United States District Court, E.D. Virginia, Alexandria Division
M. BRINKEMA UNITED STATES DISTRICT JUDGE.
Eden Ghebreab ("plaintiff” or
"Ghebreab"), proceeding pro se, has filed a
two-count complaint alleging discrimination in compensation
and retaliatory discharge under Title VII of the Civil Rights
Act of 1964 on the basis of race and national origin against
defendant Inova Health System ("defendant" or
"Inova") and seeking $1, 000, 000.00 in damages.
Before the Court is defendant's Motion for Summary
Judgment, which argues that the Court lacks subject-matter
jurisdiction over the discrimination claim because it was not
timely exhausted and that plaintiffs retaliatory discharge
claim fails because she has not demonstrated that she engaged
in a protected activity. For the reasons that follow,
defendant's Motion for Summary Judgment will be granted.
is a black female from Eritrea. PI. Facts, [Dkt. 39] at
¶ 4. Inova, a large hospital in Northern Virginia, hired
her in 2002 as a registrar in its Office of Continuing
Medical Education ("CME Department"), an office
which "provides services such as accrediting meetings,
developing programs, applying for grants or securing other
funding for meetings, and managing speakers for
meetings." Def. Ex. 1, [Dkt. 33-1] at ¶ 6; Def.
SUMF, [Dkt. 33] at ¶ 5.In 2004, Dr. Madeline Erario
("Erario") was made director of the CME Department.
At around the same time, plaintiffs title was changed from
"registrar" to "data specialist." Def.
SUMF, [Dkt. 33] at ¶ 4; PL Facts, [Dkt. 39] at ¶ 6.
plaintiff received generally positive performance reviews,
she demonstrated an unwillingness to accept constructive
criticism. For example, in 2006, plaintiff received an
overall score of 424.25 out of 500 possible points, which is
designated "commendable" on Inova's scale for
performance reviews. Def. Ex. 7, [Dkt. 33-7] at 10. Her scores
were distributed relatively evenly among the "exceeds
all standards, " "often exceeds standards, "
and "meets standards" categories. Id. at
4-8. Despite the overall positive nature of this review,
Ghebreab refused to sign the review, Id. at 1, and
attached a self-assessment stating, "The assessment I
was give[n]... does not reflect my exceeding all standards of
some of my work and often exceeding on others. There for
[sic] I have asked for a review by director
[sic] before I sign my assessment, "
Id. at 13.
2008, plaintiff was promoted to a Senior Meeting Planner and
Credentialing Specialist, which included a substantial
portfolio of event planning. Def. SUMF, [Dkt. 33] at ¶
8. The promotion included a pay raise, and in her new
position plaintiff was designated as an "exempt"
worker under the Fair Labor Standards Act ("FLS
A"), meaning she was not entitled to overtime pay under
the FLSA. Id.
CME Department expanded its portfolio, Inova decided to bring
additional people into the department. In January 2009, Inova
hired Kelley Sanchez ("Sanchez") as the CME
Department manager. Id. at ¶ 9. According to
plaintiff, Sanchez received the job in part because she was
friends with the CME Department's director. PL Facts,
[Dkt. 39] ¶ 9. After Catherine Tumelty
("Tumelty") joined the department in August 2009,
Sanchez supervised at least three Senior Meeting Planners in
total, including Ghebreab, Tumelty, and Kellen Bagnoli
("Bagnoli"). Def. SUMF, [Dkt. 33] at¶ 10.
alleges in an unsigned, undated statement attached to her
opposition that Sanchez made two racially-tinged comments in
2009. First, she alleges that on February 5, 2009,
"Sanchez said she could not believe how many Africans
work[ed] for the hospital giv[en] the location." PL Ex.
lcl, [Dkt. 39-2] at 32. When Ghebreab asked what she meant by
that, Sanchez allegedly "said the area is considered a
'white neighborhood.'" Id. Sanchez
allegedly made the second comment on September 8, 2009, when
Ghebreab and Sanchez were working on a CME event that served
lunch. Id. According to Ghebreab, Sanchez said,
"[T]hese African nurses don't mind standing for a
long time on line to get their lunch. To be honest, I think
they just come for the lunch, not to learn anything."
Id. Defendant denies that Sanchez made these
Department members occasionally travel for educational
programming. In 2009, several department members took such a
trip to Chicago, with Ghebreab and Tumelty traveling in
August and Sanchez and Bagnoli traveling in December. Def.
SUMF, [Dkt. 33] at ¶ 11. Because such trips require the
Senior Meeting Planners to work long hours on weekends, the
department permits them to take compensatory time off
("comp time") in lieu of overtime pay. Inova had a
policy governing comp time, which stated that "the CME
manager/director" would "approve and provide comp
time to CME staff, " and that "the staff will be
responsible to keep their hours in a shared drive excel
account." PL Ex. Ib5, [Dkt. 39-2] at 9. At some point
after the Chicago trip, the practice of keeping such records
on a shared drive was abandoned, and employees were
responsible for keeping their own records and periodically
sharing them with Sanchez, Erario, and Human Resources
personnel. See PI. Facts, [Dkt. 39] at ¶ 13.
claims that Sanchez specifically told her that she was not
permitted to take comp time for the Chicago trip, although
Sanchez has no memory of any such conversation.
Compare PI. Facts, [Dkt. 39] at ¶ 14, with Def.
