from doing so. Indeed, in his memorandum memorializing the termination, Caldwell stated that Plaintiff's blatant violation of the security protocols went “to the core function of [her] job as a Security Specialist and . . . caused [Caldwell] to completely lose confidence in [Plaintiff's] ability to competently administer SPAWAR's security program” and he added that her “decision to selectively enforce security policies as they apply to [her] not only undermined] [her] credibility as a Security Specialist but also undermined] the credibility of SPAWAR's entire security program. [Doc. 52-5 at 3-4.] Given the differences between Plaintiff and her would-be comparators, a factfinder would have no reasonable basis to conclude from the difference in treatment that the Visit was not a genuine reason for Caldwell's decision to terminate Plaintiff.³² See Lightner, 545 F.3d at 265.

32 Finally, the Court notes that in the fact section of her memorandum opposing summary judgment, Plaintiff references Caldwell's preventing Smith from engaging in further investigation of the Dial-In and the Visit prior to initiating Plaintiff's termination. [Doc. 58 at 18.] However, the Court concludes that this evidence is insufficient to create a genuine dispute of material fact regarding whether the Dial-In and the Visit were genuine reasons for Plaintiff's termination. It is unclear exactly why Smith believed that more investigation was called for and why Caldwell disagreed with her, but Caldwell noted that he had been advised by counsel that no further factual investigation was required in order to proceed with termination. [Doc. 52-7 at 33.] Given the lack of detail presented concerning their respective positions, it would be speculative to conclude that their disagreement was because the proffered reasons were not genuine, especially given that, once she was able to consider all the facts, Smith agreed that Plaintiff's termination was warranted [Doc. 58-14 at 6]. Cf. Bonds v. Leavitt, 629 F.3d 369, 386 (4th Cir. 2011) (“Even if these investigations were improper or substandard, that does little to help [plaintiff] establish that the reasons given for her termination were not the actual reasons, and it certainly does not give rise to a reasonable inference that her race or gender was the real reason for her termination.”); Oglesby v. Itron Elec. Metering, Inc., No. 8:17-cv-00216-TMC, 2018 WL 3853558, at *4 (D.S.C. Aug. 14, 2018) (concluding that the assumption that the plaintiff was terminated “based on the false statements of co-workers,” would, at most, show “that [the defendant] conducted a poor investigation and made a poor decision,” but it does not establish pretext for discrimination).

Whether the Dial-In was also a Genuine Reason for Plaintiff's Termination

Unlike with the Visit, the Court concludes that Plaintiff has forecasted sufficient evidence to create a genuine dispute of material fact as to whether the Dial-In was truly a reason for her termination. Even so, the Court concludes that Plaintiff's forecasted evidence created “only a weak issue of fact as to whether” the Dial-In was truly a basis for her termination. Reeves, 530 U.S. at 148.

Plaintiff's claim that the Dial-In was not a genuine reason for her termination relies on her assertion that she was directed to dial into the calls. [Doc. 58 at 2-3.]³³ Yet her accounts of the instructions authorizing her to dial into the meetings are contradictory. In conjunction with the investigation Caldwell requested, Plaintiff told Newbolt that Caldwell asked her to join. [Doc. 52-19 at 9.] Plaintiff stated in the February 2018 Declaration that Caldwell instructed her in or around November 2016 “to call into the supervisory meeting in [Cantrell's] absence so [she] would know what needed to be taken care of” and that she proceeded to call into the meetings “in November and December 2016[ and] January, March, May and July 2017.” [Doc. 58-8 at 23.] In the March 2019 Deposition, she confirmed that it was Caldwell and not Cantrell who instructed her to participate in the meetings. [Doc. 52-2 at 16-17.] However, in a deposition taken in September 2022 (the “September 2022 Deposition”), Plaintiff testified that the two times prior to the July meeting that she had been asked to dial in, it was Cantrell, not Caldwell, who asked her to participate. [Doc. 52-1 at 148.]

33 In the fact section of her memorandum, Plaintiff references forecasted evidence supporting the proposition that she was directed to dial into the calls [Doc. 58 at 2-3], but her only discussion of that evidence in her argument section is her assertion that “[a]s presented above[, Plaintiff] was terminated for pretextual reasons” [id. at 25].

