Opinion
Civil No. H-99-1412
June 8, 2000.
MEMORANDUM OPINION
Plaintiff Melva Tuggle-Owens is an African-American female who is presently employed by an agency within the United States Department of Health and Human Services ("HHS"). She has here sued defendant Donna Shalala, Secretary of the HHS, under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII") and also under 42 U.S.C. § 1981.
Count I is brought under Title VII and alleges that plaintiff has been continuously and significantly harmed by numerous adverse employment actions taken against her by defendant's agents and management employees. Count II alleges similar claims under § 1981. As relief, plaintiff requests that she be retroactively promoted and that she be awarded back pay and compensatory damages as well as attorneys' fees and other relief.
Pursuant to a Scheduling Order entered by the Court, the parties have engaged in discovery. Presently pending before the Court is defendant's motion to dismiss or for summary judgment. The parties have submitted memoranda, affidavits and numerous exhibits in support of and in opposition to the pending motion. A hearing on the motion has been held in open court. For the reasons stated herein, the Court has concluded that defendant's motion for summary judgment must be granted.
I Background Facts
The facts and all reasonable inferences drawn therefrom will be viewed in the light most favorable to plaintiff as the party opposing the pending motion. Ross v. Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985).
Owens is an African-American woman who began her career in 1967 as a clinical nurse with the Public Health Service ("PHS"), which is a constituent unit of the Health Resources and Services Administration ("HRSA") within the HHS. Since July 1978, Owens has been a Commissioned Officer ("CO") of PHS, and since 1988, she has held the temporary rank of Commander (CO-05).
In July 1986, Owens was assigned to the Division of Maternal and Child Health (the "Division"), which was then a branch of the Bureau of Health Care Delivery and Assistance ("BHCDA"), another arm of the HRSA. In January 1987, Owens submitted to the Division of Commissioned Personnel an application for so-called "Long-Term Training" ("LTT"), requesting supported leave to complete a doctorate degree in nursing science. This application was denied or deferred by the Division director because there was not a strong enough connection between Owens' prior work experience and the subject of her proposed LTT.
On October 1, 1987, there was a reorganization of the HRSA. The Division was transferred from the BHCDA and was merged into the preexisting Bureau of Resource Development, another arm of the HRSA. The new merged entity was eventually renamed the Bureau of Maternal Child Health and Resource Development ("BMCHRD").
In 1988, Owens again applied for LTT. On this occasion, her request was approved by Dr. David Heppel, Director of the Division, and by Dr. Vince Hutchins, Associate Director of the Division. Owens was informed by Dr. Heppel and Dr. Hutchins that although they supported her training, their Division itself lacked the funding to support her training. As such, her training was to be funded directly by the Office of the Bureau Director of the BMCHRD. The Bureau Director of the BMCHRD was Dr. Daniel Whiteside. Dr. Heppel and Dr. Hutchins were allowed by the BMCHRD to temporarily backfill any position which would be open during the several years that Owens would be undertaking LTT and which she might be seeking after completing her LTT.
According to the LTT Agreement entered into by Owens, "it was envisioned that the knowledge and skills to be acquired [by Owens] in a formal doctoral program in Nursing Science [would] best prepare [Owens] for a more responsible position with [the Division]." Further, the Agreement stated that "[u]pon completion of Officer Owens training she will most likely head activities involving Primary Care Activities in the Division." Owens left the BMCHRD in August 1988 to begin her LTT at George Mason University. Later, the position at the Division which she hoped to obtain after her LTT was temporarily backfilled.
