United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge
Battle, an African American male, initiated this lawsuit
against his former employer, the U.S. Department of Health
and Human Service's National Institutes of Health (the
“Agency”), in 2014. ECF No. 1. He alleged various
forms of perceived discrimination and retaliation under Title
VII, including events beginning a few months after he amended
an Equal Employment Opportunity (“EEO”) complaint
in October 2011 and continuing throughout a two and a half
year period in which Battle continued to file and amend EEO
complaints, which led him to believe that the acts were
retaliatory. The alleged retaliatory acts included the
Agency's failure to select him for a position; its
requirement that he participate in procurement activities
that Battle believed violated federal regulations, and his
supervisor's response to his refusal to participate; and
the revocation of his duties as a Team Lead. He also
challenged his supervisor's handling of his request for
reasonable medical accommodations, insofar as she allegedly
did not report the results of an ergonomic study and then
sent a report regarding his request that he viewed as
“false and deceptive.” Additionally, he alleged
that the Agency retaliated when his supervisor failed to
acknowledge a project he completed and, consequently, gave
him a lower performance evaluation for 2012; placed him on a
performance improvement plan and then administrative leave
with pay; denied him a pay increase; and ultimately
terminated his employment. Also, he claimed that charging him
with being away without leave and issuing him a Letter of
Reprimand were retaliatory acts, as were his supervisor's
yelling at him on one occasion and the Director of
Contracting sending him a “hostile and
filing two amendments to his Complaint, Battle's
allegations of discrimination based on race, gender and
disability; hostile work environment; and retaliation based
on the termination of his employment still failed to state a
claim, and I dismissed them in response to the Agency's
Motion to Dismiss or, in the Alternative, for Summary
Judgment, treated as a motion to dismiss. Sept. 19, 2016 Mem.
Op. & Order, ECF No. 51. Only his retaliation claim
(except insofar as it was based on the termination of his
employment) survived the Agency's motion. In concluding
that Battle had pleaded a claim for retaliation, I considered
the whole picture, in which Battle alleged that he repeatedly
took EEO action and then (often within one or two months of
that action) repeatedly experienced employment actions that
either were adverse in and of themselves or cumulatively
would have dissuaded an employee from taking further EEO
action. Yet, I ruled that some of the employer's alleged
actions were not, on their own, adverse employment actions,
and some were not temporally linked to Battle's protected
activity. Sept. 19, 2016 Mem. Op. & Order 29.
that discovery has concluded, the Agency has moved for
summary judgment on what remains of the retaliation claim.
ECF No. 93. The parties fully briefed the motion. ECF Nos.
93, 97, 101. A hearing is not necessary. See Loc. R.
105.6. Because the undisputed material facts show that the
Agency is entitled to judgment as a matter of law, I will
grant its motion and close this case.
judgment is proper when the moving party 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); see
Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th
Cir. 2013). If the party seeking summary judgment
demonstrates that there is no evidence to support the
nonmoving party's case, the burden shifts to the
nonmoving party to identify evidence that shows that a
genuine dispute exists as to material facts. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 585-87 & n.10 (1986). The existence of only a
“scintilla of evidence” is not enough to defeat a
motion for summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251 (1986). Instead, the evidentiary
materials submitted must show facts from which the finder of
fact reasonably could find for the party opposing summary
judgment. Id. The Court considers the undisputed
facts, and to the extent there is a genuine dispute of
material fact, “this Court reviews the facts and all
reasonable inferences in the light most favorable to the
nonmoving party.” Downing v. Balt. City Bd. of Sch.
Comm'rs, No. RDB-12-1047, 2015 WL 1186430, at *1 (D.
Md. Mar. 13, 2015) (citing Scott v. Harris, 550 U.S.
372, 378 (2007)).
