Opinion
Civil No. CCB-05-0833 ECF Exempt.
October 26, 2005
MEMORANDUM
Now pending before the court is defendant's motion to dismiss, or in the alternative, for summary judgment. The issues have been fully briefed and no hearing is necessary. Local Rule 105.6. For the reasons that follow, the defendant's motion will be granted.
BACKGROUND
In this employment discrimination claim, Dorothy Bivins ("Bivins") has brought claims under the Age Discrimination in Employment Act (ADEA), the Rehabilitation Act, and Title VII of the Civil Rights Act of 1964 (Title VII) for alleged treatment by her employer, the Federal Bureau of Investigation (FBI). Bivins was employed as a Applicant Case Program Specialist, an administrative support position, in the Bureau Support Applicant Unit. In 1998, Bivins began to have health problems, including hypertension, which she claims were a result of the stress related to the position. (Def's Mot. to Dismiss, Ex. 1, Bivins Statement.) She also claims to have "borderline diabetes" and that her medical condition was hindering her performance at work. (Pl's Complaint and Supp. Complaint.) In hopes of improving her situation, in 1998 Bivins requested a lateral transfer to a different position as a Personnel Security Specialist (PSS). (Def's Mot. to Dismiss, Ex. 1, Bivins Statement.) Defendant concedes that Bivins's former supervisors did not oppose her requested transfer (Def's Mot. to Dismiss, Ex. 2, Brice Statement), but unit reorganizations in early 1999 resulted in Bivins's transfer to a different unit, not the one she requested, with increased responsibilities and a new supervisor. (Def's Mot. to Dismiss, Ex. 1, Bivins Statement.) This new supervisor, Williams, did not support the requested transfer to the PSS position. (Def's Mot. to Dismiss, Ex. 3, Williams Statement.) The government claims that Williams's actions were based on a management decision that, in light of the reorganization, all personnel should remain in their positions until Williams could assess the unit's performance and decide what transfers would be the most efficient utilization of personnel resources. ( Id.)
Bivins alleges a different motivation. She claims that the denial of her preferred transfer request, as well as a poor performance rating and subsequent denial of a pay grade increase, were all discriminatory. She alleges that she was discriminated against based on her age, her disability, and in retaliation for her engaging in the protected activity of requesting a reasonable accommodation.
Bivins was born on April 26, 1946.
With her initial transfer request being rejected, Bivins, in February of 1999, informed Williams that she "would not jeopardize [her] health for something she feels is harassment," and that she would just not report to work if it got too stressful. (Def's Mot. to Dismiss, Ex. 8, 2/25/1999 Correspondence.) A month thereafter, in March of 1999, she again requested a transfer to PSS as a reasonable accommodation. (Def's Mot. to Dismiss, Ex. 1, Bivins Statement.) Her specific request was denied, but the FBI's Office of Equal Employment Opportunity Affairs (EEOA) recommended that she be accommodated by either a reduction in hours or an advance of sick leave for any needed treatment. (Def's Mot. to Dismiss, Ex. 8, EEOA Determination.) In doing so, the EEOA maintained that the FBI had no legal obligation to honor Bivins's request or their recommendation. ( Id.) In between the time that Williams became Bivins's supervisor and the EEOA's decision in September of 1999, the government alleges that Bivins's performance suffered. Williams counseled Bivins on her performance, including a March 29, 1999 progress review where she was informed that her progress was "less than minimally acceptable." (Def's Mot. to Dismiss, Ex. 8, Performance Appraisal Rebuttal.) Following a subsequent April meeting with Williams where her poor performance and increasing stress were again discussed, Bivins suffered a high blood pressure attack and was taken to the hospital. (Def's Mot. to Dismiss, Ex. 1, Bivins Statement.) She did not return to work until July of 1999. ( Id.)
Williams did not make this decision. Her request was rejected by the FBI's Office of Equal Employment Opportunity Affairs. (Def's Mot. to Dismiss, Ex. 8, EEOA Determination.)
