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Battle v. Price

United States District Court, D. Maryland, Southern Division

April 25, 2018

JEFFERY BATTLE, Plaintiff,
v.
THOMAS E. PRICE,[1] DEPARTMENT OF HEALTH & HUMAN SERVICES, NATIONAL INSTITUTES OF HEALTH, Defendant.

          MEMORANDUM OPINION AND ORDER

          Paul W. Grimm United States District Judge

         Jeffery 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 threatening” email.

         After 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.

         Now 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.

         Standard of Review

         Summary 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)).

         Discussion

         Title 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 405-06).

         Then, 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)).

         Thus, “[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.

         I will consider each of the allegedly retaliatory actions that Battle identifies in turn.

         1. Failure to Select Battle for Director of Contracting Position

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.

         Notably, 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.

         As for 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 applying for.
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.

         Battle 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.

         According 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.

         On the 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. at 2498.

         As for 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 ...

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