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Natal v. Arlington County Public Schools

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

June 12, 2019



          Anthony J. Trenga, United States District Judge.

         Plaintiff Lillian Natal was formerly employed by Defendant Arlington County Public Schools. In this action, she alleges that Defendant created a hostile work environment, interfered with her FMLA benefits, and ultimately terminated her in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Americans with Disabilities Act ("ADA"), all in retaliation for her filing of a charge of discrimination. See [Doc. 1]. Defendant has moved for summary judgment as to all of Plaintiff s claims. See Defendant's Motion for Summary Judgment Filed Pursuant to Fed.R.Civ.P. 56(a) [Doc. 24] ("the Motion"). The Court held a hearing on the Motion on June 7, 2019, following which it took the Motion under advisement. For the reasons stated herein, there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. The Motion is therefore GRANTED and this action is DISMISSED.

         I. BACKGROUND

         Unless otherwise noted, the facts set forth in this Part are undisputed.

         Plaintiff began working for Defendant in 1995 and became an Administrative Assistant in Defendant's Extended Day Program in 2016. [Doc. 1 at ¶¶ 17, 18]. Beginning in 2008 and until she was terminated in 2017, Plaintiff reported to Robert Kaplow, the Director of the Extended Day Program. [Doc. 27-1 at 2-3]. She was also "obligated to take direction" from Ben Harris, the Extended Day Program's Assistant Director. [Doc. 27 at ¶ 6]; see also [Doc. 28 at ¶ 6]. Although the parties disagree over Plaintiffs specific job duties and responsibilities, including specifically whether Plaintiff was required to "place" substitutes in the Program or simply to call them and "try to place them in vacancies," the record establishes that plaintiff spent the majority of her time contacting potential substitutes in an attempt to fill vacancies. [Doc. 27-2 at 5].[1]

         Plaintiff has received negative performance evaluations since 2012, particularly in the areas of "Quality of Work," "Professionalism," and "Human Relations Skills." See, e.g., [Docs. 27-25; 27-26]. The record documents multiple incidents of poor performance, including a 2012 record of discussions about Plaintiffs unprofessional conduct and failure to satisfactorily complete required tasks [Doc. 25-26 at 99], a September 9. 2016 memorandum from Mr. Kaplow to Plaintiff recording inappropriate and unprofessional comments Plaintiff made to Mr. Kaplow in a meeting [id. at 109], reports in October and November 2016 of Plaintiff inappropriately commenting on a parent and a co-worker's personal lives [id. at 102, 104, 111], documented reports in February 2017 of Plaintiffs failing to properly complete work tasks and record meeting minutes [id. at 74, 83], and a March 2017 email from a manager in a different Arlington County Public Schools department complaining of Plaintiff s uncivil behavior toward her and her staff [«/. at 113].

         On May 22, 2017, Mr. Kaplow placed Plaintiff on a Performance Improvement Plan ("PIP"). [Docs. 27-2 at 12; 27-6]. The PIP listed multiple areas in which Mr. Kaplow claimed that Plaintiff was not meeting expectations, including Quality of Work, Quantity of Work, and Human Relations Skills. See [Doc. 27-6]. Within these broad categories, the PIP listed specific areas of concern, including Plaintiffs alleged failure to place substitutes, which Mr. Kaplow testified was his primary concern in placing Plaintiff on the PIP. [Doc. 27-1 at 5]. Subsequent to the PIP's initiation, Mr. Kaplow and Plaintiff met and reviewed Plaintiffs status on at least six occasions, after which Mr. Kaplow memorialized the meeting in the form of a memorandum to Plaintiff. See [Docs. 27-7, 27-8, 27-9, 27-10, 27-11, 27-12]. The PIP was set to expire on, and Plaintiff was to meet the goals of the PIP by, July 15, 2017. [Doc. 28 at 17].