Upon her return, Bivins again had a new supervisor, Brice. On August 27, 1999, Brice gave her a performance appraisal rating of "minimally acceptable" and she was denied a "within-grade" pay increase, which the government explains was based on Brice's own observations and documentation and input from Williams. ( See Def's Mot. to Dismiss, Ex. 6, Performance Appraisal Report;Id., Ex. 2, Brice Statement). Bivins disputed the ratings internally, but they were ultimately sustained, through two levels of review, on April 9, 2001. (Def's Mot. to Dismiss, Ex. 7, PRAU Affirmance). Subsequently, Bivins filed a formal EEO complaint on May 25, 2001, claiming discrimination on the basis of age, disability, and retaliation. (Pl's Supp. Complaint, Ex. 2., EEOC Complaint.) The EEOC ruled against her, first dismissing the claims related to the August 1999 performance rating and the related denial of a pay grade increase as untimely, and ultimately ruling against her on the remaining retaliation claim. Bivins appealed to the Office of Federal Operations (OFO) and unsuccessfully asked for reconsideration of OFO's upholding of the decision. ( See Id. at Ex 1, Denial of Request for Reconsideration). This last step, on January 11, 2005, started her 90-day clock for filing this action, which was filed on March 28, 2005.
ANALYSIS
The government has moved to dismiss Bivins's claim or, in the alternative, for summary judgment. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) ("The party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'") Accordingly, summary judgment is generally a more appropriate standard of review once the facts have been elicited through the development of the record, whereas a motion to dismiss standard generally tests the sufficiency of the pleadings alone. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999) ("a Rule 12(b)(6) motion is to test the sufficiency of a complaint; importantly, a Rule 12(b)(6) motion does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses") (internal quotation marks and alterations omitted). While the record is not extensive, it has been developed, submitted, and considered. The court will therefore decide this matter on summary judgment.
The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion:
By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
The court must "view the evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or assessing the witness' credibility," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002), but the court also must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
I.
The government argues that there are several grounds upon which dismissal or summary judgment could be granted. They contend that Bivins did not exhaust all administrative remedies, that the actions complained of do not constitute "adverse employment actions," that, in any event, Bivins has failed to make out a prima facie case for any of her three claims, and that they have presented legitimate non-discriminatory reasons for their decisions against which Bivins has presented no evidence of pretext. Even if Bivins could overcome the government's charge of lack of exhaustion, which is possible here, her claim must fail on other grounds.
Whether Bivins untimely contacted an EEOC counselor, see 29 C.F.R. § 1614.105(a)(1) ("an aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action."), and thus failed to exhaust available administrative remedies is not as clear as the government suggests, depending on what is determined to be the appropriate triggering date and the possibility of equitable tolling principles. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); Zografov v. V.A. Medical Center, 779 F.2d 967, 968-69 (4th Cir. 1985); Moret v. Harvey, 381 F.Supp.2d 458, 467-69 (D.Md. 2005); Pueschel v. Veneman, 185 F.Supp.2d 566 (D.Md. 2002). For example, the government, in arguing untimeliness here, makes no mention of the later April 9, 2001 final decision, a date that could, if used, defeat the government's exhaustion claim. See e.g., Lendo v. Garrett County Bd. of Educ., 820 F.2d 1365, 1367 (4th Cir. 1987); see also E.E.O.C. v. City of Norfolk Police Dept., 45 F.3d 80, 84 (4th Cir. 1995). Instead, the government only references the initial August 27, 1999 appraisal. Later, in arguing that too much time has passed between her initial requests for transfer and the FBI's allegedly retaliatory action, the government instead relies upon the later April 9, 2001 date. In any event, the court, without deciding, will assume her EEOC contact was timely and that she exhausted her administrative remedies.
A.