VII “prohibits an employer from taking an adverse
employment action against any employee ‘because he has
opposed any practice made an unlawful employment
practice.'” EEOC v. Navy Fed. Credit
Union, 424 F.3d 397, 405 (4th Cir. 2005) (quoting 42
U.S.C. § 2000e-3(a)). When the record lacks direct
evidence of retaliation, as is the case here, the plaintiff
may prove that retaliation occurred using the burden-shifting
framework established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Foster v. Univ. of
Md.-E. Shore, 787 F.3d 243, 249-50 (4th Cir. 2015).
Under the McDonnell Douglas framework, “the
plaintiff first must establish a prima facie case” of
retaliation. Id. at 250. To do so, the plaintiff
must prove: “‘(1) that he engaged in a
protected activity, ' as well as ‘(2) that h[is]
employer took an adverse employment action against h[im],
' and ‘(3) that there was a causal link between the
two events.'” Boyer-Liberto v. Fontainebleau
Corp., 786 F.3d 264, 281 (4th Cir. 2015) (en banc)
(quoting Navy Fed. Credit Union, 424 F.3d at
if the plaintiff has established a prima facie case,
“the burden shifts to the [employer] to show that its
purportedly retaliatory action was in fact the result of a
legitimate non-retaliatory reason.” Foster,
787 F.3d at 250. The employer's “burden is one of
production, not persuasion.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).
Finally, “[i]f the employer sets forth a legitimate,
non-retaliatory explanation for the action, the plaintiff
then must show the employer's proffered reasons are
pretextual or his claim will fail.” Price v.
Thompson, 380 F.3d 209, 212 (4th Cir. 2004),
abrogated on other grounds by Foster, 787 F.3d 243.
That is, he “must establish ‘both that the
[employer's] reason was false and that [retaliation] was
the real reason for the challenged conduct.'”
Foster, 787 F.3d at 252 (quoting Jiminez v. Mary
Wash. Coll., 57 F.3d 369, 378 (4th Cir. 1995)).
“[i]t is not enough . . . to dis believe the
employer; the factfinder must believe the
plaintiff's explanation of intentional discrimination [or
retaliation].” Reeves, 530 U.S. At 147
(quoting St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 519 (1993)). Even so, “a prima facie case and
sufficient evidence to reject the employer's explanation
may permit a finding of liability, ” given that
“once the employer's justification has been
eliminated, [retaliation] may well be the most likely
alternative explanation, especially since the employer is in
the best position to put forth the actual reason for its
decision.” Id. at 147, 149. But,
This is not to say that such a showing by the plaintiff will
always be adequate to sustain a jury's finding
of liability. Certainly there will be instances where,
although the plaintiff has established a prima facie case and
set forth sufficient evidence to reject the defendant's
explanation, no rational factfinder could conclude that the
action was discriminatory [or retaliatory]. For instance, an
employer would be entitled to judgment as a matter of law if
the record conclusively revealed some other,
nondiscriminatory reason for the employer's decision, or
if the plaintiff created only a weak issue of fact as to
whether the employer's reason was untrue and there was
abundant and uncontroverted independent evidence that no
discrimination had occurred.
Id. at 148.
consider each of the allegedly retaliatory actions that
Battle identifies in turn.
Failure to Select Battle for Director of Contracting
Battle unsuccessfully applied for the Director of Contracting
position. Instead, an applicant named Sharon Bruce was
selected, which Battle claims was an adverse employment
action taken in retaliation for his protected activity.
Second Am. Compl. ¶ 13, ECF No. 32. Without challenging
whether Battle can demonstrate a prima facie case,
the Agency asserts that it had a “legitimate,
non-retaliatory reason for not selecting Plaintiff for the
Director of Contracting position”; it did not select
him because “he was not the best qualified.”
