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Kirkland v. Mabus

United States District Court, E.D. Virginia, Alexandria Division

September 12, 2016




         THIS MATTER comes before the Court on a Motion for Summary Judgment by Defendant Ray Mabus, United States Secretary of the Navy ("Defendant"). Plaintiff Carol A. Kirkland ("Plaintiff"), a fifty-four year old female civilian employee with the U.S. Department of the Air Force, was supervised by Navy Captain Jane Tant during a one-year deployment in Djibouti. Plaintiff alleges that she was subjected to discrimination and retaliation on the basis of her sex, age, and a perceived disability in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Counts I and V); the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (Count II); and Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. (Count III).

         The Combined Joint Task Force-Horn of Africa ("CJTF-HOA") conducts operations on behalf of the United States Department of Defense in the Eastern African region. Its headquarters are located in Djibouti at Camp Lemonnier. Plaintiff, an Air Force civilian employee, applied for a one-year deployment to Djibouti. She was placed on deployment to the CJTF-HOA on November 19, 2010, where she worked as Future Operations Financial Manager. Navy Captain Jane Tant was Plaintiff's second-level supervisor.

         Plaintiff first alleges that in January 2011, shortly after Captain Tant's arrival at the CJTF-HOA, Captain Tant made comments about Plaintiff's age, such as: "I would not have hired someone as senior as you"; "We need new blood"; and "We need a fresh new look." Plaintiff also claims that Captain Tant insinuated that because Plaintiff was a woman, her role was at home with her child, making comments such as: "Why did you come here, aren't you concerned about your child?"; and "Where is your son's father?" Plaintiff further argues that Captain Tant discriminated against her based on a perceived disability by making what she claims were derogatory comments, such as: "Your situation directly impacts your ability"; "I'm sending you home and that's final"; "You are not suitable"; and "Your condition is debilitating and long-term."

         Plaintiff then points to a series of events involving Captain Tant to support her claims of discrimination and retaliation. First, on January 27, 2011, shortly after Captain Tant's arrival at the CJTF-HOA, Plaintiff's supervisory duties were transferred to a U.S. Marine Captain. Plaintiff complained about this change on the basis that the U.S. Marine Captain was younger, less experienced, and lower ranked than Plaintiff. Second, between February 2011 and May 2011, Plaintiff requested authorization to go on special Temporary Duty Assignments. Captain Tant did not approve Plaintiff's requests, citing unnecessary expense with undue risk for a civilian. Plaintiff claims that every other employee in the office, including Captain Tant, was allowed such assignments.

         Third, on April 11, 2011, Captain Tant issued Plaintiff a letter of caution for failing to properly follow instructions in changing her travel arrangements. The letter was issued in response to a number of communications between Plaintiff and Captain Tant and other supervisors regarding Plaintiff's rest and recuperation leave requests. The letter reprimanded Plaintiff for failing to obtain proper authorization for changing travel arrangements and for not obeying leave instructions. The letter specified that it was "not an official disciplinary action, " and it advised that further disciplinary action could result.

         Fourth, on April 20, 2011, Plaintiff received a performance review, which was based on Plaintiff's performance before and during her deployment and was completed by Plaintiff's stateside supervisor. Plaintiff contends that the review took into consideration false and derogatory information provided by Captain Tant, causing a negative effect on Plaintiff's performance rating. Plaintiff received an overall "Fully Successful" rating and was awarded a corresponding performance bonus.

         In response to what Plaintiff felt was Captain Tant's unfair treatment, Plaintiff filed a formal complaint with the CJTF-HOA Inspector General against Captain Tant on April 15, 2011. She did not aver that any unfair treatment was based on a protected class status. Upon investigating the complaint, it was determined that Plaintiff's claims were unsubstantiated. Plaintiff also voiced her concerns to the chaplain at Camp Lemonnier and requested contact information for an Equal Opportunity Employment office. On April 27, 2011, Plaintiff received contact information for the EEO representative responsible for handling civilian CJTF-HOA complaints. Plaintiff claims that although she was generally aware that she could report discrimination to an EEO office, she did not know the procedures or time requirements to file a complaint, and she alleges that this information was not available at the camp.