Plaintiff's testimony as to what she listened to after dialing into these meetings is also curious. In the March 2019 Deposition, Plaintiff stated that she never actually listened to any of the meetings, but rather simply dialed in so that Caldwell would see that she had done so but did not put on her headphones that she would need to in order to listen to the call. [Doc. 52-2 at 17.] However, Plaintiff represented in the February 2018 Declaration and the September 2022 Deposition that Caldwell had specifically told her that she needed to listen to what was happening in the meetings so she “would know what needed to be taken care of,” could take notes for Cantrell, and could answer any Special Security Office questions that arose during the call. [Docs. 52-1 at 146-48; 58-8 at 23.] Additionally, some of her testimony indicates that she had indeed listened or at least had implied to Cantrell that she had. For example, she testified in the September 2022 Deposition that, after the July 11 Meeting, Cantrell asked her how the meeting went and she told him that none of the issues discussed were relevant to them.³⁴ [Doc. 52-1 at 149-50.] Regarding the two prior meetings she had dialed into, she testified that although she did not remember whether she had specifically reported to Cantrell after the meetings, if she had done so, her report would have been limited to issues that arose concerning personnel security.³⁵ [Id. at 150.] Given the conflicts and curiosities in Plaintiff's self-serving accounts, the Court concludes that Plaintiff created “only a weak issue of fact as to whether” the Dial-In was also a genuine reason for her termination. Reeves, 530 U.S. at 148.

34 On the other hand, she testified in the March 2019 Deposition that on one occasion when Caldwell asked her about something that had happened during one of the meetings, she told him that she had not been listening because she had been helping a customer. [Doc. 52-2 at 18.]

35 Plaintiff also suggests that because her name would pop up on the computer screen when she dialed in, people participating in the meeting would have been aware when she did so. But the Court notes that Plaintiff's testimony that the caller's name would temporarily appear [Docs. 52-1 at 149; 58-8 at 23] was in conflict with all of the other forecasted evidence in the record, which indicated that only the number of the telephone being used to dial in would appear [Docs. 52-19 at 8 (statement in incident report noting that Williams explained that when someone dials in, “there is a slight ‘ping' notification sound making participants aware of a caller joining the meeting” and “[t]he phone number of the caller joining . . . (Caller ID) also pops up on the bottom of the [video telephone conference] screen” and that she recognized Plaintiff's number when she saw it on July 11, 2017); 52-12 at 64 (Cantrell's testimony that when someone would dial in “a number . . . would flash up on the screen” temporarily); 52-13 at 33 (Cantrell's statement that “[n]o names appear, only a phone number”)]. And most invitees to the meeting were participating in person [Doc. 52-12 at 64] and may not have been looking at a computer screen when Plaintiff's information briefly appeared, and they may not have recognized the number in any event.

Evidence of Caldwell's Animus

The record is clear that Caldwell made the decision to terminate Plaintiff. [Docs. 526 at 45-46; 52-7 at 16, 32, 36; 52-12 at 26; 58-5 at 10.] Thus, it is his motivation that is at issue in these claims. See Tinsley, 155 F.3d at 444. Plaintiff herself testified that Caldwell “led by fear and intimidation” and used his superior position to belittle and disparage others, knowing that they would not dare confront him because he had a history of retaliating against people who did.³⁶ [Doc. 52-1 at 105; see id. at 174-75; 58-8 at 9.] She testified that, in contrast to her co-employees, she stood up to Caldwell-confronting him when he made comments that she did not think appropriate, insulting and mocking him in meetings in front of others, objecting to directions that she believed were inappropriate, and even questioning his ethics-to the point that she recognized that these challenges had “really started to breed . . . animosity” between Plaintiff and Caldwell. [Doc. 52-1 at 89-90; see id. at 48, 59-68, 86, 119, 121, 175.] It is against that backdrop that the Dial-In and the Visit occurred during the same week of her probationary period, and that by Friday, July 14, 2017, Caldwell had requested investigations of both incidents.

36 The undersigned emphasizes again that at the summary judgment stage, the Court views the record in the light most favorable to Plaintiff. Scott, 550 U.S. at 378.

