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Gomez v. Burwell

United States District Court, D. Maryland

April 2, 2015

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


ROGER W. TITUS, District Judge.

Plaintiff Dr. Marcia Gomez is a former Public Health Analyst for the Division of Vaccine Injury Compensation ("DVIC"), a division of the Department of Health and Human Services ("DHHS"). Plaintiff claims that DVIC discriminated against her on the basis of sex, age, race, color, and national origin 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 alleges that she was retaliated against for engaging in protected activity. Id.


Plaintiff has worked at DHHS as a Public Health Analyst since 1999. ECF No. 10-3, at 46. On March 8, 2011, she filed an informal Equal Employment Opportunity ("EEO") complaint based on her employment in another DHHS division. Id. As part of a mediated settlement, Plaintiff was transferred to DVIC and began working there on May 23, 2011. Id. Her primary duty was to review available medical evidence in cases where a person alleged injury due to a vaccine and to prepare reports for the Department of Justice ("DOJ") assessing the viability of those claims, which DOJ incorporated when responding to the claims. Id. at 61. Her first line supervisor was Dr. Catherine Shaer. Id. at 46.

There is evidence that the reports prepared by Plaintiff required Dr. Shaer to make substantial revisions before they could be forwarded to DOJ. ECF No. 12-12, at 7-9. Although it is not unusual for a new employee to initially struggle to prepare quality reports, by October 2011, after Plaintiff had completed several reports but had shown no improvement, Dr. Shaer expressed to Plaintiff her concerns about the insufficient quality of her reports. ECF No. 12-10, at 4. These concerns apparently took Plaintiff by surprise. Id.

At her performance evaluation in January 2012, Dr. Shaer told Plaintiff that she would be given a "Fully Successful" rating for 2011, since that represented the first six months in that position, but that if the quality of her work did not begin to improve within a few months, she would be rated as unsatisfactory. ECF No. 10-3, at 49. This was memorialized in a Memorandum of Counseling delivered to Plaintiff on January 12, 2012. Id. at 130-32. In March, Dr. Shaer again informed Plaintiff that the quality of her work remained unacceptable. Id. at 82. On May 16, 2012, Dr. Shaer placed Plaintiff on a 60-day Performance Improvement Plan. Id. at 124-29. On August 31, 2012, citing continuing problems with Plaintiff's ability to produce quality reports, Dr. Shaer proposed that Plaintiff be removed from her position. ECF No. 10-9. Plaintiff's proposed removal was accepted on November 21, 2012, and Plaintiff was to be terminated effective November 30, 2012. ECF No. 10-10. On November 23, 2012, Plaintiff tendered her resignation, effective immediately, ostensibly for medical reasons. ECF No. 10-11, at 2. On May 5, 2013, Plaintiff was re-hired by DHHS as a Health Science Policy Analyst, seemingly at the same level she had before. ECF No. 10-6, at 1.

Plaintiff filed the instant Complaint on February 27, 2014. ECF No. 1. The crux of her allegations are that the adverse actions taken against her, and the hostile environment she worked in, were a result of illegal discrimination and her prior EEO activity. Defendant filed a Motion to Dismiss for Failure to State a Claim, or, in the Alternative, Motion for Summary Judgment. ECF No. 10. Because the Court will review the exhibits attached by the party, the Court will consider the motion a motion for summary judgment. Fed.R.Civ.P. 12(d). The motion is now ripe for decision.


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.[2] 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 the employer 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 ...

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