United States District Court, D. Maryland
FEDERICK MOTZ, UNITED STATES DISTRICT JUDGE.
Yasmin Atkins files suit against defendant Sylvia M. Burwell,
U.S. Secretary of Health and Human Services, in her official
capacity (the "government"), seeking damages and
injunctive relief for violations of Title VII of the Civil
Rights Act of 1964 ("Title VII"), 42 U.S.C. §
2000e et seq., relating to alleged sexual harassment
she suffered while she worked at the National Institutes of
Health ("NIH") as a contractor. Now pending is the
government's motion to dismiss or, in the alternative,
for summary judgment. The parties have fully briefed the motion,
and no oral argument is necessary. See Local Rules
105.6. For the reasons below, summary judgment is granted in
favor of the government.
Yasmin Atkins is an African American female who is a resident
of Prince George's County, Maryland. (ECF No. 1, ¶
1). In October 2011, Global Solutions Network hired Atkins to
work on a contract basis for the U.S. government as a
Procurement Technician. (ECF No. 1, ¶ 15). Atkins was
assigned to the Office of Acquisitions at the NIH's
National Institute of Allergy and Infectious Diseases
("NIAID"), Division of Microbiology Infectious
Diseases Research Contract Branch A ("DMIDRCB-A"),
located in Bethesda, Maryland. (ECF No. 16, Ex. 1, p. 1-2).
At the time of Atkins's assignment, the branch chief of
DMIDRCB-A was Richard Hartmann, a white male. Atkins's
job duties there included assisting with administrative tasks
associated with the procurement of goods and services. (ECF
No. 1, ¶ 17). According to Atkins, she received
satisfactory and favorable work evaluations. Id. at
¶ 19; (ECF No. 16, Ex. 1, pp. 195-96).
alleges that from October 2011 to September 2013, Hartmann
sexually harassed her. (ECF No. 16, Ex. 1, p. 5). She
testified, by affidavit, that Hartmann invited her on his
boat two times, one invitation was extended only to her and
one was an email invitation to her and other members of the
office. (ECF No. 16, Ex. 1, p. 133). Both times, she declined
his invitation. On another occasion, Hartmann offered Atkins
a pocketbook, which she returned to him, citing concerns
about how her boyfriend would perceive the
gift. Id. In response, Hartmann stated
that if Atkins's boyfriend "was that insecure then
he doesn't need to be with you." Id.
Hartmann subsequently gave the pocketbook to another member
of the office. According to Atkins, Hartmann would also visit
her desk and drop off magazines at least three times a month.
Id. at 134. On another occasion, Atkins alleges that
Hartmann told her that her zipper was down. Id. at
133-34. And, Atkins alleges, Hartmann gave her at least one
"flush-on hug" and tried to hug her several other
times. Id. at 134. Furthermore, Atkins alleges that
Hartmann would make comments about her shoe choice and, when
she wore heels, he would compare her shoes with another
female in her office. Id. at 133. Lastly, Atkins
alleges that Hartmann stared at her chest and her body on
multiple occasions. Id. In response to his alleged
harassment, Atkins tried to moderate her dress and avoid
contact with Hartmann. (ECF No. 26, Ex. 1, pp. 5-6). She also
disengaged with coworkers and acted aloof to avoid Hartmann
and conversations about Hartmann. Id.
September 2012, Atkins applied for one of three fulltime
Contract Specialist positions in the Office of Acquisitions.
Id. at 25. Prior to the interview, Hartmann told
Atkins that while "she was a good employee and did
excellent work, he would hire someone with a law degree over
her." Id. After interviewing for the position,
Atkins was not selected.
March 2013, the NIH posted a vacancy announcement for
multiple fulltime Contract Specialist positions in the Office
of Acquisitions. (ECF No. 16, Ex. 1, pp. 53-91). The job
listing covered a total of nine Contract Specialist openings
in four branches within the Office of Acquisitions. Each
branch was responsible for selecting its own Contract
Specialists. Atkins applied to the listing and the Office of
Acquisitions deemed her eligible. Id. at 94. The
Office then selected her for one of approximately 25
interviews. Id. at 169. Prior to her interview,
Hartmann told Atkins that he thought she had an
"excellent chance" at the job. Id. at 25.
Atkins was interviewed by a panel that included other branch
chiefs in the Office of Acquisitions, but not Hartmann.
Id. at 137. According to Atkins's interviewers,
she did not excel in her interview. One interviewer, David
Lisle, a branch chief, said that Atkins was not "able to
communicate and elaborate effectively enough to our questions
that I could feel comfortable enough to select her for the
position" and that he felt, during the interview,
"she was not effectively demonstrating her
abilities." Id. at 169. A second interviewer,
Michael Finn, another branch chief, said that Atkins
"didn't do very well in the interview, " noting
that she "seemed very nervous and was relatively quiet
and her responses were very short." Id. at 186.
He concluded that the applicants who he selected for his
branch "interviewed better." Id. A third
branch chief, Dante Stumpo, observed that Atkins "did
not do as well answering the technical questions and did not
do well with the technical aspects of the position
overall." Id. at Ex. 2, p. 12. The Director of
the Office of Acquisitions, Charles Grewe, stated that his
"understanding was that she just didn't do as well
in the interviews as other candidates." Id. at
Ex. 1, p. 164. A number of other officials involved in the
hiring process expressed similar sentiments. Id. at
Ex. 1, pp. 182-83; 190-91 (describing problems with
Atkins's work). Ultimately, none of the branches within
the Office of Acquisitions selected Atkins.