Separate and apart from Plaintiff's failure to create a fact issue as to whether the Visit was a genuine reason for her termination-and her ability only to create a weak fact issue as to whether the Dial-in was also a genuine reason-Plaintiff's evidence that Caldwell's true reason for terminating Plaintiff was her race, sex, or protected conduct is very weak to nonexistent. See Reeves, 530 U.S. at 148; Love-Lane v. Martin, 355 F.3d 766, 788 (4th Cir. 2004) (“It is not enough to disbelieve the [defendant's reason]; the factfinder must believe [the plaintiff's] explanation of intentional [discrimination based on race, sex, or engaging in protected conduct]”); cf. Holmes v. Town of Clover, No. 0:17-3194-JMC-SVH, 2019 WL 5865597, at *6 (D.S.C. June 25, 2019) (concluding that even if the forecasted evidence was sufficient to justify a reasonable inference that the employer's primary proffered basis for termination was not the true reason, it was insufficient to justify a reasonable inference that the plaintiff's race was the true reason), Report and Recommendation adopted in relevant part by 2019 WL 4267515 (D.S.C. Sept. 10, 2019).

Anti-Black Animus

Plaintiff has not forecasted any evidence of anti-black animus by Caldwell. To the contrary, Caldwell approved of Plaintiff's hiring, and Plaintiff testified that Caldwell was attempting to diversify Plaintiff's department and that he specifically directed her on one occasion to hire two black applicants. [Docs. 52-1 at 59-64; 52-6 at 17.] And despite Caldwell's willingness to insult his employees on many bases, Plaintiff has forecasted no evidence that he ever made any disparaging comments to her or any other black person that were based on race.

The only conduct of Caldwell's that Plaintiff points to as possible evidence of his racial animus is his failure to bring an end to Bowen's allegedly racially motivated mistreatment of her. [Doc. 58-8 at 10.] However, that conduct does not provide a reasonable basis to infer racial animus by Caldwell. Plaintiff has represented that she often complained to Caldwell and Cantrell that she believed Bowen disliked her because of her race and that she had told Caldwell at least once that Harmon also believed Bowen disliked her because she is black. [Docs. 52-1 at 37, 43-44, 132-34; 52-2 at 7-8, 25.] However, nothing in the record indicates that, prior to July 17, 2017-when Caldwell first learned about Plaintiff's allegation that Harmon had told her Bowen had made the RaceRelated Comments³⁷-Caldwell believed there was any racial component to Bowen's treatment of Plaintiff. Indeed, given Bowen's poor treatment of everyone [Docs. 52-1 at 157; 58-8 at 14], her resentment of Plaintiff for taking the job Bowen had wanted for her friend [Docs. 52-1 at 132-33, 143; 52-2 at 19], and Plaintiff's penchant for aggressively standing up against what she perceives as bad behavior [Docs. 52-1 at 48; 52-12 at 33], it is not surprising that the two women would be a combative mix, regardless of any racial element. Although Bowen refused to engage Plaintiff when she repeatedly accused her of disliking her because she is black [Doc. 52-1 at 80], Caldwell may have viewed Bowen's response as a simple refusal to dignify a baseless accusation of prejudice. Any conclusion that Caldwell believed otherwise could only be based on mere speculation. In any event, Cantrell, who was the direct supervisor to both Bowen and Plaintiff, had attempted to address the problem by offering to serve as a communications conduit between the two women. [Id. at 71; Docs. 52-15 at 3; 58-10 at 11.] That Cantrell did not succeed in ending the conflict does not give rise to a reasonable inference that Caldwell bore any racial animus toward Plaintiff. See Johnson v. Old Dominion Univ., 814 Fed.Appx. 733, 738 (4th Cir. 2020) (“[S]uspicions of ill intent are insufficient to create a genuine issue of material fact regarding pretext.”).