         On July 10, 2017, before the PIP deadline, Plaintiff went on leave protected under the Family Medical Leave Act ("FMLA"). [Doc. 1 at ¶ 31]. She remained on FMLA leave until July 28, 2017. Id. On August 2, 2017, Mr. Kaplow conducted a PIP monitoring meeting, even though Plaintiffs PIP had expired without her meeting performance expectations. See [Doc. 27-11]. One month later, on September 5, 2017, Mr. Kaplow sent Plaintiff a letter explaining that he was extending her PIP deadline to October 31, 2017 to give her additional time to meet the PIP's expectations. See [Doc. 27-13].

         On December 6, 2017, having conducted additional evaluations on September 7, 2017 and October 5, 2017, in which Mr. Kaplow maintained that Plaintiff was not meeting the PIP`s expectations, Mr. Kaplow recommended Plaintiffs termination and sent her a 15-page, single-spaced letter outlining in detail the alleged reasons for doing so. See [Docs. 27-10; 27-11; 27-26]. Plaintiff challenged this recommendation; and after reviewing the recommendation and administrative record in a closed meeting on June 19, 2018, Defendant (the Arlington County School Board) affirmed the decision and recommendation on June 21, 2018. [Doc. 27-27]. Plaintiffs termination became effective that same day, June 21, 2018. Id.

         Against this background, the Court has considered Plaintiffs filing of EEOC charges. In that regard, on November 8, 2016, Plaintiff filed her first charge of discrimination against Defendant with the EEOC. See [Doc. 27-17]. The charge alleged that although Mr. Kaplow knew "very well" that Plaintiff had an unspecified disability, he treated Plaintiff "with incivility and unfairly" and continually intimidated and harassed her. Id. According to Plaintiff, in one instance, Mr. Kaplow told her after she complained about having to sit at a counter that was too low that she would have to sit "wherever they put" her whenever Defendant moved to a new location. Id. The charge also alleged that after Plaintiff had a disagreement with one of her coworkers, Mr. Kaplow had given her a negative evaluation in retaliation for her disclosure of that disagreement to Human Resources. Id. On June 8, 2017, the EEOC dismissed Plaintiffs charge and issued a Right to Sue Letter. See [Doc. 27-18].

         On February 13, 2018, Plaintiff filed another EEOC charge against Defendant, alleging, inter alia, retaliation, in which she references the November 2016 EEOC charge (referenced as the October 2016 charge), the EEOC Right to Sue letter in June 2017, the PIP instituted in May 2017, her FMLA leave in July 2017, her September 5, 2017 meeting with Mr. Kaplow, the extension of her PIP through October 2017, an incident on September 22, 2017 during which she was "repeatedly yell[ed] at while on her lunch break, and having, "[s]ince September 2017, received "degrading communications about her speech." [Doc. 27-19]. That same day, February 13, 2018, the EEOC wrote Plaintiffs counsel to advise that it would not be opening an investigation into the charge because "further investigation is unlikely to disclose a violation of the law" and issued a Right to Sue Letter. [Doc. 27-20]. Plaintiff subsequently sought reconsideration by letter dated February 23, 2018, [Doc. 27-21], and the EEOC denied that request on February 27, 2018. [Doc. 27-22]. In denying that request, the EEOC stated that "[i]t is important to note that a request for reconsideration does not extend the statutory 90 day period for pursuing this matter in court. If a private lawsuit is not filed within 90 days of your receipt of the February 13, 2018, Dismissal and Notice of Rights, the right to sue will be lost and cannot be restored by EEOC." Id.

         On June 7, 2018, Plaintiff filed an additional discrimination charge against Defendant with the EEOC that repeated the conduct upon which the charge of retaliation had been previously made in her earlier EEOC charges, adding only that on February 28, 2018, Plaintiff was informed that Mr. Kaplow's recommendation for termination had been accepted, Plaintiff grieved that decision and was placed on administrative leave "on or around April 26, 2018," and on June 4, 2018, she was terminated. [Doc. 27-23]. On June 13, 2018, the EEOC dismissed this latest charge and issued another Right to Sue Letter. [Doc. 27-24]. Plaintiff filed this case on September 14, 2018, within 90 days of her last Right to Sue Letter, issued June 13, 2018, but not any of the earlier Right to Sue Letters. See [Doc. 1].


