Opinion
Civil Action No. 3:00CV860
March 22, 2002
ORDER
This matter is before the Court on the Defendant's Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56. For the reasons set forth in the accompanying Memorandum Opinion, the motion is hereby GRANTED and the case is DISMISSED. It is further
ORDERED, without objection, that all exhibits that have been submitted by either party shall be placed under seal and remain under seal pending further order of a court having appropriate jurisdiction, said materials to be subject to disclosure only to the parties and their counsel for use in this litigation; such action being deemed necessary because the materials contain reference and information concerning various personnel issues, including those of unrepresented third parties.
Let the Clerk forward a copy of this Order and the accompanying Memorandum Opinion to all counsel of record.
It is so Ordered.
MEMORANDUM OPINION
This matter is before the Court by consent of the parties ( 28 U.S.C. § 636 (C)(1)) on the Defendant's Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56. The Plaintiff, a Caucasian male over the age of forty (53) during the time of relevant events, alleges in his Amended Complaint that: (1) the Defendant, as his employer, retaliated against him for having engaged in protected activity in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. (Title VII) (Count I); and (2) that he suffered an adverse employment action in the denial by the defendant employer of a promotion because of his age in violation of the Age Discrimination In Employment Act, 29 U.S.C. § 626, et seq. (ADEA) (Count II). More specifically, the Plaintiff asserts that he suffered "lost wages from loss of promotion, merit raises, loss of value of future retirement, loss of future opportunities, and has been caused to suffer pain, humiliation, embarrassment, and other harms "as a result of the Defendant's retaliation in response to protected activity engaged in by the Plaintiff and that the supervisor's replacement, a younger male (age 42), was unfairly pre-selected to fill the position as the result of age discrimination because the Plaintiff was better qualified with more experience, training, and superior performance ratings. (Am. Compl. ¶¶ 69, 72-79). The Plaintiff seeks compensatory and punitive damages in the total amount of Three Hundred Thousand and No/100 Dollars ($300,000.00), "past and future wage losses," attorney's fees, costs and expenses, wage losses for "a period up to and including retirement, times two, pursuant to the ADEA" or, in the alternative, the same amount of compensatory and punitive damages ($300,000.00), and promotion with commensurate wage increase, including past wage losses. (Am. Compl., Prayer for Relief). For the reasons stated herein, the Defendant's motion is GRANTED.
The Plaintiff also asserts he was denied another promotion to a different position (lead investigator) as the result of the same ongoing discrimination, but he did not apply for the second position and, therefore, his claim in that regard is considered in the context of his allegation of retaliation. (Am. Compl. ¶ 72).
Standard of Review
Summary judgment is only to be granted when there is no genuine dispute as to any issue of material fact when all justifiable inferences are drawn in favor of the non-moving party and the movant is entitled to judgment as a matter of law. Celotex v. Catrett, 477 U. 5. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, unsupported conclusory allegations by the non-moving party are not sufficient to create a genuine dispute of material fact so as to withstand the granting of relief Celotex Corp. v. Catrett, 477 U.S. at 327 (White, J., concurring). In essence, the Court must decide if the evidence when viewed in the light most favorable to the non-moving party "presents a sufficient disagreement to require submission to the [factfinder] or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. at 251-252.
Undisputed Material Facts and Justifiable Inferences
The Court deems the following to be the undisputed facts and permissible inferences that have potential relevance to the resolution of the pending motion:
1. The Plaintiff was hired by the defendant insurance company in July 1983 as a claim investigator in its Special Investigations Unit (SIU). (Am. Compl. ¶ 10).
2. The Plaintiff was promoted in 1990 to the position of Senior Special Investigator by his supervisor, George Dishner (Dishner), after previously declining promotion to the supervisory position that was ultimately filled by Dishner. (Am. Compl. ¶ 11; Pl.'s Mem. in Opp'n to Def.'s Mot. for Summ. J. (Pl.'s Mem.), Exs. 3 ¶ 5, 28 at 2; Def.'s Mem. in Supp. of Mot. for Summ. J. (Def.'s Mem.), Ex. 1 at 172).
