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Scott v. Burwell

United States District Court, D. Maryland

September 25, 2014

TOWONA SCOTT, Plaintiff,
SYLVIA M. BURWELL, Secretary, United States Department of Health and Human Services, Defendant.


ROGER W. TITUS, District Judge.

Plaintiff Towona Scott is a former Program Assistant for the Department of Health and Human Services ("DHS"). Plaintiff claims that DHS discriminated against her on the basis of sex, age, and race, in violation Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. See ECF No. 1.[1] She also appears to allege that DHS took retaliatory actions against her for protected activity.


Plaintiff was a Program Assistant in the Office of the Deputy Chief, Ambulatory Care Services, Nursing and Patient Care Services, Clinical Center, National Institutes of Health, DHS. See ECF No. 1 at 10. Her job responsibilities included scheduling patient appointments, supplying information to family members, stocking copiers with paper, and filing medical information. See id. at 11. Plaintiff alleges seven adverse employment actions were taken as a result of discrimination, and as reprisal for prior Equal Employment Opportunity ("EEO") activity, by her supervisor Lavitra Barno ("Barno"). She alleges Barno failed to assign her to a permanent workstation, instead requiring her to work on several floors a day. Id. She alleges Barno denied her access to the conference room, copy room, and medication room, even though younger contractors had access to those rooms. Id. She alleges Barno gave her a "Minimally Successful" performance evaluation. Id. She alleges Barno denied her requested modified work schedule, even though other employees were allowed to have the work schedule she requested. Id. at 11. She alleges Barno classified her as "absent without leave" when she had to take time off to deal with her husband's medical emergency. Id. She alleges Barno issued her a "Special Leave Procedures" memorandum instituting heightened attendance and reporting checks. Id. at 3. Finally, she alleges Barno suspended her for three days. Id. at 12. Generally, Defendant does not deny taking these actions, but insists each was taken for a legitimate, nondiscriminatory reason.

Plaintiff filed an EEO complaint with DHS concerning these actions on August 1, 2008, and DHS provided Plaintiff with a report of investigation. Id. at 10-11. Plaintiff requested a hearing with an administrative judge ("AJ") of the Equal Employment Opportunity Commission ("EEOC"). The AJ granted DHS summary judgment on July 15, 2011. Id. at 11. She appealed the AJ's decision to the EEOC on September 2, 2011. Id. The EEOC affirmed the AJ on March 14, 2013. Id. Plaintiff filed her Complaint in this case on July 9, 2013 in the United States Court for the District of Columbia. Id. at 1. On Defendant's motion, ECF No. 10, the case was transferred to this Court on October 22, 2013. ECF No. 11. Defendant filed the Motion for Summary Judgment on January 3, 2014. ECF No. 14. That same day, the Court sent Plaintiff a letter explaining that she needed to respond substantively to Defendant's Motion with substantive arguments and, if necessary, affidavits and exhibits demonstrating the existence of a dispute of material fact, or she risked losing her case on summary judgment. ECF No. 15. Plaintiff moved for an extension of time to file a reply, ECF No. 16, which the Court granted on January 15, 2014, giving Plaintiff a deadline of February 28, 2014. ECF No. 17. Plaintiff has since made no filings in this case.


I. Summary Judgment

Summary judgment is proper if there are no issues of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 302 (4th Cir. 2006). A material fact is one that "might affect the outcome of the suit under the governing law." Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). A dispute of material fact is only "genuine" if sufficient evidence favoring the non-moving party exists for the trier of fact to return a verdict for that party. Anderson, 477 U.S. at 248-49. However, the non-moving party "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1986). "A party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of [his] pleadings, ' but rather must set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)).

The Court may only rely on facts supported in the record, not simply assertions in the pleadings, in order to fulfill its "affirmative obligation... to prevent factually unsupported claims or defenses' from proceeding to trial." Felty v. Grave-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (citing Celotex, 477 U.S. at 323-24). When ruling on a motion for summary judgment, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255 (emphasis added). However, "if the evidence is merely colorable or not significantly probative, it may not be adequate to oppose entry of summary judgment." Thompson Everett, Inc., v. Nat'l Cable Adv., 57 F.3d 1312, 1323 (4th Cir. 1995).

II. Application of the McDonnell Douglas Standard

A review of the facts and allegations in this case shows that Plaintiff has not put forth any direct evidence of discrimination. Accordingly, in evaluating the law and material facts on the record, this Court will apply the McDonnell Douglas burden shifting standard. In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court established a burden-shifting framework for evaluating claims of employment discrimination and retaliation under Title VII.[3] Under this framework, Plaintiff has the initial burden of establishing a prima facie case by a preponderance of the evidence. McDonnell Douglas, 411 U.S. at 802; Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir. 1997), overruled on other grounds by Baird v. Rose, 192 F.3d. 462 (4th Cir. 1999). If Plaintiff establishes a prima facie case, the burden of production shifts to DHS to articulate legitimate, nondiscriminatory reasons for its actions. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). Plaintiff must then prove by a preponderance of evidence that the legitimate reasons offered by her employer are but a pretext for discrimination, thus creating an inference that DHS did act with discriminatory intent. Id. at 143. If Plaintiff cannot produce evidence demonstrating the falsity of her employer's proffered reasons, DHS is entitled to summary judgment as a matter of law. Id. at 148.


I. Plaintiff's Prima Facie Case

Plaintiff has the initial burden of making out a prima facie case of prohibited conduct. See Evans v. Technologies Applications & Service Co., 80 F.3d 954, 959. Plaintiff has essentially alleged unequal discipline and unequal conditions of employment. To make out her prima facie case of discrimination, Plaintiff must show that she is a member of a protected class, that she suffered adverse employment action, and that other similarly situated employees outside of her protected class did not suffer similar adverse employment actions. See Bodoy v. North Arundel Hosp., 945 F.Supp. 890 (D. Md. 1996). To make out her prima facie case of retaliation, Plaintiff must show that she engaged in protected activity, that an adverse employment action was taken against her, ...

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