On October 24, 1990, during Owens' absence from the BMCHRD, another reorganization occurred at the HRSA. The BMCHRD was abolished, and two new bureaus were created, namely the Maternal and Child Health Bureau ("MCHB") and the Bureau of Health Resources Development ("BHRD"). The position sought by Owens and the responsibility for funding her LTT were assigned to the BHRD. According to Owens, Dr. Heppel and Dr. Whiteside told her during the course of her LTT that upon completion of her training, she would be joining the MCHB. During Owens' LTT, the individual who was temporarily backfilling the position which she sought was made a permanent employee by Dr. Hutchins. In June 1991, Owens again inquired about the position to which she hoped to be assigned upon her completion of her LTT. She was informed by Dr. James Walsh, Deputy Administrator of the HRSA, that assignment to the MCHB, contrary to earlier statements made by Dr. Heppel and Dr. Whiteside, was not an "option." In early August 1991, Owens completed her LTT and returned to the HRSA. Upon her return, Dr. Walsh requested that Owens take a month of annual leave time because an official position had not yet been established for her at the HRSA. Owens agreed to take two weeks leave.
In late August 1991, Owens returned from her two week leave and was ordered to report to Emily Haley in the Office of Program Development ("OPD") at the BHRD. No official position or duties were assigned to her at that time. In November 1991, William Aspden, Deputy Bureau Director of the BHRD, created a new position at the BHRD known as the Minority Health Initiatives Officer. Owens was placed in this position which was rated at the GS-13 (CO-05) level. According to Owens, Dr. Heppel and Dr. Whiteside had, prior to her return, promised her that she would be assigned to a position at the GS-14 (CO-06) level. The duties assigned to Owens as Minority Health Initiatives Officer did not provide her with the opportunity to participate in the formulation of maternal and child health policy at the HRSA. On April 13, 1992, Owens was informed during a meeting with Dr. Heppel that the Division had never really been supportive of her LTT and that if she wanted a position within the Division directly related to her LTT, she would have to compete for that position like everyone else.
On April 14, 1992, Owens initiated Equal Employment Opportunity ("EEO") counseling (the "1992 claim") based upon the circumstances surrounding her failure to be placed in a suitable position at the MCHB. Owens alleged that this failure was the result of disparate treatment racial discrimination and as retaliation for her having filed a complaint in 1985 against a male supervisor who attacked her. Owens further noted that she had agreed to dismiss the 1985 action on the condition that she would receive LTT and a subsequent assignment commensurate with her training and degree, something which did not occur.
On June 12, 1992, Owens received her annual Commissioned Officer's Effectiveness Report ("COER") for the period from September 1, 1991 to May 31, 1992 (the "1992 COER rating"). Haley, her immediate supervisor, was the rating official, and Dr. G. Stephen Bowen, the Bureau Director, was the reviewing official of Owens' COER. Owens received a below average COER rating of 63.
On June 19, 1992, Owens filed a formal EEO complaint with the HHS based upon her claim that she had been subjected to racial discrimination. Owens later amended her EEO complaint to allege that the low COER rating which she had received was a retaliatory act in response to her initiation of EEO counseling and in response to her continued insistence that she be assigned a position at the MCHB.
In August 1992, Owens was transferred to the Division of Nursing ("DoN"), a branch of the Bureau of Health Professionals ("BHPr") within the HRSA. Owens was supervised by Dr. Marcia Salmon, Director of DoN. Owens worked in the Nursing Education Opportunities for Students from Disadvantaged Backgrounds Grant Program ("NEOSDB"), a program at DoN administered by Helen Lotsikas, a white female. From the very outset, the working relationship between Owens and Lotsikas was less than cordial. Between 1992 and 1994, Owens regularly reported to supervisory officials at DoN the difficulties encountered by her in working with Lotsikas.
On October 31, 1994, Owens overheard Lotsikas making adverse comments about her to fellow co-workers at the NEOSDB. In response to these comments, Owens confronted Lotsikas in front of the co-workers with whom Lotsikas had been speaking, and the two engaged in a loud verbal altercation. Statements were exchanged concerning the ability of Caucasians to understand African-American family dynamics. After much bickering, the verbal altercation ended.
