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Jones v. United Health Group

United States District Court, D. Maryland

April 29, 2019

JAVON S. JONES, Plaintiff,
v.
UNITED HEALTH GROUP, Defendant.

          MEMORANDUM

          James K. Bredar Chief Judge

         Plaintiff Javon S. Jones filed suit against her former employer, Defendant UnitedHealth Group[1] (“UHG”), alleging race-based discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a). Currently pending before the Court is Defendant's motion for summary judgment on all counts of the complaint. (ECF No. 13.) No. hearing is required. See Local Rule 105.6 (D. Md. 2018). For the reasons set forth below, Defendant's motion will be granted.

         I. Factual Background

         Jones was employed as a Healthcare Data Business Analyst for Optum Shared Services, a division of UHG, from October 6, 2014, until May 4, 2016. (Def. Exh. 1, at 1, ECF No. 13-3; May 4 Entry, Def. Exh. 26, ECF No. 13-28.) Jones was part of the Coordination of Benefits (COB) Analytics group, which, at the time of hire, was composed of a team of business analysts and a team of data analysts. (R. Christman Dep. at 32:13-21, Pl. Exh. 2, ECF No. 14-2.) Jones, who is African American, was on a small team of business analysts overseen by a manager, Robin Christman. (Id. at 61:3-13 (naming nine team members); cf. J. Jones Dep. at 46:19-23, Def. Exh. 3, ECF No. 13-5.) In her role, Jones analyzed process requests, identified by ticket numbers, and wrote business requirements documents. (Jones Dep. at 40:14-24.) On certain tickets, a data analyst would also be assigned. (Id.) Sometime during Jones's first year, the COB Analytics Group adopted a new request intake system, known as “PAWS.”[2] (Christman Dep. at 121:8-11; R. Robertson Dep. at 65:13-16, Pl. Exh. 3, ECF No. 14-3.) Once a request was assigned, the business analyst logged status updates on progress in the PAWS system, including whether a data analyst was required. (Robertson Dep. at 67:19-71:17.)

         In June 2015, Jones had a mid-year evaluation. (Def. Exh. 5, ECF No. 13-7 [hereinafter “Interim Review”].) Christman scored Jones on a five-point scale across ten metrics and in an overall rating. (Id.) Jones received a rating of “3” (“Effective”) on most metrics, except she had one “5” rating (“Outstanding”) and two “2” ratings (between “Marginal” and “Effective”).[3] (Id. at 1, 3-4.) Christman gave her an overall score of “3, ” in the “Meets Expectations” range, and provided the following comments: “Overall, [Jones] is meeting the expectations of the [business analyst] position. She should look for ways to expedite completing projects[;] as we take on more requests she will be expected to increase her through put [sic]. She should review any challenges she has faced thus far and look for ways to eliminate them.” (Id. at 5.)

         In early July 2015, Jones reported sexual harassment allegations involving a data analyst, D.U., making unwelcome comments about her appearance, “look[ing] [her] up and down, ” staring at her during meetings, and contriving reasons to come by her desk unnecessarily. (Def. Exh. 6, at 2, ECF No. 13-8.) As a result, she felt “uneasy about meeting with him face to face” and “extremely uncomfortable working with him.” (Id.) Christman reported the allegations to human resources and D.U.'s supervisor. (Christman Dep. at 39:16-40:7.) According to UHG records, after D.U. denied most of the allegations, his supervisor “coached” him about the anti-harassment policy, and the case was closed. (July 10 Entry, Def. Exh. 7, ECF No. 13-9.) With Jones's consent, Christman relocated her to a new desk and told her “she would not have to work with [him].” (Christman Dep. at 42:15-19, 43:18-19; accord Jones Dep. at 80:3-5.)

         At some point in 2015, Christman noticed Jones was away from her desk at times without explanation and discussed it with her. Jones said she had a medical condition that sometimes required her to be in the bathroom for long periods. (Christman Dep. at 44:7-11; Jones Dep. at 54:4-9, 55:14-19.) The parties dispute whether Jones was referred to information about medical accommodations but agree she did not seek or receive a formal accommodation. (Christman Dep. at 44:11-45:15; Jones Dep. at 54:12-19.)