         On May 24, 2011, Plaintiff received an emergency American Red Cross message stating that her home had flooded. Plaintiff was entitled to one leave request during her year-long deployment, and traveling stateside to deal with her flooded home would have been Plaintiff's third overseas trip away from Camp Lemonnier. As a result, Captain Tant recommended that the CJTF-HOA consider terminating Plaintiff's orders so that she could receive an early redeployment. The CJHT-HOA Commander-who was aware of the issues Plaintiff had with her chain of command guidance-cancelled Plaintiff's orders. On May 27, 2011, Captain Tant issued Plaintiff a Notice of Termination, effective June 3, 2011, which terminated Plaintiff's orders to the task force in Djibouti. Pursuant to the Notice of Termination, Plaintiff's deployment assignment was terminated on June 3, 2011. Upon redeployment to the United States, Plaintiff returned to the same position, title, and salary she had beforehand.

         Back in the United States, Plaintiff called an Equal Employment Opportunity office to schedule an appointment on June 27, 2011. She had a meeting with an EEO counselor on July 14, 2011, and she formally commenced the EEO process on September 8, 2011. The EEOC accepted Plaintiff's complaints as timely. In response to Plaintiff's inquiries as to the status of her complaint, Plaintiff received a letter from the EEOC in October 2014 stating that her claim had been misplaced and that the processing of her claim was inadvertently terminated. In October 2014, Plaintiff notified the Equal Employment Opportunity Commission of her intent to file a lawsuit in federal court, and the EEOC dismissed Plaintiff's case on January 16, 2015.

         Plaintiff filed this action in the District of Maryland on December 30, 2014. The case was transferred to the Eastern District of Virginia on February 8, 2016. The operative complaint in this case is labeled Fourth Amended Complaint. On May 13, 2016, the Court dismissed Plaintiff's putative hostile work environment claim (Count IV) pursuant to Defendant's motion to dismiss. Following discovery, Defendant now moves for summary judgment on Count I (sex discrimination), Count II (age discrimination), Count III (discrimination based on a perceived disability), and Count V (retaliation).

         Under Federal Rule of Civil Procedure 56, summary judgment is appropriate if the pleadings and evidence before the Court show no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (198 6). In reviewing a motion for summary judgment, the Court views the facts in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once a motion for summary judgment is properly made, the opposing party has the burden of showing that a genuine dispute of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

         A plaintiff alleging violations of Title VII, the ADEA, or the Rehabilitation Act may prove her case by using either (1) direct or circumstantial evidence of discrimination; or (2) the burden-shifting approach under the McDonnell Douglas "pretext" framework. See Foster v. Univ. of Maryland-E. Shore, 7 87 F.3d 243, 249 (4th Cir. 2015); Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004), abrogated on other grounds by Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under the McDonnell Douglas approach, a plaintiff must first state a prima facie case of discrimination. See Laber v. Harvey, 438 F.3d 404, 430 (4th Cir. 2006). If the plaintiff succeeds in stating a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for its adverse employment decision. Id. If the defendant satisfies this showing, the plaintiff must show that the articulated reason is a pretext for discrimination. Id. at 430-31. Regardless of the approach, a plaintiff must first establish that she suffered an adverse employment action. Hill, 354 F.3d at 284-85; Mitchell v. Data General Corp., 12 F.3d 1310, 1315 (4th Cir. 1993).

         Additionally, employees raising Title VII, ADEA, and Rehabilitation Act claims must exhaust their available administrative remedies before pursuing an action in federal court. See Melendez v. Sebelius, 611 Fed.App'x 762, 763 (4th Cir. 2015). Exhaustion includes the requirement that federal employees initiate contact with an Equal Employment Opportunity counselor within 45 days of the date of an alleged discriminatory action. 29 C.F.R. § 1614.105(a)(1). An individual who fails to bring the complaint to the attention of an EEO counselor within the period required by the regulation may not maintain a discrimination suit against the government. See Bryant v. Bell Atlantic Md., Inc., 288 F.3d 124, 132 ...

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