United States District Court, E.D. Virginia, Alexandria Division
CAROL A. KIRKLAND Plaintiff,
RAY MABUS, SECRETARY OF THE NAVY Defendant.
M. HILTON UNITED STATES DISTRICT JUDGE
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).
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.
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."
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
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.
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
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.
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.
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.
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).
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).
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).
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 ...