37 As noted, Cantrell and Caldwell both testified that they did not know before July 17, 2017, that Harmon had alleged that Bowen made the Race-Related Comments. [Docs. 52-13 at 10-11, 16-17.] And Plaintiff testified in the March 2019 Deposition that it was July 2017 when she informed Cantrell of what Harmon had said about Bowen making the Race-Related Comments. [Doc. 52-2 at 18-20.] Cantrell testified that as soon as he learned what Harmon had said about the comments, he told Plaintiff that he would initiate an investigation [Doc. 52-13 at 22], and Caldwell proceeded to direct Newbolt to investigate [Doc. 52-7 at 9-10, 30]. The Court notes that other accounts from Plaintiff indicate that Harmon told her at some time earlier than July 2017 about Bowen making the Race-Related Comments. For example, in a declaration dated May 3, 2019 (the “May 2019 Declaration”), Plaintiff represented that in May 2017 she “reported [Bowen's] unprofessional behavior and racist commentary.” [Doc. 58-1 ¶ 10.] Additionally, in the September 2022 Deposition, Plaintiff testified that as soon as Harmon told her that Bowen had made the Race-Related Comments, Plaintiff went to Cantrell and told him and they had a meeting with Bowen and Caldwell to address the situation. [Doc. 52-1 at 68-71.] She testified that that was the same meeting in which Cantrell directed Bowen to transfer custody of classified material to Plaintiff that Bowen had been resisting giving to her and the same meeting when Cantrell had offered to serve as a conduit between the two women. [Id. at 70-71.] Concerning Plaintiff's diverging accounts, the Court notes that “for the purpose of summary judgment, a genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the plaintiff's testimony is correct.” Jessup v. Barnes Grp., Inc., 23 F.4th 360, 367 (4th Cir. 2022) (alteration and internal quotation marks omitted). It would thus “be inappropriate to allow [Plaintiff] to avoid summary judgment based on contradictions within [her] own testimony.” Springs on behalf of C.S. v. Waffle House, Inc., No. 3:18-cv-03516, 2021 WL 638816, at *4 (D.S.C. Feb. 18, 2021), reconsideration denied, 2021 WL 1634342 (D.S.C. Apr. 27, 2021). “Given that the only other testimony in the record concerning” when Plaintiff informed Cantrell or Caldwell of Harmon's statements about the Race-Related Comments indicates that she did so on July 17, 2017, “there is no genuine dispute” about when she informed Cantrell or Caldwell. Id.

Accordingly, given the Court's conclusions that Plaintiff has failed to create a fact issue regarding whether the Visit was a genuine basis for her termination during her probationary period; that she has created only a fairly weak fact issue as to whether the Dial-In was also a genuine basis for her termination; that there was strong evidence forecasted that Caldwell resented Plaintiff for reasons apart from her race; and that there was no evidence forecasted that Caldwell bore racial animus toward Plaintiff; the Court recommends that Defendant's summary judgment motion be granted as to Plaintiff's Title VII claim that she was terminated based on her race.

Anti-Female Animus

Plaintiff testified that she believed Caldwell to be sexist because of “the way he treats women in the office based on the comments he makes about them.” [Doc. 58-8 at 15.] Plaintiff stated Caldwell “repeatedly” made “derogatory comments about men being better than women, smarter, stronger.” [Doc. 52-1 at 174-75.] Plaintiff also testified that Caldwell made negative comments about some particular women: one was bald and fat and would never get a man; one was heavyset; and Caldwell would not have hired one because she was too old. [Id. at 45, 121-22; Doc. 58-16 at 5.] However, Plaintiff conceded that when Caldwell did not like an employee, he treated the employee “like crap regardless” of the employee's sex. [Doc. 52-1 at 120.] And there is evidence in the record that Caldwell indeed made disparaging comments about men, including that Caldwell mocked one employee's facial hair and commented that he had “bumps on his face”; he told two employees that they had put on weight and needed to slim down; and he made comments to a third male employee that the employee considered to be discriminatory. [Id. at 122; Docs. 58-11 at 26; 58-16 at 5.]

This range of comments, assuming Caldwell made them, shows only that he belittled and disparaged the employees under him for a variety of reasons. That his insults included remarks about female inferiority does not support a reasonable inference that Plaintiff's sex was the real reason he terminated her employment.³⁸

