United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE
Lisa Washington brings this pro se action against
Defendant Sylvia Mathews Burwell. former Secretary of the
United States Department of Health and Human Services
("HI IS"), alleging race discrimination and
retaliation in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e el seq. Now
pending before the Court is Defendant's Motion to
Dismiss, or alternatively. Motion for Summary Judgment. ECF
No. 9. No hearing is necessary. Loc. R. 105.6 (D. Md. 2016).
For the following reasons. Defendant's Motion, construed
as a Motion for Summary Judgment, is granted.
was hired by the National Institute of Health ("Nil
I") as a perioperative nurse in the Clinical Center on
November 9. 2009. ECF No. 1 ¶ 7. Plaintiffs position was
established under the requirements of 42 U.S.C. $ 209(0.
separate from the civil service laws and federal GS payment
scale. Id. Both Plaintiff, who is black, and Karen
Holcomb. who is white, were hired by Operating Room Nurse
Coordinator Michael Borostovik to the same position on the
same day. Id. ¶ 8. Prior to being hired by NIH.
Plaintiff had two years of operating room nurse experience
and seventeen years of operating room technician experience.
Id. ¶ 10. Comparatively. I Holcomb had four
years of operating room nurse experience and no operating
room technician experience. Id. In establishing
starting salaries for both Plaintiff and I Holcomb. NIII
calculated each nurse's existing base salary immediately
prior to their offers of employment. NIH determined that
Plaintiffs pre-offer salary was $63, 544 and 1 Holcomb's
pre-offer salary was $87, 360. Id. ¶¶ 9.
13. NIH offered Plaintiff a starting salary of $66, 721.
which represented a 5% increase over her calculated pre-offer
salary, and offered Holcomb a starting salary of $78, 000,
along with a $10, 000 signing bonus. Id.
¶¶ 9. 22.
alleges that her calculated pre-offer salary did not account
for her true wages earned at that time, that her starting
salary did not reflect her seventeen years of operating room
technician experience, and that Holcomb's pre-offer
salary was inflated because it did not include deductions for
health benefits. Id. ¶¶ 13. 16. Based on
this pay discrepancy. Plaintiff alleges that she was
"not paid equal pay for equal work" as a result of
a discriminatory pay scale. Id. ¶¶ 21, 22.
In addition. Plaintiff alleges that notwithstanding her
"Exceptional" performance evaluations in 2010 and
2011 and her performance of technically-difficult operating
room tasks. Susan Marcotte. Plaintiffs second-line
supervisor, selected Holcomb over Plaintiff for temporary
work "details that could lead to promotion."
Id. ¶ 19. Plaintiff attributes both her
disparate pay and promotion opportunities, as compared to
Holcomb. to discrimination by Nil I based on Plaintiffs race.
Id. ¶ 25. Finally. Plaintiff alleges that after
complaining about her disparate pay. her supervisor
retaliated against her by failing to provide a favorable
rating on her final performance evaluation upon her
resignation in 2013. Id. ¶ 20. Specifically,
she alleges that she suffered "severe retaliation when
[Borostovik] downgraded the Plaintiff [sic] final evaluation
from a 4.6 in February 2013 to a blank space where lines were
drawn through the space." Id.
filed a complaint of employment discrimination and harassment
against Defendant with the U.S. Equal Employment Opportunity
Commission ("EEOC"). On November 4, 2016, after
summary judgment was granted for her employer on her EEOC
complaint. Plaintiff filed a complaint in this Court. ECF No.
STANDARD OF REVIEW
motion is styled as a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6), or in the alternative, for
summary judgment pursuant to Rule 56. A court considers only
the pleadings when deciding a Rule 12(b)(6) motion. Where the
parties present matters outside of the pleadings, and the
court considers those matters, the court will treat the
motion as one for summary judgment. See Gadsby v.
Grasmick, 109 F.3d 940. 949 (4th Cir. 1997):
Mansfield v. Kerry, No. DKC-I5-3693. 2016 WL
7383873. at *2 (D. Md. Dec. 21. 201 6). As both
parties rely on materials beyond Plaintiffs Complaint that
were disclosed as a part of discovery during the EEOC
administrative process, the Court will treat Defendant's
motion as one for summary judgment. Cf. Anderson
v. Liberty Lobby. Inc., 477 U.S. 242. 250 n.5 (1987)
(summary judgment should not be granted if the non-moving
party has not had the opportunity to discover information
that is essential to his opposition to the motion).
court shall 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). "This standard provides
that the mere existence of same alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment: the
requirement is that there be no genuine issue of
material fact." Anderson, 477 U.S. at
247-18 (1986) (emphasis in original). Thus. "[t]he party
opposing a property 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. 525 (4th Cir. 2003) (quoting
Fed.R.Civ.P. 56(e)) (alteration in original).
motion for summary judgment, the court must "view the
evidence in the light most favorable to .. . the nonmovant.
and draw all inferences in her favor without weighing the
evidence or assessing the witness" credibility."
Dennis v. Columbia Colleton Med. Ctr.. Inc., 290
F.3d 639. 644-15 (4th Cir. 2002). The moving party bears the
burden of showing that there is no genuine issue as to any
material fact. No genuine issue of material fact exists if
the non-moving party fails to make a sufficient showing on an
essential element of her case as to which she would have the
burden of proof. See Celotex Corp. v. Catrett, 477
U.S. 317. 322-23 (1986). Therefore, on those issues on which
the non-moving party has the burden of proof, it is her
responsibility to confront the summary judgment motion with
an affidavit or other similar evidence showing that there is
a genuine issue for trial.
VII states in pertinent part that "[i]t shall be an
unlawful employment practice for an employer ... to
discriminate against any individual with respect to his
compensation, terms. conditions, or privileges of employment,
because of such individual's race ...."' 42
U.S.C. § 2000e-2. "A plaintiff generally may defeat
summary judgment and establish a claim for race
discrimination through one of two avenues of proof *-by
presenting either direct or circumstantial evidence that race
was a motivating factor of the employer's adverse action.
Holland x. Wash. Homes. Inc.,487 F.3d 208. 213-14
(4th Cir.2007); or, without direct evidence, the plaintiff
may proceed using the burden-shifting analysis ...