On November 3, 1994, Dr. Salmon, who was then the supervisor of both Owens and Lotsikas, called a meeting to discuss the verbal altercation which had occurred on October 31, 1994 (the "October incident"). Dr. Salmon began the meeting by indicating that based upon her investigation of the October incident including discussions with witnesses to the altercation, the behavior displayed by both Owens and Lotsikas had been disruptive and was unacceptable. Dr. Salmon stated that she was not interested in what had precipitated the incident, but that she was particularly concerned with how both individuals had acted in the presence of their support staff. Dr. Salmon also stated that witnesses interviewed by her had indicated that racial slurs had been exchanged both by Owens and by Lotsikas during the verbal altercation. Owens denied this and told Dr. Salmon that she had merely made reference to Lotsikas' perceived lack of "cultural sensitivity."
Nevertheless, Dr. Salmon informed both parties that, as a result of her investigation of the October incident, disciplinary action would be taken. She stated that she would be reassigning both Owens and Lotsikas outside DoN for a 90-day "cooling off" period. At the end of this "cooling off" period, both parties would be required to present a detailed plan to Dr. Salmon outlining how they planned on working together professionally in the future.
On November 7, 1994, Owens was reassigned to the Division of Associated Dental and Public Health Professionals for her "cooling off" period to work under the supervision of Dr. Susan Klein, a GS-12 Public Analyst who held a lower grade rating than Owens. Owens believed the work space to which she was assigned to be unsuitable and inadequate, and further considered the assignments she received as not being commensurate with her grade and experience. Owens also claimed that the assignment and the space provided to Lotsikas during this "cooling off" period were more favorable than those provided to Owens.
On October 3, 1994, paperwork was initiated with reference to promotions for Commissioned Corps personnel. Dr. Salmon drafted a document entitled "Conduct Memorandum," which was forwarded to both Owens and Lotsikas and which was included in their personnel files. Both Owens and Lotsikas were informed by way of this document that the conduct of each on October 31, 1994 "was disruptive, inappropriate and unbecoming of a professional representative of the [NEOSDB]." On November 29, 1994, Dr. Fitzhugh Mullan, Director of the BHPr, stated in his recommendations for Commissioned Corps promotions that Owens should not be promoted because of the October incident.
On January 5, 1995, Captain Fred Paavola addressed a memorandum to the Division of Commissioned Personnel entitled "Recommendation for Non-Promotion — Melva Owens" in which he also referred to "incidents" of unacceptable conduct by Owens resulting from the October incident. Paavola indicated that his non-recommendation was based on Owens' "unacceptable conduct in the last two months [which has] been disruptive, inappropriate and unbecoming of a professional." On January 17, 1995, Owens and Paavola had a conversation during which it was specifically made known to her that she had not been recommended for a promotion as the result of the October incident. Owens appealed her non-recommendation, and on March 31, 1995, the non-promotion recommendation was ordered stricken by Ciro Sumaya, Administrator of the HRSA. On January 26, 1995, Owens had initiated EEO counseling based upon the circumstances surrounding the October incident. Specifically, Owens alleged that, as a result of action taken by management because of the October incident, she was a victim of disparate treatment racial discrimination and of unlawful retaliation.
Following the "cooling off" period, Owens had been assigned to the Advanced Nursing Branch of DoN effective February 6, 1995 under the supervision of Dr. Thomas Phillips. She remained in that position until June 1995 when she was assigned to a position at the MCHB. Lotsikas meanwhile had been assigned back to her position within the NEOSDB. On April 17, 1995, Owens filed a formal EEO complaint with the HHS based on the circumstances surrounding the October incident.
In June 1995, Owens received her annual COER for the period from September 1, 1994 to May 31, 1995 ("1995 COER rating"). Dr. Phillips was the rating official and Dr. Salmon was the reviewing official. Owens received a COER score of 69 for an overall rating of "Competent." Although her 1995 COER rating indicated that she was qualified for promotion, it further stated that the quality of her work was often inaccurate, that her effectiveness was limited by her absences from work and her focus on personal business while at work, and that she wore her PHS uniform less often than required or wore it inappropriately. Her 1995 COER rating was placed in Owens' personnel file on July 21, 1995.