         Summary judgment is appropriate only if the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954, 958 (4th Cir.1996). The party seeking summary judgment has the initial burden to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). To defeat a properly supported motion for summary judgment, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 247-48 ("[T]he mere existence of .some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment: the requirement is that there be no genuine issue of material fact."). Whether a fact is considered "material" is determined by the substantive law, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248. The facts shall be viewed, and all reasonable inferences drawn, in the light most favorable to the non-moving party. Id. at 255; see also Lettieri v. Equant Inc., 478 F.3d 640, 642 (4th Cir. 2007).

         III. ANALYSIS

         Plaintiff is no longer pursuing her retaliatory hostile work environment claim in Count II, [Doc. 28 at 1 n.l], leaving for consideration her protected activity retaliation claim in Count I and her FMLA retaliation claim in Count III.

         A. Count I (Title VII and ADA Retaliatory Termination) [2]

         Plaintiff has not proffered any direct evidence of retaliation and instead relies upon indirect evidence to support her retaliation claims. Under such circumstances, the McDonnell Douglas burden-shifting framework applies to both Plaintiffs Title VII and ADA retaliation claims. See Rhoads v. F.D.I.C, 257 F.3d 373, 392 (4th Cir. 2001) (applying the McDonnell Douglas burden-shifting framework applicable to Title VII retaliation cases to an ADA retaliation case); Fox v. Gen. Motors Corp., 247 F.3d 169, 176 (4th Cir. 2001) ("Because the ADA echoes and expressly refers to Title VII, and because the two statutes have the same purpose-the prohibition of illegal discrimination in employment-courts have routinely used Title VII precedent in ADA cases"). Under that standard, to establish a prima facie case of retaliation, a plaintiff must show that: (1) she engaged in a protected activity; (2) her employer acted adversely against her; and (3) her protected activity was causally connected to her employer's adverse action. Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir. 1997). The burden then shifts to the employer "to rebut the presumption of retaliation by articulating a legitimate nonretaliatory reason for its actions." Id. If the employer does so, the plaintiff "must demonstrate that the proffered reason is a pre-text for forbidden retaliation." Haulbrook v. Michelin North America, Inc., 252 F.3d 696, 706 (4th Cir. 2001).

         Plaintiff engaged in protected activity in November 2016, February 2018 and June 2018; and has taken the position that she first experienced an adverse employment action when she was actually terminated on June 21, 2018. [Doc. 28 at 15-16]. Nevertheless, she has effectively taken the position that because she was terminated because of her earlier negative performance evaluations, those negative evaluations became actionable adverse employment actions once she was terminated. In effect, Plaintiff advances a version of a "cat's paw" theory of liability, see Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 290 (4th Cir. 2004), abrogated in part on other grounds by Univ. of Tex. Sw. Med. Or. v. Nassar, 570 U.S. 338 (2013) ("When a formal decisionmaker acts merely as a cat's paw for or rubber-stamps a decision, report, or recommendation actually made by a subordinate, it is not inconsistent to say that the subordinate is the actual decisionmaker."); and the Court has considered Plaintiffs retaliation claim for the purpose of the Motion based on all of the alleged retaliatory conduct following the filing of her November 2016 EEOC charge. See also James v. Booz-AUen & Hamilton, Inc., 368 F.3d 371, 377 (4th Cir. 2004) (stating that "a poor performance evaluation 'is actionable only where the employer subsequently uses the evaluation as a basis to detrimentally alter the terms or conditions of the recipient's employment'" (quoting Spears v. Missouri Dep `t of Corr. & Human Res., 210 F.3d 850, 854 (8th Cir. 2000)). In that regard, the dispositive issue is whether there is evidence sufficient to allow a reasonable fact finder to determine that the negative evaluations were in retaliation for protected activity.

