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Washington v. Burwell

United States District Court, D. Maryland, Southern Division

November 9, 2017




         Plaintiff 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.

         I. BACKGROUND [1]

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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. 1.


         Defendant's 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).

         "The 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).

         On a 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.


         A. Discrimination

         Title 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 ...

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