In the ranking of Commissioned Corps candidates for promotions during 1996, Owens was ranked 52 out of 79 persons considered for promotion. This ranking was based on the COER ratings received by Owens for the years from 1992-1996. In a memorandum dated June 19, 1996, Owens was informed that she had not been promoted because there were more CO's with higher ratings than there were available promotion positions. Out of the 79 candidates considered for promotion, only 15 were promoted.
Although more than 180 days have passed since Owens filed her two formal complaints with the HHS, no final agency action has been taken on either claim. On May 18, 1999, Owens filed this civil action in this Court seeking relief under Title VII and under § 1981.
II Plaintiff's Claims
Plaintiff's complaint contains two counts. Count I seeks relief under Title VII and alleges claims of disparate treatment and unlawful retaliation. Count II seeks relief under § 1981 and also alleges claims of disparate treatment and unlawful retaliation. Discriminatory acts are alleged to have occurred in two separate time periods, namely in 1991-1992 and in 1994-1996. Plaintiff contends that defendant took numerous discriminatory adverse employment actions against her during these two separate time periods.
Plaintiff alleges in Count I in support of her disparate treatment claims that during the 1991-1992 period the following adverse employment actions were taken against her by defendant: (1) denying plaintiff a leadership position at the MCHB upon her return from LTT in August of 1991; (2) denying plaintiff the right to return to her original job location at the MCHB upon her return from LTT; (3) denying plaintiff upon her return from LTT the right to be placed in a similar position as she had held prior to leaving for LTT; (4) denying plaintiff the right to be placed in a position at the PHS which would allow her to demonstrate the professional research skills and knowledge of maternal and child health issues gained by her as a result of her LTT; (5) denying plaintiff the right to further enhance her career as a CO by placing her upon her return from LTT in a position outside of the MCHB which was not commensurate with her level of training and education; (6) placing in plaintiff's personnel files false and defaming information; and (7) denying plaintiff the right to be placed in vacant positions at the MCHB commensurate with her skills, training and interest and instead forcing her to compete for those positions.
In support of her claim of unlawful retaliation occurring in 1992, plaintiff alleges that defendant took adverse employment action against her by issuing her a below average COER rating for 1992.
During the 1994-1996 period, plaintiff alleges in support of her disparate treatment claims that the following adverse employment actions were taken against her by defendant: (1) subjecting plaintiff to discipline more severe than that imposed on Lotsikas as a result of the October incident; and (2) subjecting plaintiff to discipline more severe than that imposed on white persons who engaged in verbal altercations similar to the October incident.
In support of her claim of unlawful retaliation occurring during the 1994-1996 period, plaintiff alleges that the following adverse employment actions were taken against her by defendant: (1) issuing plaintiff a low COER rating for 1995; (2) not recommending plaintiff for promotion in 1995; (3) including as a part of plaintiff's personnel file false information and criticisms which concerned plaintiff's conduct during the 1994-1995 period and which had adversely affected her promotion opportunities; and (4) failing to promote plaintiff in 1996 as a result of her COER scores for the previous five years.
III Summary Judgment Principles
The motion before the Court is a motion to dismiss or for summary judgment. Since both plaintiff and defendant in their memoranda and in argument have relied on evidentiary materials which form a part of the voluminous record in this case, the pending motion will be treated as one seeking summary judgment.
It is well established that a defendant moving for summary judgment bears the burden of showing the absence of any genuine issue of material fact and that it is entitled to judgment as a matter of law. Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir. 1984). Where, as here, the nonmoving party will bear the ultimate burden of persuasion at trial, "the burden on the moving party [at the summary judgment stage] may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
One of the purposes of Rule 56 of the Federal Rules of Civil Procedure is to require a plaintiff, in advance of trial and after a motion for summary judgment has been filed and properly supported, to come forward with some minimal facts to show that the defendant may be liable under the claims alleged. See F.R.Civ.P. 56(e). If the nonmoving party "fail[s] to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof," then "the plain language of Rule 56(c) mandates the entry of summary judgment." Catrett, 477 U.S. at 323.
