Opinion
No. AMD 99-3362
April 19, 2001
MEMORANDUM
Plaintiff, Acie McGhee, has filed this employment discrimination case against the United States Department of the Navy, his former employer. Discovery has been completed and the parties have filed cross-motions for summary judgment. No hearing is necessary. For the reasons stated herein, I shall deny plaintiff's motion and grant defendant's motion as to the issue of whether plaintiff may maintain his claim of constructive discharge. As to the issue of whether plaintiff's transfer to a non-supervisory position was discriminatory, I am persuaded that plaintiff has projected sufficient evidence to generate a genuine issue of material fact. Accordingly, defendant's motion for summary judgment on that issue shall be denied.
I. Introduction
McGhee alleges discrimination based on race and sex in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., as amended, see 42 U.S.C. § 1981a. Specifically, plaintiff alleges that his reassignment from the position of Director of Budget and Execution at the Naval Security Group Command ("NSG") was discriminatorily motivated. Further, he alleges that the circumstances surrounding his reassignment and the public humiliation he experienced in connection therewith were such that his decision to take early retirement from federal employment gives rise to a claim for constructive discharge. The decision-maker to whom McGhee ascribes discriminatory animus is William Frentzel, his second tier supervisor.
As described below, and as a matter of law, the evidence of McGhee's humiliating removal from his supervisory position does not suffice to satisfy the exacting standards under Fourth Circuit precedent for a claim of constructive discharge. McGhee's decision to take early retirement was certainly understandable; however, no reasonable juror could conclude by a preponderance of the evidence that McGhee's situation was "intolerable to a reasonable person" or that Frentzel had the intention of procuring McGhee's retirement. On the other hand, Frentzel's precipitous reassignment of McGhee to a non-supervisory position, viewed in the light of the record evidence of his alleged antipathy for McGhee as contrasted with his nurturing of female subordinates, coupled with the scant (though sufficient, if believed by a fact finder) evidence of McGhee's alleged unsuitability for the supervisory position he had actually held for several years, requires a jury determination as to Frentzel's motivation for the reassignment. Accordingly, McGhee shall be permitted to present his gender discrimination claim to a jury.
II. The Facts Stated in the Light Most Favorable to McGhee
McGhee, a decorated Vietnam War veteran, had a long and exemplary record of service as a civilian employee with the federal government, which began in 1978. His civilian employment career included service with the Army, two assignments at the Pentagon and finally, with the Department of the Navy. During his employment, McGhee earned an undergraduate degree in accounting and management. He began his career at a GS-5 grade and ultimately achieved a GS-14 grade. From 1991 until his retirement in 1997, McGhee worked at NSG, which is the financial and budgetary nerve-center of naval operations worldwide. At all times relevant to this case, although McGhee was a civilian employee of the Navy, his first and second tier supervisors were military officers. From 1992 until 1996, his performance was rated as "Outstanding" and he received various forms of recognition for his work performance, including cash awards.
In 1993, McGhee was hand-picked to lead the undertaking to consolidate the Budget Office and the Execution Office. In connection with this consolidation, he became the Director of the combined offices and a "Division Head" at a GS-14 grade. At all times relevant to this case, McGhee was the only African-American male at this level within the NSG. As Director of Budget and Execution, McGhee's duties included establishing financial policy, budget analysis and accounting, maintenance of automated and manual data bases, production of evaluation and assessments related to budget obligations and expenditures. McGhee supervised approximately eight to ten individuals. As a division head, he attended daily staff meetings with other division heads. The meetings were conducted by the Comptroller of NSG, Frentzel, and McGhee's immediate supervisor, who was the Deputy Comptroller. McGhee had a private office. The position description for Director of Budget and Execution did not require a specific degree of computer proficiency. The position description recited that the position requires "extensive knowledge of financial data collection methods and systems, their capabilities and limitations, and appropriate tasking methods," as well as "ingenuity and creativity" in financial analysis and presentation. Frentzel, who is white, became the Comptroller of the NSG in July 1995. The record shows that Frentzel made clear that he had a new vision for the NSG that included a strong focus on automation and new modes of financial analysis. From July 1995 until May 1997, McGhee's direct supervisor was Basil Harris. From May 1997 until McGhee's retirement in December 1997, his direct supervisor was Patricia McNally. Both Harris and McNally are white, and each is a military officer.
One of McGhee's primary duties was "signing off" on all projects, including funding requests for financial projects for NSG. Soon after Frentzel became Comptroller, he transferred such approval authority to Peggy Sharer, who was McGhee's colleague and the Director of Planning and Programming. Frentzel provided no explanation to McGhee for this change. Subsequently, when McGhee requested funding to implement an accounting software system which Frentzel greatly desired, the Budget Management System ("BMS"), Sharer denied funding to McGhee for the project. McGhee asserts that this episode provides substantial evidence of Frentzel's intention to undermine his performance as a basis to remove him as Director of Budget and Execution, and, concomitantly, to promote the advancement of Peggy Sharer. Sharer is white.
McGhee had repeatedly received outstanding performance evaluations prior to his assignment as Director of Budget and Execution and during his tenure in that position. The appraisal for the period ending in July 1995 indicated that McGhee had been hand-picked for the Director of Budget and Execution position and that financial accountability had improved since he began in that position. The appraisal also stated that McGhee was a "proactive manager" who takes action to implement new programs and adjust to changing financial environments. The evaluation for the period ending in August 1996 states that McGhee was overseeing the automation of data, working with the STARS-FL computerized accounting system, arranging training for employees, and that he had identified software problems, provided adept leadership and managerial skills and had "become the ACCOUNTING EXPERT for the Naval Security Group." Frentzel signed off on the outstanding performance rating on this evaluation. In late 1996, McGhee attended Professional Military Comptroller School. The Director of the school wrote to McGhee's supervisor, Harris, expressing his appreciation for McGhee's leadership abilities and professionalism. Based on this kind of positive feedback, McGhee had aspirations of perhaps one day ascending to the position of Deputy Comptroller.