3. A performance evaluation of the Plaintiff was conducted for 1996 and his overall score was satisfactory ("meets"), but less than those of another investigator, Wade Wickre (Wickre), who was evaluated for 1996 ("above"), 1997 ("above"), and 1998 ("above"). However, the performance evaluations of the Plaintiff and Wickre were not provided to the hiring manager, Ronald Moore (Moore), before he made the disputed promotion decision. (Pl.'s Mem., Exs. 40 at 26, 44 at 36; Def.'s Mem., Exs. 4, 9, 10, 11).
4. Susan Changes (Changes), a female co-worker in the SIU, complained of acts of sexual harassment over time by Dishner. Plaintiff confirmed to Changes and the Defendant's Human Resources Director Eric Lane (Lane) by October 1998 that he had witnessed several of the incidents and would support Changes' efforts in seeking appropriate redress. (Pl.'s. Mem., Ex. 3 ¶¶ 7-9, Exs. 11, 28 at 1, 40 at 17).
5. A few days after Plaintiff made his support of Changes known to the Defendant in October 1998, Dishner and Wickre conducted a surprise review of several of Plaintiff's work files. (Pl.'s Mem., Exs. 3 ¶ 10, 44, 46).
6. Changes sued the Defendant and Dishner in June 1999 for alleged sexual harassment and Wickre was designated as "acting manager" of the SIU by Moore, who was also Dishner's supervisor, pending resolution of the issues concerning Dishner, as Wickre had served under Moore's supervision during Dishner's prior absences that were due to medical reasons. (Pl.'s Mem., Ex. 43 at 39-40; Def.'s Ans. ¶ 29; Def.'s Mem., Exs. 5, 7).
7. The SIU employees were notified several weeks after Wickre became acting manager to change computer settings because of an intervening change in software to reflect Wickre as "manager" for the purpose of allowing him to access computer records for review purposes where there had been no designation for "acting manager." (Def.'s Mem., Exs. 2 at 53-54, 3 at 69, Ex. 8; Pl.'s Mem., Ex. 3 ¶¶ 15, 17).
8. Dishner was terminated from employment in August 1999 as the result of a decision made in the "home office" above Moore's managerial level, after a possible transfer of Dishner to another position may have been considered and was obviously rejected, after which the position was immediately "posted" to be filled. (Pl.'s Mem., Exs. 28 at Bates #1289, 40 at 22-24; Def.'s Mem., Ex. 20).
9. The Plaintiff, along with Wickre, was among fifteen applicants for the supervisory position and among seven to nine who were interviewed in person by Moore for the position. (Def.'s Mem., Exs. 1 at 146-152, 6, 7).
10. The situation involving Changes' complaints and sexual harassment lawsuit, including the Plaintiff's support of the allegations, was discussed during Moore's interview of the Plaintiff. Although perhaps embarrassed by the subject, Moore thought Plaintiff's involvement was an attribute consistent with Moore's corporate policy regarding such matters. (Def.'s Mem., Ex. 3 at 155; Pl.'s Mem., Ex. 3 ¶ 20).
11. Moore had reviewed the Plaintiff's "business portfolio" at some point before his interview of the Plaintiff, but he did not have it with him during the interview. (Pl.'s Mem., Ex. 25 at 3).
12. Moore appeared to ask the Plaintiff some questions from a prepared list, but most of the interview was unstructured, as were other interviews. (Pl.'s Mem., Exs. 43 at 36-37, 45; Def.'s Mem., Exs. 1 at 149, 3 at 48).
13. The subject of age did not arise during the Plaintiff's interview. (Def.'s Mem., Ex. 1 at 152).
14. Wickre was interviewed by Moore over time in regard to several managerial positions and although Moore used a standardized interview guide to conduct the earlier interviews, he did not have it when considering Wickre for the disputed promotion. (Def.'s Mem., Exs. 1 at 164, 3 at 34; Pl.'s Mem., Ex. 25 at 2).
15. Moore concluded that Wickre was the preferred candidate if, for no other reason, than his adaptability to change as opposed to preferring "the way it was done in the past," a perspective the Plaintiff admits expressing during the interview. (Def.'s Mem., Exs. 1 at 150-151, 3 at 47-50) ("What I was looking for was a leader who was, you know, focused on improving operations and benefitting from, you know, experiences of the past, but realizing that, you know, nothing stands still and we need to — to move forward and to — to change the ways that we have been doing things over the years to be successful and to — to exist. We're also looking for those individuals who were committed to not just taking one management step, but also willing to continue on up a career path, you know, to other, you know, positions, which, you know, requires, you know, the desire and mobility . . . what I saw was, you know, someone who had, you know, this training for the period of while he was acting manager and — and during our numerous conversations that we had, which were, you know, sometimes, you know, weekly or bi-weekly, following up on how things were going down there and he was always receptive to new ideas and — and willing to accept change and understood that, you know, this was a requirement and was willing to, you know — well, he had that willingness on his part." (Moore dep.).
