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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 pretext for discrimination, thus creating an inference that DHHS did act with discriminatory intent. Id. at 143. If Plaintiff cannot produce evidence demonstrating the falsity of her employer's proffered reasons, the employer is entitled to summary judgment as a matter of law. Id. at 148.


I. Discrimination and Retaliation Claims

Assuming Plaintiff has met her burden of establishing a prima facie case of discrimination and retaliation, Defendant has articulated extensive nondiscriminatory and nonretaliatory reasons for the challenged conduct. Plaintiff's primary job was producing reports that would assist the DOJ in assessing claims of vaccination injury. Failure to consistently produce quality reports would certainly be a legitimate reason to take adverse action against an employee. The Memorandum of Counseling, ECF No. 10-3 at 130-32, the Performance Improvement Plan, id. at 124-29, and the Notice of Proposed Removal, ECF No. 10-9, all extensively document the issues Plaintiff was having producing reports of adequate quality. Each of these documents details the requirements for a report to be considered satisfactory, and the Performance Improvement Plan and Notice of Proposed Removal each give painstaking detail about how each report by Plaintiff failed to meet those expectations.

Since Defendant has articulated legitimate, non-discriminatory and non-retaliatory reasons for its actions, Plaintiff must point to "specific facts that cast doubt on" those reasons. Gibson v. Marjack Co., Inc., 718 F.Supp.2d 649, 657 (D. Md. 2010). If Plaintiff relies on nothing more than her "own unsubstantiated speculations to assert that" Defendant's stated reasons are pretext, summary judgment is appropriate. Id. The Court has reviewed the many exhibits Plaintiff has put forward. Among them, there is not a single piece of evidence that would support a finding that Defendant's reasons for its challenged conduct are pretextual. Thus, Defendant is entitled to summary judgment on Plaintiff's discrimination and retaliation claims.

II. Hostile Work Environment

Plaintiff also claims she was subject to a hostile work environment based on her race, age, color, and national origin. ECF No. 1. To prove she suffered from a hostile work environment on the basis of a protected characteristic, Plaintiff must show that the alleged harassment: (1) was unwelcome, (2) was based on a protected characteristic, (3) was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere, and (4) was imputable to her employer. Causey v. Balog, 162 F.3d 795, 801 (4th Cir. 1998).

Plaintiff is not entirely clear about what actions created a hostile work environment. It appears from her Complaint that she feels she was subject to a hostile environment because she was told at some point she would not be promoted because she interviewed poorly, was accused of plagiarism, and had her work criticized. ECF No. 1, at 2-3.

As to the first and second allegations, even if they are true, these two isolated instances are not enough to make a work environment hostile. To determine whether challenged conduct created an abusive atmosphere, the Court must consider the frequency of the conduct, its severity, whether it is physically intimidating or humiliating, and whether it interferes unreasonably with an employee's work performance. EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008). Two instances of impolitic and perhaps unfounded criticisms, are not sufficiently frequent or severe to constitute legally actionable harassment. Id. (noting that isolated incidents ordinarily do not suffice to amount to harassment).

As to the third allegation, criticism of Plaintiff's performance cannot constitute harassment on the basis of any protected characteristic because, as noted above, Defendant's criticism of Plaintiff's work was not due to discrimination, but because Plaintiff's work was consistently poor. See infra Part I (Discrimination and Retaliation Claims). Legitimate criticism of poor performance cannot support a hostile work environment claim. See Bonds v. Leavitt, 629 F.3d 369, 385 (4th Cir. 2011) ("Bonds's allegations, which largely include the actions taken against her in response to the concerns regarding her performance, fall well short of alleging an abusive working environment.").

Plaintiff has failed to produce any evidence which would allow a reasonable jury to find in her favor. Accordingly, it is this 31st day of March, 2015, by the United States District Court for the District of Maryland,

ORDERED, that Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment (ECF No. 10) is hereby GRANTED; and it is further

ORDERED, that judgment for costs is hereby ENTERED in favor of Defendant; and it is further

ORDERED, that the Clerk is hereby DIRECTED to close this case; and it is further

ORDERED, that the Clerk is hereby DIRECTED to mail a copy of this Order to Plaintiff and Counsel of Record.

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