Cathy Walton v. Thomas Harker ( 2022 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1041
CATHY WALTON,
Plaintiff – Appellant,
v.
THOMAS HARKER,
Defendant – Appellee.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. Richard Mark Gergel, District Judge. (2:18-cv-01568-RMG)
Argued: March 8, 2022 Decided: April 28, 2022
Before AGEE and RICHARDSON, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed by published opinion. Judge Agee wrote the opinion in which Judge Richardson
and Senior Judge Floyd joined.
ARGUED: Timothy O’Neill Lewis, GIBBS & HOLMES, Charleston, South Carolina, for
Appellant. William Hammond Jordan, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Allan R. Holmes,
Rebecca J. Wolfe, GIBBS & HOLMES, Charleston, South Carolina, for Appellant. M.
Rhett DeHart, Acting United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.
AGEE, Circuit Judge:
Cathy Walton (“Walton”) appeals from the district court’s decision granting
summary judgment to Acting Secretary of the Navy Thomas Harker 1 (the “Navy”) on her
employment retaliation claims under Title VII, 42 U.S.C. § 2000e, et seq., and the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (“ADEA”). The
district court awarded judgment after concluding that Walton failed to exhaust certain
claims because they were not raised in her Equal Employment Opportunity Commission
(“EEOC”) charge. It also rejected her remaining retaliation claims, finding no direct
evidence of animus. The court further determined that Walton was unable to establish a
causal link between her previous filing of EEOC charges and an alleged adverse
employment decision made six years later. For the following reasons, we affirm the district
court’s judgment on each ground, with each serving as an independent basis for affirmance.
I.
A.
Walton is an African American woman, who has been employed by the federal
government since 1979. Beginning in 1995, she worked at the Space and Naval Warfare
Systems Center (“SPAWAR”). 2 In 1999, Walton was promoted to the position of
1
Thomas Harker is the Acting Secretary of the Navy. During the litigation, he was
substituted as a defendant for former Secretary Kenneth J. Braithwaite. See Fed. R. App.
P. 43(c)(2).
2
The facility is now known as the Naval Information Warfare Center—Charleston.
2
Administrative Specialist in the Contracts Administration section, in which she performed
the functions of a contracting officer. That was Walton’s last promotion, and she remained
in that position until her recent retirement.
B.
Walton claims she was laterally “reassigned against her will to a lower level and
undesirable position in [Task Orders, within] the Contracts Division” in 2013. J.A. 11 ¶
16. Two years later, she returned to her previous post of Administrative Specialist.
Walton’s move to the Task Orders section was put into motion when SPAWAR
implemented a reorganization within its Contracts Division. Changes to the governing
statute for contract procurement required the Department of Defense and the Navy to shift
from single-award contracts to multiple-award contracts. 3 This change increased the
amount of work in the Task Orders section and reduced the quantity of work in the
Contracts Administration section. SPAWAR addressed the new statutory requirements by
moving employees to the Task Orders section, which needed individuals who had
experience with source selection to effectuate the pivot to multiple-award contracts.
Walton met that crucial qualification because she had significant source-selection
experience.
In response to the statutorily mandated shift to multiple award contracts, Walton
and six other employees were reassigned to the Task Orders section in January 2013. Of
3
A single award contract is given to one contractor. A multiple award contract is
awarded to several contractors for a specified amount of time so that when individual
requirements arise the contract holders compete for each requirement.
3
those, four were Caucasian, two were African American, and one was Asian. Walton was
born in 1953. The other six reassigned employees were born in 1958, 1960, 1963, 1971,
1981, and 1982.
Throughout the litigation, Walton has characterized this position change as a
“demotion.” See, e.g., J.A. 9 ¶ 10 (“In 2013, SPAWAR demoted plaintiff to a position that,
while equal in pay, prevented her from advancing in her career.”); J.A. 11 ¶¶ 16, 18. She
concedes her salary and benefits were unaffected.
