Opinion
C/A 4:20-cv-3655-JD-KDW
08-28-2023
Alphonso Hammett, Plaintiff, v. Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security, Defendant.
REPORT AND RECOMMENDATION (AS TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, ECF NO. 72)
Kaymani D. West United States Magistrate Judge
This employment-related matter is before the court for issuance of a Report and Recommendation (“Report”) pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). Plaintiff Alphonso Hammett (“Hammett” or “Plaintiff”) began this litigation by filing a Complaint on October 16, 2020. ECF No. 1. With consent of Defendant, the Secretary of Homeland Security (“Defendant”),Plaintiff filed the operative Amended Complaint on January 21, 2021. Am. Compl., ECF No. 14. Plaintiff's Amended Complaint includes claims for gender-and race-based discrimination in violation of Title VII of the Civil Rights Act and for age-based discrimination in violation of the Age Discrimination in Employment Act (“ADEA”). After the court denied Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment, ECF No. 38, discovery ensued. At the close of discovery Defendant filed the instant Motion for Summary Judgment. ECF No. 72. Plaintiff opposes the Motion, ECF No. 83; Defendant filed a Reply, ECF No. 89. Having considered the parties' filings and applicable law, the undersigned recommends Defendant's Motion, ECF No. 72, be granted and this matter be ended.
Alejandro Mayorkas became Secretary of the Department of Homeland Security on February 2, 2021. Pursuant to Federal Rule of Civil Procedure 25(d) he is automatically substituted as Defendant in this matter. The Clerk of Court is asked to note this on the docket.
I. Factual background
Taken in the light most favorable to Plaintiff, the following facts have been presented:
A. Plaintiff begins employment in 2004.
Plaintiff, a now-72-year-old Black man, worked at the Federal Emergency Management Agency (“FEMA”) as a reservist Community Relations Specialist (“CRS”) since 2004. Pl. Decl. ¶¶ 1-2, ECF No. 83-1. Plaintiff indicates that, at least since 2008, he was deployed to numerous disasters and assigned the managerial responsibilities of a CRS, “CR Manager, CR Team Lead, Disaster Survivor Assistance (‘DSA') Specialist, and DSA Crew Lead” while still being compensated as a CRS. Pl. Decl. ¶¶ 6-7. Plaintiff testified his supervisor changed with each disaster to which he was deployed; sometimes his supervisor would change “several times during the disaster.” Pl. Dep. 28-32, ECF No. 72-1.
Plaintiff indicates he was released by FEMA approximately a year before his April 2023 Declaration. Pl. Decl. ¶ 3, ECF No. 83-1. His release is not before the court.
B. FEMA implements FEMA Qualification System (“FQS”), including use of “Task Books,” in 2012
History of FEMA's FQS/Task Book system is provided for context.
In 2012, FEMA Deputy Administrator Richard Serino released a memorandum concerning classification of FEMA employees entitled “Change and Opportunity in Our Disaster Workforce.” According to the memo, FEMA would “begin offering DAEs the opportunity to seek new appointments in the Reservist Program by applying for specific incident management positions within the FEMA Qualification System (FQS).” Pl. Decl. ¶ 9 (apparently quoting Serino's memorandum).FEMA began requiring the completion of a “task book” for candidates seeking promotion. Pl. Decl. ¶ 10. As recently explained by the Fifth Circuit Court of Appeals:
The acronym “DAE” is not defined.
The undersigned has derived information from the record, including Plaintiff's understanding of the system, and from a 2022 Fifth Circuit opinion that discusses the FQS/Task Book system.
To be promoted, employees complete a “task book” to qualify to a new FQS position. Employees are considered qualified in their FQS position when they complete a task book that corresponds with that position. A task book consists of pre-defined training, job tasks, and experiences that must be completed for the employee to advance to the next FQS position and be eligible for more complex and supervisory deployments. An employee is promoted upon completion of the relevant task book. Once an employee becomes qualified for a position after completing the relevant task book, the employee can then receive a new task book that corresponds with the next most senior FQS position and can become a candidate or trainee for that position.Paulin v. Mayorkas, No. 22-30285, 2022 WL 17496028, at *1 (5th Cir. Dec. 8, 2022).
