Morrall v. Gate ( 2010 )

  •                               UNPUBLISHED
                        UNITED STATES COURT OF APPEALS
                            FOR THE FOURTH CIRCUIT
                                  No. 09-1277
                      Plaintiff - Appellant,
                      Defendant - Appellee.
    Appeal from the United States District Court for the District of
    Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:07-
    Submitted:   March 16, 2010                 Decided:   March 19, 2010
    Before NIEMEYER, MOTZ, and DAVIS, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    David A. Branch, LAW OFFICES OF DAVID A. BRANCH, P.C.,
    Washington, D.C., for Appellant.      Rod J. Rosenstein, United
    States Attorney, Melanie L. Glickson, Assistant United States
    Attorney, Baltimore, Maryland, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
                 Angela          Morrall,      an     African-American            female,    appeals
    from the district court’s adverse grant of summary judgment and
    dismissal      of      her    action       alleging         that   her    former      employer,
    Robert      Gates,        Secretary          of       the     Department         of      Defense,
    discriminated against her in violation of Title VII of the Civil
    Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17
    (2006)   and      42     U.S.C.      §    1981    (2006),      when      it    terminated       her
    employment allegedly based upon her race.                                Our review of the
    record   and      the     district         court's      opinion       discloses       that     this
    appeal is without merit.
                 We        conclude          that     the       district       court      correctly
    determined that Morrall failed to establish a prima facie case
    of discrimination.                 See McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    , 802-04 (1973); Miles v. Dell, Inc., 
    429 F.3d 480
    , 485
    (4th Cir. 2005).              Specifically, relevant to the third prong of
    her prima facie case, the undisputed evidence established that
    Morrall,     who       was    employed          for   less     than      one   year      and   was
    terminated during her probationary period, was not performing
    her job duties at a level that met her employer’s legitimate
    expectations        at       the    time    she       was     terminated.          The    record
    demonstrates that she demonstrated disrespectful and disruptive
    conduct.       Her relationship with her supervisors was difficult,
    and   her   employment             was   fraught       with    her    written      and    verbal
    complaints      about      a   broad    variety          of    subjects. 1       Whether    an
    employee     is       performing       at     a       level       that   meets   legitimate
    expectations          is   based     on       the      employer’s         perception,      and
    Morrall’s own, unsubstantiated assertions to the contrary are
    insufficient to stave off summary judgment.                              King v. Rumsfeld,
    328 F.3d 145
    , 149 (4th Cir. 2003).                          Plus, even if Morrall had
    established       a    prima    facie       case       of     race   discrimination,       she
    failed     to         establish        that           her      employer’s        legitimate,
    nondiscriminatory reason for terminating her employment, namely
    her insubordination, was pretextual.                          See Tex. Dep't of Cmty.
    Affairs    v.     Burdine,     
    450 U.S. 248
    ,      253    (1981);   Conkwright     v.
    Westinghouse Elec. Corp., 
    933 F.2d 231
    , 234-35 (4th Cir. 1991). 2
           While Morrall attempts to argue that other similarly-
    situated employees were treated more favorably than she
    following episodes of insubordination, as the district court
    correctly held, the two individuals identified by Morrall were
    not similarly-situated because there was no evidence that they
    were probationary employees at the time of their alleged
    misconduct.   See, e.g., George v. Leavitt, 
    407 F.3d 405
    , 415
    (D.C. Cir. 2005).
           Nor did Morrall establish viable claims of retaliation or
    hostile work environment under Title VII, even assuming,
    arguendo, that such claims were properly exhausted.     Her claim
    of retaliation fails because her first EEO contact occurred
    after   her  termination,  such   that  any  claim   of   alleged
    retaliatory conduct based upon that contact fails as a matter of
    law, see Anderson v. G.D.C., Inc., 
    281 F.3d 452
    , 458 (4th Cir.
    2002), and because she failed to demonstrate that any other
    complained-of conduct by the employer was retaliatory for any
    other protected activity, see King v. Rumsfeld, 328 F.3d at 150-
    51. Nor has Morrall established that the employer’s conduct was
    sufficiently extreme to establish an actionable hostile work
                We review for abuse of discretion the district court’s
    denial of Morrall’s request for additional discovery prior to
    granting summary judgment.         See Strag v. Bd. of Trs., 
    55 F.3d 943
    , 952-53 (4th Cir. 1995).        Here, the district court permitted
    Morrall to obtain certain additional discovery, some, but not
    all, of which Morrall did.        It is evident that, prior to ruling
    on the employer’s summary judgment motion, the district court
    considered and granted some of Morrall’s requested discovery,
    and reviewed the extensive factual record fully developed at the
    administrative    level,     as   well   as   the      additional     discovery
    provided by both parties.          We cannot say that there was any
    abuse of discretion by the district court in its limitation on
    Morrall’s requested discovery.       See id.
                Accordingly, we affirm the judgment of the district
    court.     We dispense with oral argument because the facts and
    legal    contentions   are   adequately    presented      in   the    materials
    before   the   court   and   argument    would   not    aid    the   decisional
    environment claim. See Faragher v. City of Boca Raton, 
    524 U.S. 775
    , 788 (1998).    Moreover, we agree with the district court
    that,    while    Morrall   established   the   existence    of
    misunderstandings relating to the proper classification of her
    job, she failed to establish racial discrimination related