While the facts and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the party opposing the motion, Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985), "when the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "`A mere scintilla of evidence is not enough to create a fact issue; there must be evidence on which a jury might rely.'" Barwick, 736 F.2d at 958-59 (quoting Seago v. North Carolina Theaters, Inc., 42 F.R.D. 627, 640 (E.D.N.C. 1966), aff'd, 388 F.2d 987 (4th Cir. 1967), cert. denied, 390 U.S. 959 (1968)). Moreover, only disputed issues of material fact, determined by reference to the applicable substantive law, will preclude the entry of summary judgment. "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In the absence of the necessary minimal showing by the plaintiff that the defendant may be liable under the claims alleged, the defendant should not be required to undergo the considerable expense of preparing for and participating in a trial. See Catrett, 477 U.S. at 323-24; Anderson, 477 U.S. at 256-57. Indeed, the Fourth Circuit has stated that, with regard to motions for summary judgment, the district courts have "an affirmative obligation . . . to prevent `factually unsupported claims and defenses' from proceeding to trial." Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (quoting Catrett, 477 U.S. at 323-24).
Applying these principles to the facts of record here, this Court has concluded that defendant's motion for summary judgment must be granted.
IV Applicable Law
In order to prevail on her Title VII claim of disparate treatment, plaintiff Owens must prove that, but for defendant's motive to discriminate, she would not have been subjected to the adverse employment actions alleged. Williams v. Cerberonics, Inc., 871 F.2d 452, 458 (4th Cir. 1989). Plaintiff may meet this burden under ordinary principles of proof using direct or indirect evidence or, in the alternative, under the judicially created proof scheme established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) and reaffirmed in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993).
There is no direct evidence in the record here of discriminatory intent on the part of defendant. Since the circumstantial evidence relied upon by plaintiff in this case is not of sufficient probative force to reflect a genuine issue of fact as to defendant's motive to discriminate on the basis of race, the Court must resort in this case to the McDonnell Douglas proof scheme to determine if plaintiff's Title VII claim for disparate treatment should proceed to trial. Under that scheme, plaintiff must first establish a prima facie case of discrimination in violation of Title VII. 411 U.S. at 802. If she does, the burden then shifts to the defendant to articulate a "legitimate, nondiscriminatory reason" for the employment action. Id. If defendant provides such a reason, the burden then shifts back to the plaintiff who must prove that the employer's proffered explanation is "a pretext for discrimination." St. Mary's, 509 U.S. at 515. However, the Fourth Circuit has adopted the so-called "pretext-plus" standard which must be applied by a court in ruling on a motion for summary judgment in an employment discrimination case. Gillins v. Berkeley Elec. Co-Op, Inc., 148 F.3d 413, 416 (4th Cir. 1998). To survive a defendant's motion for summary judgment, a plaintiff in a Title VII case like this one must adduce sufficient evidence both that the proffered, nondiscriminatory reason is false and that race discrimination is the real reason for her employer's failure to promote her. Id. at 417; Vaughan v. Metrahealth Companies, Inc., 145 F.3d 197, 201-02 (4th Cir. 1998).
In order to establish a Title VII claim of unlawful retaliation, plaintiff Owens must prove the following: (1) that she engaged in a protected activity; (2) that the employer took adverse employment action against her, and (3) that a causal connection existed between the protected activity and the adverse action. McNairn v. Sullivan, 929 F.2d 974, 980 (4th Cir. 1991).
V Discussion (a) Plaintiff's § 1981 Claims
As noted, plaintiff in this case has asserted claims both under Title VII and under § 1981. Since plaintiff is an employee of the federal government, she is not entitled to sue the Secretary of the HHS under § 1981. During oral argument, counsel for plaintiff conceded that her § 1981 claim must fail.