         In late 2015, the COB Analytics Group began a restructuring process; Christman's team was split, and a second manager, Robin Robertson, was hired to oversee the additional team. (Christman Dep. at 61:22-62:8; Robertson Dep. at 25:11-15.) Christman retained several members of her former team to create a new “hybrid team” focused on larger-scale projects and code-writing. (Christman Dep. at 62:12--63:13.) Robertson's team was made up of transfers from the former team and new hires. (Robertson Dep. at 26:21-28:12.) Jones was transferred to Robertson's team. (Id. at 30:3-7.) Christman remained the official supervisor for all business analysts until after annual reviews in February 2016, but Robertson began acting in practice as a supervisor by January. (Christman Dep. at 64:2-8; Robertson Dep. at 29:3-31:18, 51:16-22; Jones Dep. at 114:8-9; see also Def. Exh. 15 (enforcing UHG policies in early January).)

         Also in late 2015, Jones became eligible for internal transfers, and she notified Christman of her interest in applying. (Christman Dep. at 52:14-22; Jones Dep. at 160:9-13.) In December, she told Robertson about an upcoming interview. (Def. Exh. 12, ECF No. 13-14.) In or around January 2016, Jones went on three interviews for a position. (Jones Dep. at 161:6-20.)

         Jones's Title VII claims derive mostly from incidents between February and May 2016. The first occurred on February 10, 2016. UHG had a policy that permitted employees in good standing to telecommute with manager approval. (Def. Exh. 13, ECF No. 13-15.) The policy delegated discretion to supervisors to determine frequency and approval requirements. (Id. ¶ 1; accord Christman Dep. at 26:19-20.) Requirements varied across departments. (Robertson Dep. at 34:7.) In February 2016, employees in the COB Analytics Group were permitted to regularly work from home one day each week.[4] (Christman Dep. at 26:20-27:4; accord Robertson Dep. at 34:8-12; cf. Jones Dep. at 104:6-8.)

         Jones arranged to telecommute on February 11, 2016, to catch an evening flight. (Def. Exh. 14 at 4, ECF No. 13-16 [hereinafter “Feb. 10 Emails”]; Robertson Dep. at 47:15-48:4.) On February 10, Jones decided to work from home because of icy road conditions. (Feb. 10 Emails at 3.) Mid-day, Robertson forwarded an email about the inclement weather policy to Jones and informed her that, because she was working from home that day, she would need to report to the office the following day, when she had planned to telecommute. (Id. at 4.) The forwarded email was from Coy Page, a director to whom Christman and Robertson reported. (Christman Dep. at 87:12-13; Robertson Dep. at 84:16-17.) Time-stamped five minutes before Robertson's email, Page's email stated that employees could work from home due to inclement weather but that, “[i]f this day is different from the day you would typically work from home[, ] you will need to make arrangements to be in the office on the normal [] day.” (Feb. 10 Emails at 4-5.) Jones told Robertson that she believed the practice had always allowed employees to work from home if they felt unsafe commuting in winter weather. (Id. at 4.) She also wrote that “certain people receive certain privileges that are not afforded to everyone.” (Id. at 3.)

         Jones then looped Page into the chain and reiterated her feeling that “certain people” were treated differently. (Id.) She mentioned two co-workers: Jones said that L.B.W. “would work from home and/or leave early on several occasions” and be “allowed to make up [missed] time, ” but that S.A. had her telecommuting privileges revoked when she was “out due to illness.” (Id.) S.A. is black, and L.B.W. is white. (Robertson Dep. at 86:18-22.) Jones concluded her email by asking “in what situation or what type of person I have to be in order to be afforded [the] ability to work from home without negative consequences.” (Feb. 10 Emails at 3.) Page responded, saying that details about individual employees are “confidential”[5] but that the policy under which telecommuting due to weather would “count as the flex day for that week” had been in place “for several years.” (Id. at 2.) Jones reported to the office early on February 11 and left early for her flight. (Jones Dep. at 128:25-129:18; cf. Robertson Dep. at 147:7-8.)