Other witnesses contradicted Walton’s opinion, describing the reassignment as a
lateral transfer with increased opportunity for advancement. William Paggi, the Contracts
Competency Lead and Walton’s fourth-level supervisor, described her Task Orders post as
“a higher position in terms of promotion potential” because the work was “more complex.”
J.A. 153. Audrey Orvin, Walton’s second-level supervisor, described multiple-award
contract work as “complicated and [it] requires a higher skill set in order to effectively
process these procurement actions with the required levels of quality and thoroughness.”
J.A. 172. Orvin also stated: “Because [the] contract competency is limited with respect
to . . . depth of experience in these types of tasks, [the Navy] needed to properly align the
valuable senior level expertise to the various teams/branches that would be processing
these actions.” Id.Although Walton personally believes her transfer to the Task Orders section
diminished her promotion potential in a general sense, at no point during this litigation has
she identified any specific promotional opportunities for which she was overlooked either
during her limited tenure in the Task Orders section or since then.
4
C.
Walton alleges the Navy retaliated against her because she filed internal EEOC
charges in 2005 and 2007, both of which alleged violations of Title VII. Walton’s superiors,
Paggi and Orvin, were involved in the 2005 EEOC charge, which resulted in a finding that
Walton had failed to prove discrimination. Walton’s third-level supervisor, Donna
Murphy, was involved in her 2007 complaint, which resulted in a negotiated settlement
agreement.
Several years after filing these EEOC charges, one of Walton’s co-workers, Nina
Burgsteiner, attended a meeting in 2012 with Donna Johnson, Walton’s first-level
supervisor, and Orvin. During that meeting Orvin asked Johnson why she had not placed
Walton on a contracting process improvement team (“CPI Team”), which worked on
developing agency policies and procedures. Burgsteiner testified at her deposition that
Johnson responded: “I basically don’t want anything to do with Cathy. I am not going to
talk to Cathy unless I have to. Because I’m afraid she will file a lawsuit, another EEO[C]
lawsuit[.]” J.A. 2771. Burgsteiner also stated in an affidavit that Johnson’s comment was
“not an isolated incident.” J.A. 242.
Walton filed another EEOC charge in 2013, which serves as the basis for this lawsuit
(the “2013 EEOC Charge”). That charge contained four claims. The first one raised issues
regarding Walton’s 2012 performance assessment. The second alleged: “Assignment of
Duties – [In] April 2013, I was reassigned from the [Contracts] Administration Branch to
the [Task] Orders Branch of contracts. It is my belief that this reassignment was based on
retaliation as well as age.” J.A. 3. The third claim related to Walton’s salary, which she
5
believed was below what her counterparts were being paid. And the fourth alleged she was
forced to endure a hostile work environment. The EEOC ruled against Walton on all four
claims.
D.
Walton filed the operative Amended Complaint in 2018, asserting claims for race
discrimination, age discrimination, and retaliation in violation of Title VII and the ADEA.
Walton’s lawsuit challenged three employment actions: (1) her 2012 performance
assessment; (2) her 2013 reassignment from the Contract Administrative section to the
Task Orders section of the Contracts Division; and (3) her compensation.
The Navy moved for summary judgment. Walton timely responded, attempting to
raise for the first time claims based on her exclusion from the CPI Team and denial of
unspecified promotions. Walton also withdrew her claims related to the 2012 performance
assessment and her salary. The Navy, in its reply brief, argued that Walton was not entitled
to pursue claims that were not brought before the EEOC and reiterated its contention that
summary judgment was warranted on her remaining claims. Thus, all that remained were
Walton’s Title VII and ADEA claims based upon the 2013 realignment. The magistrate
judge filed a Report and Recommendation that the district court grant the Navy’s motion
in full. Walton filed timely objections only with respect to her retaliation claims, 4 to which
4
Walton thus waived her Title VII and ADEA discrimination claims. Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315–16 (4th Cir. 2005).