In Brown v. General Services Administration, 425 U.S. 820 (1976), the Supreme Court held that, unlike a private employee, a federal employee may not maintain a § 1981 suit against the United States based on a claim of discrimination in employment. Id. at 435. The Supreme Court stated that Title VII "provides the exclusive judicial remedy for claims of discrimination in federal employment." Id.
Accordingly, summary judgment in favor of defendant will be granted as to Count II of the complaint.
(b) Plaintiff's Title VII Claims
As noted, plaintiff relies in Count I of the complaint on numerous adverse employment actions which are alleged to have been taken against her by defendant and which were allegedly based on a supervisor's discriminatory animus. The critical question which the Court must therefore first determine in this case is whether any of the acts of plaintiff's supervisors which have been challenged by plaintiff in Count I amount to adverse employment actions as that term has been construed by the Fourth Circuit.
Employment discrimination laws require as an absolute precondition to suit that some "adverse employment action" has occurred. Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985). The leading Fourth Circuit case dealing with the requirements for determining under Title VII whether an employer has taken an "adverse employment action" against a plaintiff is Page v. Bolger, 645 F.2d 227 (4th Cir. 1981). In Page, the Fourth Circuit held that a court, in determining whether there has been discrimination with respect to "personnel actions" taken by the defendant, should focus on the question whether there has been discrimination "in what could be characterized as ultimate employment decisions such as hiring, granting leave, discharging, promoting and compensating." Id. at 233.
There are "many interlocutory or mediate decisions" which have no immediate effect upon employment conditions and which were not intended to fall within the proscriptions of Title VII. Page, 645 F.2d at 233. Mere inconvenience to an employee or an alteration in job responsibilities of an employee do not constitute adverse employment actions. Nichols v. Comcast Cablevision of Maryland, 84 F. Supp.2d 642, 654 (D.Md. 2000) (citation omitted). In Munday v. Waste Management of N. Am., Inc., 126 F.3d 239, 243 (4th Cir. 1997), the Fourth Circuit stated:
In no case in this circuit have we found an adverse employment action to encompass a [particular] situation . . . without evidence that the terms, conditions or benefits of [plaintiff's] employment were adversely affected.
Applying the principles of the applicable Fourth Circuit cases to the facts of record here, this Court concludes that plaintiff has not produced evidence indicating that, as alleged in Count I, defendant took any adverse employment action against her at any time during either the 1991-1992 period or during the 1994-1996 period. Plaintiff has submitted a lengthy laundry list of actions which were taken by her supervisors and which she claims were ultimate employment decisions actionable under Title VII. She contends that the acts in question amounted to disparate treatment or constituted unlawful retaliation against her after she engaged in protected activity. She complains, inter alia, that she was denied an appropriate leadership position after her return from LTT, that she was denied the right to be placed in a position allowing her to use her professional skills and to further enhance her career, that she was issued below average COERs, that she was criticized and defamed, that she was subjected to discriminatory discipline, and that she was not recommended for promotion in 1995. Neither singly nor in the aggregate do any of these events constitute ultimate employment decisions actionable under Title VII.
None of the occurrences relied upon by plaintiff in Count I can be characterized as ultimate employment decisions involving hiring, granting leave, discharging, promoting or compensating. Page, 645 F.2d at 233. The essential terms, conditions and benefits of plaintiff's employment were not adversely affected by actions taken by defendant when she returned from her LTT and later after she had engaged in protected activity. Her compensation has remained the same throughout. Reassignment to a new position commensurate with one's salary level does not constitute an adverse employment action, even if the new job is not considered by the employee to be as desirable as the old one. See Caussade v. Brown, 924 F. Supp. 693 (D.Md. 1996) (citing Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994)); see also Spring v. Sheboygan Area School Dist., 865 F.2d 883, 885-86 (7th Cir. 1989) (no adverse employment action where elementary school principal was transferred to a dual principalship over two elementary schools). Moreover, her supervisor's decision that plaintiff should compete with others for promotional positions did not constitute an ultimate employment action. Rather, this requirement was merely an interlocutory or mediate decision which does not fall within the proscription of Title VII.