38 Given that these comments about female inferiority were not related to Plaintiff's termination, Plaintiff appropriately does not argue that they are direct evidence that could prevent summary judgment outside the McDonnell Douglas framework. See Brinkley v. Harbor Recreation Club, 180 F.3d 598, 608 (4th Cir. 1999) (“[U]nless the remarks upon which plaintiff relies were related to the employment decision, they cannot be evidence of discrimination.” (alteration omitted)), overruled on other grounds by Desert Palace Inc. v. Costa, 539 U.S. 90 (2003). The Court also notes that in the fact section of her memorandum, Plaintiff references Smith's testimony that in her “opinion [Caldwell] does not like to work with strong willed women.” [Doc. 58-18 (citing 58-14).] However, Smith did not explain what, if any facts, she based her opinion on and she also noted that she had “no knowledge of any discriminatory practices [Caldwell] engaged in toward [Plaintiff] or anybody else.” [Doc. 58-14 at 8.] Accordingly, her opinion that Caldwell did not like to work with strong-willed women is not sufficient to create an inference that Plaintiff's sex was the real reason for her termination. See Bryant, 288 F.3d at 134-35 (concluding that affidavits of several coemployees suggesting that the plaintiff was “discriminated against because of his race,” including a statement that “I believe [the manager] is a racist” “amount[ed] to no more than subjective beliefs, and such evidence without more, [was] insufficient to create a genuine issue of material fact as to any discriminatory conduct on [the employer's] part”).

Accordingly, the Court's analysis of Plaintiff's Title VII claim that she was terminated based on her sex is similar to its analysis of her Title VII claim that she was terminated based on her race. Given the Court's conclusions that Plaintiff has failed to create a fact issue regarding whether the Visit was a genuine basis for her termination during her probationary period; that she has created only a fairly weak fact issue as to whether the Dial-In was also a genuine basis for her termination; that there was strong evidence forecasted that Caldwell resented Plaintiff for reasons apart from her sex; and that there was little evidence forecasted that Caldwell bore animus toward Plaintiff based on her sex³⁹; the Court recommends that Defendant's summary judgment motion be granted as to Plaintiff's Title VII claim that she was terminated based on her sex.

39 That Caldwell's insults included remarks about female inferiority does constitute some evidence of animus based on Plaintiff's sex, although it is fairly weak evidence, especially given that Caldwell subjected his employees-both male and female-to a broad range of insults [Doc. 52-1 at 120, 122; 58-11 at 26; 58-16 at 5].

Retaliatory Animus

Plaintiff's case for retaliatory animus is based upon what she maintains is the suspicious timing of Caldwell's decision to terminate her, that being very shortly after learning about the EEO Meeting. [Doc. 58 at 27-29.] Accordingly, the Court will begin by addressing the forecasted evidence as to the timing of those events.

Caldwell's Learning about the EEO Meeting

Cantrell and Caldwell testified consistently that they did not learn of the EEO Meeting prior to Plaintiff's returning from the meeting and telling Cantrell about it. [Docs. 52-6 at 23; 52-7 at 5; 52-12 at 35, 70; 52-13 at 5, 25, 28.] In contrast, Plaintiff's accounts of when Cantrell and Caldwell learned of her EEO Meeting are inconsistent. In the February 2018 Declaration, Plaintiff stated-consistent with Cantrell's and Caldwell's accounts-that Cantrell learned of the EEO Meeting only when she told him about it directly afterwards and that “Caldwell became aware [of the EEO Meeting] when [Cantrell] told him.” [Doc. 58-8 at 6.] Later in the same declaration, however, Plaintiff stated that she actually told Cantrell about the meeting before she went and that she believed Cantrell told Caldwell where she would be going. [Id. at 19.] When asked in the March 2019 Deposition if she had firsthand knowledge of when Caldwell became aware of the EEO Meeting, she testified that she did because Cantrell had called Caldwell in her presence after she returned from the meeting. [Doc. 52-2 at 26.] In the May 2019 Declaration, Plaintiff stated that “Cantrell knew of the EEO Complaint prior to” the EEO Meeting. [Doc. 58-1 ¶ 10.] And Plaintiff testified in the September 2022 Deposition that she informed Cantrell of her appointment with the EEO before the meeting occurred and that Cantrell later indicated that he had called Caldwell to inform him. [Doc. 52-1 at 151-54.]

The Court notes that “for the purpose of summary judgment, a genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the plaintiff's testimony is correct.” Jessup v. Barnes Grp., Inc., 23 F.4th 360, 367 (4th Cir. 2022) (alteration and internal quotation marks omitted). It would thus “be inappropriate to allow [Plaintiff] to avoid summary judgment based on contradictions within [her] own testimony.” Springs on behalf of C.S. v. Waffle House, Inc., No. 3:18-cv-03516, 2021 WL 638816, at *4 (D.S.C. Feb. 18, 2021), reconsideration denied, 2021 WL 1634342 (D.S.C. Apr. 27, 2021). “Given that the only other testimony in the record concerning” when Cantrell and Caldwell learned of the EEO Meeting indicated that they learned about it only after it was over, “there is no genuine dispute” about whether Caldwell had advanced notice of the EEO Meeting. Id.

