United States District Court, D. Maryland
Sharon E. Sellman
Secretary Ray Mabus
MEMORANDUM TO COUNSEL
L. RUSSELL, III United States District Judge.
before the Court is Defendant's, Secretary of the
Department of the Navy Ray Mabus (the “Navy”),
Motion to Dismiss or, in the Alternative, for Summary
Judgment (ECF No. 7). The Motion is ripe for disposition, and
no hearing is necessary. See Local Rule 105.6 (D.Md.
2016). For the reasons outlined below, the Court will grant
Sharon E. Sellman, an African American female, works for the
Navy as a GS-13 Financial Management Analyst at the Naval Air
Station Patuxent River in southern Maryland. (Compl.
¶¶ 14, 18, ECF No. 1). Sellman has worked in her
current position since March 1997. (Id. ¶ 15).
In January 2014, Sellman applied for a GS-14 supervisory
position and made the best qualified list with four other
candidates. (Id. ¶ 18). Ultimately, however,
the Navy selected Susan Mumford, a Caucasian female, for the
position. (Id. ¶ 23). Cynthia Burke and Linda
Mattingly, both Caucasian females and Sellman's second-
and first-level supervisors, respectively, allegedly
“discriminated” against Sellman when they
“solicited and coached Mumford” to apply for the
supervisory position. (Id. ¶¶ 20, 21, 26).
On April 21, 2014, Sellman filed a formal Equal Employment
Opportunity (“EEO”) complaint of discrimination
against the Navy, alleging race and age discrimination
related to the Navy's decision not to select her for the
supervisory position (the “First EEO Complaint”).
(Id. ¶ 24). Sellman's First EEO Complaint
is currently pending before an administrative law judge in
the Baltimore field office of the Equal Employment
Opportunity Commission. (Id. ¶ 27).
Navy scheduled a mediation concerning Sellman's First EEO
Complaint to be held on August 21, 2014. (Id. ¶
29). On or about August 19, 2014, Sellman submitted her
timecard for the week beginning Monday, August 18, 2014 and
ending Friday, August 22, 2014. (Id. ¶ 30).
Sellman recorded twenty-seven hours of regular time for
August 18, 20, and 22, and eighteen hours of annual leave for
August 19 and 21. (Id. ¶ 31). Sellman recorded
annual leave because she planned to attend the mediation on
August 21 and meet with her attorney on August 19 to prepare
for the mediation.
Monday, August 25, 2016 at approximately 2:06 p.m., Burke
sent Sellman an email requesting that Sellman modify her
timecard for the previous week. (Id. ¶ 33).
Later that day, at approximately 4:45 p.m., Mumford asked
Sellman if she had seen Burke's email, and Sellman
indicated she had not because she was busy assisting a
program team lead. (Id. ¶¶ 34, 35).
Mumford instructed Sellman to replace annual leave with
regular time for August 19 and 21 because Navy policy permits
employees to charge regular time when preparing for and
participating in EEO mediation. (Id. ¶¶
36, 37). Because Sellman had already shut down her computer,
Mumford adjusted Sellman's time entries for her and then
approved Sellman's timecard. (Id. ¶ 38).
Mumford also advised Sellman that because Sellman's
timecard was not approved before noon, the Navy Enterprise
Resource Planning system (“NERP”) would charge
annual leave for the entire week beginning August 18.
(Id. ¶ 39).
to Sellman, when a supervisor believes a correction to a
timecard will be required, the supervisor will approve the
timecard “as is” before the noon cutoff and then
process a supplemental timecard so NERP does not charge the
employee with annual leave for the entire previous week.
(Id. ¶ 42). Sellman alleges Burke, Mumford, and
Mattingly “colluded” and intentionally did not
ask Sellman to correct her timecard until after the cutoff
had passed. (Id. ¶ 40). On January 26, 2015,
Sellman filed a second formal EEO complaint with the
Navy-this time alleging the Navy retaliated against her for
filing her First EEO Complaint when Sellman's supervisors
permitted NERP to charge Sellman with an entire week of
annual leave by not approving Sellman's timecard before
the cutoff (the “Second EEO Complaint”).
February 23, 2015, the Navy dismissed Sellman's Second
EEO Complaint for lack of timeliness. (Id. ¶
6). On July 30, 2015, the Office of Federal Operations
affirmed the Navy's dismissal. (Id. ¶ 7).
On October 30, 2015, Sellman filed suit in this Court,
alleging retaliation in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), as amended, 42
U.S.C. §§ 2000e-1 to 17 (2012). (ECF No. 1). The
Navy filed a Motion to Dismiss or, in the Alternative, for
Summary Judgment on April 14, 2016 (ECF No. 7). Sellman
opposed the Motion on July 18, 2016 (ECF No. 13), and the
Navy replied on July 26, 2016 (ECF No. 14).