16. At the same time, Moore concluded that the Plaintiff lacked a forward-looking perspective: "What I found in talking to Mr. — Mr. LaFountain was he was — seemed to be more focused on what had been accomplished in the past. And that's not, you know, what was being looked for. We talked about the creation of the SIU administrative center, and I recall the comment that, `I liked it better when Robbie was doing it. We got better service' and `with change, it takes time to make things occur.' And what I saw was, you know — he, you know, was not someone receptive to new idea, but rather, you know, trying to resurrect the past. And that's not what I was looking for." (Pl.'s Mem., Ex. 43 at 49-50).
17. Moore had the concurrence of several other managerial-level officials of the Defendant in the selection of Wickre for the position. (Pl.'s Mem., Ex. 25 at 3; Def.'s Mem., Ex. 12).
18. The Plaintiff spoke to Wickre after his selection and Wickre told the Plaintiff that although he did not have "what you would call an interview" with Moore for the position, it was a "long drawn out process" that "took a long time." (Def.'s Mem. Ex. 1 at 164).
19. The Plaintiff voiced his objections to both Lane and Moore. In response, Moore stated that Wickre "was selected because he is the type person we want for the future of SIU, and he will be around longer." (Pl.'s Mem., Ex. 25 at 2; Def.'s Mem., Exs. 1 at 265, 25).
20. The Plaintiff tape-recorded the conversation with Moore without his knowledge or consent and a disciplinary notice was ultimately issued to the Plaintiff by Moore for violation of company policy. (Def.'s Mem., Ex. 13).
21. The Plaintiff pursued a complaint regarding the denial of promotion to the managerial position through the Defendant's established grievance procedure ("equity procedure"), but he admittedly missed a required deadline and the matter was accordingly closed. (Def.'s Mem., Ex. 1 at 230-231).
22. The Plaintiff did not allege age discrimination or retaliation related to the Changes issue in his internal complaint, or that he should have necessarily gotten the promotion over others, including Wickre, especially since he admits that "personality plays a lot in this and I know sometimes I have an abrasive personality . . . I know sometimes I am, to be frank about it, a smart ass"; rather, he took the position that he was equally qualified and that his chances would have been better if there had been a fair process without what he thought to be a predetermined result. (Pl.'s Mem., Exs. 3 ¶ 35; 15 at 3; Def.'s Mem., Ex. 1 at 246, 256).
23. Wickre updated Plaintiff's performance evaluation in October 1999 (soon after receiving the promotion) after Moore had been told by the Plaintiff during his interview that he had not been evaluated nor had he received any raise for over a year. (Def.'s Mem., Exs. 2 at 96, 3 at 110-111).
24. The Plaintiff promptly received a substantial merit increase (5%) as the result of Wickre's evaluation and a second smaller increase less than six months later as the result of a February 2000 evaluation also conducted by Wickre. (Def.'s Mem., Ex. 1 at 301-303).
25. The Plaintiff does not "necessarily" contest the total score he received in his February 2000 evaluation, but he disputes individual components of the total and asserts that he chose not to apply for a second promotion (lead investigator) because he didn't think he was qualified for the position as a result of certain low composite scores assessed in the evaluation that he asserts to be the result of retaliation. (Def.'s Mem., Ex. 1 at 268, 328-330, 335, 339).
26. Wickre made the decision regarding the lead investigator position without any input from Moore other than his approval of Wickre's recommendation. (Pl.'s Mem., Ex. 43 at 115, 117-118).
27. The Plaintiff did not believe at the time of his deposition that Wickre discriminated against him during the relevant time frame because of age or his involvement in the Changes matter, and yet he now asserts that Wickre subjected him to "a campaign of harassing techniques, such as work overload, micromanagement, failure to keep plaintiff informed of events, and like activities, including the February 15, 2000 performance review." (Pl.'s Mem. at 23; Ex. 3 ¶ 37).
28. The Plaintiff timely pursued all required administrative remedies before filing this action.
Ultimately, certain of the findings may not be relevant to the Court's conclusions, but they are identified in any event to allow for full review and because they are contested in part by the parties.