Caldwell's Initiation of the Termination Process

Even assuming that Plaintiff's conflicting accounts were sufficient to create a fact issue as to whether Caldwell learned of the upcoming EEO Meeting early on the morning of July 17, it would still be the case that Plaintiff has not forecasted sufficient evidence to create a factual dispute regarding whether she would have been terminated but for her deciding to have the meeting.

Caldwell testified that on Friday, July 14, he spoke with Rippey in order to initiate Plaintiff's termination, based on the Dial-In and the Visit. [Docs. 52-6 at 23, 46; 52-7 at 16, 20, 32.] Plaintiff has not forecasted any evidence contradicting Caldwell's testimony on that point. Accordingly, even if Caldwell learned of Plaintiff's upcoming EEO Meeting early in the morning on Monday, July 17, the process of Caldwell's termination of Plaintiff during her probationary period had already begun.

In any event, even if Caldwell did not decide to start the termination process until after he learned of the EEO Meeting on July 17, Plaintiff still has not forecasted evidence sufficient to support a reasonable inference that she would not have been terminated but for that meeting or her other complaints about Bowen,⁴⁰ as she would need to do to avoid summary judgment. See Tedder v. Care S.C., Inc., No. 4:20-707-SAL, 2022 WL 909397, at *5 (D.S.C. Mar. 29, 2022) (“While temporal proximity may suffice to demonstrate the causation element of [the plaintiff's] prima facie case [of retaliation], it does not sufficiently demonstrate the ‘but for' causation required at the pretext stage.”); see Staley v. Greenberg, 575 Fed.Appx. 153, 156 (4th Cir. 2014).

40 Plaintiff points to evidence that she “made a total of nine different reports regarding the offending behavior in her department.” [Doc. 58 at 27.] For purposes of this Report and Recommendation, the Court assumes that Plaintiff is arguing that each of these complaints and the EEO Meeting constitute conduct protected by Title VII. Regardless, as discussed, Plaintiff has not forecasted evidence that she would not have been terminated but for any or all of this conduct.

As already discussed, Plaintiff repeatedly questioned, challenged, resisted, and even mocked Caldwell, who was known, according to Plaintiff, as a tyrant who others were afraid to challenge. Indeed, she conceded that her challenges had “really started to breed . . . animosity” between Plaintiff and Caldwell [Doc. 52-1 at 89-90; see id. at 48, 66-68, 175.] And this all took place while she was still in her probationary period. [Doc. 52-5 at 2.] It was with this backdrop that the Dial-In occurred and that Caldwell requested an investigation thereof. In the ensuing investigation, Plaintiff stated that Caldwell had asked her to attend the meetings when Cantrell was absent and Caldwell flatly denied that he had made that request. [Doc. 52-19 at 6, 9.] Then on Friday of the same week, Caldwell was told about the Visit and promptly requested an investigation of that incident as well. [Docs. 52-7 at 20; 58-12 at 4, 13.]

Given those facts, one might expect that the termination of Plaintiff's probationary period would follow shortly thereafter, and it did. By 10:32 Monday morning, July 17, Caldwell had sent out the email regarding Plaintiff's possible termination. [Docs. 52-7 at 32-33; 52-8 at 2; 58-14 at 4.] Regardless of whether Caldwell somehow learned early that morning that Plaintiff had scheduled the EEO Meeting or whether he learned about it later that afternoon, there is nothing suspicious about Caldwell deciding to terminate Plaintiff the very next workday after the Visit. See Fry v. Rand Constr. Corp., 964 F.3d 239, 248 (4th Cir. 2020) (“[A]n employer proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.” (internal quotation marks omitted)); Ross, 759 F.2d at 365 (Title VII “does not shield employees from normal sanctions for misconduct,” nor does it give them “a stranglehold on a job” simply because they have engaged in protected activity), abrogated in part on other grounds, 490 U.S. 228 (1989). In any event, in light of the events of the prior week, the temporal proximity between Plaintiff's hastily scheduled EEO Meeting and her termination does not support a reasonable inference that Plaintiff would not have been terminated but for her EEO activity. See Tedder, 2022 WL 909397, at *5.