The Deputy Comptroller's position is a military billet. Thus, neither McGhee nor Sharer, both civilians, was eligible to fill it. McGhee asserts that there was talk, some of which occurred at division head meetings, suggesting that the Deputy Comptroller position was to become a civilian billet. McGhee alleges that Frentzel was favoring Sharer so that she could fill the Deputy Comptroller position if and when it was made available to civilians. The position remains a military billet.
Apparently, however, despite his professed admiration for the job McGhee was doing in NSG as evidenced by his "signing off" on the 1996 evaluation, Frentzel actually harbored a firmly-held opinion that McGhee was not performing up to legitimate expectations. The record contains a May 21, 1997, memorandum addressed to McGhee (though it was never delivered to McGhee), outlining Frentzel's dissatisfaction with McGhee's performance. The memorandum asserts that McGhee missed several deadlines for important reports, had failed to exercise initiative in addressing problems, was unfamiliar with the data analysis capabilities of the software systems used at NSG, and lacked leadership skills. The memorandum states in part that "we simply cannot afford to pay someone GS-14 pay who isn't an innovator and problem-solver . . . ." An EEO officer advised Frentzel that the memorandum should not be delivered to McGhee and Frentzel complied. The existence of the memorandum only came to light as a result of this case.
Frentzel's change of opinion about McGhee arose when Frentzel made inquiry of one of McGhee's subordinates, Evangeline Morgan, about the capabilities of the STARS-FL accounting system. Frentzel asserts, and the record appears to support the assertion that, Morgan informed Frentzel that the system could produce certain types of computerized reports that McGhee had previously told Frentzel were beyond the capabilities of the system. Morgan Dep. at 37-40.
Although Frentzel did not send the May 21, 1997, memorandum to McGhee, Frentzel did speak to his superior about a proposed "reassignment" of McGhee. Frentzel testified that his supervisor told him to be careful that he follow all appropriate regulations concerning the proposed reassignment, but otherwise demurred. Frentzel Dep. at 25. McGhee was never counseled or cited for performance problems prior to his reassignment and, indeed, Frentzel insists that the reassignment was not a performance-based decision taken because McGhee was doing a poor job, but was instead a mere garden-variety management decision intended to take better advantage of McGhee's abilities and skills. Frentzel Dep. at 27. On June 2, 1997, upon McGhee's return from a work assignment in Scotland and a week of approved leave, Frentzel told McGhee he was being reassigned to a newly-created position as Internal Controls Specialist. He was told to pack up his belongings and move immediately to his new work space. In his new position, McGhee retained the same grade, pay and benefits, but he no longer exercised supervisory or management authority over any subordinates and he lost his private office. He was assigned a small cubicle in a high-traffic area, an area where persons who knew him, and of his prior position, frequently encountered him and displayed a derisive attitude toward him. McGhee no longer attended division staff meetings.
On deposition, Frentzel explained that he made the reassignment because he believed that McGhee had a "skills mismatch" as Director of Budget and Execution. Frentzel asserts that McGhee did not have the financial analysis and automation skills required to head the Budget and Execution Office as he, Frentzel, envisioned it. Specifically, Frentzel cited a lack of computer skills and knowledge of financial analysis programs, a lack of initiative in investigating new financial analysis tools and McGhee's failure to implement the BMS computer system. Moreover, Frentzel believed the position he created for McGhee was particularly needed by NSG (and did not constitute "make-work") because of an upcoming Inspector General audit. Nevertheless, when McGhee retired before the audit, Frentzel did not assign anyone to complete the tasks McGhee had been assigned.
There is evidence that McGhee's newly-appointed supervisor, McNally, interpreted the reassignment as a performance-based action with which she disagreed. Under Navy policy, reassignment or demotion based on performance concerns must be preceded by a 30 day notice and a 90 day period to improve. Civilian Intelligence Personnel Office Instruction 12439.1 (August 16, 1993); 5 U.S.C. § 4303. McGhee was replaced as Director of Budget and Execution by an African-American female, Joanne Gillum. Gillum voluntarily retired after six months, in part, she testified, out of a concern for her job security, inasmuch as McGhee had no job security in a position in which he was excelling. Gillum Dep. at 27-28. Gillum was replaced by a white male, Jake Pulnar.
The position of Director of Budget and Execution was restructured after Gillum retired as required by the rules of the voluntary early retirement program.
In his new position, McGhee remained a Financial Specialist, GS-501-14. His new position involved developing plans and systems for internal audits throughout the NSG headquarters, evaluating and correcting all audits performed and working with external reviewers and department managers to insure coherent systems. See Position Description, Financial Specialist, GS-501-14, July 14, 1997. Soon after beginning his new position, McGhee was ordered to provide daily reports to his supervisor, McNally. This was implemented for only a month, however, because McGhee complained to the EEO office, which advised against imposing such a requirement. Nevertheless, Frentzel required McGhee to submit weekly reports as to his work progress.
