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rejecting plaintiff's Rule 56(f) motion in part because the race discrimination complaint had been investigated at the administrative level, resulting in a wealth of available information and negating the need for additional discovery
Summary of this case from Zimmerman v. Novartis Pharms. Corp.Opinion
Civil Action No. DKC 2003-1685
December 3, 2003
MEMORANDUM OPINION
Presently pending and ready for resolution in this employment discrimination case is the motion to dismiss or, in the alternative, for summary judgment by Defendant Tommy Thompson, Secretary of the United States Department of Health Human Services (DHHS). The issues are fully briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the court will grant Defendant's motion for summary judgment.
I. Background
A. Factual Background
The following are either facts alleged by Plaintiff Valerie Ladson or those viewed in the light most favorable to her. Plaintiff is an African-American female and an electrician employed by the United States Department of Health Human Services (DHHS or the Agency). In early 1995, the Agency advertised for "up to 11 positions to be filled" for Planner/Estimator, for which Plaintiff applied and interviewed. Paper 17, Ex. B. The Personnel Department of the Electrical Shop in the Division of Engineering Services (DES) placed Plaintiff's name on two "certificates" for consideration: carpenter and electrician. The Agency ultimately hired 10 people for those positions, but it did not select Plaintiff. At the time of her interview, Plaintiff had nine years of private industry experience and more than four years of experience with the Agency.
The Agency is Plaintiff's ultimate employer. She works as an electrician "in the Electrical Shop, Shops Section, Division of Engineering Services (DES), Office of Research Services (ORS), National Institute of Health (NIH), Department of Health and Human Services (DHHS)." Paper 1 at ¶ 8.
Plaintiff claims that the evaluative process for the vacant positions was "extremely subjective" and that she was sufficiently qualified for a position. Paper 1 at ¶¶ 11, 12. According to Plaintiff, the Shops Section, her place of work, "discriminates against women and minorities," as white males are predominantly assigned to the maintenance section of the Electrical Shop while blacks and women are assigned to the construction section. Paper 1 at ¶ 13. Plaintiff filed a formal individual complaint with the Agency for employment discrimination, stating that "[i]n July 1995, I was denied a position for Electrical Planner/Estimator." Paper 11, Ex. 8. Plaintiff then filed a complaint with the Equal Employment Opportunity Commission (EEOC), as required by law. The EEOC dismissed Plaintiff's complaint on January 30, 2001, and it denied Plaintiff's request for reconsideration on September 26, 2002. See Paper 1, Ex. 1.
Because Plaintiff has alleged that she was discriminated against only for the "Electrical Planner/Estimator" position, the court will limit its analysis of her claims solely to that position.
B. Procedural Background
On December 24, 2002, Plaintiff filed the instant action in the United States District Court for the District of Columbia, alleging employment discrimination by Defendant on the basis of race and sex, under Title VII of the 1964 Civil Rights Act ( 42 U.S.C. § 2000e, et seq.), for failure to promote her and for retaliation, as well as a state law claim for negligent hiring, supervision and retention. As relief, Plaintiff seeks $300,000 in compensatory damages and $300,000 in punitive damages. The case subsequently was transferred to this court on April 29, 2003. See Paper 8. On August 10, 2003, Defendant filed a motion to dismiss or, in the alternative, for summary judgment.
In her complaint, Plaintiff inadvertently listed twice "Count I" for employment discrimination based on sex. The court will treat Plaintiff's complaint as employment discrimination based on race and sex, as Plaintiff apparently had intended.
II. Standards of Review
A. Summary Judgment
It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, if there clearly exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment is inappropriate. Anderson, 477 U.S. at 250; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir. 1987). The moving party bears the burden of showing that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Catawba Indian Tribe of South Carolina v. State of S.C., 978 F.2d 1334, 1339 (4th Cir. 1992), cert. denied, 507 U.S. 972 (1993).