6
the Navy responded. The district court entered an order overruling her objections and
granting the Navy’s motion for summary judgment.
Walton filed a timely notice of appeal. We have jurisdiction under 28 U.S.C. § 1291.
II.
The Court “review[s] a summary judgment de novo, applying the same standard
that the district court was required to apply.” Calloway v. Lokey, 948 F.3d 194, 201 (4th
Cir. 2020). Summary judgment is appropriate when there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[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.” Ballinger v. N.C. Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir. 1987)
(internal quotation marks and citation omitted). In other words, summary judgment is
appropriate when, “after adequate time for discovery and upon motion, . . . a party who
fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477
U.S. at 322.
III.
Title VII applies to federal-sector employers and forbids such an employer from
taking adverse action against an employee because that employee either has “opposed any
7
practice made an unlawful employment practice” or has “made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing” under Title VII.
42 U.S.C. § 2000e-3(a). This anti-retaliation provision is meant to prevent “an employer
from interfering (through retaliation) with an employee’s efforts to secure or advance
enforcement of the Act’s basic guarantees.” Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 63 (2006).
Similarly, the federal-sector provision of the ADEA prohibits retaliation against an
employee who complains of age discrimination. See 29 U.S.C. § 633a(a); Gomez-Perez v.
Potter, 553 U.S. 474, 477 (2008) (holding that a federal employee can bring a claim for
age discrimination under the ADEA). Employees may prove that their employer retaliated
against them for engaging in protected activity through one of two ways: (1) by direct
evidence of retaliatory animus; or (2) through the McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), burden-shifting framework. Foster v. Univ. of Md.-E. Shore, 787 F.3d
243, 249 (4th Cir. 2015).
With respect to the only remaining claim in this case, we find the district court
correctly awarded summary judgment to the Navy because Walton’s arguments are without
merit for four distinct and independent reasons. First, Walton is not permitted to use her
assertions about exclusion from the CPI Team and the Navy’s failure to promote her as a
foundation for alleged retaliation because she declined to exhaust her administrative
remedies with respect to those claims and, as a result, they are procedurally barred. Second,
even if Walton had exhausted her administrative remedies for those claims, she failed to
plead them in her Amended Complaint. Third, Walton provided no direct evidence of
8
retaliation. Fourth, she cannot meet her burden to show causation under the McDonnell
Douglas framework, and she provides absolutely no evidence of pretext that would
overcome the Navy’s legitimate, non-discriminatory reason for the 2013 lateral
reassignment. Each of these holdings provides an independent basis for this Court to affirm
the reasoned judgment of the district court.
A.
As a threshold matter, Walton is procedurally barred from pursuing her claims of
exclusion from the CPI Team and the Navy’s alleged failure to promote her because she
did not raise them at the administrative level.
It is well settled that before filing suit under Title VII or the ADEA, a plaintiff must
exhaust her administrative remedies by bringing a charge with the EEOC. 42 U.S.C. §
2000e-5(b), (f); 29 U.S.C. § 633a(d). “A plaintiff’s EEOC charge defines the scope of her
subsequent right to institute a civil suit.” Smith v. First Union Nat’l Bank, 202 F.3d 234,
247 (4th Cir. 2000). “The allegations contained in the administrative charge of
discrimination generally limit the scope of any subsequent judicial complaint.” Hentosh v.
Old Dominion Univ., 767 F.3d 413, 416 (4th Cir. 2014); Bryant v. Bell Atl. Md., Inc., 288
F.3d 124, 132–33 (4th Cir. 2002) (holding the scope of the plaintiff’s right to file a federal
lawsuit is determined by the charge’s contents). “[F]actual allegations made in formal
litigation must correspond to those set forth in the administrative charge.” Chacko v.
Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005) (holding that the plaintiff had failed to
exhaust his administrative remedies where his EEOC charge alleged three specific
instances of harassment by a supervisor and his federal complaint alleged long-term
9
harassment by colleagues). “Only those discrimination claims stated in the initial charge,
those reasonably related to the original complaint, and those developed by reasonable
investigation of the original complaint may be maintained in a subsequent Title VII [or
ADEA] lawsuit.” Stewart v. Iancu, 912 F.3d 693, 705 (4th Cir. 2019) (quoting Chacko,
429 F.3d at 506) (internal quotation marks omitted).
If the discrimination claims “exceed the scope of the EEOC charge and any charges
that would naturally have arisen from an investigation thereof, they are procedurally
barred.” Chacko, 429 F.3d at 509 (internal quotation marks and citation omitted). “A claim
will also typically be barred if the administrative charge alleges one type of
discrimination—such as discriminatory failure to promote—and the claim encompasses
another type—such as discrimination in pay and benefits.” Id.Walton’s new assertions that she was excluded from the CPI Team and denied
unspecified promotions were not raised as part of her 2013 EEOC Charge, nor did they
surface as adverse actions during the EEOC investigation. Rather, the sole issue accepted
by the EEOC for investigation that remained before the district court was whether Walton
was retaliated against when she was “reassigned from the Administrative Branch to the
[Task] Orders Branch of the Contracts Competency.” J.A. 26; J.A. 370. There is no
mention of a CPI Team issue in any of the EEOC investigative reports or appeal documents.
Oral Argument at 5:41-5:53, Walton v. Harker (No. 21-1041) (4th Cir. March 8, 2022)
(hereinafter “Oral Argument”), https://www.ca4.uscourts.gov/OAarchive/mp3/21-1041-
20220308.mp3 (Walton’s attorney conceding that there is no mention of exclusion from
the CPI Team in the EEOC documents). There are only a few fleeting references to
10
advancement or promotion in the administrative record, all of which are generic. And none
articulate anything more than Walton’s vague, unsupported personal belief that she was
less promotable due to the 2013 realignment. Walton did not, for instance, identify any
promotion to which she applied and was denied. Nor did she provide any comparators that
were given promotions for which she was more qualified. Her administrative case before
the EEOC focused solely on her view that the 2013 realignment felt like a demotion, not
that it established a failure to promote. Being excluded from the CPI Team and being
denied specific promotions could potentially be discrete adverse actions on which Walton
could have based her claims. But she elected not to do so. Her belated attempt to graft these
claims onto the sole remaining ground in her 2013 EEOC Charge does not comport with
the raise-or-waive sine qua non of governing law. See, e.g., Chacko, 429 F.3d at 509.
Furthermore, neither of Walton’s new, distinct assertions is reasonably related to
the claims raised in the EEOC charge. She argued before the EEOC and the district court
that the 2013 reassignment itself was the adverse employment action. J.A. 11 ¶ 18 (“In
retaliation for plaintiff’s EEO[C] complaints, Mr. Paggi reassigned Plaintiff to an
undesirable position.”); J.A. 26–28 (formal EEOC complaint). Any statements Walton
made during the EEOC investigation or the district court proceedings that related to
promotions (she made none about the CPI Team) were articulated only in the context of
her position that the 2013 reassignment itself was the retaliatory act. 5
5
Aside from three nonspecific statements about promotion in Walton’s Amended
Complaint, J.A. 9–11 ¶¶ 11, 16, 18, the entire record contains only one unpled, vague,
passing reference to an actual application Walton submitted for an unspecified promotion
(Continued)
11
Walton cannot now in hindsight reframe her claims that the EEOC considered about
the 2013 realignment “demotion” to now become new claims about the CPI Team and a
subsequent failure to promote. Because the EEOC had no basis for investigating these
claims, it never considered them. And the Navy was not put on notice that those were the
claims against which it must defend itself. Similarly, Walton fails to point to anything in
the administrative record that the EEOC should have pursued as “reasonably related” to
the Amended Complaint. Stewart, 912 F.3d at 705. As Walton did not raise the CPI Team
and failure-to-promote claims administratively, the record is devoid of any facts, much less
the essential ones, that would be crucial to considering these discrete allegations, such as
the details of promotional opportunities that were purportedly denied to Walton and
whether she applied and was qualified for those posts.