         There is no direct evidence of causation between any protected activity and any adverse employment action; and Plaintiff is left with establishing the required causation through temporal proximity. "[E]vidence that the alleged adverse action occurred shortly after the employer became aware of the protected activity is sufficient to satisfy the less onerous burden of making a prima facie case of causation." Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653. 657 (4th Cir. 1998) (quotation and alterations omitted) (quoting Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989)). However, "[a] lengthy time lapse between the employer becoming aware of the protected activity and the alleged adverse employment action ... negates any inference that a causal connection exists between the two."

         It is undisputed that Mr. Kaplow recommended Plaintiffs termination in early December 2017, approximately 13 months after Plaintiff filed her November 2016 EEOC charge and approximately 6 months after the EEOC issued the Right to Sue Letter in June 2017. See, e.g., [Doc. 1 at ¶ 54]. While there is evidence, when viewed most favorably to the Plaintiff, from which a reasonable inference could be drawn that Mr. Kaplow was aware of Plaintiffs November 2016 EEOC charge shortly after it was filed, that protected activity is too remote in time to raise an inference of causation between that protected activity and his recommendation that she be terminated in December 2017. Even if, as Plaintiff alleges, Mr. Kaplow first learned of the November 2016 EEOC charge after the Right to Sue Letter was issued in June 2017, see [Doc. 1 at ¶ 25], the December 2017 recommendation was too remote in time as well, see Hooven-Lewis v. Caldera, 249 F.3d 259, 278 (4th Cir. 2001) ("A six month lag is sufficient to negate any inference of causation.").

         What remains is Plaintiffs contention that she suffered a series of retaliatory actions proximate in time to her protected activity that resulted in her recommended termination in December 2017 and her actual termination on June 21, 2018. Specifically, Plaintiff contends that (1) her negative evaluations on June 26 and August 2, 2017 were in retaliation for her protected activity reflected in the June 8, 2017 Right to Sue Letter[3] and (2) her negative evaluations in September and October 2017 were in retaliation for her earlier protected activity and also her protected activity on September 5, 2017, at which time she complained of harassment.

         There is insufficient temporal proximity between any protected activity and any of these alleged retaliatory actions. First, there is no temporal proximity based on the June 2017 Right to Sue letter since a right to sue letter does not itself constitute protected activity and there is no evidence that Mr. Kaplow first learned about her November 2016 protected activity through that Right to Sue letter. He denied knowing about it; and there is no evidence of anyone telling him about it, including Plaintiff. Likewise, the evidence is insufficient evidence to establish that Plaintiff engaged in protected activity on September 5, 2017. Despite her allegation that she complained about retaliation because of her EEOC charge, she testified in her deposition that she never discussed her EEOC complaint with Mr. Kaplow during that meeting, or at any other time. See [Doc. 25-2 at 9].

         Finally, Plaintiff points to the extension of her PIP after its scheduled expiration date, citing in partial support Crowley v. Perdue,318 F.Supp.3d 277, 295 (D.D.C. 2018), which held that a defendant's leaving a plaintiff "on a PIP for months after Plaintiff met its objectives" allowed for a reasonable inference of retaliatory animus. But as discussed above, Mr. Kaplow`s negative evaluations pre-date any protected conduct and continued periodically, in fairly steady progression, until he recommended termination in December 2019; and while some evaluations reflected that Plaintiff had made progress in some areas, the evaluations never reflected an overall acceptable level of performance. And as discussed in connection with plaintiffs FMLA retaliation claim, see infra, no retaliatory inference can be drawn from Mr. Kaplow's extension of her PIP in order to provide her with more time to improve her ...

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