When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. See U.S. v. Diebold, 369 U.S. 654, 655 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir. 1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. " [A] complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 323. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence in order to show the existence of a genuine issue for trial. See Anderson, 477 U.S. at 256; Celotex Corp., 477 U.S. at 324. However, " [a] mere scintilla of evidence in support of the nonmovant's position will not defeat a motion for summary judgment." Detrick v. Panalpina, Inc., 108 F.3d 529, 536 (4th Cir.), cert. denied sub nom., Gold v. Panalpina, Inc., 522 U.S. 810 (1997). There must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
Defendants has moved to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment under Fed.R.Civ.P. 56. A court considers only the pleadings when deciding a Rule 12(b)(6) motion. Where the parties present matters outside of the pleadings and the court considers those matters, as here, the motion is treated as one for summary judgment. See Fed.R.Civ.P. 12(b); Gadsby by Gadsby v. Grasmick, 109 F.3d 940, 949 (4th Cir. 1997); Paukstis v. Kenwood Golf Country Club, Inc., 241 F. Supp.2d 551, 556 (D.Md. 2003).
B. Plaintiff's Request for Discovery
In her opposition to Defendant's summary judgment motion, Plaintiff argues that summary judgment is inappropriate at this stage because she "has not had an adequate opportunity for discovery." Paper 17 at 15. Plaintiff has not filed an affidavit as required by Fed.R.Civ.P. 56(f). See Evans, 80 F.3d at 961 ("In short, [plaintiff] never informed the district court that she needed time to develop the factual record so that she could properly oppose [defendant's] motion"). Indeed, absent here is a Rule 56 affidavit "that particularly specifies legitimate needs for further discovery" or that identifies "which aspects of discovery required more time to complete." Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995).
Rule 56(f) provides:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
Fed.R.Civ.P. 56(f).
The Fourth Circuit places "great weight on the Rule 56(f) affidavit" and, to that end, " [a] party may not simply assert in its brief that discovery was necessary and thereby overturn summary judgment when it failed to comply with the requirement of Rule 56(f) to set out reasons for the need for discovery in an affidavit." Evans, 80 F.3d at 961 (quoting Nguyen, 44 F.3d at 242 (internal citations omitted)). Plaintiff makes mention of Rule 56(f) in her opposition memorandum, but "this effort is insufficient to compel denial of [Defendant's] summary judgment motion." Evans, 80 F.3d at 961; see also Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998). Also, this case was investigated at the administrative level and a wealth of information is already available. Therefore, summary judgment for Defendant is proper at this time.
C. Title VII
There are two methods for proving intentional discrimination in employment: (1) through direct or indirect evidence of intentional discrimination, or (2) through circumstantial evidence under the three-step, burden-shifting scheme set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). For the first method, an employee may utilize "ordinary principles of proof using any direct or indirect evidence relevant to and sufficiently probative of the issue." Brinkley v. Harbour Recreation Club, 180 F.3d 598, 606-07 (4th Cir. 1999) (quoting Tuck v. Henkel Corp., 973 F.2d 371, 374 (4th Cir. 1992)). In order to overcome a summary judgment motion based upon this method of proof, the plaintiff "`must produce direct evidence of a stated purpose to discriminate and/or [indirect] evidence of sufficient probative force to reflect a genuine issue of material fact.'" Brinkley, 180 F.3d at 607 (quoting Goldberg v. B. Green Co., Inc., 836 F.2d 845, 848 (4th Cir. 1988)). More specifically, the plaintiff must provide "`evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.'" Brinkley, 180 F.3d at 607 (quoting Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995)). If such evidence is lacking, the plaintiff may nevertheless proceed under McDonnell Douglas. See Tuck, 973 F.2d at 374.