Even Sydnor v. Fairfax Cnty., 681 F.3d 591 (4th Cir. 2012), the case on which
Walton heavily relies, recognized that “requiring a party to file [an administrative charge]
ensures that the employer is put on notice of the alleged violations” and “[t]he goals of
providing notice and an opportunity for an agency response would be undermined . . . if a
plaintiff could raise claims in litigation that did not appear in [her] EEOC charge.” Id. at
593 (internal quotation marks and citation omitted). Allowing Walton to pursue these non-
exhausted claims now creates the precise problem this Court sought to curtail in Sydnor.
in 2016, J.A. 258. By then, she had already returned to her previous job as an
Administrative Specialist in the Contracts Administration section. Thus, even taking that
undetailed assertion as true, it only serves to undercut Walton’s view that she had less
promotion potential in the Task Orders section than she did in her position in the Contracts
Administration section.
12
Contrary to Walton’s argument that Sydnor is analogous to this case, the facts and
procedural history of Sydnor do not bear much resemblance to those of the case at bar. In
Sydnor the plaintiff filed an administrative charge asserting her employer had discriminated
against her because her manager had denied her requested reasonable accommodation for
“lighter duty work.” Id. at 592. While her federal suit was pending, she also requested
working with assistance of a wheelchair. Id. at 593. The district court dismissed the case
for the plaintiff’s failure to exhaust. This Court reversed, holding the “variation in the[]
proposed accommodations does not mean that [the plaintiff] failed to exhaust her
administrative remedies.” Id. at 595. Put differently, the Sydnor plaintiff did not change
the type of discrimination alleged, just the type of accommodation, or relief, she requested.
Id. at 596 (observing that despite the difference in requested accommodation, it was evident
that “Sydnor faced the same difficulties in walking after her foot surgery and needed some
form of accommodation” and use of a wheelchair was “one logical accommodation for this
specific disability”). Walton, by contrast, wishes to pursue for the first-time during this
litigation new claims that are not logically related to the 2013 job realignment “demotion,”
the sole remaining claim that she presented to the EEOC. Failure-to-promote is a distinct
type of retaliation claim that we have said has to be explicitly raised and investigated. See
Chacko, 429 F.3d at 509 (“A claim will also typically be barred if the administrative charge
alleges one type of discrimination—such as discriminatory failure to promote—and the
claim encompasses another type—such as discrimination in pay and benefits.”); see also
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) (observing that
“termination, failure to promote, denial of transfer, or refusal of hire” are “[d]iscrete acts . . .
13
of discrimination” which “Each retaliatory adverse employment decision constitute[ing] a
separate actionable ‘unlawful employment practice’”). Otherwise, the risk is that broad
terms could encompass “a limitless number of other factual worlds” such that it renders the
exhaustion requirement “a nullity.” Chacko, 429 F.3d at 512–13.
Walton began to pursue claims for failure-to-promote and exclusion from the CPI
Team for the first time in response to the Navy’s summary judgment motion. The Navy in
its subsequent reply brief pointed out that she had failed to exhaust her administrative
remedies. Walton is not entitled to pursue new claims for the first time long after the
administrative process concluded.
The district court correctly held that her CPI Team and failure to promote claims
were not properly exhausted. See, e.g., id. at 513 (“We have generally dismissed any claims
in which the plaintiff has not exhausted his administrative remedies before bringing suit.”);
Bryant, 288 F.3d at 132–33 (affirming dismissal of plaintiff’s claim because its scope
exceeded that of his administrative charge); Sloop v. Mem’l Mission Hosp., Inc., 198 F.3d
147, 149 (4th Cir. 1999) (“We conclude that [plaintiff] failed to exhaust her administrative
remedies before the EEOC, and therefore dismiss her Title VII retaliation claim.”).
