United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION AND ORDER
Anthony J. Trenga, United States District Judge.
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.
otherwise noted, the facts set forth in this Part are
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].
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].
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].
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].
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.
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.
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
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].
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).
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.
Count I (Title VII and ADA Retaliatory Termination)
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).
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.
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."
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.").
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 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
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
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 ...