Defendant contends that McGhee had performance problems in his new position. McNally initiated counseling sessions on June 10, 1997, and October 14, 1997. McNally Dep. at 70. McNally asserts that McGhee "had not met the critical elements of his position and produce[d] little work . . . . [H]e did very little." Id. at 80. During this time, McGhee began to experience stress, anxiety and increased blood pressure. He began taking sick leave. Convinced that his promising career path to upper management had been forever blocked, and feeling humiliated and depressed by the unforseen turn of events resulting in his reassignment, McGhee decided to take early retirement, effective in December 1997. As part of the early retirement program, McGhee received $25,000 as a separation pay incentive. McGhee timely exhausted his administrative remedies. A final agency decision finding no discrimination was issued on September 30, 1999. The agency found that McGhee's reassignment was a placement action and that Frentzel had a right to reassign McGhee to a position in which he believed his skills would be better utilized. Because McGhee did not show that the placement action was a result of his race or sex, the transfer was not discriminatory. The agency also found that McGhee had voluntarily retired and had made no showing that his work conditions were so intolerable that he had no choice but to retire. McGhee timely instituted this action.
III. Summary Judgment Standards
Pursuant to Fed.R.Civ.P. 56(c), summary judgment is appropriate "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 judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A fact is material for purposes of summary judgment, if when applied to the substantive law, it affects the outcome of the litigation. Id. at 248. Summary judgment is also appropriate when a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A party opposing a properly supported motion for summary judgment bears the burden of establishing the existence of a genuine issue of material fact. Anderson, 477 U.S. at 248-49. "When a motion for summary judgment is made and supported as provided in [Rule 56], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavit or as otherwise provided in [Rule 56] must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). See Celotex Corp., 477 U.S. at 324; Anderson, 477 U.S. at 252; Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991). Of course, the facts, as well as the justifiable inferences to be drawn therefrom, must be viewed in the light most favorable to the nonmoving party. See Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). The court, however, has an affirmative obligation to prevent factually unsupported claims and defenses from proceeding to trial. See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987).
When both parties file motions for summary judgment, as here, the court applies the same standards of review. Taft Broadcasting Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991); ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 45 n. 3 (4th Cir. 1983) ("The court is not permitted to resolve genuine issues of material facts on a motion for summary judgment — even where . . . both parties have filed cross motions for summary judgment.") (emphasis omitted), cert. denied, 469 U.S. 1215 (1985). The role of the court is to "rule on each party's motion on an individual and separate basis, determining, in each case, whether a judgment may be entered in accordance with the Rule 56 standard." Towne Mgmt. Corp. v. Hartford Acc. Indem. Co., 627 F. Supp. 170, 172 (D.Md. 1985) (quoting Wright, Miller Kane, Federal Practice and Procedure: Civil 2d § 2720). See also Federal Sav. Loan Ins. Corp. v. Heidrick, 774 F. Supp. 352, 356 (D.Md. 1991). "[C]ross-motions for summary judgment do not automatically empower the court to dispense with the determination whether questions of material fact exist." Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th Cir.), cert. denied, 464 U.S. 805 (1983). "Rather, the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987). Both motions may be denied. See Shook v. United States, 713 F.2d 662, 665 (11th Cir. 1983).
"[B]y the filing of a motion [for summary judgment] a party concedes that no issue of fact exists under the theory he is advancing, but he does not thereby so concede that no issues remain in the event his adversary's theory is adopted." Nafco Oil Gas, Inc. v. Appleman, 380 F.2d 323, 325 (10th Cir. 1967). See also McKenzie v. Sawyer, 684 F.2d 62, 68 n. 3 (D.C. Cir. 1982) ("neither party waives the right to a full trial on the merits by filing its own motion"). However, when cross-motions for summary judgment demonstrate a basic agreement concerning what legal theories and material facts are dispositive, they "may be probative of the non-existence of a factual dispute." Shook, 713 F.2d at 665.
IV. Analysis
McGhee asserts two claims: a discriminatory reassignment claim, which he contends amounted to a demotion, and a constructive discharge claim. I am persuaded that a genuine dispute of material fact has been generated as to the reassignment claim but not as to the constructive discharge claim.
A. Reassignment
McGhee's first claim is that his reassignment violated Title VII because it constituted an adverse employment action that was impermissibly motivated by race and/or gender. In the case at bar, there is no direct evidence of any racial or gender animus on the part of Frentzel. Accordingly, McGhee relies, as he must, upon the familiar three-step proof scheme common to discrimination claims. See Hawkins v. Pepsi Co, Inc., 203 F.3d 274, 278 (4th Cir. 2000) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, to make out a prima facie case of disparate treatment, plaintiff must produce evidence to show that:(1) he is a member of a protected class;(2) he was performing his duties in a satisfactory manner; (3) he was subjected to an adverse employment action, here, an ostensible demotion; and (4) he was replaced by someone of comparable qualifications outside his protected class or that other circumstances surrounding the adverse employment action rationally support the inference that the adverse employment action was motivated by unlawful considerations. See Ennis v. National Ass'n of Business and Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995); Tuck v. Henkel Corp., 973 F.2d 371, 375 (4th Cir. 1992), cert. denied, 507 U.S. 918 (1993) (age discrimination), abrogated on other grounds in O'Connor v. Consol. Caterers Corp., 517 U.S. 308 (1996); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). This initial showing requires the plaintiff to produce "a set of facts which would enable the fact-finder to conclude with reasonable probability that in the absence of any further explanation, the adverse employment action was the product of [race or sex] discrimination." Mitchell v. Data General Corp., 12 F.3d 1310, 1315 (4th Cir. 1993) (emphasis in original).