Accordingly, Walton is procedurally barred from pursuing those allegations as adverse
actions in her retaliation case.
Lastly, we note the district court’s statement in its Order and Opinion that a failure
to exhaust implicates subject matter jurisdiction. J.A. 371 (stating the court did “not have
subject matter jurisdiction under Title VII of claims omitted from the EEOC administrative
charge”). Although exhaustion is imperative, it is not jurisdictional. A little over a year
14
before the district court’s decision in this case, the Supreme Court held that Title VII’s
exhaustion requirement is a non-jurisdictional “processing rule, albeit a mandatory one”
that must be enforced when properly raised. Fort Bend Cnty., Tex. v. Davis, 139 S. Ct.
1843, 1850–51 (2019); see also United States v. Muhammad, 16 F.4th 126, 129–30 (4th
Cir. 2021) (holding that the district court erred by ruling on administrative exhaustion sua
sponte). Neither party cited Fort Bend or Muhammad in the district court, in their appellate
briefs, or meaningfully argued in favor of applying those cases at oral argument, perhaps
because there is no question that the Navy preserved its failure-to-exhaust argument. The
Navy had no reason to raise the exhaustion objection at the outset of the litigation because
Walton did not assert her CPI and non-promotion claims until her response to the Navy’s
summary judgment motion. At that point, the Navy promptly and properly raised the issue.
Walton has not suggested otherwise, and thus she has waived any possible argument that
the Navy failed to do so. See Carter v. Lee, 283 F.3d 240, 252 n.11 (4th Cir. 2002) (“[T]his
Court normally views contentions not raised in an opening brief to be waived.”).
B.
Even if Walton had administratively exhausted her CPI Team and failure-to-
promote claims, we would reach the same result because she failed to plead them in her
Amended Complaint. It is axiomatic that a plaintiff’s complaint must include sufficient
facts demonstrating a plausible claim for relief. See Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (“Factual allegations must be enough to raise a right
to relief above the speculative level[.]”). Claims that are entirely omitted from the pleadings
or mentioned only as speculative, bald accusations, without any supporting factual
15
allegations, will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (holding that
allegations of discriminatory conduct that are conclusory “are not entitled to the
assumption of truth”); see also, e.g., Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190–
91 (4th Cir. 2010) (“[A]lthough Coleman’s complaint conclusorily alleges that Coleman
was terminated based on his race, it does not assert facts establishing the plausibility of that
allegation.”).
Plaintiffs cannot proffer untimely issues absent from their initial pleadings to avoid
summary judgment or to pursue an appeal. See, e.g., Singleton v. Wulff, 428 U.S. 106, 120
(1976) (“It is the general rule, of course, that a federal appellate court does not consider an
issue not passed upon below.”); OpenRisk, LLC v. MicroStrategy Servs. Corp., 876 F.3d
518, 529 n.5 (4th Cir. 2017) (declining to consider an argument that the plaintiff failed to
raise until its motion to reconsider an adverse ruling at summary judgment); Zoroastrian
Ctr. & Darb-E-Mehr of Metro. Wash., D.C. v. Rustam Guiv Found. of N.Y., 822 F.3d 739,
753–54 (4th Cir. 2016) (same); Holland v. Big River Mins. Corp., 181 F.3d 597, 605 (4th
Cir. 1999) (“Generally, issues that were not raised in the district court will not be addressed
on appeal.”).
Walton’s Amended Complaint never mentions her purported exclusion from the
CPI Team, and she concedes it “wasn’t pled.” Oral Argument at 2:39-3:51.