The Plaintiff asserts by affidavit that he served as acting manager of the SIU in the absence of the regular manager (Hogue) before Dishner's tenure and that he was periodically praised for his performance. (Pl.'s Mem., Ex. 3 ¶¶ 6, 27, Ex. 39). However, the Plaintiff also testified unequivocally in deposition that he had never been asked to serve as acting manager. (Def.'s Mem., Ex. 1 at 78). Although the Court may disregard the Plaintiff's assertion regarding prior experience as acting manager because of the inconsistency as the claim may be relevant in addressing the issue of whether he was better qualified than the individual who was promoted (Wickre) so as to indicate a pretextual explanation by the Defendant for its actions, such incremental credits are of minimal significance in the final analysis because there is no doubt but that the Plaintiff was qualified for the position that he was denied. Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984);Green v. Nat'l Archives Records Admin., 992 F. Supp. 811, 822 (E.D. Va. 1998). Rather, the issue is whether the Plaintiff was denied the promotion due to discrimination.
Discrepancies between the Plaintiff's comprehensive affidavit submitted in opposition to the pending motion and his deposition testimony include the statement in his affidavit that the interview lasted "less than an hour" and did include discussion of the situation involving Changes' allegations, while at deposition he testified that it lasted probably two hours and did not include any discussion of the Changes' claims involving Dishner. (Pl.'s Mem. Ex. 3 ¶¶ 19, 20; Def.'s Mem., Ex. 1 at 148, 152). Although minor, such additional discrepancies to the one already noted (n. 3 supra) and those identified later herein (n. 8, 9, infra), are but further support for the firm proposition that self-serving conclusory allegations of the non-moving party are not sufficient in and of themselves to create a genuine issue of disputed material fact so as to preclude dispositive relief. Evans v. Tech. Applications Serv. Co., 80 F.3d 954, 962 (4th Cir. 1966). At the same time, it is in part because of such discrepancies that the Court is unwilling to accept, for example, the veracity of the Plaintiff's uncorroborated allegation that Wickre made "comments that sounded like he had been offered, and accepted the position" before the Plaintiff was even interviewed so as to suggest pre-selection, aside from the fact that such an allegation, even if considered as true, does not even suggest age discrimination; rather, at most, a flawed process that is nevertheless not actionable in this forum. (Pl.'s Mem., Ex. 3 ¶ 16).
The "business portfolio" refers to an employee's resume and application for advancement. It does not include performance evaluations. (Pl.'s Mem., Exs. 40 at 26, 44 at 36)
Moore testified in his deposition that, in fact, he had the Plaintiff's business portfolio during the Plaintiff's interview, but the issue must be resolved in favor of the Plaintiff for purposes of summary judgment. (Pl.'s Mem., Exs. 25 at 3, 40 at 104-105; 43 at 43-45; Def.'s Reply Mem. in Supp. of Mot. for Summ. J. (Def.'s Reply Mem.), Ex. 2 at 44-45).
Moore disputes that he said anything to the Plaintiff to suggest age bias in the selection process and although the fact is troublesome that the recording is no longer available to resolve the issue (especially when considered in the context of the other discrepancies noted in the Plaintiff's position), the Court will consider that such a comment was made for purposes of resolving the pending motion. (Pl.'s Mem., Exs. 1 at 224, 43 at 54, 64, 143). The point, of course, is its significance, if any, in the final analysis. See discussion, infra.
However, the Plaintiff stated in no uncertain terms to Lane and in his more recent affidavit submitted in opposition to the pending motion that he was the most qualified person for the job. (Pl.'s Mem., Exs. 3 ¶ 25; 40 at 27-28).
"Necessarily" is used to qualify the finding because, once again the Plaintiff takes inconsistent positions on various factual assertions, including this one. While in deposition he voiced a milder concern about the February 2000 evaluation in a comprehensive sense, he now takes a stringent approach in his undated affidavit: . . . . . Wickre gave me a performance review that was distorted and for the most part, not true . . . this looked to be truly retaliation, and the only reason I could think of was that it was done to prevent me from ever getting promoted. . . ." (Pl.'s Mem., Ex. 3 ¶ 38).
Analysis Denial of Promotion
Even though the issue is the basis of the second count of the Complaint, the Court will discuss it first because the denial of the subject promotion provides at least part of the context for the Plaintiff's additional claim of retaliation.