August 7, 2013, after learning that she had not been selected
for the openings, Atkins contacted an Equal Employment
Opportunity Office and alleged that Hartmann had sexually
harassed her and discriminated against her on the basis of
sex, race, and color. Id. at 23. She filed an
official Equal Employment Opportunity Commission
("EEOC") complaint on September 23. Id. at
39. She put forth three discrimination claims: a sexual and
non-sexual harassment claim against Hartmann, a claim for
discriminatory non-selection with respect to the September
2012 Contract Specialist openings, and a claim for
discriminatory non-selection with respect to the March 2013
Contract Specialist openings. Id. at 18-22. The EEO
Office issued a partial acceptance of two out of her three
claims, leaving out the September 2012 non-selection claim as
untimely. After an investigation, the Department of Health
and Human Services determined that Hartmann did not
discriminate against or sexually harass Atkins. Accordingly,
no punitive action was taken against Hartmann and Atkins
received no monetary or injunctive relief. The agency did,
however, direct Hartmann to attend training and work with an
executive coach on his leadership skills. Id. at
49-50. After the investigation, Atkins left her contractor
position, and she is currently employed at the Department of
now files a one-count complaint against the government for
violations of Title VII, alleging claims for quid pro
quo sexual harassment and sexual harassment hostile work
government styles its motion as one to dismiss under Rule
12(b)(6) and 12(b)(1), or, in the alternative, for summary
judgment under Rule 56. Under Rule 12(d), a court may, in its
discretion, consider matters outside the pleadings and
convert a motion to dismiss into one for summary judgment.
See Strothers v. City of Laurel, Md, 118 F.Supp.3d
852, 860 (D. Md. 2015). Generally, however, motions for
summary judgment are to be decided only after the parties
have had an opportunity for discovery. See Tinch v.
United States, 189 F.Supp.2d 313, 315 (D. Md. 2002). But
this general rule does not apply when the nonmoving party
does not oppose conversion of a motion to dismiss to a motion
for summary judgment "on the grounds that more time [is]
needed for discovery or moved for a continuance to permit
discovery." Evans v. Techs. Applications & Serv.
Co., 80 F.3d 954, 961 (4th Cir. 1996). To oppose
conversion, a nonmovant "must file an affidavit or
declaration pursuant to Rule 56(d) (formerly Rule 56(f)),
explaining why, 'for specified reasons, it cannot present
facts essential to justify its opposition' without needed
discovery." Hart v. Lew, 973 F.Supp.2d 561, 573
(D. Md. 2013) (citing Fed.R.Civ.P. 56(d)). A failure to file
such a document is "itself sufficient grounds to reject
a claim that the opportunity for discovery was
inadequate." Evans, 80 F.3d at 961 (citing
Paddington Partners v. Bouchard, 34 F.3d
1132, 1137 (2d Cir. 1994)). Plaintiffs failure to file a Rule
56(d) document can, however, be excused "if the
nonmoving party has adequately informed the district court
that the motion is premature and that more discovery is
necessary" and the "nonmoving party's
objections before the district court served as the functional
equivalent of an affidavit." Harrods Ltd. v. Sixty
Internet Domain Names, 302 F.3d 214, 244-45 (4th Cir.
2002) (internal quotation marks and citations omitted).
although she opposes conversion of the government's
motion, Atkins does not file a Rule 56(d) document and
further, submits her own pleadings outside the record,
(see ECF No. 26, Exs. 1, 2). Atkins also fails to
file a document outlining what discovery she believes is
needed. And, despite her opposition to conversion of the
government's motion, Atkins contends that she has
generated a genuine dispute of material fact based on the
existing record. (See, e.g., ECF No. 26, Ex. 2).
Therefore, because Atkins has failed to file a Rule 56(d)
document or the functional equivalent of one, and contests
the merits of the government's motion, I consider the
government's filing as one for summary judgment.
Rule 56(a), a court must grant summary judgment "if the
movant shows 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); see also
Anderson v. Liberty Lobby Inc., 411 U.S. 242, 247
(1986). A genuine issue of material fact exists where
"the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Id.
The party seeking summary judgment bears the initial burden
of demonstrating the absence of a genuine dispute of material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). Accordingly, when reviewing a motion for summary
judgment, the court must look at facts and inferences in the
light most favorable to the non-moving party. Scott v.
Harris, 550 U.S. 372, 378 (2007).
while the movant bears the initial burden of demonstrating an
absence of a genuine dispute of material fact, trial courts
have an obligation to prevent "factually unsupported
claims and defenses from proceeding to trial." Felty
v. Graves-Humphreys Co.,818 F.2d 1126, 1128 (4th Cir.
1987) (citing Celotex, 477 U.S. at 323-24).
Therefore, in response to a properly supported motion for
summary judgment, the non-moving party must, by affidavit or
other evidentiary showing, set out specific facts showing a
genuine issue for trial. Anderson, Ml U.S. at
248-49; see also Adickes v. S. H. Kress & Co.,398 U.S. 144, 160 (1970). Finally, a court should also enter
summary judgment when a party fails to make a ...