Once the plaintiff establishes a prima facie case, a presumption of discrimination arises and the burden of production is placed on the employer to articulate a legitimate nondiscriminatory reason for the adverse employment decision. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (citing Burdine, 450 U.S. at 254 (1981)). Because the employer's burden is one of production and not of persuasion, it "is not required to prove absence of a discriminatory motive, but merely articulate some legitimate reason for its action." E.E.O.C v. Clay Printing Co., 955 F.2d 936, 941 (4th Cir. 1992) (quoting E.E.O.C. v. Western Electric Co. Inc., 713 F.2d 1011, 1014 (4th Cir. 1983)). If the employer meets this burden, the presumption of discrimination is eliminated, and the plaintiff bears the ultimate burden of proving by a preponderance of the evidence that the employer's nondiscriminatory reasons are pretextual and that the adverse employment action was actually taken because of the employee's race or sex. Hicks, 509 U.S. at 511.
The Supreme Court recently clarified the plaintiff's burden at the pretext stage in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). The Court reiterated that evidence of pretext, combined with the plaintiff's prima face case, does not compel judgment for the plaintiff, because "[i]t is not enough . . . to disbelieve the employer; the factfinder must [also] believe the plaintiff's explanation of intentional discrimination." Id. (quoting Hicks, 509 U.S. at 519). However, Reeves made plain that, under the appropriate circumstances, "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id.
Prima Facie Case
Application of the above principles here persuades me that McGhee has established his right to a jury determination of his gender-based discriminatory reassignment claim.
1.
Plaintiff is a member of classes protected by Title VII by virtue of race and gender. As an African-American male, McGhee satisfies the first element of the prima facie case.
2.
The next issue is whether McGhee was performing in a satisfactory manner. Defendant alleges that McGhee was reassigned because he was not qualified for the Director's position as it was "newly-conceived" by Frentzel. As discussed above, Frentzel allegedly concluded that while McGhee's accounting skills were strong, his financial analysis and computer skills were not at the level Frentzel wanted. Because the plaintiff's burden of proof at the prima facie stage "is not onerous" however, Burdine, 450 U.S. at 253, the fact is that McGhee's consistently positive performance evaluations indicate that he has made a sufficient showing that he was qualified for the Director of Budget and Execution position. See also De la Cruz v. New York City Human Res. Admin., 82 F.3d 16, 21 (2nd Cir. 1996) ("a performance evaluation that is positive overall is sufficient to withstand summary judgment at the prima facie stage."). In fact, the final decision of the Navy states that "[w]hile [McGhee] clearly possessed the educational and requisite experience to meet the basic qualifications for the position, management stated that it wanted to use his skills in another position." Final Decision, Sept. 30, 1999, at 5. Thus, McGhee satisfies the second element of the prima facie case.
To the extent Frentzel relied on subjective criteria in his evaluation of McGhee's competence for continued employment as Director of Budget and Execution, e.g., "leadership" and "initiative," his evaluation is subject to strict scrutiny, Page v. Bolger, 645 F.2d 227, 230 (4th Cir.) (en banc), cert. denied, 454 U.S. 892 (1981), and is most appropriately considered at the "pretext stage" of analysis. Cf. Aka v. Washington Hospital Center, 156 F.3d 1284, 1298 (D.C. Cir. 1998) ("Particularly in cases where a jury could reasonably find that the plaintiff was otherwise significantly better qualified than the successful applicant, an employer's asserted strong reliance on subjective feelings about the candidates may mask discrimination."); Perfetti v. First Nat. Bank of Chicago, 950 F.2d 449, 457 (7th Cir. 1991) (discussing "the ease with which employers may use subjective factors to camouflage discrimination") (citation omitted); Lilly v. Harris-Teeter Supermarket, 842 F.2d 1496, 1506 (4th Cir. 1988).
3.
The next issue is whether McGhee's reassignment constituted an "adverse employment action." As discussed above, McGhee was reassigned from the position of Director of Budget and Execution to the position of Internal Controls Specialist. On the one hand, his grade, pay and benefits remained the same in this new position. On the other hand, Frentzel deprived McGhee of all supervisory responsibilities and his private office, and he excluded him from the daily division head meetings. In addition, McGhee argues that this newly-created position was "temporary" and involved only "make-work" that was tangential to his areas of expertise. Finally, McGhee argues that the reassignment completely removed him from his career ladder, which was taking him to the senior executive level, and, he hoped, the position of Deputy Comptroller. He contends that his new position offered no room for promotion and that the removal of his supervisory duties was particularly detrimental.
McGhee's contention that the position was "temporary" seems to be based on his argument that others, with a lower grade than he, performed similar tasks and because his duties were so eroded, it was likely that the position would be downgraded when a desk audit occurred.