There is no contest or doubt but that the Plaintiff satisfies the first two criteria. In addition, the Court finds that the Plaintiff was clearly qualified for the position and that the extensive analysis and discussion of the relative strengths and weaknesses of the Plaintiff and the individual who got the position is only relevant, at most, to refute any explanation by the Defendant employer that the successful candidate was more qualified if it was clear under any reasonably-objective analysis that he was not. Were it otherwise, that is, that a court is required to analyze competing credentials of general equality to decide whether the ultimate personnel decision was the appropriate one, the court would be substituting its judgment for that of the decisionmaker in the form of a personnel review board, a scenario the law clearly and appropriately prohibits. See, e.g., DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998) (citing Giannopoulos v. Brach Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir. 1997); Jiminez v. Mary Washington Coll., 57 F.3d 369, 377 (4th Cir.), cert. denied, 516 U.S. 944 (1995); Dudley v. Bell Atlantic Network Serv., Inc., 1999 WL 1127397, at *2 (D.Md. Oct. 19, 1999) (holding ". . . this Court is not in a position to second guess executive hiring decisions that are based on legitimate, non-discriminatory rationales. . .") (quoting citation omitted). At most, the Plaintiff's protestations of superiority are but his own self-serving assessment of the situation and are clearly insufficient for creating (or preserving) the issue so as to defeat summary judgment.DeJarnette v. Corning, Inc., 133 F.3d at 299; Evans v. Techn. Applications Serv. Co., 80 F.3d at 962.
The remaining issue, therefore, is whether the Plaintiff has, as a matter of law, established at least a sufficient evidentiary basis from which to infer that he was denied the promotion in part because of his age so as to require denial of dispositive relief. Typically, as here, the resolution of the question necessarily involves consideration of the remaining issues presented in discrimination cases, namely, the strength of the explanation offered by the defendant employer since any genuine dispute as to its efficacy is sufficient to preclude summary judgment. The Plaintiff's ultimate argument, reduced to its essence, is that Wickre was pre-selected as the result of an unfair process to which Plaintiff did not have equal access and that the reason such a process was utilized and the selection made "must be" because of Plaintiff's age.
Even if the competing candidate (Wickre) was pre-selected (denied by the Defendant), Title VII prohibitions are not violated by such a process unless the selection, however or whenever it occurred, was made on a prohibited basis. See Kennedy v. Landon, 598 F.2d 337, 341 (4th Cir. 1979) (explaining pre-selection may violate internal policies but not necessarily Title VII). Age was not mentioned during the process, including during the Plaintiff's interview. (Finding ¶ 13). Whether Moore had reviewed any of Wickre's annual performance evaluations in the relevant timeframe (including in conjunction with other promotion decisions), there is no evidence that he ever reviewed an evaluation of Plaintiff whenever it may have been conducted to even know that it was less favorable than that of the successful candidate. (Findings ¶ 3). Moore was not advised of the surprise audit of the Plaintiff in October 1998 before he made his selection decision, regardless of its results and, therefore, it could not have been a factor in his decision. (Findings ¶ 5). Moore did not formally interview Wickre for the position as he did others, including the Plaintiff, but he talked to him over time and in conjunction with other positions. (Findings ¶ 14). Moore was aware of Wickre's ability to handle the position on an acting basis. (Finding ¶ 6). Moore did not ask each candidate all the same questions and his interview technique was otherwise unstructured, but such a procedure, based on evidence in the record (or lack thereof), is a reflection of style — not subterfuge. (Findings ¶ 12). Moore concluded from his conversations with Wickre and his interview of the Plaintiff that the former more closely met his concept for a "forward-thinking" manager that would be of more benefit to the company. (Findings ¶¶ 15-16). Moore sought and obtained the approval of other managerial-level officials of the Defendant in Wickre's selection. (Findings ¶ 17). Moore approved a re-evaluation and merit increases for the Plaintiff after the promotion decision was made because of the Plaintiff's justifiable complaint made during his interview that he had not been evaluated for several years in violation of company policy as required for any salary increases. (Findings ¶¶ 23, 24). The Plaintiff's internal complaint related to the denial of the promotion did not include allegations of age discrimination or retaliation (at least as involving the Susan Changes issue as existed at the time) and it was denied before any substantive response was required because of Plaintiff's admitted failure to comply with filing requirements. (Findings ¶¶ 21, 22).