         The record is devoid of any evidence that Page's explanation of the interaction between telecommuting and inclement weather was memorialized in writing prior to the February 10 email. Page's response to Jones included language purportedly copied from a company website, but that text only states that inclement weather is an “acceptable reason[] for informal telecommuting” and that “ad-hoc instances of informal telecommuting . . . remain at the manager's discretion.” (Feb. 10 Email at 2.) UHG denies that employees were previously allowed to work from home in bad weather and on their regular day. (E.g., Robertson Dep. at 39:4-22; contra Jones Dep. at 128:14-24.) Jones concedes that she is not aware of any employee being permitted to do so after February 11, 2016. (Id. at 128:15-19.)

         Two weeks later, Jones had her annual review. (Def. Exh. 16, ECF No. 13-18 [hereinafter “Common Review”].) Both Robertson and Christman participated in the review meeting.[6] (Robertson Dep. at 99:12-15; Jones Dep. at 132:4-8, 161:21-24.) Jones again received an overall rating of “3, ” or “Meets Expectations.” (Common Review at 5.) The comments in the summary section read:

Overall Javon is meeting the expectations of the business analyst role. She should continue to work on increasing her knowledge of the membership and claims across the different clients and platforms[;] this will prove beneficial when working with the customer. Javon should not hesitate to engage her team members for help when faced with a situation she is not able to resolve. Javon's leadership, time and effort on the volunteer activities was vital to the success of each activity in 2015. Thank you!

(Id.) On individual metrics, her scores remained consistent with her Interim Review with two exceptions: on two metrics, her score decreased from a “3” to a “2.” (Id. at 1-4.) Specific comments in that section contain both praise and criticism, most notably, that Jones “should stay more focused on her projects and spend less time surfing the Internet.” (Id. at 4.)

         Less than a month later, on March 16, 2016, Jones was placed on a “Corrective Action Process” (“CAP”). (Def. Exh. 17, ECF No. 13-19 [hereinafter “CAP Form”].) According to UHG policy, CAP is designed for employees who “do not meet performance goals or follow company policy, ” in order to “help [them] understand and correct [their] performance and/or behavior.” (Def. Exh. 20 at 2, ECF No. 13-22 [hereinafter “CAP Policy”].) CAP has three levels: an initial warning, an elevated warning, and a final warning. (Id.) “[T]he various warning levels are not necessarily progressive, ” and the company may “skip levels” or take direct disciplinary action, including “termination, ” at any time. (Id.) Employees with an open CAP are not eligible for internal transfers. (Jones Dep. at 163:21-23.)

         Jones's CAP was opened at the initial warning level, and the listed reason was “Job Performance.” (CAP Form at 1.) The form details performance issues, including the following:

Javon is not meeting performance expectations. Specifically[, ] she is failing to meet project deadlines and is lacking follow through [sic]. Javon has excessive cell phone use in the manner in which she is playing games as well as being on the internet. There have been communication gaps in reference to hours worked and extended periods of time away from her work area. She lacks the adaptability to change and innovation.

(Id. at 1-2.) The comments also gave examples of several PAWS requests that lacked “status updates” and took “an extreme amount of time” to complete. (Id. at 2.) Robertson is named as the “Originating Manager” (id. at 1), but Christman also participated in CAP-related meetings, including on March 16, 2016. (See Christman Dep. at 125:10-17; Jones Dep. at 210:8-13.) In the meeting, Jones disputed the performance criticisms and made verbal accusations that the CAP was racially motivated. (Robertson Dep. at 180:14-22; Jones Dep. at 143:15-21.)

         On March 22, Jones reported her concerns internally. (Mar. 22 Entry, Def. Exh. 22, ECF No. 13-24.) Jones reported that white employees used phones and the internet excessively and took more breaks than she did, and that, when she asked if Christman and Robertson monitored everyone as closely as they monitored her, Robertson replied, “[we] can't watch everybody.” (Id.) Jones also alleged that a white employee was promoted to a leadership role without others being given a chance to apply. (Id.) Jones admitted that she left her work station without notifying her supervisor, but she claimed she did so to work in a quieter area. (Id.) She denied using her phone or the internet excessively and said she could not have missed project deadlines because she was never given “deadlines associated with [her] work.” (Id.)