Plaintiff also argues that the Letter of Counseling, which Cantrell apparently issued in the early afternoon on Monday, July 17, 2017 [Doc. 52-3; 58-1 ¶ 10; 58-8 at 19], tended to show that the decision had not yet been made to terminate Plaintiff [Doc. 58 at 27-28]. Again, however, whether Caldwell had finally decided to terminate Plaintiff is immaterial. Clearly, as the July 17 Email indicates, Plaintiff's termination was already being contemplated before Plaintiff returned from the EEO Meeting. That Caldwell may have taken a few days to decide how to proceed after the events of the previous week would be no substantial reason for suspicion. See McKnight v. Pickens Police Dep't, No. 8:18-cv-03277-JD-JDA, 2022 WL 1057188, at *7 (D.S.C. Feb. 11, 2022) (noting that “there [was] nothing suspicious about” the decision maker “taking time to consider how to respond” to an employee's misconduct), Report and Recommendation adopted by 2022 WL 807161 (D.S.C. Mar. 17, 2022), aff'd, 2022 WL 17729227 (4th Cir. Dec. 16, 2022).

In the end, the Court's analysis of Plaintiff's Title VII claim that she was terminated as retaliation for engaging in protected conduct is similar to its analysis of her Title VII claims that she was terminated based on her sex and race. Given the Court's conclusions that Plaintiff has failed to create a fact issue regarding whether the Visit was a genuine basis for her termination during her probationary period; that she has created only a fairly weak fact issue as to whether the Dial-In was also a genuine basis for her termination; that there was strong evidence forecasted that Caldwell resented Plaintiff for reasons apart from her engaging in protected conduct; and that there was little evidence forecasted that Caldwell bore animus toward Plaintiff based on her protected conduct⁴¹; the Court recommends that Defendant's summary judgment motion be granted as to Plaintiff's Title VII claim that she was terminated in retaliation for engaging in protected conduct.

41 As noted, even if the termination process began on the same day that Caldwell learned of the EEO Meeting, the timing is not particularly suspicious given the events of the days preceding the meeting.

In sum, for all of these reasons, the Court recommends that Defendant's summary judgment motion be granted as to each of Plaintiff's Title VII claims that are based on her termination.

Hostile Work Environment Claim

Defendant also argues that it is entitled to summary judgment to the extent that Plaintiff alleges she was subjected to a hostile work environment based on her sex or race. [Doc. 52 at 21-24.] The Court agrees.

As part of its prohibition on race and sex discrimination, Title VII also prohibits creating or allowing a hostile work environment based on race or sex. See Baqir v. Principi, 434 F.3d 733, 746 n.14 (4th Cir. 2006). To prove a hostile work environment, “a plaintiff must show that there is (1) unwelcome conduct; (2) that is based on the plaintiff's race [or sex]; (3) which is sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer.” Boyer-Liberto, 786 F.3d at 277 (alteration and internal quotation marks omitted). In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Supreme Court reaffirmed the standard for determining when a plaintiff has established a hostile work environment, stating that a plaintiff must establish that the environment was “both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher, 524 U.S. at 787. Actionable harassment occurs when the workplace is “permeated with ‘discriminatory intimidation, ridicule, and insult.'” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)). Title VII is not a “general civility code.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). In determining whether a hostile work environment exists, courts to examine the totality of 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.” Faragher, 524 U.S. at 787-88 (internal quotation marks omitted). Additionally, the Fourth Circuit has noted:

Workplaces are not always harmonious locales, and even incidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard. Some rolling with the punches is a fact of workplace life. Thus, complaints premised on nothing more than 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 under Title VII.

E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315-16 (4th Cir. 2008) (alterations, internal citations, and internal quotation marks omitted).

In this case, Plaintiff does not appear to offer any argument that she was subjected to a hostile work environment based on her sex. [Doc. 58 at 33-34.] She testified that she did not believe that her sex was a factor in Bowen's treatment of her. [Doc. 58-8 at 14.] And, to the extent that she would seek to rely on her testimony that Caldwell made “derogatory comments about men being better than women, smarter, [and] stronger” [Doc. 52-1 at 174; see id. at 175], those mere “offensive utterance[s]” fall far short. Faragher, 524 U.S. at 788. Accordingly, to the extent that her hostile environment claim alleges a hostile environment based on her sex, Defendant is entitled to summary judgment.

