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Atkins v. Burwell

United States District Court, D. Maryland

August 17, 2016




         Plaintiff 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.[1] 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.


         Plaintiff 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"), [2] 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).

         Atkins 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.[3] 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.

         In 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.

         In 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.

         On 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 Homeland Security.

         Atkins 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 environment.[4]


         The 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).

         Here, 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.

         Under 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).

         And 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 ...

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