C. Process to Open a Position Task Book
According to FEMA's Reservist Program Manager of the DSA Cadre Management Team, Barbara Bennett Perez, from October 2016 to May 11, 2021, the following was the process “for requesting a Position Task Book”:
DSA Cadre Management would receive a recommendation from a DSA Cadre Member.
• The recommendation must come from a DSA Cadre member who is qualified at the next senior level, for example: a DSA Specialist Qualified would require a recommendation from a DSA Crew Leader Qualified
• DSA Cadre Management would research/check the reservist's file/history to ensure they have met the criteria to open a task book (previous evaluations, etc.)
DSA Cadre Management could also select/nominate candidates based on the top performers as long as there were openings based on our force structure.
• ARPMs would pull a list of the potential candidates and make a selection based upon research in DTS Deployer.
• DSA ARPMs will process progressions based on the following minimum criteria for progression in the case of, either the trigger of a recommendation, or upon its own progression schedule:
■ 2 deployments of 30 days or more for different disasters as Qualified in their current position
■ DSA Cadre Management would consider opening a PTB for those who[] have served 90 days or more in 1 disaster
■ No more than 3 declinations in the calendar year
■ 2 or more Satisfactory Performance Appraisals for different disasters
■ No Personnel Actions within 60 days of consideration periodBennett Perez Aff. ¶ 2, ECF No. 72-3. Bennett Perez further stated, “In 2016, Reservists were responsible for their performance appraisals and unless they submitted their appraisals to the Cadre, the Cadre typically did not otherwise receive a Reservist's appraisals.” Id. ¶ 5. Cadre coordinator Shannon Danae Benson testified that she was aware of “rumors and offhand discussions about several people, not even specific to the DSA cadre, but throughout the agency there are people who don't understand the process, they don't understand how the books are issued, how qualifications are obtained, their role in the process, even though it's been communicated to them.” Benson Dep. 59-60, ECF No. 72-4.
The acronym “ARPM” is not defined.
D. Plaintiff's 2012 application
At the time of the 2012 memorandum, Plaintiff, a reservist, was required to re-apply for his job. Pl. Decl. ¶ 9. He applied “for the Crew Lead position because [he] had worked as a CR Manager and Crew Lead in several prior instances, was qualified, and also held the titles of ‘Coach' and ‘Evaluator.'” Pl. Decl. ¶ 9. FEMA management advised Plaintiff that the only way he would be guaranteed employment was if he reapplied to FEMA as a Reservist. He accepted the position to ensure he would remain employed. Pl. Decl. ¶ 12.
Plaintiff submits in his declaration that “[m]any reservists, including female, non-African American, and younger reservists, many of whom were less experienced, were ‘grandfathered' in to Crew Lead positions without having to complete Task Books.” Pl. Decl. ¶ 9. Plaintiff has not identified any specific individuals who were grandfathered in, Pl. Dep. 40-41, nor is this a focus of Plaintiff's opposition to summary judgment.
E. 2012 and beyond
Plaintiff has testified that during his deployments he advised his supervisors that he wanted a Position Task Book opened, to which they responded they would look into it. Pl. Dep. 42-43. Plaintiff indicates that “[f]rom 2012 to the present,” he “repeatedly requested to [his] supervisors that [he] be formally moved into the ‘Crew Lead' position and that [his] compensation be commensurate with that title.” Pl. Decl. ¶ 13.
Plaintiff acknowledges he was told at some point that he was required to open a Task Book to be considered for a crew lead position. He does not recall exactly who told him that or when. Pl. Dep. 43. The record includes two specific instances (October 26, 2016 and October 8, 2017) when Plaintiff inquired about opening a Task Book.