Defendant counters that the position did involve substantive tasks and that to a large degree McGhee was charged with creating an internal controls program for headquarters where it had not previously existed, presumably a challenging and formidable undertaking. Defendant also contends that Frentzel and McNally consulted with an agency personnel specialist to insure that the job position carried a grade 14, McGhee's grade as Director of Budget and Execution. Although all civilian positions are subject to desk audits, and thus are at risk for downgrading, defendant contends, McGhee's argument amounts to little more than speculation that the newly created position would be downgraded. In sum, defendant maintains that McGhee's reassignment to the internal controls position was merely a lateral transfer which had no adverse affect on his grade, title, salary or level of responsibility. The "employment discrimination laws require as an absolute precondition to suit that some adverse employment action have occurred." Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985), cert denied, 475 U.S. 1982 (1986) (emphasis added). In defining what constitutes an adverse employment action, the Fourth Circuit observed, in Page v. Bolger, 645 F.2d 227 (4th Cir.) (en banc), cert. denied, 454 U.S. 892 (1981), that inquiries into whether there has been an employment action adversely affecting an employee have "consistently focused 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 compensation." Id. at 233 (emphasis added). See also Hopkins v. Baltimore Gas Elec. Co., 871 F. Supp. 822, 836 (D.Md. 1994), aff'd, 77 F.3d 745 (4th Cir. 1996); Lucas v. Cheney, 821 F. Supp. 374, 375 (D.Md. 1992), aff'd, 991 F.2d 790 (4th Cir. 1993). The Fourth Circuit further stated:
Among the myriad of decisions constantly being taken at all levels and with all degrees of significance in the general employment contexts covered by Title VII there are certainly others than those we have so far specifically identified that may be so considered, for example, entry into training programs. By the same token, it is obvious to us that there are many interlocutory or mediate decisions having no immediate effect upon employment conditions which were not intended to fall within the direct proscription of § 717 and comparable provisions of Title VII.
Page, 645 F.2d at 233(citation omitted).
Recently, the Fourth Circuit has clarified, in a retaliatory harassment case under Title VII, that an adverse employment action includes, but is not limited to, "ultimate employment decisions." Von Gunten v. Maryland, 243 F.3d 858, ___ (4th Cir. 2001) ("`[U]ltimate employment decision' is not the standard in this circuit."). The proper focus of the analysis is on whether the action adversely affects a term and condition of employment. An objective test of "adversity" applies, and a plaintiff's subjective feelings about the employment action is a necessary, but not a sufficient, evidentiary showing to withstand summary judgment. See Goldberg v. B. Green and Co., Inc., 836 F.2d 845, 848 (4th Cir. 1988). The Fourth Circuit has stated that "reassignment can only form the basis of a valid Title VII claim if the plaintiff can show that the reassignment had some significant detrimental effect on her," Boone v. Goldin, 178 F.3d 253, 256 (4th Cir. 1999), but not a reassignment which involves only "trivial discomforts endemic to employment." Id. Thus, "reassignment with significantly different responsibilities" may constitute an adverse employment action. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998); cf. Mackey v. Shalala, 43 F. Supp.2d 559, 568-69 (D.Md. 1999); Darnell v. Campbell County Fiscal Court, 731 F. Supp. 1309, 1313 (E.D.Ky. 1990), aff'd, 924 F.2d 1057 (6th Cir. 1991) (noting that "a transfer involving loss of prestige or an objectively demeaning change of working conditions can amount to adverse employment conditions"); Kauffman v. Kent State Univ., 815 F. Supp. 1077, 1082-85 (N.D.Ohio. 1993), aff'd, 21 F.3d 428 (6th Cir. 1994). McGhee's central complaint about his transfer is that it removed him from his career ladder and foreclosed future opportunities for promotion. He argues that when longstanding supervisory responsibilities are peremptorily removed, as in his case, continuing on the senior executive ladder is unlikely. McGhee also argues that his new position offered no opportunity for promotion because it was very likely to be subjected to an adverse desk audit. He also argues that his duties were outside his area of expertise. McGhee asserts he was given little direction in how to proceed and that his duties were duplicative of another Navy employee's duties.
McGhee held supervisory responsibilities for 16 years. Prior to his reassignment, he supervised eight to ten people.
The record does indicate that after McGhee's reassignment McNally and Frentzel were dissatisfied with his performance. McNally testified that she held several counseling sessions with McGhee and Frentzel following his reassignment. McNally stated that McGhee produced very little and seemed to know less about the internal controls area than they expected someone of his grade to have. McNally Dep. at 65, 70-72. McNally also stated it was her idea to meet with McGhee on a daily basis and that her goal was to help him improve his performance. Id. at 82. Thus, there is evidentiary support for McGhee's contention that he was placed outside of his area of expertise.
There is evidence to support his contentions. For example, McGhee points to Priscilla Bunts, an employee in the Inspector General's Office ("IG") of NSG. Bunts was performing the same duties McGhee was now assigned and was doing them at a lower grade than he. A thorough examination of Bunts's deposition testimony reveals that while part of her responsibilities included internal control tasks, they were related to the NSG claimancy and not NSG headquarters, which was McGhee's assignment. Bunts Dep. at 40. While Bunts stated that at one point she still believed that internal controls of headquarters was still a responsibility of the IG's, it was not being done. Id. at 33. In addition, it is not disputed that at least since 1996, the Navy wanted to move the internal control position relating to headquarters out of the IG's office and into the Comptroller's office to avoid any potential conflicts of interest. Id. at 26-31. Bunts also testified that she had no objection to McGhee performing internal control duties for headquarters and felt there was a need for that position. Id. at 68.
The "claimancy" is a second echelon command that facilitates the functioning of the Department of the Navy, which is the first echelon command.
McGhee also argues that proof of the erosion of his duties is shown by the fact that no one filled his position as Internal Controls Specialist after his retirement. Defendant offers the following explanation: no one replaced McGhee because the elimination or restructuring of his position was a required consequence of participation in the voluntary early retirement plan. The Naval Audit Service was called in to do an inspection before the IG's audit, and internal control duties for headquarters were subsequently distributed among various NSG departments. Frentzel Dep. at 167. Nevertheless, these determinations are not undisputed.