Defendant contends that Bivins has failed to make out a prima facie case for discrimination under any of the three statutes invoked, the ADEA, the Rehabilitation Act, and Title VII. As a threshold issue, the defendant argues that the actions complained of are not "adverse employment actions," as required to make out a prima facie case. The government is not entitled to judgment, however, on the issue of the existence of an adverse employment action. While it is unlikely, but possible, that the denial of Bivins's transfer request was an adverse employment action, her negative performance evaluation, leading to the denial of the "within-grade" pay increase does constitute an adverse action. See James v. Booz-Allen Hamilton, Inc., 368 F.3d 371, 377 (4th Cir. 2004) (holding that a negative performance evaluation itself could affect a term, condition, or benefit of employment if the employer subsequently uses the evaluation as a basis to detrimentally alter the terms and conditions of that employment) (citing VonGunten, 243 F.3d at 867). The court, therefore, assumes that the adverse employment action element of her various prima facie claims is met.
The government is correct that, "absent some decrease in compensation, job title, level of responsibility, or opportunity for promotion, reassignment to a new position commensurate with one's salary level does not constitute an adverse employment action even if the new job does cause some modest stress not present in the old position." Boone v. Goldin, 178 F.3d 253, 256-57 (4th Cir. 1999). However, it is not clear that what Bivins complains of is merely "some modest stress," and courts have also held that refusal of a requested transfer could constitute an adverse employment action where it resulted in a "significant detrimental effect." See Wagstaff v. City of Durham, 233 F.Supp.2d 739, 745 (M.D.N.C. 2002) (citing Boone, 178 F.3d at 256). There may be a genuine issue of material fact as to whether the effects on Bivins, including her arguably job-related hypertension attack that required being rushed to the hospital, were "significantly detrimental." In any event, the court need not decide this issue.
B.
First, it should be noted that, while Bivins appears to raise her retaliation claim under Title VII, she makes no allegation that she was discriminated against on any impermissible grounds other than age or disability. That Title VII provides for a retaliation claim is clear, and may explain Bivins's confusion. Because retaliation is similarly prohibited under the Rehabilitation Act and the ADEA, the court will later consider her retaliation claim as falling under those acts. Further, the court will construe her disability-related claims as both retaliation claims and refusal-to-accommodate claims. Additionally, to the extent Bivins makes disabilityrelated allegations beyond retaliation and refusal-to-accommodate — e.g., that her poor performance ratings were based on her disability — the court's analysis will apply to those claims as well.
To make out a prima facie case of retaliation, Bivins must show (1) that she engaged in a protected activity; (2) that her employer took an adverse employment action against her; and (3) that a causal connection existed between the protected activity and the asserted adverse action. See Hooven-Lewis, 249 F.3d at 272. As "retaliation" claimants are not required to demonstrate that they are "disabled," failure to meet the definition of "disability" under the statute does not foreclose a retaliation claim. Therefore, Bivins' retaliation claims will be taken up separately.
A prima facie case in a failure-to-accommodate claim requires the plaintiff to show that: (1) she was an individual who had a disability within the meaning of the statute; (2) her employer had notice of the disability; (3) with reasonable accommodation she could perform the essential functions of the position; and (4) her employer refused to make such accommodations. See Rhoads v. Federal Deposit Ins. Corp., 257 F.3d 373, 387 n. 11 (4th Cir. 2001). The court, finding that Bivins is not "disabled" within the meaning of the statute, does not address the reasonableness of the accommodation here.