On October 26, 2016, Plaintiff sent an email to Racquel Mahone, Reservist Program Manager, with the subject line, “Open Task Book for Crew Lead.” Oct. 26, 2016 email, ECF No. 83-3. The email was sent to Racquel-Mahone@fema.dhs.gov, included Plaintiff's contact information, and read in full as follows:
I am writing to request a task book to be open for Crew Lead for myself. I have been with FEMA since 2004, and have worked all the major disasters as a CR Manager and once with Hurricane Irene as a Team Lead overseeing six crews. Recently, this year alone, I worked as a crew lead under Steven Parker (DR-4263), Joseph Bonaccorse (DR-4277) and presently under Kevin Mckinnon (DR-4284). I have asked on so many occasions what is the procedure to have a task book open and all I get is someone taking my name and nothing happening. If by chance I am writing to the wrong person to fulfill this request, please let me know and can you please point me in the right direction.Id. Later that day Mahone responded from an email address that shows as “FEMA-DSA-RSV.” She also copied FEMA-DSA-RSV and Barbara Bennett Perez. Id. Mahone's response provided in full as follows:
Thank you for reach[ing] out, yes I am the correct person, however at this time, we have issued all Crew Lead PTB's based on Force Structure + 20% over. Progression is an ongoing process, so there will be opportunities in the near future. You are listed for consideration in future progression. Please write FEMA-DSA-RSV@fema.dhs.gov if you have questions.Id. Plaintiff testified he never followed up with questions to that email address. Pl. Dep. 44-45.
Both Mahone and FEMA Reservist Program Manager Barbara Bennett Perez have testified that, at the time of his October 26, 2016 email, there were no available Crew Lead Position Task Book vacancies in the force structure for Plaintiff to fill. Mahone Decl. ¶ 6, ECF No. 72-5; Bennett Perez Aff. ¶ 3, ECF No. 72-3.
On October 8, 2017, Plaintiff sent the following to Mahone by email:
Plaintiff's email also involved his responding to a question regarding a credit card charge. That issue is not before the court. After responding to Mahone's query regarding the charge, Plaintiff inquired about a task book. Oct. 8, 2017 email, ECF No. 83-5. Mahone sent her initial credit-card-charge inquiry from her own FEMA email account and copied FEMA-DSA-RSV. Plaintiff's reply with the task-book inquiry was sent only to Mahone's address. Id.
[] I sent an email to you last October asking for a task book to be opened for Crew Lead. I did receive a reply from you indicating that your quot[a] for that position was full and I would be put on a waiting list.
I fully understand that DSA may have a limit on the number they would like to have in that position but at the same time, since I last communicated with you, I have been asked twice to be Crew Lead and I have accepted. I have been a Crew Lead in every major disaster since Katrina and on one occasion, even in the position of what is now a Task Force Lead.
I am not complaining about serving in this capacity but I really think, and I also think you would agree, it is unfair to ask someone to carry out this assignment, considering the weighty responsibility involve[d], without being compensated for it. This week I was running a twenty five person team consisting of eleven Surge, 8 FEMA Corps, and four DSAs including myself. I ask that you please reconsider this matter of opening a task book for me.Oct. 8, 2017 email, ECF No. 83-5.
As Plaintiff received no response to his October 8, 2017 email he contacted Defendant's EEO Counselor on November 16, 2017. On December 28, 2017 Plaintiff filed an Individual Complaint of Employment Discrimination, in which he alleged race, sex, and age discrimination. EEO Compl., ECF No. 72-8. He pursued resolution through the EEO process (Agency Case No. HS-FEMA-00355-2018; EEOC Case No.: 570-2019-01271X). Plaintiff sought a hearing before an EEOC administrative law judge on June 11, 2019. On June 11, 2020, the Administrative Judge issued a decision dismissing Plaintiff's Complaint of Employment Discrimination. On July 21, 2020, Defendant issued a Final Order dismissing that Complaint of Employment Discrimination. Am. Compl. ¶¶ 27-32. Plaintiff filed suit on October 16, 2020.
II. Legal standard
A. Motions 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 a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “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 “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly 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.” Id. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own affidavit or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact). In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002) (Title VII). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court must determine whether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See id. at 148 (stating that “[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory”).