This is consistent with the fact that after Gillum opted for the voluntary early retirement program, the Director of Budget and Execution position was restructured. The Budget and Execution Division and the Programs Division were eventually consolidated
McGhee also relies for support of his contention that the reassignment was an adverse action on the views expressed by his supervisor, McNally, who saw the reassignment as a performance-based action, and thus a demotion. McNally Dep. at 80. McGhee has also adduced the testimony of co-workers that McGhee's transfer was "unprecedented" and widely-viewed in the ranks as a disciplinary action. Gillum Dep. at 27. McGhee also states that the humiliation of what he perceived as a demotion adversely affected the terms and conditions of employment, namely, that his cubicle was in front of the administration area and was passed by all who entered the office. He stated that people would "gawk and laugh" at him because of his reassignment. McGhee Dep. at 62.
McNally testified that "I disagreed with [Frentzel's] decision because there was no documentation]to support that Mr. McGhee had a performance problem." McNally Dep. at 80. Frentzel also conceded that McNally and the EEO and personnel specialist interpreted the re- assignment as a performance-related action. Frentzel Dep. at 132-33.
Evidence that an employee feels an action creates public humiliation has been held insufficient to affect a term or condition of employment. See Spring v. Sheboygan Area School Dist., 865 F.2d 883, 886 (7th Cir. 1989) ("public perceptions were not a term or condition of [plaintiff's] employment").
After a careful consideration of the parties' competing contentions, I am persuaded that the record establishes that McGhee suffered a materially adverse employment action when he was reassigned to the Internal Controls position. While McGhee's argument that his reassignment foreclosed future promotions, and thus any potential for his progression up the career ladder, is not established with overwhelming evidence, I am convinced that there is considerable force to this contention. The precipitous and "unprecedented" reassignment of the employee who had essentially created the combined Budget and Execution Office could rationally be perceived by a reasonable person to indicate that the employee was doing an extraordinarily poor job. Indeed, so precipitous and striking to the rank and file was Frentzel's decision to reassign McGhee that one might even suspect (as some did in fact) that the reassignment was a disciplinary action. Indisputably, the removal of all supervisory responsibilities weighs heavily in any adverse action analysis. See Boone, 178 F.3d at 256. In addition, McGhee has made a substantial showing that the range of tasks encompassed by his new position involved a significant reduction in his material responsibilities. Accordingly, I am persuaded that McGhee's reassignment under the circumstances described here satisfies the "adverse employment action" requirement essential to the establishment of a prima facie case of disparate treatment.
4.
The final issue is whether McGhee was replaced by someone of comparable qualifications outside his protected class or whether the circumstances surrounding the reassignment otherwise rationally support the inference that it was motivated by unlawful considerations. Upon his reassignment, McGhee was replaced by an African-American female, Gillum. Accordingly, it would be irrational to believe that Frentzel could have been motivated to reassign McGhee on the basis of race. Therefore, McGhee's claim of race discrimination fails as a matter of law.
McGhee seems to contend that Gillum was chosen to replace him to prevent McGhee from proving that his reassignment was motivated by race discrimination and to hide Frentzel's plan to raise a white female (Sharer) to positions of greater authority at the NSG. He points to Gillum's short tenure, early retirement and ultimate replacement by a white male to further support this theory. But these contentions, grounded as they are in a flawed post hoc, ergo propter hoc analysis, do not advance McGhee's theory. Moreover, McGhee's reliance on anecdotes suggesting that Frentzel generally treated African-Americans less favorably than others and acted to block their elevation at NSG by delaying the approval of training opportunities and delaying approval of the designation of branch heads when African-American employees were involved, see McGhee Dep. at 54, 55-57, is not probative of McGhee's allegation that his reassignment was motivated by race and was part of a plan to prevent him from continuing his ascent up the career ladder at the NSG.
Thus, the issue is whether McGhee has presented sufficient evidence to support an inference of gender discrimination. Of the seven division heads at NSG, McGhee was the only African-American male. The record indicates that there was at least one white female division head, Sharer, one white male division head, Donald Sharer (Peggy Sharer's husband), and two African-American female division heads, Daryl Edwards and Renee Richardson. Edwards Dep. at 13. McGhee presents evidence that is supported by co-workers that Frentzel treated him differently than other division heads and other employees. McGhee and his witnesses testified on deposition that Frentzel always put McGhee on the spot at division meetings, often did not let him finish his sentences and would reprimand him in public rather than in his office. Edwards Dep. at 12-13, 16, 17; Gillum Dep. at 33-4. Lawrence Lindsay, a subordinate of McGhee, testified that Frentzel and McGhee had many public "verbal confrontations." Lindsay Dep. at 24. Lindsay stated that McGhee may have been treated differently because of his race and/or gender, but also perhaps because he was a civilian. Id.
Gillum testified that other persons in the NSG had performance problems and were not treated as badly as was McGhee. Gillum Dep. at 15. The portion of the deposition following defense counsel's request for more specific information on this subject has not been provided.
McGhee generally alleges that division head Sharer was treated more favorably than he in that she received his signature authority and subsequently used that authority to deny McGhee's request for funding to implement the BMS system. He also argues that an employee from his staff was transferred to Sharer's division, and that his request for more computer-proficient staff was refused. McGhee Dep. at 37, 39. He also testified that Sharer, rather than he, was chosen to serve as Acting Deputy Comptroller when the deputy was away. Id. at 47. Finally, McGhee claims that Frentzel called him a "gigolo" and that he interpreted this as a racial and sexist comment. Gillum also testified that Frentzel told her that McGhee "dresses all snazzy but he doesn't have anything to back it up." Gillum Dep. at 49.
Cf. Masson v. New Yorker Magazine, 501 U.S. 496, 522 (1991) (holding that report of colleagues' opinion that plaintiff was an "intellectual gigolo" could be defamatory).