Def.'s Mem. 14. Thus, Battle must show pretext. See
Foster, 787 F.3d at 252; Price, 380 F.3d at
212. To demonstrate pretext in an employer's reason for
not selecting a candidate for a position, a plaintiff must
“either ‘… show that he was better
qualified, or . . . amass circumstantial evidence that
otherwise undermines the credibility of the employer's
stated reasons.'” Popoli v. Bd. of Trs. of
Harford Cmty. Coll., No. JFM-16-00452, 2017 WL 4457153,
at *3 (D. Md. Oct. 4, 2017) (quoting Heiko v. Colombo
Sav. Bank, F.S.B., 434 F.3d 249, 259 (4th Cir. 2006)).
Battle attempts both to show that he was better qualified and
to show that the Agency's reasons for selecting Bruce
were not credible.
under the first approach, the burden is on Battle to
“show that [his] qualifications were so plainly
superior that the employer could not have preferred
another candidate.” Id. (quoting Dennis v.
Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 648 n.4
(4th Cir. 2002)) (emphasis added); see Featherson v.
Montgomery Cty. Pub. Sch., 739 F.Supp. 1021, 1028 (D.
Md. 1990). Therefore, the Agency need not “objectively
prove the person hired was more qualified than the plaintiff,
” as the Court is not a “super-personnel
department” and does not “determin[e] whether [an
employer's] perception of an employee's
qualifications is erroneous.” Popoli, 2017 WL
4457153, at *3 (quoting Evans v. Techs. Applications
& Servs. Co., 875 F.Supp. 1115, 1120 (D. Md. 1995),
aff'd sub nom. Evans v. Techs. Applications &
Serv. Co., 80 F.3d 954 (4th Cir. 1996)). Also,
“[w]here the employer has identified multiple reasons
for preferring one candidate over another, the employee
cannot prove pretext by carving out a subset of reasons and
then comparing himself against that subset.”
Camacho v. Colvin, No. JKB-13-1303, 2015 WL 5439032,
at *6 (D. Md. Sept. 15, 2015); see also Hux v. City of
Newport News, Va., 451 F.3d 311, 315 (4th Cir. 2006)
(“[I]n a suit alleging failure to promote, a plaintiff
seeking to rebut an employer's reliance on inferior job
qualifications cannot simply compare herself to other
employees on the basis of a single evaluative factor
artificially severed from the employer's focus on
multiple factors in combination.”). And, “the
plaintiff's perceptions of his own qualifications are
irrelevant.” Popoli, 2017 WL 4457153, at *3.
what qualifications are relevant, the Court considers
“the criteria the employer deemed relevant to the
position in question.” Id.; see also
Heiko, 434 F.3d at 259. Here, the job announcement
listed the relevant qualifications as:
Completion of all mandatory training prescribed by the head
of the agency for progression to GS-13 or higher level
contracting positions, including at least 4-years experience
in contracting or related positions.
A 4-year course of study leading to a bachelor's degree,
that included or was supplemented by at least 24 semester
hours in any combination of the following fields: accounting,
business, finance, law, contacts [sic], purchasing,
economics, industrial management, marketing, quantitative
methods, or organization and management.
. . .
[O]ne year of specialized experience and/or educational
requirements listed below for each grade level you are
You must demonstrate in your resume at least one (1) year of
qualifying experience equivalent to at least the GS-14 level
in the Federal Government. Examples of qualifying
experience include: supervisory/leadership experience as, or
similar to that of, a Section Head or Team Leader; ability to
sell ideas, to persuade audiences and to deal effectively
with resistance to proposed plans and ideas (remaining open
and giving adequate consideration to alternative plans and
ideas); with demonstrating a mastery knowledge sufficient to
provide technical pre-solicitation, solicitation, proposal
evaluation, negotiation, award post-award administration and
close-out; and experience communicating effectively and
efficiently, both orally and in writing.
Also, experience in processes related to procurement
of real estate, architecture and engineering, construction,
facilities operations and/or maintenance.
Job Announcement, Jt. Rec. 1109.
does not dispute that Bruce met the training requirements and
had experience in contracting. See Pl.'s Am.