As to her claims of discrimination on the basis of disability, the government is correct that Bivins simply does not meet the definition of disability under the Rehabilitation Act, a critical element of the prima facie case. To be disabled under the Rehabilitation Act, an individual must demonstrate that she "(i) has a physical or mental impairment which substantially limits one or more of such person's major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment." 29 U.S.C. § 705(20)(B). To meet the Rehabilitation Act's definition of a "major life activity," the activity must be one that is "of central importance to daily life." See Toyota Motor Mfg., Ky., Inc., v. Williams, 534 U.S. 184, 197 (2002). Diabetes, one of the conditions from which Bivins asserts she suffers, may qualify under the act as a physical impairment, but Bivins must still show that the condition substantially limits a major life activity. Working may constitute a major life activity, see Sutton v. United Air Lines, Inc., 527 U.S. 471, 492 (1999), and Bivins seems to be alleging that her various conditions substantially limited her ability to do the job in which she found herself placed. Inability to perform a single particular job, however, does not constitute a substantial limitation in the major life activity of working. Id. (citing 29 CFR § 1630.2(j)(3)(i)); see also Haulbrook v. Michelin N. Am., Inc., 252 F.3d 696, 703-04 (4th Cir. 2001). Bivins specifically points to her claimed inability to handle the conditions of one job in particular, while expressly requesting transfer to another position in the same agency.
Again, this conclusion does not foreclose Bivins's retaliation claim, which will be considered separately.
Far from meeting the requirement that the disability substantially limit the ability to do a "broad class of jobs," see Wood, 339 F.3d at 686, Bivins only directs the court to this one position, while fighting for another position within the same class of jobs. Moreover, Bivins does not point to any other major life activities that were affected by any of her conditions. As Bivins is not "disabled" under the act, her disability-based claims must fail.
C.
To make out a prima facie case of retaliation, Bivins must show (1) that she engaged in a protected activity; (2) that her employer took an adverse employment action against her; and (3) that a causal connection existed between the protected activity and the asserted adverse action. See Hooven-Lewis, 249 F.3d at 272. With respect to retaliation, the government challenges Bivins's showing on all three prongs. As discussed previously, summary judgment is not appropriate on the issue of whether Bivins suffered an "adverse employment action." As to whether she engaged in a "protected activity," the government appears to misconstrue the activity upon which Bivins relies. The "protected activity" does not appear to be, as the government suggests, her insistence that she might not report to work if she felt too stressed. Rather, her request for a transfer, which the court construes as a request for reasonable accommodation, appears to be the protected activity claimed. Further, it is clear that a request for reasonable accommodation is a protected activity under both the ADA and the Rehabilitation Act. See Haulbrook, 252 F.3d at 706 n. 3; see also Wright v. CompUSA Inc., 352 F. 3d 472, 478 (1st Cir. 2003) Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 191 (3d Cir. 2003); Selenke v. Medical Imaging of Colorado, 248 F.3d 1249, 1265 (10th Cir. 2001).
It appears that Bivins asserts her retaliation claim under the Rehabilitation Act, as her "protected activity" seems to be her request for a reasonable accommodation and the alleged retaliation appears to be the denial thereof and possibly the negative appraisal. However, if her retaliation claim could somehow be construed as coming under the ADEA, the court notes that the same basic analysis would apply and the same outcome would attach. See Fogelman v. Mercy Hosp. Inc., 283 F.3d 561, 567-68, 93 (3rd Cir. 2002) (noting that to establish a prima facie case of illegal retaliation under the ADA or the ADEA, an employee must show: (1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee's protected activity; and (3) a causal connection between the employee's protected activity and the employer's adverse action. Therefore, this section address Bivins's ADEA claim as well.
The government discusses Peeples v. Coastal Office Products Inc., 203 F.Supp.2d 432, 466 (D.Md. 2002), in support of its contention that Bivins did not engage in a protected activity. There, plaintiff's informal email to his employer referencing his belief that he was protected under the ADA was found not to qualify as a protected activity. Here, Bivins had various communications with her employer which, especially at the summary judgment stage, can be construed as making a reasonable accommodation request for a lateral transfer, due to her health concerns. ( See Def's Mot. to Dismiss, Ex. 1, Bivins Statement.)