Under the McDonnell Douglas framework, the plaintiff first must establish a prima facie case of discrimination. See McDonnell Douglas Corp., 411 U.S. at 802. Once a plaintiff establishes a prima facie case of discrimination, the burden of production shifts to the defendant to present a legitimate, nondiscriminatory reason for the adverse employment action alleged. See beeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000) (citing Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). If the defendant succeeds in doing so, that will rebut the presumption of discrimination raised by the plaintiff's prima facie case. See Stokes v. Westinghouse Savannah River Co., 206 F.3d 420, 429 (4th Cir. 2000) (citing Burdine, 450 U.S. at 255 n. 10). The plaintiff then must "prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Burdine, 450 U.S. at 253. In the end, "[t]he plaintiff always bears the ultimate burden of proving that the employer intentionally discriminated against her." Evans v. Tech. Applications Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996) (citing Burdine, 450 U.S. at 253).
III. Analysis A. Failure to Promote
In order to establish a prima facie case of discriminatory failure to promote under Title VII, "a plaintiff must prove that: (1) he is a member of a protected group; (2) he applied for the position in question; (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." Brown v. McLean, 159 F.3d 898, 902 (4th Cir. 1998), cert. denied sub nom., Brown v. Mayor and City Council of Baltimore, 526 U.S. 1099 (1999). The plaintiff may satisfy the fourth prong by showing that the position was filled by a person not of the plaintiff's minority status. See Amirmokri v. Baltimore Gas and Elec. Co., 60 F.3d 1126, 1130 (4th Cir. 1995); Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994).
Plaintiff has made out the "relatively easy test" of a prima facie case of discriminatory failure to promote. Evans, 80 F.3d at 960 (internal quotation omitted). Plaintiff is an African-American female, placing her in two protected classes; she produced evidence that she applied for, and was qualified for, the electrical Planner/Estimator position; and the three people ultimately hired to fill those positions were all male, two Caucasian and one Asian. See Amirmokri, 60 F.3d at 1130.
Defendant may rebut the plaintiff's prima facie case — as its legitimate, nondiscriminatory reason for not promoting Plaintiff — "by demonstrating that the person promoted was better qualified for the position." Amirmokri, 60 F.3d at 1129; see also Carter, 33 F.3d at 458. Here, Defendant has done precisely that.
Although the three eventual selectees for the vacant positions sought by Plaintiff were all male and none were African-American, Defendant has produced evidence that all three selectees were more qualified for the position than Plaintiff. The Division of Engineering Sciences (DES) established a selection screening panel to interview candidates for the Planner/Estimator positions and to rate and rank those candidates according to the knowledge, skills and abilities required to perform the job. The scoring consisted of the results of an interview with top officials in the unit (maximum score of 80 points), a review of the application package (maximum score of 20 points) and the recommendations of the DES selection/screening committee (maximum score of 10 points) — for an overall maximum score of 110 points. As John Datolli, chief of Plaintiff's branch and the selecting official for the vacant positions, swore in his affidavit:
Regarding Ms. Ladson's candidacy for the job; while she was a good employee, she still needed more experience and skills to compete with the top candidates. Her overall score was 73, compared to the scores of the three selectees which were 94, 96, and 103. She was ranked 9th of the 11 people referred to me for consideration. Ms. Ladson clearly lacked the experience, knowledge, skills and abilities in planning, estimating and contract/construction administration that the selectees had. . . . Ms. Ladson also displayed limited experience in construction or contract administration with only some related experience in the private sector, certainly not up to that of the selectees.
Paper 11, Ex. 3 at 4-5. Thus, Defendant clearly has satisfied the burden of offering a legitimate, nondiscriminatory reason for not promoting Plaintiff. In this situation, "[i]t is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff." Evans, 80 F.3d at 960-61 (internal quotation omitted). See also Carter, 33 F.3d at 458 (in finding for defendant on failure to promote claim, "[plaintiff] did not receive a score that merited consideration as a finalist, and he was ranked well below the selectee").