B. Burden of proof in Title VII and ADEA claims
Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his 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). The federal-sector portion of the ADEA provides that “[a]ll personnel actions” involving federal employees “who are at least 40 years of age . . . shall be made free from any discrimination based on age.” 29 U.S.C. § 633a(a). A plaintiff may demonstrate a violation of either statute through two avenues of proof. A plaintiff may offer direct or indirect evidence of discrimination using “ordinary principles of proof.” Burns v. AA F- McQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996) (in ADEA context) (internal quotations omitted). “The requisite direct evidence in an ADEA case is ‘evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.'” Palmer v. Liberty Univ., Inc., 77 F.4th 52, 63 (4th Cir. 2023) (quoting Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006) (internal quotation marks omitted)).
When such evidence is lacking, a plaintiff may proceed under either statutory scheme using the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Pursuant to this framework, once the plaintiff establishes a prima facie case of a violation of Title VII or the ADEA, the burden of production shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for its employment action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010). If the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason for its employment action, the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence that the proffered reason was “not its true reason[ ], but [was] a pretext.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
While intermediate evidentiary burdens shift back and forth, the ultimate burden of persuasion that the defendant engaged in intentional discrimination remains at all times with the plaintiff. See Reeves, 530 U.S. at 146-47 (“The ultimate question is whether the employer intentionally discriminated, and proof that ‘the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct.'”) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993)). Nonetheless, in considering an employee's pretext argument, there is nothing in the “McDonnell Douglas burdenshifting framework that says ‘a plaintiff must always introduce additional, independent evidence of discrimination.'” Guessous v. Fairview Prop. Investments, LLC, 828 F.3d 208, 220 (4th Cir. 2016) (quoting Reeves, 530 U.S. at 149)). “To the extent that the evidence supporting a plaintiff's prima facie case also undermines the employer's non-retaliatory justification, that evidence may be called upon by the trier of fact in determining whether or not the proffered justification is pretextual.” Id. at 220. The court is ever mindful, too, that such inquiry is “meant only to aid courts and litigants in arranging the presentation of evidence.” Warch, 435 F.3d at 515-16 (quoting Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 986 (1988)).
III. Analysis
A. Pattern or practice theory
Defendant first seeks summary judgment on the ground that Plaintiff's Amended Complaint is impermissibly based on a “pattern or practice” theory-one available only in the class-action context. Def. Mem. 9-10 (citing cases for the proposition that individual plaintiffs are not permitted to bring “pattern or practice” suits outside the class-action setting). In response, Plaintiff does not dispute the principle of law set out by Defendant. Rather, he submits “he has specifically pleaded a claim for intentional discrimination in the allowance of individuals in the same position to open Task Books, which is supported by comparators who were not African American males of his age and who were treated more favorably than he was.” Pl. Mem. 16-17. Accordingly, he submits that “[h]aving alleged direct, or intentional, discrimination, it is not necessary for him to bring this case as a class action.” Pl. Mem. 17. Plaintiff then cites to Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 760-61 (4th Cir. 1998), cert. granted, judgment vacated on other grounds, 527 U.S. 1031 (1999), for the proposition that, as an individual Plaintiff he may “‘use evidence of a pattern or practice of discrimination to help prove claims of individual discrimination within the McDonnell Douglas framework.'” Pl. Mem. 17 (quoting Lowery, 158 F.3d at 760-61).
Plaintiff's reference to direct evidence notwithstanding, his arguments in opposing summary judgment focus on the burden-shifting framework of McDonnell Douglas. Further, he has not provided direct evidence sufficient to show discrimination that impacted him directly.
At bottom, both parties agree that Plaintiff cannot bring a separate claim of “pattern or practice” discrimination. To the extent the Amended Complaint is construed to include such a claim, it appropriately should be dismissed. Nonetheless, Plaintiff's argument based on what he terms as evidence of a pattern or practice of discrimination may be considered in connection with any of his individual claims of discrimination that are otherwise properly before the court. See generally, Lowery, 158 F.3d at 760-61.
B. Timeliness
Next, Defendant seeks dismissal of all claims that arose before October 2, 2017, asserting they are time-barred based on applicable administrative-exhaustion statutes and regulations. Def. Mem. 10-15. October 2, 2017 is 45 days before Plaintiff's initial contact with an EEO Counselor (on November 16, 2017). Am. Compl. ¶ 27. Plaintiff submits the EEO-filing period should be equitably tolled based on Mahone's representations in her October 26, 2016 email that Plaintiff had been “listed for future progression.” Plaintiff also contends the “continuing violation doctrine” applies to make timely his claims that predate October 2, 2017, including the “systemic and repeated denial of the opportunity to open a task book,” which he identifies as a “pattern” of the “steady and constant expression of favoritism for individuals outside of Plaintiff's protected class[.]” Pl. Mem. 17-20.