So even if the reconfiguration of the computer software to designate Wickre as "acting manager" is interpreted as evidence of preselection (which the Court does not find), it does not make any difference in the final analysis. (Findings ¶ 7). of course, the more false explanations provided, the more a factfinder could conclude that the explanation as to the basis for the ultimate selection is also suspect, but the Court does not find the explanation offered in this case to even approach that dimension so as to constitute a genuine dispute as to a material fact.
Plaintiff argues that Moore had to know of his age because his resume materials included reference to service in Vietnam in the 1960's. (Pl.'s Mem. at 29). However, the material was part of the Plaintiff's application for the position that the Plaintiff asserts Moore never examined. (Pl.'s Mem. at 10-11). The Court is unwilling to resolve yet another inconsistency in the Plaintiff's position; and the oblique reference to a way by which age could have been determined is too extended for any meaningful consideration in any event.
The Changes situation is discussed in conjunction with the Plaintiff's retaliation claim, infra.
The Plaintiff also asserts that the Defendant's partial reliance on Plaintiff's performance evaluation in its EEOC response — conducted after the promotion decision — to prove that the Plaintiff was less qualified, somehow indicates Defendants had a "guilty mind" indicative of the alleged discrimination. (Pl.'s Mem. at 1-2, 28). However, the Court is not required and is not considering the matter on the same basis as the EEOC and the proposition is too extended to have any relevance in light of the undisputed evidence.
None of these factors, individually or in combination, bespeak discriminatory animus sufficient to allow the matter to proceed to trial. The Plaintiff undoubtedly regrets a missed opportunity of earlier years, but there is not a sufficient basis to assert that he was denied the same opportunity again on the basis of his age. (Findings ¶ 2).
Retaliation
The Plaintiff alleges that the Defendant retaliated against him for having engaged in a series of protected activities by: (1) conducting a surprise audit of his files; (2) denying him a promotion to the position of manager; (3) reprimanding him for surreptitiously tape recording a telephone conversation with the decisionmaker concerning the denied promotion; (4) unreasonably dismissing his internal grievance related to the denial of the promotion; (5) giving him unreasonably low scores in a performance evaluation that rendered him ineligible for another promotion (lead investigator); and (6) harassing him in the workplace by, for example, micromanagement and work overloads. (Compl., Count II). The Plaintiff contends that the cumulative retaliation was in response to his protected conduct in supporting the sexual harassment allegations of the female co-worker; his challenge, both internally and before the Equal Employment Opportunities Commission (EEOC), to the denial of promotion to manager; and his surreptitious recording of the telephone conversation.Id.
The Court will address all the instances of retaliation alleged by the Plaintiff in argument to have occurred even though it can be argued that only the claim involving the Plaintiff's involvement in the Changes scenario is properly alleged in the Amended Complaint. (Pl.'s Mem. at 30-34; Am. Compl., Count II).
Title VII prohibits an employer from taking adverse employment action in retaliation for an employee's actions in "protected activity" such as complaining about an unlawful employment practice. Hopkins v. Baltimore Gas Elec. Co., 77 F.3d 745, 754-755 (4th Cir. 1996), cert. denied, 519 U.S. 818 (1996). To survive summary judgment, however, a plaintiff must first establish a prima facie case by showing that he: (1) engaged in a protected activity; (2) the employer took adverse employment action against him; and (3) that there is a sufficient causal connection between the protected activity and the adverse action to constitute retaliation.Karpel v. Inova Health Sys. Serv., 134 F.3d 1222, 1228 (4th Cir. 1998). If a plaintiff is able to establish a prima facie case, the analysis proceeds as with any substantive claim of employment discrimination by the burden shifting to the defendant employer to offer a legitimate, nondiscriminatory explanation for the adverse action in response to which the plaintiff employee has the opportunity to establish that the explanation is false or otherwise pretextual. Karpel, 134 F.3d at 1229. In this case, even assuming that at least several of the alleged acts of retaliation involved activity protected by Title VII precepts, the necessary causal connection between the adverse action and any discriminatory animus does not exist as a matter of law.