Under the McDonnell Douglas burden-shifting framework, Plaintiff must show that Defendant's articulated reason was merely pretext. In a failure to promote case, as here, Plaintiff "must establish that she was the better qualified candidate for the position sought." Evans, 80 F.3d at 960; see also Orenge v. Veneman, 218 F. Supp.2d 758, 765 (D.Md. 2002) (citing Evans, 80 F.3d at 960). Plaintiff has failed to show that she was more qualified for the position than the three people selected. See Evans, 80 F.3d at 960; Amirmokri, 60 F.3d at 1130. In fact, she barely refers to them in any of her papers. Nor has Plaintiff demonstrated that her race or gender were "the more likely reason [s] for her failure to be promoted." Evans, 80 F.3d at 960 (["plaintiff's] unsubstantiated allegations and bald assertions concerning her own qualifications and the shortcomings of her co-workers fail to disprove [defendant's] explanation or show discrimination"). Plaintiff's contention that Defendant's articulated reason is pretext, without more, falls well short of the evidence needed to overcome summary judgment. Accordingly, Defendant's motion for summary judgment on Plaintiff's failure to promote claim will be granted. B. Retaliation
In an affidavit, Plaintiff states only that: "I believe I was better qualified than at least one (1) of the [three] selectees." Paper 17, Ex. A at 1.
Title VII prohibits an employer from discriminating against an employee in retaliation for that employee's opposition to, or complaint about, "an unlawful employment practice." 42 U.S.C. § 2000e-3(a). In order to establish a prima facie retaliation case, "a plaintiff must show that: (1) she engaged in a protected activity; (2) the employer took an adverse employment action against her; and (3) a causal connection existed between the protected activity and the asserted adverse action." Von Gunten v. Maryland, 243 F.3d 858, 863 (4th Cir. 2001). Plaintiff engaged in a protected activity when she filed her complaint with the EEOC. See Beall v. Abbott Laboratories, 130 F.3d 614, 619 (4th Cir. 1997).
For the second prong, "[a]dverse employment action includes any retaliatory act or harassment if, but only if, that act or harassment results in an adverse effect on the terms, conditions, or benefits of employment." Von Gunten, 243 F.3d at 866 (citing Munday v. Waste Mgmt. of North America, Inc., 126 F.3d 239, 243 (4th Cir. 1997), cert. denied, 522 U.S. 1116 (1998)). Plaintiff alleges that after she filed her EEC complaint, the Agency "retaliated against her by denying her job rotation from February 1995 through July 1995 and other benefits of her employment." Paper 1 at ¶ 15. But Plaintiff does not identify, for instance, which job rotation she believes that she was denied; more generally, Plaintiff does not explain how, if at all, Defendant's alleged retaliation adversely affected any terms, conditions or benefits of her employment. This bare assertion, without any evidentiary support, is insufficient to prove an adverse employment action. See Von Gunten, 243 F.3d at 869 (no adverse employment action found where "no evidence indicates that [actions] actually adversely effected a term, condition, or benefit of her employment"). Plaintiff has failed to establish a prima facie case of retaliation and, accordingly, Defendant's motion for summary judgment on this claim will be granted.
C. Negligent Hiring, Supervision and Retention
Along with her Title VII action, Plaintiff also filed a state law claim against Defendant for negligent hiring, supervision and retention. However, "Title VII may not form the predicate for claims of negligent retention and supervision" because such claims are "preempted by the Maryland Worker's Compensation Act [MWCA], Md. Code Ann., Labor Employ. Art., § 9-501 et seq." Demby v. Preston Trucking Co., Inc., 961 F. Supp. 873, 881-82 (D.Md. 1997). Indeed, the MWCA "provides the exclusive remedy for employee injuries arising out of and in the course of employment." Hart v. Harbor Court Assoc., 46 F. Supp.2d 441, 444 n. 4 (D.Md. 1999). Thus, Plaintiff's claim for negligent hiring, supervision and retention — arising out of her Title VII action — must fail. Accordingly, Defendant's motion for summary judgment on this state law claim will be granted.
IV. Conclusion
For the foregoing reasons, the court will grant Defendant's motion for summary judgment. A separate Order will follow.