SUMF, [Dkt. 33] at ¶ 19. Sanchez does remember speaking
to Tumelty, who was new to the department, about the comp
time policy shortly before the Chicago trip, and does not
remember if Bagnoli was present for that conversation. Def.
SUMF, [Dkt. 33] at¶¶ 13-14. Both Bagnoli and
Tumelty received comp time for the Chicago trip. Id.
Plaintiff claims that she did not know at the time that the
other two Senior Meeting Planners received comp time for the
Chicago trip. PI. Facts, [Dkt. 39] at ¶ 15. She asserts,
without pointing to any evidentiary support for the claim,
that Sanchez changed the policy about keeping comp time on
the shared drive with the purpose of keeping this disparate
treatment hidden from Ghebreab. Id. at ¶ 13.
August 2010, plaintiff took a trip to Eritrea. She alleges in
the same undated, unsigned document discussed above that on
her first day back, August 16, 2010, Sanchez said "I bet
you are so glad to be back to civilization I don't know
how you do it, I would never put myself through that. You
look like you [are] going to need recover[y] time." PI.
Ex. lcl, [Dkt. 39-2] at 32. Plaintiff took this comment to be
racially motivated. See id.
November 2010, while Sanchez was on maternity leave,
plaintiff took a trip to Richmond with Tumelty and Bagnoli.
PL Facts, [Dkt. 39] at ¶ 15. While they were on the
train, plaintiff claims that Tumelty and Bagnoli said they
were looking forward to receiving comp time for the trip.
Id. Plaintiff claims that she expressed surprise,
thinking that the trip could not add to their comp time
because she was told that the Chicago trip did not count.
Id. Tumelty and Bagnoli then informed plaintiff that
they were both given comp time for the Chicago 2009 trip.
Sanchez was out on maternity leave when plaintiff learned
about Tumelty and Bagnoli receiving comp time, she complained
directly to Erario. According to plaintiff, she "clearly
informed Ms. Erario of my discrimination and past miss
treatments [sic] by Ms. Sanchez." Id.
at ¶ 16. When Erario asked her why Sanchez might be
discriminating against her, plaintiff alleges that she
replied, "I don't know, I work very hard on all my
work always and do great job [sic] per your feedback. The
only thing is I am different form [s]c] them and it hurts to
feel this way and I can't change who I am even if I want
to." Id. Beyond the vague reference to being
"different" from Bagnoli and Tumelty, plaintiff did
not mention her race or national origin explicitly in her
account of that conversation. See Id.
November 29, 2010, Sanchez returned from maternity leave, and
Ghebreab presented her with a written complaint airing a
number of grievances, including the Chicago comp time
disparity. Def. Ex. 5, [Dkt. 33-5]. The complaint began with
a brief introduction, which stated, "For the last two
years of your time her[e] at CMEI kept doubting my self [s]c]
saying maybe I am paying attention to the things that are
bothersome and disappointing to me. However after reviewing
my two years evaluation and thinking about all the things
listed below I was correct in my feelings that as Inova's
9 years's [sic] employee I have being [s]c] treated
unfairly." Id. at 1. Ghebreab then listed 13
numbered complaints, covering a wide range of issues from
financial recordkeeping, to the comfort of the chairs
provided to employees. Not a single issue referenced
plaintiffs race, national origin, or the discriminatory
comments she alleges Sanchez made. Id. at 1-5. The
paragraph on the comp time issue reads as
You informed all three of us to remove the comp time from the
share drive so that Maureena [a Human Resources employee]
doesn't have access to see it so we moved it. At this
point no one is over seeing the comp time and I have been
learning there is more to it than Maureena seen it. Early in
2010 you called me to your office and said our director has a
problem with my comp time and I said okay lets got meet with
her, we went and I could not see where she has a problem
eveiything was fine as my work ethic is to be trustful and
not to cheat inova of any time so I had no worries. The
ironic about this is that after all four of us when to
Chicago for ACCME you informed my collogues to add 16 hours
of comp time for the trip and no one knows what you added for
your self. However you never informed me to add 16 hours for
my time, I was the only one who did not get the comp time for
the time that I took from my kids. Why wasn't one e-mail
out to all the staff? Even if you request to see every
one's comp time more than one time, clearly mine was not
there... I am just finding out about this. Had the comp time
was stored where every one could see in shared drive as it
had being all a long I would of asked about this then.
Individuals frequently leave at half day to doctor's
appointments and never have to make it up. In my case the
times I had doctors appointment I always would make it up and
you never said as exempt employee I don't have to make it
up, why? I worked in this deparment for 9 years and I have
never seen people earning as much time off as I am seeing in
such a short time or I am not aware of a new inova's
police that explains it. Anyways I will leave this for due
time and I will be focusing on my miss treatment.
Id. at ¶ 4. Ghebreab concluded the complaint by
I am not so naive to think this issue/mistreatment will be
gone by me addressing it however I need to make sure my
rights as Inova employee is understood. I also know this
hostility is harmful to my health however I couldn't just
leave the CME department after investing almost ten years of
my time and not having done any thing wrong except looking
out for nova's best interest. I also might add I suffered
foot injury in this department and it has being ongoing
treatment and suffering. Therefore the needs for it that Dr.
Erario allows me to walk and get movement on my foot is some
thing in my best interest. With all that has being said at
the end of the day Inova is responsible. The only thing I can