1. Exhaustion requirements
Before filing suit under Title VII, a plaintiff must first exhaust his administrative remedies by filing a timely charge of discrimination with the EEOC. 42 U.S.C. § 2000e-5(e)(1). The exhaustion requirement is not jurisdictional, but it is a “mandatory claim-processing rule” that is required prior to bringing suit in federal court. Fort Bend Cnty., Tex. v. Davis, 139 S.Ct. 1843, 1851 (2019). A court must enforce the rule if a party properly raises it.” Id. at 1846. These time limits are “subject to waiver, estoppel and equitable tolling.” 29 C.F.R. 1614.604(c). For purposes of a Title VII claim, a federal employee such as Plaintiff “must initiate contact with [an EEO] 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 date of the action.” 29 C.F.R. § 1614.105(a)(1); see 42 U.S.C. § 2000e-16(c); Eneje v. Gonzales, No. CV-9:04-1695-SB, 2007 WL 1068176, at *5 (D.S.C. Mar. 30, 2007) (noting that, in Title VII context, an employee “first must contact an EEO Counselor within 45 days of the alleged discriminatory event.”) (citing 29 C.F.R. §§ 1614.105(a)(1)), aff'd sub nom. Eneje v. Keisler, 251 Fed.Appx. 154 (4th Cir. 2007)). The ADEA permits a party to follow the same process as that for Title VII claims; this is what Plaintiff has done herein. Pl. Mem. 17.
2. Timeliness of Plaintiff's claims
Defendant seeks dismissal of any claims by Plaintiff that arose before October 2, 2017- 45 days before Plaintiff's November 16, 2017 contact with an EEO Counselor. Plaintiff argues the continuing violation doctrine and principles of estoppel save all of his claims from dismissal based on exhaustion grounds.
a. The continuing violation doctrine
In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002), the Supreme Court considered the continuing violations doctrine in determining when Title VII claims would be considered to be timely filed, and distinguished between “discrete” discriminatory or retaliatory acts such as “termination, failure to promote, denial of transfer, or refusal to hire[,]” and hostile work environment claims, whose “very nature involves repeated conduct.” The discrete acts of discrimination-including failure to promote-are considered to have “occurred” the day they “happened.” Id. at 110, 114. “Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice” and “starts a new clock for filing charges alleging that act.” Id. at 113-14 (internal quotation omitted). A discrete discriminatory act is not actionable if time-barred, even if it relates to acts that are timely. Id. at 113.
Defendant submits that Plaintiff's allegations that it did not promote Plaintiff are, by nature, “discrete acts” that cannot be deemed timely using the continuing violation doctrine. Def. Mem. 13-14. Plaintiff acknowledges there is jurisprudence declining to apply the continuing violation doctrine to discrete failure-to-promote claims. Pl. Mem. 19-20. Nonetheless, Plaintiff argues this is not so much about discrete claims as the “steady and constant” favoritism to those outside his protected class and the “opaque process for promotion [since 2012 that] ensured that Plaintiff would not necessarily know that he was being passed over [for] promotion.” Pl. Mem. 20 (citing no case law in support of this argument).
The court agrees with Defendant that the continuing violation doctrine does not operate to make Plaintiff's pre-October 2, 2017 claims timely. The Fourth Circuit addressed a quite similar argument in Williams v. Giant Food Inc., 370 F.3d 423 (4th Cir. 2004), and found it unavailing. In Williams, the court found Plaintiffs “background allegations of systemic discrimination,” while permissible only for the purpose “helping prove claims of individual discrimination” would not operate to “change the nature of the discrete claims she asserts such that the [continuing violation rule in]Morgan should not apply.” 370 F.3d at 430 n.3 (“The question here is whether Williams's background allegations of systemic discrimination change the nature of the discrete claims she asserts such that the Morgan rule should not apply. We answer that question in the negative.”). Plaintiff's allegation that, beginning in 2012, he “repeatedly requested” to be moved into a Crew Lead position, Am. Compl. ¶ 15, does not suffice to make discrete failure-to-promote allegations “continuing violations” that reach back to 2012 based on Plaintiff's unspecific claim of generally requesting to be promoted. Dismissal of Plaintiff's claims prior to October 2, 2017 as untimely is appropriate unless pre-October 2, 2017 claims are salvaged by the court's determination that equitable estoppel applies to any portion of Plaintiff's otherwise-untimely claims.