Considering all of the above evidence in the light most favorable to McGhee, I am persuaded, admittedly by a thin margin, that McGhee has established a prima facie case of gender discrimination. Frentzel's evident affinity for Sharer contrasts rather dramatically with his manifest antipathy for McGhee. It cannot be said as a matter of law that Frentzel's decision to replace McGhee with Gillum, who largely disclaimed any special expertise consonant with Frentzel's new "vision" of the Budget and Execution Office, was not indicative of a gender bias harbored by Frentzel. Although, certainly, no such conclusion is compelled, neither is it a wholly unreasonable conclusion on this record. Accordingly, I next consider whether defendant has presented evidence of a legitimate nondiscriminatory reason for the reassignment.
Gillum testified that she told Frentzel she did not have much technical knowledge, but "knew how to apply and get needs analysis done" and that she had "taken naval intelligence through what the naval security group needed to go through [with respect to automation]." Gillum Dep. at 41-42.
Legitimate Nondiscriminatory Reasons
Clearly, defendant has presented evidence of legitimate nondiscriminatory reasons for the reassignment. Defendant argues that McGhee was reassigned because his skills no longer matched those required of the Director of Budget and Execution envisioned by Frentzel. Frentzel concluded that McGhee was not proficient in the computer technology that analyzes and tracks financial data and that, while McGhee provided him with monthly data on NSG finances, he was not tracking trends and analyzing data in ways that were helpful and efficient. Frentzel Dep. at 33-34. Frentzel also complained that McGhee was not proactive and never implemented BMS, which would have helped automate data. Id. at 121. Frentzel also argues that McGhee did not take the initiative and pursue his suggestions that so-called Activity Based Costing be used in NSG as an accounting method.
Frentzel asserts that he reassigned McGhee to better fit his talents to his duties. In Frentzel's view, work in internal controls largely involves different levels and modes of auditing and that McGhee was a talented accountant. Id. at 141. He also stated that he believed the position had growth potential, as increasing pressure had been put on the Navy and other agencies to account for budgetary and financial decisions. Id. at 191. Frentzel also stated that while a down-grade is always possible whenever a desk audit is done, the "policy aspects" of the internal controls position provided security that it would remain at a GS-14 level. Id. at 193. Thus, defendant has carried his burden of production to articulate a legitimate nondiscriminatory reason for McGhee's transfer.
Evidence of Pretext
McGhee argues that these proffered reasons are pretextual and "unworthy of credence." Burdine, 450 U.S. at 256; Reeves, 530 U.S. at 143. He argues that the reasons given by Frentzel about his capabilities are false. McGhee also presents evidence which, he argues, demonstrates that his reassignment was actually based on sex.
McGhee argues that there was no reason for his reassignment, which he considered a demotion. He contends that his credentials, consistent outstanding performance ratings, and the lack of any warning prior to the reassignment all indicate that Frentzel's alleged belief concerning a "skills mismatch" is not worthy of credence. He argues that he had sufficient computer skills for his position description and that his replacement, Gillum, admitted that her computer skills were not of the highest order. See supra, n. 13. McGhee also argues that he was not able to implement the BMS system, a failure which was a principal criticism of McGhee by Frentzel, because Sharer, Frentzel's alleged protegee, denied the funding. McGee also argues that he did provide Frentzel with weekly reports and that his record demonstrates that he has strong leadership and managerial skills.
McGhee seems to argue that his job description did not require what Frentzel was requiring. Pl's Mot. for Partial Sum. J. at 22. However, "whether one is qualified may change from time to time. The fact that an individual may have been qualified in the past does not mean that he is qualified at a later time." Grohs v. Gold Bond Building Products, 859 F.2d 1283, 1287 (7th Cir. 1986). See also Weihaupt v. American Medical Assoc., 874 F.2d 419 (7th Cir. 1989) (plaintiff unable to show that he continued to be qualified for his position once it was restructured).
McGhee also argues that pretext is evidenced by Frentzel's failure to follow Navy policy with respect to demotions or reassignments based on performance. Defendant responds that, because the reassignment was neither a demotion nor a performance-based action, it was not necessary to provide McGhee with notice or an opportunity for improvement as is required by Navy personnel regulations before taking the action. In any event, although it is true that allegations that a defendant violated internal regulations do not state a cognizable claim under Title VII unless it can be shown such a violation was itself motivated by race or sex, see Vaughan v. Metrahealth Companies, Inc., 145 F.3d 197, 203 (4th Cir. 1998); Hamilton v. 1st Source Bank, 895 F.2d 159, 162 (4th Cir. 1990), the issue of whether McGhee's reassignment was a de facto demotion, and whether the reassignment was based on gender, are vigorously disputed in this case.
On the whole, although it is a close question, I am persuaded that, drawing all reasonable inferences in favor of McGhee (which, frankly, is not what a reasonable fact finder is likely to do, but McGhee's Seventh Amendment right to a jury trial secures to him the opportunity to try to so persuade a jury), a reasonable fact finder could conclude that Frentzel acted out of a gender-based animus in reassigning McGhee. Accordingly, I shall deny the defendant's motion for summary judgment as to the reassignment claim.