Opp'n 6-7; Dep't of Defense Acquisition Corps -
Certif. of Admission, Jt. Rec. 1165 (noting that Bruce was
“employed in a position at the grade of GS/GM- 13 or
above”; had a bachelor's degree; had “24
semester hours (or the equivalent) of study from an
accredited institution of higher education from . . .
accounting, business finance, law, contracts, purchasing,
economics, industrial management, marketing, quantitative
methods, and[/or] organization and management”; and had
“four years' experience in an acquisition position
. . . or in a compatible position”). And, Battle
acknowledges that, in an affidavit submitted with regard to
one of his EEO complaints, his former supervisor, Daniel
Wheeland (who was on the interview panel for the Director of
Contracting position), stated that Battle “did
well” in his interview but the interview panel
“selected another candidate because there was a
consensus that the selected candidate was the best qualified
applicant.” Wheeland Aff. for EEO Compl., Jt. Rec. 921.
to Wheeland, “although [Battle] demonstrated strong
qualifications, the selected applicant had stronger
experience as a manager and in the administration of design
and construction contracts.” Id. Battle argues
that the Court should discredit this evidence because it is
unsupported and other evidence is, in his view, to the
contrary. Pl.'s Am. Opp'n 6-7. Weaving together his
arguments of his superior qualifications and the lack of
credibility in the Agency's reasons for selecting Bruce,
Battle insists that his “qualifications per the
selection criteria were superior to Ms. Bruce's
qualifications” because, despite Wheeland's
“conclusory” assertion, “Ms. Bruce's
resume shows absolutely no experience in Architect
Engineering and Construction contracts, ” whereas
“Mr. Battle does have design and construction
experience as a supervisor and has developed multiple
construction services procurement awards while employed at
NIH” and he “included his experience in
‘Architect - Engineering and Construction' in his
resume.” Id. The Agency views the evidence
differently, insisting that “Mr. Wheeland's own
testimony, ” along with “Ms. Bruce's
résumé, college transcripts, and training and
certification documentation . . . substantiate Ms.
Bruce's exemplary qualifications for the position.”
Def.'s Reply 2.
record before the Court, which includes all of the evidence
the Agency cites, Battle has not shown that he was “so
plainly superior that the employer could not have preferred
[Bruce].” Popoli, 2017 WL 4457153, at *3. In
his Request to Appoint Sharon Bruce to Fill the Position of
Supervisory Contract Specialist (“Request to Appoint
Bruce”), Jt. Rec. 2497-2500, Wheeland stated that the
interview panel for the position “concluded that Ms.
Sharon Bruce possessed the knowledge, skills and abilities
required to provide leadership, management and oversight of
all acquisition contracting programs for ORF; and it was the
consensus of all members of the selection panel that Ms.
Bruce was the most qualified candidate.” Id.
her qualifications, he said:
Ms. Bruce is a career Contract Specialist with a
Bachelor's Degree with a Major in Business Administration
and a Minor in Human Resource Management. She has a
Master's in Business Administration (MBA) from Strayer
University, having majored in Acquisition. Ms. Bruce had a
career involving increasing responsibilities as a Contract
specialist and eventually leading other Contract Specialists.
Of all candidates, she had the best combination of relevant
acquisition experience, leadership experience and management
acumen. . . .
Ms. Bruce had more knowledge than other applicants in the
area of Architect-Engineering and Construction contracts. As
these are the types of contracts that set apart the ORF
Consolidated Operations Acquisitions Center (COAC) [to which
she was applying] from the others, the selection panel felt
that the ideal candidate should have experience in these
areas in order to be effective in leading this COAC to
heightened states of mission accomplishment, compliance and
overall professionalism. Although she has most recently been
working in the area of Information Technology project
acquisition, her design and construction experience is
relevant and provided her sufficient competencies to either
know the answers or to know where to obtain them.
. . .
. . . Ms. Bruce worked for the U.S. Army Corps of
Engineers where she served as the Chief of the Civil
Contracting Branch. She was responsible for ...