Navy styles its Motion as a motion to dismiss under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the
alternative, for summary judgment under Rule 56. A motion
styled in this manner implicates the Court's discretion
under Rule 12(d). See Kensington Vol. Fire Dept., Inc. v.
Montgomery Cty., 788 F.Supp.2d 431, 436-37 (D.Md. 2011),
aff'd sub nom., Kensington Volunteer Fire
Dep't, Inc. v. Montgomery Cty., Md., 684 F.3d 462
(4th Cir. 2012). Pursuant to Rule 12(d), when “matters
outside the pleadings are presented to and not excluded by
the court, the [Rule 12(b)(6)] motion must be treated as one
for summary judgment under Rule 56.” The Court
“has ‘complete discretion to determine whether or
not to accept the submission of any material beyond the
pleadings that is offered in conjunction with a Rule 12(b)(6)
motion and rely on it, thereby converting the motion, or to
reject it or simply not consider it.'”
Wells-Bey v. Kopp, No. ELH-12-2319, 2013 WL 1700927,
at *5 (D.Md. Apr. 16, 2013) (quoting 5C Wright & Miller,
Federal Practice & Procedure § 1366, at 159
(3d ed. 2004, 2012 Supp.)). Here, both parties attach
extra-pleading material to their briefs. In its discretion,
the Court will consider this material and construe the
Navy's Motion as one for summary judgment.
reviewing a motion for summary judgment, the Court views the
facts in a light most favorable to the nonmovant, drawing all
justifiable inferences in that party's favor. Ricci
v. DeStefano, 557 U.S. 557, 586 (2009); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144,
158-59 (1970)). Summary judgment is proper when the movant
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).
motion for summary judgment is properly made and supported,
the nonmovant has the burden of showing that a genuine
dispute of material fact exists. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
If the nonmoving party has failed to make a sufficient
showing on an essential element of her case where she has the
burden of proof, “there can be ‘no genuine
[dispute] as to any material fact, ' since a complete
failure of proof concerning an essential element of the
nonmoving party's case necessarily renders all other
facts immaterial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986).
“material fact” is one that might affect the
outcome of a party's case. Anderson, 477 U.S. at
248; see also JKC Holding Co. v. Wash. Sports Ventures,
Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citing
Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir.
2001)). Whether a fact is considered to be
“material” is determined by the substantive law,
and “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”
Anderson, 477 U.S. at 248; accord
Hooven-Lewis, 249 F.3d at 265. A “genuine”
dispute concerning a “material” fact arises when
the evidence is sufficient to allow a reasonable jury to
return a verdict in the nonmoving party's favor.
Anderson, 477 U.S. at 248.
VII prohibits discrimination against an employee in
retaliation for opposing an employer's illegal
discrimination practices or participating in Title VII
enforcement proceedings. 42 U.S.C. § 2000e-3(a). The
Court analyzes a Title VII retaliation claim using the
three-step, burden-shifting framework set forth by the
Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-05 (1973). See Causey v. Balog,
162 F.3d 795, 803 (4th Cir. 1998). Under this framework, the
plaintiff first bears the burden of proving a prima facie
case of retaliation by a preponderance of the evidence.
See Tex. Dep't of Cmty. Affairs v. Burdine, 450
U.S. 248, 252-53 (1981). If a plaintiff successfully presents
a prima facie case, the burden shifts to the employer to
provide a legitimate, nondiscriminatory justification for its
action. Id. at 253 (citing McDonnell
Douglas, 411 U.S. at 802). Finally, if the employer
carries its burden, the plaintiff must show that the
employer's legitimate, nondiscriminatory reason is merely
a pretext for discrimination. Id. (citing
McDonnell Douglas, 411 U.S. at 804).
prove a prima facie case of retaliation, the plaintiff must
demonstrate three elements: (1) “that [s]he engaged in
a protected activity, ” (2) “that the employer
took an adverse action against h[er], ” and (3)
“that a causal relationship existed between h[er]
protected activity and the employer's adverse
action.” Baqir v. Principi, 434 F.3d 733, 747
(4th Cir. 2006) (citing Price v. Thompson, 380 F.3d
209, 212 (4th Cir. 2004)). An adverse employment action is an
action “that ‘constitutes a significant change in
employment status, such as hiring, firing, failing to
promote, reassignment with significantly different
responsibilities, or a decision causing a significant change
in benefits.'” Hoyle v. Freightliner, LLC,
650 F.3d 321, 337 (4th Cir. 2011) (quoting Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998));
see Boone v. Goldin, 178 F.3d 253, 255 (4th Cir.
1999) (explaining that “the typical requirements for ...