B. Constructive Discharge
"A constructive discharge occurs when an employer creates intolerable working conditions in a deliberate effort to force the employee to resign." Johnson v. Shalala, 991 F.2d 126, 131 (4th Cir.), cert. denied, 513 U.S. 806 (1993); Burns v. AAF-McQuay, Inc., 96 F.3d 728, 733-34 (4th Cir. 1996), cert. denied, 520 U.S. 1116 (1997) (age discrimination claim). Deliberateness can be proved through direct or circumstantial evidence. See id. An employee is legally protected "from a calculated effort to pressure him into resignation through the imposition of unreasonably harsh conditions, in excess of those faced by his co-workers. He is not, however, guaranteed a working environment free of stress." Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985), cert. denied, 475 U.S. 1082 (1986). "Dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to resign." Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994).
A "[d]emotion can constitute a constructive discharge, especially where the demotion is essentially a career-ending action or a harbinger of dismissal." Id. See also Jurgens v. E.E.O.C., 903 F.2d 386, 391-92 (5th Cir. 1990) (plaintiff not constructively discharged when demoted one grade with slight loss in pay and decrease in supervisory responsibilities); Jett v. Dallas Indep. School Dist., 798 F.2d 748, 755 (5th Cir. 1986) (loss of head coaching responsibilities and transfer to another school did not create a situation that would be so objectively intolerable to cause the plaintiff to resign). A constructive discharge claim cannot be based on an employee's subjective preference for one position over another. Jett, 798 F.2d at 755 (citing Kelleher v. Flawn, 761 F.2d 1079, 1086 (5th Cir. 1985)). Furthermore, "[m]erely `awkward' situations cannot support a claim of constructive discharge." Shealy v. Winston, 929 F.2d 1009, 1013 (4th Cir. 1991). An action that "cannot be reasonably construed as career-ending" cannot create such humiliation as to warrant the conclusion that the employee has been constructively discharged. See also Shealy, 929 F.2d at 1011(fear that reassignment from chief to regular magistrate would result in a pay decrease, inconvenient hours, loss of prestige and embarrassment did not sufficiently demonstrate intolerability). A court will consider the permanence of the demotion in determining the career-ending nature of the employment action, but will not credit speculation concerning future career progressions. Jurgens, 903 F.2d at 392.
McGhee argues that his work conditions were made intolerable because of his transfer and the humiliation to which Frentzel exposed him. He contends that Frentzel's disparate treatment of him demonstrates a deliberate effort to force him to leave the NSG. In short, McGhee relies on the same evidence presented to support his claim that he was demoted to a "make-work" job with reduced material responsibilities to support his claim that his work conditions were intolerable. As a matter of law, this evidence is not sufficient to satisfy the standards applied by the Fourth Circuit for intolerability. See Amirmokri v. Baltimore Gas Electric Co., 60 F.3d 1126, 1132 (4th Cir. 1995). As discussed above, some of Frentzel's stated reasons for McGhee's reassignment are inconsistent and based on subjective criteria. However, even if Frentzel is disbelieved, such a rejection of his views would not constitute substantial evidence that he deliberately sought McGhee's resignation or retirement, or that the conditions in which McGhee worked after his reassignment were intolerable. Moreover, even if a fact finder were convinced that McGhee's chances of further promotion were significantly diminished, he has not shown that his reassignment was "career ending." McGhee relies heavily on the humiliation which surrounded his reassignment to bolster his claim. It is true, as McGhee argues (and as the record confirms), that Frentzel was more abrupt and confrontational with McGhee than other employees and that McGhee was embarrassed by his reassignment and placement in a cubicle. Moreover, McGhee was understandably displeased with the requirement that he provide weekly reports to Frentzel about his activities following his reassignment. Nevertheless, supervisory unpleasantness or close monitoring do not constitute objectively intolerable conditions.
Furthermore, the evidence is undisputed that McGhee's performance was deficient in the new position; even McGhee concedes that he felt directionless. McGhee argues that no other employee was subject to the degree of monitoring to which he was subjected, but he does not address the contention that this was an action taken in response to performance problems. The record evidence falls far short of projecting a sufficient basis on which a jury could conclude that Frentzel actually established an intolerable work environment for McGhee or that Frentzel intended to do so. See Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001).
McGhee, though under a measure of stress in the workplace, voluntarily retired and received incentive pay in doing so. He had choices and he made the one that was most sensible to him at the time. His decision to "leave and fight" rather than "stay and fight" does not translate into a constructive discharge on this record. Accordingly, defendant's motion for summary judgment as to the constructive discharge claim shall be granted.
V. Conclusion
For the reasons set forth, plaintiff's claims for race discrimination and constructive discharge shall be dismissed with prejudice. Trial shall be scheduled on the issues of whether Frentzel's reassignment of McGhee from the position of Director of Budget and Execution to Internal Controls Specialist constituted an adverse employment action based on gender in violation of McGhee's right to be free from discrimination. An order follows.
ORDER
In accordance with the foregoing Memorandum, it is this 19th day of April, 2001, by the United States District Court for the District of Maryland, ORDERED
(1) That Defendant's motion for summary judgment is GRANTED IN PART AND DENIED IN PART AND PLAINTIFF'S CLAIMS FOR RACE DISCRIMINATION AND CONSTRUCTIVE DISCHARGE ARE DISMISSED WITH PREJUDICE;
(2) That Plaintiff's motion for summary judgment is DENIED;
(3) That THIS CASE IS CALENDARED FOR A THREE-DAY JURY TRIAL DURING THE TWO WEEK PERIOD COMMENCING AUGUST 20, 2001, THE PRE-TRIAL CONFERENCE TO BE HELD ON TUESDAY, AUGUST 14, 2001, AT 4:30 P.M. IN CHAMBERS; and
(4) That the Clerk TRANSMIT copies of this Order and the foregoing Memorandum to the attorneys of record.
.