b. Equitable estoppel as to claims between October 26, 2016 and October 2, 2017
Plaintiff argues he is entitled to equitable estoppel for claims that arose between October 26, 2016 (the date of his initial email communication with Mahone about a task book) and October 2, 2017 (45 days before his contact with the EEO counselor). Plaintiff focuses on Mahone's October 2016 assertion that he was “already ‘listed for future progression.'” Pl. Mem. 10 (citing October 26, 2016 email). Without providing further record citations, Plaintiff continues, arguing “Mahone mispresented to [Plaintiff] that she would give him the opportunity to open a Task Book, and it was reasonable for “Hammett” to rely on this statement.” Pl. Mem. 18. Plaintiff submits Mahone's “misrepresentation” to him excused his delay in contacting an EEO counselor. Id. Plaintiff submits that Mahone's representation and actions were such that Defendant “‘should unmistakably have understood would cause [Plaintiff] to delay filing his charge.'” Id. (quoting Price v. Litton Bus. Sys., Inc., 694 F.2d 963, 965 (4th Cir. 1982)). Citing to his Declaration submitted in opposition to summary judgment, Plaintiff submits that he “trusted” Mahone “at her word” that there was “nothing else [he] needed to do to be ‘listed for future progression.'” Pl. Decl. ¶ 15. Plaintiff says he “relied” on her representations and “waited patiently as she indicated [he] should.” Id. ¶ 16. He says he did not “sit on his rights.” Id. ¶ 17.
As Defendant explains on reply, however, Plaintiff's characterizing Mahone's email response to him as including “misrepresentations” does not make it so. Reply 6. Mahone's October 2016 email to Plaintiff affirmatively represented that there were no available crew lead task books that could be issued at that time, there would be opportunities in the near future, and he had been “listed for consideration in future progression.” October 26, 2016 email. Plaintiff has provided no evidence that any of these statements were misrepresentations intended to cause him to “sit on his rights.” Rather, on Reply, Defendant has provided a spreadsheet listing “DSA Specialists Qualified Progressions to DSA Crew Lead,” that includes Plaintiff's name. ECF No. 89-2 at 4.
Nor does Mahone's email advise Plaintiff that there was “nothing else he needed to do.” In considering this point, the court notes Defendant's evidence that one of the requirements of opening a task book is having 2 or more satisfactory performance evaluations within 60 days. Bennett Perez Aff. ¶ 2. Defendant indicates Plaintiff and others in his position were advised that they were to submit the requisite performance evaluations to DSA Cadre Management if they were seeking a task book. Bennett Perez Aff. ¶ 5. Plaintiff claims that no such requirement was ever communicated to him. Pl. Decl. ¶ 38. Plaintiff's claim that he was unaware of this requirement notwithstanding, nothing in Mahone's October 26, 2016 email to Plaintiff or other presented record evidence suggests that Defendant made any actual misrepresentations about the process to Plaintiff as to whether there were other steps to be taken.
In Price, the Fourth Circuit explained as follows:
The statute of limitations will not be tolled on the basis of equitable estoppel unless the employee's failure to file in timely fashion is the consequence either of a deliberate design by the employer or of actions that the employer should unmistakably have understood would cause the employee to delay filing his charge. An employee's hope for rehire, transfer, promotion, or a continuing employment relationship-which is all that Price asserts here-cannot toll the statute absent some employer conduct likely to mislead an employee into sleeping on his rights.Price, 694 F.2d at 965-66. In that case, Price had been advised he was being terminated as branch manager as of a certain date. Nonetheless, company management indicated to him they would attempt to find alternative placement for him within the company. In considering the timeliness of his discrimination claim, the Fourth Circuit determined it was the date he was terminated as branch manager that triggered the limitations period, and that subsequent communication by management. The Fourth Circuit found that management's continued quest to help Price find a different position did not equitably estop the employer from raising timeliness as a defense as it did not amount to “a deliberate design by the employer or [] actions that the employer should unmistakably have understood would cause the employee to delay filing his charge.” Id. at 965.