         On March 24, Jones filed an Internal Dispute Resolution (IDR) complaint contesting the decision to initiate the CAP and again accusing Robertson and Christman of racial bias. (Def. Exh. 23, ECF No. 13-25 [hereinafter “IDR File”].) Her complaint responded to specific issues raised on the CAP form and provided copies of emails related to tickets the CAP form cited. (Id. at 3-5.) She reiterated her claims that “white employees are given more opportunities and are not held to the same standards that black employees are, ” and that, as a “daily occurrence, ” “white employees take extended breaks, us[e] the internet and cell phones excessively, ” and have “excessive and distracting” personal conversations without being disciplined. (Id. at 5.)

         That same day, Robertson informed Jones that D.U. would be the data analyst for one of her tickets. (Pl. Exh. 8, ECF No. 14-8.) Jones objected and told Robertson, “I am not to work with [D.U.] on any projects.” (Id.) According to internal notes, on April 4, 2016, Robertson advised Jones that another analyst would be assigned, but that, because “there were no official findings” of harassment, in the future, she “would have to” work with D.U. “if business needs arise . . . where [he] is the only person available.” (Pl. Exh. 9, ECF No. 14-9.)

         Jones was notified on April 13, 2016, that an internal investigation did not substantiate her discrimination complaint. (Apr. 13 Entry, Def. Exh. 22.) On April 25, Page informed Jones by letter that his IDR investigation found the CAP “solely related to performance-based outcomes, ” with “no evidence” of race-based motives. (Def. Exh. 25 at 2, ECF No. 13-27.) The letter concluded, “your requested resolution of having the CAP removed from your file is denied, ” “there is no further appeal available, ” and “the case is now closed.” (Id. at 3.)

         On May 4, 2016, Jones gave notice of her resignation, and UHG released her that day. (Def. Exh. 30, ECF No. 13-32; May 4 Entry, Def. Exh. 26; Robertson Dep. at 204:16-18.) Jones filed a complaint with the Equal Employment Opportunity Commission (EEOC) and received a right-to-sue notice on August 30, 2017. (Compl. ¶ 7, ECF No. 1.) She filed suit in this Court on November 25, 2017, alleging three claims under Title VII: constructive discharge, hostile work environment, and retaliation. (Id. at 10-15.)

         II. Standard for Summary Judgment

         “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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to current Rule 56(a)). The moving party bears the burden of demonstrating the absence of any genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If sufficient evidence exists for a reasonable jury to render a verdict in favor of the non-moving party, then a genuine dispute of material fact exists, and summary judgment should be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). But, the “mere existence of a scintilla of evidence in support of the [non-moving party's] position” is insufficient. Id. at 252. The non-moving party may not rest upon the pleadings but instead must, by evidentiary showing, set out specific facts showing a genuine dispute for trial. Fed.R.Civ.P. 56(c)(1). Where a genuine dispute exists, the facts and inferences derived therefrom must be viewed in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2009).

         III. Analysis

         A. Rule 56

         As a preliminary matter, the Court notes that the Plaintiff's opposition brief is woefully deficient in citations to the factual record. The argument section of the brief contains only two citations to the record. (Opp'n M.S.J. at 13-14, ECF No. 14 (citing ECF No. 13-19 at 4).) It otherwise presents arguments rooted solely in Jones's version of events, without citations to evidence. The fact section contains more citations, but some of these are to entire exhibits without pincites. (See, e.g., id. at 5 (citing to deposition transcripts between 25 and 150 pages in length).) In other places, the brief cites deposition testimony that does not support the associated factual assertions. For example, assertions about L.B.W.'s work-from-home status are supported with citations to testimony from co-workers and Jones herself (id. at 4, 8-9), but none of these deponents assert personal knowledge of L.B.W.'s working arrangements with UHG. Later, the brief again cites Jones's own deposition to support the assertion that Robertson made the D.U. assignment “because [Jones] ‘filed the appeal and the discrimination case.'” (Id. at 10 (emphasis added) (quoting Jones Dep. at 214:18-19).) Jones's opinion is not competent evidence of Robertson's intent. Other assertions about Jones's transfer application and internal complaints filed against her are made without any citation to the record at all. (Id. at 4, 7.) And, at least one unsupported assertion-that Jones “earned a score of 5” on a certain metric in her Interim Review (id. at 6)-is contradicted by documentary evidence in the record. (Interim Review at 2 (showing a score of “3” on that item).) The Court is troubled by the inattention to and sloppy construction of the factual record in the opposition brief.