Plaintiff contends that she was promised a leadership position following completion of her LTT. But this is not a breach of contract suit. The fact that a supervisor did not comply with an agreement made with plaintiff is not actionable under Title VII. In any event, evidence of record does not indicate that plaintiff was guaranteed a particular position after completing her LTT. When she returned to the agency after her LTT, Dr. Walsh, a different management official was in charge. That the expectation set forth in Owens' LTT agreement was never fulfilled is hardly evidence of a discriminatory animus. PHS Commissioned Corps regulations clearly provide that a CO is not guaranteed a particular position upon completion of long-term training. As established by the affidavit of John Biedenkapp, the needs of the agency have first consideration, and commissioned personnel are often given new assignments and work locations upon completion of training.
Biedenkapp was the Assistant Director of the Division of Commission Personnel, which was the agency responsible for processing the LTT applications of CO's.
During the three years when she was attending George Mason University, the position Owens sought was permanently filled because of the needs and requirements of the BMCHRD. During her absence, the BMCHRD was abolished, and two new bureaus were created. Thus, when she returned after having secured her doctoral degree, it was necessary for her to be employed by a different arm of the HRSA in a different position from the one occupied by her before her LTT.
Plaintiff complains that she was subjected to discriminatory treatment when she was disciplined as a result of the altercation with Lotsikas in October of 1994. But Lotsikas, a white female, was also disciplined as a result of this incident. Both individuals were transferred to different positions for a "cooling-off" period. It hardly constituted an adverse employment action when plaintiff was transferred to a position deemed by her to be inferior to that of Lotsikas. A transfer of job assignments involving no reduction in pay, mere inconvenience and no more than a minor change in working conditions, cannot rise to the level of a materially adverse employment action. Nichols, 84 F. Supp.2d at 654; Williams v. Bristol-Meyers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1966). Otherwise, "every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit." Id.
Plaintiff further contends that she was subjected to disparate treatment when her performance ratings were lowered, and she argues that such lowering constituted unlawful retaliation against her because she had filed charges of discrimination against her employer. However, the mere lowering of a performance rating or the mere awarding of an unsatisfactory rating are not adverse employment actions. vonGunten v. Maryland Dept. of Environment, 68 F. Supp.2d 654, 663 (D.Md. 1999); Settle v. Baltimore County, 34 F. Supp.2d 969, 1009-1010 (D.Md. 1999). In claiming that she was subjected to discriminatory treatment, plaintiff relies on the fact that her ratings were considerably lower when she returned from LTT than they had been before. But the high ratings she received in the years 1989 to 1991 had nothing to do with the performance of her duties as an employee of the HRSA. These earlier ratings were made while she was attending George Mason University. It was only when she returned and was evaluated by her supervisors on the basis of her actual performance within the HRSA that she received the lower ratings. The poor rating received by her in 1995 was in part reflective of the fact that she had been disciplined for her inappropriate behavior in October, 1994.
Her ratings for the years in question were as follows: 1989-92; 1990-100; 1991-97; 1992-62; 1993-82; 1994-91; and 1995-69.
Plaintiff claims that on occasion she was subjected to verbal harassment and unfair criticism by her supervisors. But verbal reprimands or critical comments made by a supervisor do not constitute ultimate employment actions which are actionable under Title VII. Lucas v. Cheney, 821 F. Supp. 374, 376 (D.Md. 1992). "Title VII does not prohibit all verbal or physical harassment in the workplace,. . ." Oncale v. Sundowner Offshore Services, Incorporated, 118 S.Ct. 998, 1002 (1998). Careful attention must be given by a court to the requirements of Title VII to avoid the risk of transforming the statute into "a general civility code for the American workplace." Id.
Plaintiff has argued that she was denied a promotion during the 1994-1996 period because of her race. Denial of a promotion is clearly an ultimate employment decision actionable under Title VII. Page, 645 F.2d at 233. The Court would note that plaintiff did not in Count I of her complaint list denial of a promotion as one of the adverse employment actions taken against her by defendant's agents and management employees. Nevertheless, the Court will broadly construe plaintiff's complaint as presenting that claim in Count I.