Here, Plaintiff has not provided evidence of a deliberate design by Defendant for Plaintiff to “sit on his rights.” Accordingly, the undersigned recommends a finding that equitable estoppel does not apply in this situation. Nothing in Mahone's email misrepresented anything to Plaintiff. Plaintiff has pointed to no other evidence of a deliberate attempt to mislead him or lull him into “sitting on his rights.” Plaintiff's professed confusion about his part in the task-book-seeking process is insufficient to make timely any claims before October 2, 2017.
Accordingly, it is recommended that all of Plaintiff's claims prior to October 2, 2017 be found untimely. They are not considered herein as part of his discrimination claim.
C. Claims on or after October 2, 2017
The only remaining discrimination claims to be considered are any claims that arose on or after October 2, 2017. Somewhat surprisingly, neither party focuses in any detail on this specific time-period in their briefing. Considering the arguments made in view of controlling law, the undersigned is of the opinion that Defendant's Motion for Summary Judgment should be granted. Plaintiff has submitted no direct evidence of discrimination, nor has he provided evidence sufficient to demonstrate a prima facie case-in particular, Plaintiff has not provided evidence of any crew-lead positions open on or after October 2, 2017 for which he may have applied had he been aware. Nor has Plaintiff provided evidence of any other adverse employment actions.
Both parties generally characterize Plaintiff's claims as failure-to-promote claims and analyze them using the McDonnell Douglas burden-shifting format. To establish a prima facie case, a plaintiff typically must show that (1) he is a member of a protected class; (2) his employer had an open position for which he applied or sought to apply; (3) he was qualified for the position; and (4) he was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. Williams, 370 F.3d at 430; see also id. at 431 (noting that, in certain situations, “the application requirement may be relaxed and the employee treated as if []he had actually applied for a specific position” if an employer “fails to make its employees aware of vacancies[.]”). The analysis is the same under Title VII and the ADEA. Gurganus v. Beneficial N. Carolina, Inc., 25 Fed.Appx. 110, 111 (4th Cir. 2001) (applying Title VII proof scheme to ADEA failure to promote claim).
The court first focuses on the second prong-whether there was an open position for which Plaintiff applied or sought to apply. Here, Plaintiff generally concedes that “it is necessary for him to prove that a position was open in order to make a prima facie case of discriminatory failure to promote.” Pl. Mem. 20 (citing White v. C&P Tel. Co. of Md., 872 F.3d 420 (4th Cir. 1989)). He bases his claims on the “13 positions that became open from the time he requested Mahone to open a task book [October 26, 2016] to the time that he sent a follow up email that she ignored [October 8, 2016].” Id. Plaintiff submits that he “had no way to know the exact timing that these positions were extended to these 13 individuals, as the openings were not posted in any accessible manner.” Id.