         Rule 56 requires parties to support summary judgment arguments with sufficient citations to the record. Fed.R.Civ.P. 56(c)(1) (“A party asserting that a fact . . . is genuinely disputed must support the assertion by [either] . . . citing to particular parts of materials in the record, . . . [or] showing that the materials cited do not establish the absence . . . of a genuine dispute . . . .” (emphasis added)). Failure to cite admissible evidence is especially perilous where, as here, the non-moving party is the plaintiff, who bears the ultimate burden of persuasion. See Weathersbee v. Balt. City Fire Dep't, 970 F.Supp.2d 418, 431 (D. Md. 2013) (citing Williams v. Cerberonics, Inc., 871 F.2d 452, 456 n.2 (4th Cir. 1989)). Where a party fails to adequately support a factual assertion, the court may “consider the fact undisputed for purposes of the motion, [or] . . . grant summary judgment, ” if the opposing party makes an adequate showing of entitlement to it. Fed.R.Civ.P. 56(e)(2)-(3). Were the Court to strictly confine itself to arguments supported by appropriate citations to the record, only a small fraction of the opposition brief would be considered. Because the Court prefers to dispose of cases on their merits, however, the Court will exercise its discretion to consider materials in the record outside of those cited by the parties. Fed.R.Civ.P. 56(c)(3).

         B. Title VII Claims

         Jones relies on the McDonnell Douglas burden-shifting framework to make her claim. (Opp'n M.S.J. at 16.) See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This approach involves “three stages at which the burden of evidentiary production is shifted back and forth between the plaintiff and defendant.” Weathersbee, 970 F.Supp.2d at 431. Although the production burden shifts, the “‘ultimate burden of persuasion'” always remains with the plaintiff. Id. (quoting Cerberonics, Inc., 871 F.2d at 456 n.2).

         In the first stage of McDonnell Douglas, the plaintiff must establish a prima facie case of discrimination or retaliation. Id. (citing Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294 (4th Cir. 2010)). Although “the precise formulation” of the prima facie case varies based on the facts, id. (citing McDonnell Douglas, 411 U.S. at 802 n.13), a plaintiff generally must show “that the employer took adverse action against the plaintiff ‘under circumstances which give rise to an inference of unlawful discrimination.'” Id. (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Once the plaintiff establishes a prima facie case, “a presumption of discrimination arises.” Chika v. Planning Research Corp., 179 F.Supp.2d 575, 581 (D. Md. 2002) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)).

         In the second stage, the employer must “articulate a legitimate nondiscriminatory reason for the adverse employment decision.” Id. (citing Hicks, 509 U.S. at 507). “Because the employer's burden is one of production and not of persuasion, [the employer] ‘is not required to prove absence of a discriminatory motive, but [must] merely articulate some legitimate reason for its action.'” Id. (quoting EEOC v. Clay Printing Co., 995 F.2d 936, 941 (4th Cir. 1992)). If the employer articulates such a reason, “the presumption of discrimination is eliminated.” Id.

         In the third stage, the plaintiff must “put forth evidence that, if believed, could convince a finder of fact that the employer's purported reasons were pretextual, and that the actual basis for its employment decision was” unlawful. Weathersbee, 970 F.Supp.2d at 434. A plaintiff may be able to show pretext by adducing evidence that the employer's stated reason is false, because, “once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000); see also Okoli v. City of Baltimore, 648 F.3d 216, 223 (4th Cir. 2011).

         In moving for summary judgment, UHG argues that Jones cannot establish a prima facie case under any of her claims and that, even if she could, she cannot offer evidence of pretext to rebut UHG's legitimate explanations. (M.S.J. Mem. at 16, 28, ECF No. 13-1.) The Court agrees that Jones failed to make a prima facie showing of constructive discharge or hostile working conditions but concludes that evidence of retaliation presents a closer call. Even assuming Jones made a prima facie case of retaliation, however, the Court finds that she has not rebutted UHG's non-retaliatory ...


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