Count II does indeed allege that one of the harmful actions taken by defendant against plaintiff was the "denial of promotion."
In order to establish a prima facie case of discriminatory failure to promote, a plaintiff must show (1) that she is a member of a protected group; (2) that she applied for the position in question; (3) that she was qualified for the position; and (4) that she was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994); McNairn, 929 F.2d at 977. Evidence of record here does not indicate that plaintiff has met her burden of establishing a prima facie case of discriminatory failure to promote.
Plaintiff has not shown that she was qualified for a promotion during the 1994-1996 time period. In that period, 79 persons were considered to be eligible for promotions. Plaintiff was included in that group but was ranked 52nd. Only 15 persons were promoted. It is apparent that plaintiff did not receive one of these promotions because there were more COs with higher ratings than hers.
Plaintiff has not claimed that she was discriminatorily denied a promotion in the 1991-1992 time period.
In any event, even assuming that the Court were to find that plaintiff had made out a prima facie case of discriminatory failure to promote during the 1994-1996 time period, summary judgment in favor of the defendant would still be granted as to plaintiff's non-promotion claim. Defendant has in this case articulated legitimate, nondiscriminatory reasons for failing to promote plaintiff. In turn, plaintiff has presented no material evidence on which a juror could reasonably base a finding that intentional discrimination motivated the challenged employment action. Pertinent Fourth Circuit cases require that plaintiff must prove both that the proffered nondiscriminatory reason for the action is false and that race discrimination is the "real reason" for the adverse employment action taken against her. Gillins, 148 F.3d at 417; Vaughan, 145 F.3d at 201-02.
In claiming that evidence of discriminatory intent exists in this record, plaintiff relies on her own conclusory statements to such effect. She argues that disputes as to motive and intent present issues of fact for the jury to determine. However, plaintiff has the burden of proving discriminatory intent. In opposing defendant's motion for summary judgment, plaintiff may not rely on mere conclusory assertions or denials of evidence of record produced by defendant but must "set forth specific facts showing that there is a genuine issue for trial." Rule 56(e). This she has failed to do.
This is not a case in which a single supervisor has been charged with repeatedly taking discriminatory actions against a plaintiff. Here, plaintiff Owens has accused ten different supervisory officials of intentionally discriminating against her at different times because of her race. Many of these officials were employed in different divisions or branches of the HRSA. The complaint alleges that Dr. Salmon and numerous other responsible management officials entered into a continuing conspiracy to intentionally discriminate against and retaliate against plaintiff. However, the record here is devoid of evidence indicating that supervisory officials of defendant entered into a conspiracy to deny plaintiff rights guaranteed by Title VII.
Dr. Heppel, Dr. Hutchins, Dr. Whiteside, Dr. Walsh, Ms. Hailey, Dr. Salmon, Captain Paavola, Dr. Mullan, Dr. Phillips and Mr. Aspden have all been charged with intentionally discriminating against her.
For all these reasons, defendant is also entitled to the entry of summary judgment in its favor as to Count I of the complaint.
Defendant has also argued that plaintiff's disparate treatment claims are not justiciable because she did not timely seek EEO counseling as to those claims. Since the Court has concluded that defendant is entitled to summary judgment on the merits, it is not necessary to consider this alternative argument.
VI Conclusion
In sum, the Court has concluded that plaintiff may not proceed to trial in this case on the claims asserted by her in either Count I or Count II of the complaint. Plaintiff has not shown that defendant has discriminated against her on account of her race by taking actionable adverse employment actions against her. Nor has she shown that any one of her supervisors intentionally discriminated against her.Defendant's motion for summary judgment will accordingly be granted as to both counts of the complaint. An appropriate Order will be entered by the Court.
ALEXANDER HARVEY, JR. Senior United States District Judge