This argument relates to the 13 individuals Defendant indicates had task books open for Crew Lead positions between October 26, 2016 and December 28, 2017 (the date of Plaintiff's EEO Charge). Def. Resp. Pl. First Set. Interrogs. at 11-12, ECF No. 83-4. The response, provided in chart form and reproduced in Plaintiff's memorandum at page 10, follows:
| Responder | Type when PTB was opened | Hire Date | Date Opened | Experience when PTB Opened | Age, Race, and Gender |
| Andruss, Christine M. | RSV | 5/31/2015 | 9/18/2017 | 2 years, 3 | months 58, White (non- Hispanic), Female |
| Banh, Mai T. | RSV | 2014 | 9/4/2017 | 3 years | 64, White (non- Hispanic), Female |
| Chukayne, James L. | RSV | 06/03/2012 | 9/4/2017 | 5 years, 3 | months 66, White (non- Hispanic), Male |
| Delgado, Luis A. | RSV | 03/09/2003 | 9/28/2017 | 14 years, 6 | months 65, Hispanic, Male |
| Dunn, Robert | RSV | 12/06/2012 | 9/4/2017 | 4 years, 9 | months 60, White (non- Hispanic), Male |
| Mcclurkin, Alexandria S. | COR | 06/25/2007 | 1/31/2017 | 9 years, 7 | months 53, Black, Female |
| Mcdowell, Daryl | RSV | 02/26/2012 | 9/4/2017 | 5 years, 6 | months 65, Black, Male |
| Miller, Juanita | RSV | 05/31/2015 | 9/28/2017 | 2 years, 3 | months 52, Multiple Races, Female |
| Nabors III, Homer E. | RSV | 07/06/2008 | 9/4/2017 | 9 years, 1 month | 69, White (non- Hispanic), Male |
| Ogden, Debra E. | RSV | 05/17/2015 | 9/4/2017 | 2 years, 3 months | 61, White (non- Hispanic), Female |
| Paris, Betty L. | RSV | 2015 | 9/18/2017 | 2 years | 80, White (non- Hispanic), Female |
| Raley, Johnnie L. | RSV | 07/01/2012 | 9/4/2017 | 5 years, 2 months | 62, White (non- Hispanic), Male |
| Winward Sr, Ronald J. | RSV | 07/03/2011 | 9/4/2017 | 6 years, 2 months | 73, White (non- Hispanic), Male |
Def. Resps. Pl. First Set of Interrogs. and First Request for Prod. at 11-12, ECF No. 83-4.
Nothing in this evidence, though, establishes there was any position that was open and filled October 2, 2017 or later by someone outside of one or more of Plaintiff's protected classes. This evidence focuses on the opening of task books, which, of course, may be related to open positions. However, the purported comparators on which Plaintiff bases his argument all had task books opened before October 2, 2017. Regardless of whether the task-book-requesting process was clear to Plaintiff, there is no evidence of any comparator who obtained a task book during the time period at issue here. This evidence does not assist Plaintiff in setting out an open position or an adverse action of any type during the relevant time period.
Further, Plaintiff's argument that he himself is unsure of “the exact timing that these positions were extended to these 13 individuals,” Pl. Mem. 20, does not salvage his discrimination claims. The burden is on Plaintiff to demonstrate there were specific, open positions on October 2, 2017, or later for which he might have applied. Williams explained that the express requirement of actually applying for a specific, open position might at times be relaxed if the employer did not make the openings known. However, nothing in Williams stands for the proposition that a plaintiff might bypass the application-for-a-specific-position prong of his prima facie case absent actual evidence that there was, in fact, an open position for which the plaintiff might have applied had he been made aware.
Plaintiff centers his case around his lack of knowledge of exactly how to open task books and how to know of open positions. Plaintiff offers no concrete evidence, though, of any open positions from October 2, 2017-forward. As much as Plaintiff wishes to make it Defendant's burden to provide evidence of whether there were (or were not) open positions during the relevant timeframe, it is not. Rather, Plaintiff conducted discovery and is charged with eliciting evidence that open positions existed and that he was unaware of them and not permitted to open a task book for them.
The court notes that Plaintiff did submit an email to Malone on October 8, 2017, which is during the relevant time period. However, Plaintiff has offered no cogent legal argument as to how that email, even though unanswered, indicates there were actually open crew-lead positions during the time-period at issue. The only evidence provided indicates there were no task books open to anyone in Plaintiff's cadre during the relevant period. Because Plaintiff has not set out evidence of an actual open position for which he applied or sought to apply he cannot meet the second prong of his prima facie case. McDonnell Douglas, 411 U.S. at 802 (indicating plaintiff must establish each element of a prima facie case by the preponderance of evidence to proceed in the burdenshifting analysis). Because Plaintiff has not set out evidence to satisfy an element of his prima facie case, further analysis is not required. Summary judgment is appropriate.
IV. Conclusion and recommendation
For the reasons set forth above, it is recommended that Defendant's Motion for Summary Judgment, ECF No. 23, be granted and this matter be ended.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”