United States District Court, D. Maryland, Southern Division
ALVIN E. COATES, Plaintiff,
THOMAS J. VILSACK, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant.
PAUL W. GRIMM, District Judge.
Plaintiff Alvin Coates, believing that his employer, the United States Department of Agriculture ("USDA"), had discriminated against him, filed claims with the Equal Employment Opportunity Commission ("EEOC") and made informal complaints. Then, when he felt that he had been the victim of further discrimination and retaliation in response to those complaints, he made additional formal and informal complaints and, ultimately, filed suit in this Court against Defendant Thomas J. Vilsack, USDA Secretary. The USDA moved to dismiss or, in the alternative, for summary judgment, ECF No. 28, and on February 20, 2013, I granted summary judgment as to four of Plaintiff's five claims against it; his claim for retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., survived. See Mem. Op. 34, ECF No. 46. Now that discovery has closed, Defendant again moves for summary judgment. ECF No. 76. Because Plaintiff exhausted his administrative remedies and a genuine dispute exists as to the material facts concerning Plaintiff's retaliation claim, as discussed below, I will deny Defendant's motion and schedule this case for trial.
Plaintiff, an African-American, worked for the USDA at the Beltsville Agricultural Research Service ("BARC") for more than a decade as a high voltage electrician and, following a six-month period of administrative leave, as a construction inspector. Compl. ¶ 9, ECF No. 1. He has an extensive history of engaging in EEOC activity and making other complaints of discrimination, beginning with EEOC complaints he filed in 2002, 2005, and 2007. Id. ¶¶ 22, 23, 25. Additionally, in 2008, Plaintiff and other African-American co-workers complained about racial discrimination. Id. ¶ 26.
On February 17, 2009, Plaintiff joined an EEOC class action, later re-categorized as "a multi-complainant racial discrimination action, " against his employer, alleging racial discrimination. Id. ¶ 27 & n.1. On April 24, 2009 and May 13, 2009, Plaintiff filed informal and formal racial discrimination and retaliation complaints with the EEOC, in response to a "Memorandum of Caution" that Plaintiff's then-supervisor, Chizo Irechukwu, issued a month earlier "for allegedly failing to report to work while off-duty to address an alleged emergency power outage situation." Compl. ¶ 30. According to Plaintiff, he was on approved leave at the time and not required to report to work. Id. In relation to that claim, Plaintiff provided a statement to the EEOC investigator on October 12, 2009, to rebut an affidavit Irechukwu submitted about the basis for issuing the Memorandum of Caution. ECF No. 37-2; see Pl.'s Opp'n to Def.'s First Mot. 7, ECF No. 37.
On November 30, 2009, Plaintiff discovered a caricature of himself (the "Caricature"), which he considered "harassing, hostile, threatening, frightening, intimidating, and racially motivated, " that had been posted at his workplace while he was on vacation; soon thereafter, Plaintiff reported it to "BARC Security." Id. ¶¶ 36-44. The Caricature depicted him with a "cross bow bolt" through his head; his first name was written above it. Coates Am. Aff. 9, 11, ECF No. 37-3. It was posted in the conference room that Irechukwu and another supervisor of his, Christian Obineme, had been using to host a seminar. Compl. ¶¶ 36-37. On January 15, 2010, Plaintiff "discovered... a freshly embedded arrow or bolt lodged in a utility pole" that he maintained (the "Arrow") and informed "USDA supervisors." Id. ¶ 44. It "shocked and terrified him" and he reported it as "continued racial harassment." Id. ¶ 46. Plaintiff deposed BARC employees, including Irechukwu, on March 11, 2010, in conjunction with his May, 2009 EEOC claim. Id. ¶ 49. On April 26, 2010, Plaintiff filed another EEOC complaint of racial discrimination and retaliation. Id. ¶ 52.