The government's challenge under the third prong remains. Specifically, the issue is whether there was a causal connection between the protected activity and the asserted adverse action. The government is correct that the time elapsing between the protected activity and the adverse action is relevant here. See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998). The Fourth Circuit has held that a six-month lag time between the protected activity and the alleged retaliation is sufficient to negate any inference of causation. See Hooven-Lewis v. Caldera, 249 F.3d at 278. Conversely, evidence that the alleged adverse action occurred shortly after an employer became aware of the protected activity can be sufficient to satisfy the burden of making a prima facie case. See Dowe, 145 F.3d at 657. The passage of as much as four months may still be sufficient temporal proximity to infer a causal connection. See Allen v. Rumsfeld, 273 F.Supp.2d 695, 708 (D.Md. 2003).
Here, the government now points to the later April 9, 2001 final affirmation of the performance review as the alleged retaliatory action in order to claim that more than a year passed between the act and the protected activity of requesting a reasonable accommodation, which the government contends occurred on January 18, 2000. There is more than one reasonable characterization of the record, however, for determining the dates of both the protected activity and the alleged retaliatory action. Comparing the performance evaluation date of August 27, 1999, as the government itself uses to argue that Bivins was untimely in reporting to the EEOC, to Bivins's March 1999 request for a reasonable accommodation, the passage of time is much shorter. ( See Def's Mot. to Dismiss, Ex. 1, Bivins Statement.) Moreover, using Bivins's subsequent reiteration of the request directly to Williams in April of 1999, the lapse of time is shorter still. Further, it is not just the negative appraisal that Bivins contends was retaliatory. Rather, she also charges that the denial of the requested transfer was a retaliatory act. ( See Pl's Complaint and Supp. Complaint.) With respect to that denial, Williams himself states that, around approximately February 1999, he became aware of arrangements already being made for Bivins's transfer, and that he was aware of her health conditions. ( See Def's Mot. to Dismiss, Ex. 3, Williams Statement.) His own account of the event, along with Brice's statement, suggest that Williams's decision to deny the accommodation and remove the job posting for Bivins's replacement was roughly contemporaneous with his discovery of her request for transfer. ( See Def's Mot. to Dismiss, Ex. 2 and 3, Williams and Brice Statements.) The government's characterization of the relevant timing is just one of several reasonable characterizations. In any event, drawing all inferences in favor of the non-movant plaintiff, the court will infer a causal connection for the purposes of establishing a prima facie case.
A prima facie case being assumed, however, the government has put forward legitimate non-discriminatory reasons for the challenged actions, namely Bivins's poor performance with respect to the evaluations and denied raise, and legitimate management prerogatives with respect to the denied transfer. See McDonnell Douglas Corp. v. Green, 411 US 792, 802 (1973); ( See Def's Mot. to Dismiss, Ex. 3, Williams Statement.) Those reasons being put forth, Bivins, in order to survive summary judgment, must present evidence that the FBI's proffered explanation is pretextual. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000). Bivins has made general assertions that her employer's actions were based on her age and disability, but has put forth no specific allegations explaining why that might be the case. Moreover, there is no actual evidence on the record to suggest that the decision was based even in part on her age or claimed disability, or as retaliation for her requested accommodation. To the contrary, Bivins herself also repeatedly alleges that "politics" and Williams's desire to mask his own incompetence were to blame. ( See e.g., Pl's Response in Opp'n.) Even drawing every inference in favor of Bivins, there is simply not sufficient indication that the government's asserted reasons were pretextual for her to survive summary judgment. Absent any showing of pretext, Bivins's claim fails.
A separate order follows.
The allegations with respect to age discrimination are especially bare. Bivins has only intermittently alleged age discrimination, and even then, she has done so generally and with mere conclusory assertions.
While the above discussion focused on Bivins's retaliation claim, to the extent that she seeks to make an ADEA claim based on something other than retaliation, for example, that her poor evaluations were simply the result of age animus, such a claim would also fail for lack of a showing of pretext. The court, therefore, does not address the government's contention that Bivins fails to make out a prima facie case under the ADEA.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED:1. the defendant's motion for summary judgment (docket entry no. 13) is Granted;
2. copies of this Order and the accompanying Memorandum shall be sent to Dorothy Bivins and counsel of record; and
3. The Clerk shall CLOSE this case.