Not the surreptitious recording of the telephone conversation with Moore that cannot be considered as protected activity under any standard, especially where it is violative of the law in some states, and the resulting "once and done" reprimand that did not involve any consequences sufficient to constitute an adverse employment action. (Def.'s Mem., Ex. 3 at 105-106, 149; See, e.g., Johnson v. Quin River Agency for Cmty. Action, Inc., 140 F. Supp.2d 657, 664 (E.D. Va. May 9, 2001) (explaining that "the alleged adverse action must rise to a level that shows that the terms, conditions, or benefits of plaintiff's employment were adversely affected").
As noted earlier, the results of the October 1998 surprise audit that the Plaintiff asserts was an unfair assessment of his abilities was not communicated to Moore in conjunction with the promotion decision and, if anything, the audit results were part of the decision by one of the very same persons (Wickre) who conducted what the Plaintiff claims to have been a biased review that resulted in a significant salary increase for the Plaintiff in late 1999 and, again, within several months thereafter. (Pl.'s Mem. at 5; Exs. 35, 46; Findings ¶¶ 5, 23, 24). Such a sequence hardly bespeaks retaliation, let alone establish the requisite causal connection to establish a retaliatory act.
The Plaintiff asserts that he was denied the promotion to manager at least in part because of his support of the Changes allegation of sexual harassment against Dishner that Moore, the decisionmaker, supposedly resented enough to select a younger, less qualified candidate (Wickre). (Pl.'s Mem. at 30-31). There is simply no corroboration of the Plaintiff's self-serving, conclusory allegations that are not sufficient to preclude summary relief anyway. See DeJarnette v. Corning, Inc., 133 F.2d at 299 (citing Evans v. Tech. Applications Serv. Co., 80 F.3d 954, 960-961 (4th Cir. 1996). The Plaintiff himself admits that he simply does not know if his involvement in the Changes scenario had any impact on the promotion decision. (Def.'s Mem., Ex. 1 at 219-220). Moreover, it is Moore who first remembers that the issue was even raised during the Plaintiff's interview (the Plaintiff initially had no recollection) and Moore states without contradiction that, if anything, he considered the Plaintiff's involvement to have been an attribute — not a treasonous act by a disloyal team member demanding retribution. (Findings ¶ 10). Certainly if such were the case, Moore would not have approved the recommended salary increases for the Plaintiff, let alone during the time when the Plaintiff made his displeasure over the promotion decision known to all. (Findings ¶¶ 19-24). Any suggestion that the Defendant's internal grievance procedure was purposely manipulated to retaliate against the Plaintiff is equally speculative and baseless, especially in light of evidence in the record of the stated intentions and efforts of those involved to fully comply with all requirements and the Plaintiff's admitted failure to do so himself. (Findings ¶ 21; Pl.'s Mem., Exs. 14 (Moore e-mail to Lane: "whatever the process is, we must comply."), 21; 40 at 29-31).
See n. 4 supra.
Finally, also meritless as a matter of law are the Plaintiff's remaining allegations of retaliation: that (1) he received low scores in certain categories on a performance evaluation that he thought precluded him from even applying for another position; and (2) that Wickre (not the decisionmaker, Moore) also retaliated by micromanaging Plaintiff after he had pursued informal and formal complaints about the promotion decision. (Findings ¶¶ 25-27). There is no evidence other than the Plaintiff's self-serving allegation that the scores in any particular category in the evaluations could have had a material impact on the decision-making process for the lead investigator position for which the Plaintiff chose not to apply. (Findings ¶ 25). Moreover, the Plaintiff's self-serving claims, without any corroboration, e.g., from co-workers, about supposed retaliatory tactics of Wickre — not the decisionmaker, Moore — must be summarily dismissed if, for no other reason, than the Plaintiff, again, contradicts himself on the very issue. (Findings ¶ 27). Furthermore, any reaction, including reticence, on the part of anyone directly involved in the scenario (and especially Wickre who got the promotion and became the Plaintiff's supervisor only to have to endure his accusations), is as readily explained by legitimate, non-discriminatory and understandable wariness as by the speculative conclusion that their actions were the product of retaliatory motivation.
Conclusion
For the reasons stated, the Plaintiff has failed to establish a prima facie case as to either age discrimination or retaliation. The evidence is otherwise sufficient to substantiate legitimate, non-discriminatory reasons for the actions taken without creating a genuine dispute of material fact so as to require denial of dispositive relief. The Defendant's Motion for Summary Judgment is therefore GRANTED.
An appropriate Order shall issue.