Although her argument is brief, it appears she bases her racially hostile environment claim on her repeated complaints of racial harassment by Bowen and on Cantrell's and Caldwell's failure to protect her from it. [Doc. 58 at 32-34.] However, no reasonable factfinder could conclude that the Bowen's rude treatment of Plaintiff resulted in a work environment “permeated with ‘discriminatory intimidation, ridicule, and insult.'” Harris, 510 U.S. at 21. Bowen and Plaintiff did not like each other, and Bowen resented Plaintiff's attempts to control the way that she did her job. What resulted between the two were weekly unpleasant communications in which Bowen often raised her voice. [E.g., Doc. 588 at 12.] There was no suggestion that Bowen's rude treatment of Plaintiff was physically threatening or humiliating. Bowen never uttered racial epithets or made racially disparaging comments during these altercations.⁴² Rather, the record reflects that they were simply heated arguments with a person who was known to treat everyone poorly. [Doc. 52-1 at 157; 58-8 at 14; 58-11 at 6-8, 27.] And Plaintiff stated in the February 2018 Declaration that the harassment she alleged was not sufficient to impact her work performance. [Doc. 28 at 26.] Accordingly, to the extent Plaintiff alleges a hostile work environment based on her race, Defendant is entitled to summary judgment.

42 Plaintiff argues that an employee can be subjected to a racially hostile work environment even if the harassing behavior is facially neutral. [Doc. 58 at 32.] Plaintiff is correct that “harassment need not be accompanied by a contemporaneous statement of animus to be actionable under Title VII-rather, the connection between animus and conduct may be inferred from the totality of the circumstances.” Strothers v. City of Laurel, Md., 895 F.3d 317, 330-31 (4th Cir. 2018). Still, the lack of any overt racially offensive conduct significantly reduces the severity of the conduct. See Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 186 (4th Cir. 2004) (noting that the plaintiff conceded that “no one in the . . . workplace used racial epithets, racially derogatory terms, or demeaning racial characteristics, or stereotypes with respect to him or any other persons, in his presence” and holding that the plaintiff's claim “fails because it is based on professional frustrations, not personal racial attacks” (internal quotation marks omitted)), abrogated on other grounds by Green v. Brennan, 578 U.S. 547 (2016).

In sum, for the aforementioned reasons, the Court recommends that Defendant's summary judgment motion be granted as to Plaintiff's hostile work environment claim as well.

CONCLUSION AND RECOMMENDATION

Wherefore, based upon the foregoing, the undersigned recommends that

Defendant's motion for summary judgment [Doc. 52] be GRANTED.⁴³

43 The Court notes that the Complaint alleges that “[a]ccording to policy and law, [Plaintiff] was required to have Due Process for Local Removal”; that “Defendant failed to comply with security regulations regarding the local removal of access”; and that Defendant “violated the law[ and its own] policies and procedures . . . by revoking [Plaintiff's] security clearance without due process.” [Doc. 1 ¶¶ 57, 58, 73.] Defendant argues that, despite these allegations, Plaintiff has not forecasted any evidence that her security clearance was revoked, only that her local access was removed. [Doc. 63 at 2 n.4.] Additionally, Defendant argues that Plaintiff has failed to plead a claim for procedural and due process violations and failed to specifically identify the regulations that she alleged were violated; that she has failed to administratively exhaust such a claim; and that any such claim would be precluded in any event in this Court by Department of Navy v. Egan, 484 U.S. 518 (1988), and its progeny. [Doc. 63 at 2-3 n.4.] The Court agrees that Plaintiff has failed to plead a separate claim for procedural and due process violations and failed to specifically identify the regulations that she claims were violated. See Gillaspie v. Spencer, No. 2:18-cv-02207-DCN-MGB, 2020 WL 772655, at *5-6 (D.S.C. Feb. 18, 2020) (ruling that the plaintiff had not adequately pled a claim that the Navy had committed procedural violations in suspending her security access when her complaint alleged violations of several employment discrimination statutes but no separate cause of action for a procedural violation and did not allege the particular procedure or regulation that the Navy allegedly violated).

IT IS SO RECOMMENDED.