In order to properly plead a failure-to-promote claim under Title VII or the ADEA,
a plaintiff must allege specific facts establishing four elements that could plausibly meet
the satisfaction of the factfinder. To bring a failure-to-promote claim, a plaintiff must
establish: “(1) she is a member of a protected group, (2) there was a specific position for
16
which she applied, (3) she was qualified for that position, and (4) [her employer] rejected
her application under circumstances that give rise to an inference” of liability. Williams v.
Giant Food Inc., 370 F.3d 423, 430 & n.5 (4th Cir. 2004); Evans v. Technologies
Applications & Serv., 80 F.3d 954, 959-64 (4th Cir. 1996) (reciting elements of a failure-
to-promote claim in a case brought under Title VII and the ADEA). Walton’s submissions
fail to allege any of these four crucial elements. Instead, her Amended Complaint mentions
promotion in the most conclusory fashion possible, asserting only Walton’s vague
speculation that “the possibility of promotion from the lower level contracts position is all
but erased.” J.A. 11 ¶ 16. The remainder of the Amended Complaint provides no additional
allegations that, for instance, specify any promotion for which she applied and was denied,
proffer any comparators that were given promotions for which she was more qualified,
articulate the qualifications for the position and why she met them, or identify the decision
maker for such a promotion. Perhaps recognizing these shortcomings, Walton admits she
did not claim “separate distinct . . . discrete acts of not being promoted.” Oral Argument at
13:15–13:23.
The Amended Complaint fails, on its face, to plead the necessary and basic elements
of a failure-to-promote claim. If Walton wished to bring claims based on her exclusion
from the CPI Team and the Navy’s failure to promote her, she had to include them in her
Amended Complaint. She cannot pursue claims that she failed to plead and only raised for
the first time in response to a motion for summary judgment. See Singleton, 428 U.S. at
120.
17
Walton’s failure to plead the claims she presents on appeal are a separate and
independent ground for affirming the district court’s judgment.
C.
In granting the Navy’s motion for summary judgment, the district court also
correctly determined that Walton’s remaining retaliation claim was unsustainable because
there is no direct evidence of retaliation as part of her lateral realignment in 2013.
Direct evidence “is evidence which, if believed, would prove the existence of a fact
without any inference or presumptions.” O’Connor v. Consol. Coin Caterers Corp., 56
F.3d 542, 548 (4th Cir. 1995) (cleaned up), rev’d on other grounds, 517 U.S. 308 (1996).
It is evidence of conduct or statements that reflect the alleged discriminatory attitude and
that bear directly on the contested employment decision. Cline v. Roadway Express, Inc.,
689 F.2d 481, 485 (4th Cir. 1982)
Walton proffers as direct evidence Johnson’s comment that she would not put
Walton on a CPI Team and Burgsteiner’s statement that Johnson’s comment was “not an
isolated incident.” J.A. 242. Walton contends these two statements constitute direct
evidence of retaliatory animus resulting in a decision not to include her on the CPI Team.
Even if one could characterize Johnson’s comment as part of an unidentified pattern to
limit Walton’s promotability—an untenable stretch of logic—her EEOC charge and
subsequent Amended Complaint did not include a failure-to-promote claim or anything
related to the CPI Team. No matter how liberally one construes these comments, they have
no nexus to the 2013 realignment, which is the only remaining contested employment
decision.
18
Just as importantly, Johnson had no role in the 2005 or 2007 EEOC claims. Nor was
she involved in any identifiable promotion. Walton simply offers no evidence to even
remotely establish a nexus to any existing claim in this case. Indeed, she concedes Johnson
was not the decisionmaker with respect to the 2013 realignment. Oral Argument at 15:30–
16:03 (“On the moving to a different part of the contract administration, she was not what
I would call a decision maker under the law.”). Accordingly, the district court did not err
in holding that Walton failed to establish her retaliation claim through direct evidence.