Plaintiff's litany of Defendant's alleged retaliatory acts also is lengthy. Plaintiff received written reprimands from his supervisors in October 2007 and April 2009, following his EEOC claims. Compl. ¶¶ 25, 30. Plaintiff also considers the November 2009 Caricature, which followed his October 2009 actions in furtherance of his then-pending EEOC claim, to be retaliatory. Id. ¶¶ 37-40. According to Plaintiff, electrician work leader Gene Howard, "part of the management/supervisory team" whom he had named in an earlier EEOC claim, drew it and Irechukwu, Obineme and James Huffstickler, another supervisor of his, all "observed the Caricature posted on an easel board... for over a two (2) week time period" without removing it or reporting it. Id. ¶¶ 18, 23, 37-40. He also perceives the arrow he found in January 2010 to be retaliatory. Id. ¶¶ 44-46. On March 12, 2010, the day after Plaintiff deposed BARC employees with regard to his May 2009 EEOC complaint, Plaintiff's superiors issued a "Letter of Reprimand" to him "for conduct unbecoming a Federal employee'" and denied his request for overtime compensation. Id. ¶¶ 50-51; see Pl.'s Opp'n 15 n.3 (clarifying that both actions occurred on March 12, 2010); Coates Am. Aff. 3 (same). On May 10, 2010, less than one month after Coates filed an EEOC complaint, Irechukwu "proposed Coates for a five (5) day suspension" that ultimately was rescinded; Irechukwu claimed that Plaintiff "fail[ed] to follow supervisory instructions.'" Compl. ¶ 53. Plaintiff took disability leave on May 11, 2010, followed by administrative leave in June 2010, and when Plaintiff returned to work on December 13, 2010, Defendant assigned Plaintiff "to serve in the position of Construction Inspector, ' a subordinate position" that Plaintiff found "humiliating" and in which he was "denied the opportunity to earn hundreds of hours of available, valuable overtime, " as well as access to a government vehicle. Id. ¶¶ 54-56, 67.
As noted, Plaintiff's nine-count Complaint has been reduced to one count for retaliation in violation of Title VII, and Defendant, with the benefit of facts learned during discovery, moves again for summary judgment, this time on the grounds that Plaintiff failed to exhaust administrative remedies with regard to the Caricature and Arrow incidents, and that Plaintiff failed to establish a prima facie case of retaliation based on those incidents, the March 12, 2010 letter of reprimand and denial of his request for overtime compensation, or the May 10, 2010 letter of proposed suspension. Def.'s Mem. 1, 11. Defendant also contends that Plaintiff "has failed to establish that Defendant's legitimate nonretaliatory reasons for these actions, " as well as its reason for its December 13, 2010 reassignment of Plaintiff to serve as a Construction Inspector after he returned from leave, "are a pretext for retaliation." Id.
II. STANDARD OF REVIEW
Summary judgment is proper when the moving party demonstrates, through "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations... admissions, interrogatory answers, or other materials, " that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a), (c)(1)(A); see Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th Cir. 2013). If the party seeking summary judgment demonstrates that there is no evidence to support the nonmoving party's case, the burden shifts to the nonmoving party to identify evidence that shows that a genuine dispute exists as to material facts. See Celotex v. Catrett, 477 U.S. 317 (1986). A "genuine" dispute of material fact is one where the conflicting evidence creates "fair doubt"; wholly speculative assertions do not create "fair doubt." Cox v. Cnty. of Prince William, 249 F.3d 295, 299 (4th Cir. 2001); see also Miskin, v. Baxter Healthcare Corp., 197 F.Supp.2d 669, 671 (D. Md. 1999). The existence of only a "scintilla of evidence" is not enough to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Instead, the evidentiary materials submitted must show facts from which the finder of fact reasonably could find for the party opposing summary judgment. Id.
42 U.S.C. § 2000e-3(a) provides that it is unlawful for an employer "to discriminate against any individual... because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." Although "[t]he plain meaning of the statutory language provides protection of an employee's opposition activity when the employee responds to an actual unlawful employment practice, " the Fourth Circuit has "[r]ead the language generously to give effect to its purpose" and "held that opposition activity is protected when it responds to an employment practice that the employee reasonably believes is unlawful." Jordan v. Alt. Res. Corp., 458 F.3d 332, 338 (4th Cir. 2006) (emphasis in the original).
A. Exhaustion of Administrative Remedies
Defendant argues that Plaintiff's retaliation claims based on the November 30, 2009 Caricature incident and the January 15, 2010 Arrow incident should be time-barred because Plaintiff did not contact an EEOC counselor until March 16, 2010, more than forty-five days after both incidents. Def.'s Mem. 10. Plaintiff concedes that he did not contact an EEOC counselor until more than forty-five days after these incidents. Pl.'s Opp'n 2. Yet, he contends that it was not necessary to make such contact because the events occurred "during the pendency of Plaintiff's formal [EEOC] complaints filed on or about May 13, 2009... ...