As with the foregoing reasons, the absence of direct evidence is another independent
basis upon which to affirm the district court.
D.
Because Walton presented no direct evidence that the 2013 realignment was
retaliatory, the district court correctly proceeded to the McDonnell Douglas burden-
shifting framework. Diamond, 416 F.3d at 318 (applying burden-shifting framework to
Title VII claim); Laber v. Harvey, 438 F.3d 404, 430 (4th Cir. 2006) (applying burden-
shifting framework to ADEA claim). Under this approach, an employee must first establish
a prima facie case of retaliation. McDonnell Douglas, 411 U.S. at 802. To do so, the
employee must demonstrate: “(1) she engaged in a protected activity, (2) the employer
acted adversely against her, and (3) there was a causal connection between the protected
activity and the asserted adverse action.” Hoyle v. Freightliner, LLC, 650 F.3d 321, 337
(4th Cir. 2011).
The Navy does not dispute that there is a question of fact regarding the first two
elements. It argues Walton has failed to demonstrate the third element of her prima facie
19
case, i.e. that there is a causal connection between her filing EEOC charges in 2005 and
2007 and her 2013 job realignment.
Prior to bringing the 2013 EEOC Charge that resulted in this litigation, Walton’s
most recent administrative charge was filed in 2007. She concedes that the expanse of time
from 2007 to 2013 does not create an inference of causation based on temporal proximity
between the protected activity and the adverse employment action. See Dowe v. Total
Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998) (explaining
that a lapse of three years between the protected activity and the adverse employment action
negated the inference of causation). Still, she would have us rely on Lettieri v. Equant Inc.,
which held “[i]n cases where temporal proximity between protected activity and allegedly
retaliatory conduct is missing, courts may look to the intervening period for other evidence
of retaliatory animus.” 478 F.3d 640, 650 (4th Cir. 2007) (internal quotation marks and
citation omitted). Evidence of “recurring retaliatory animus during the intervening period
can be sufficient to satisfy the element of causation.” Id.; see also id. at 650–51 (finding
ongoing animus where significant job responsibilities, supervisory responsibilities, and the
ability to meet with clients were taken away from the plaintiff during the seven months
between when she made her discrimination report and when her employment was
terminated).
Lettieri’s facts do not resemble this case. The pattern of animus there was severe
and took place over a truncated period of months. Here, Walton points to only one alleged
comment over six years by a supervisor that did not relate in any way to her 2013 job
reassignment. Johnson’s isolated statement about not wanting to include Walton on the CPI
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Team does not amount to evidence of “recurring retaliatory animus,” id. at 650, sufficient
to create a causal link between Walton’s 2005 and 2007 EEOC charges and 2013
employment action. As noted, Walton concedes Johnson was not even the decision maker
with respect to the 2013 realignment. And her remaining contention that Johnson’s
comment was “not an isolated incident,” J.A. 242, is unsupported by any record evidence
demonstrating recurring animus. Thus, Johnson’s lone statement cannot advance Walton’s
efforts to meet her burden to show causation. The analysis can conclude here.
But, even assuming that she could establish a prima facie case for employment
retaliation, under McDonnell Douglas the burden would then shift to the Navy to proffer a
legitimate, non-discriminatory reason for its decision. The record contains ample evidence
to support the Navy’s decision to reassign Walton in 2013. SPAWAR took the same action
for multiple employees, within and outside of Walton’s protected classes (age and race)
from the Contracts Administration section to the Task Orders section to address the
statutorily mandated shift from single- to multi-award contracts. Following the McDonnell
Douglas framework, the burden would then shift back to Walton to show that the Navy’s
reason was pretextual. She has presented no such evidence. In fact, she does not even argue
that the Navy’s decision was pretextual.
Thus, for each of these independently sufficient reasons, the district court did not
err in granting summary judgment for the Navy.
IV.
For the reasons discussed above, the judgment of the district court is
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AFFIRMED.
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