Combs-Burge v. Rumsfeld , 170 F. App'x 856 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1366
BARBARA J. COMBS-BURGE,
Plaintiff - Appellant,
versus
DONALD H. RUMSFELD, Secretary of Defense,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CA-04-305-3)
Argued: January 31, 2006 Decided: March 20, 2006
Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Joseph Davis Gebhardt, GEBHARDT & ASSOCIATES, L.L.P.,
Washington, D.C., for Appellant. Tara Louise Casey, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee. ON BRIEF: Charles W. Day, Jr.,
GEBHARDT & ASSOCIATES, L.L.P., Washington, D.C., for Appellant.
Paul J. McNulty, United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Barbara Combs-Burge appeals the district court’s grant of
summary judgment to the Secretary of Defense (Secretary) on her
claims of a racially hostile work environment, demotion based on
her race, and retaliatory demotion at the Defense Logistics
Agency’s Defense Supply Center Richmond (DSCR) in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-16
(West 2003). We agree with the district court that Combs-Burge
cannot show that she was subject to a hostile work environment, and
we also agree that she has not shown that the DSCR’s legitimate,
non-discriminatory and non-retaliatory reason for her demotion was
false or a pretext for discrimination or retaliation. We therefore
affirm.
I.
Combs-Burge, an African-American female, has been a federal
employee for more than twenty years. From July 1999 until her
demotion in June 2002, she was a Lead and Supervisory Inventory
Management Specialist (IMS)1 in DSCR’s Product Center 1, which was
responsible for maintaining the supply inventory for certain
military helicopters.2 She transferred to the DSCR from her job as
1
Combs-Burge was initially hired as a Lead IMS, but in April
2001, the DSCR changed all Lead IMS positions to Supervisory IMS.
2
The DSCR supports the U.S. military services by managing the
supply of parts and materials for military aviation.
2
an Acquisitions Logistics Manager for the Department of the Navy in
Philadelphia, Pennsylvania. Before and after her transfer, Combs-
Burge was in the GS-12 pay grade. At the time of her transfer, she
did not have experience as an inventory manager, but she alleges
that the hiring official assured her that she would receive the
necessary training.
As a Lead IMS, Combs-Burge was responsible for supervising
twelve employees as well as performing inventory management tasks
herself. To perform those tasks, she was required to use the
Standard Automated Material Management System (SAMMS), a system
with which she had no experience prior to her employment with the
DSCR.
The crux of Combs-Burge’s complaint is that she was subjected
to a racially hostile work environment and was demoted because of
discrimination on the basis of race and retaliation by her
immediate supervisor, Robin Mapes. Combs-Burge alleges that
Mapes’s discriminatory conduct began from the moment they met, when
Mapes appeared displeased that Combs-Burge had been hired.
According to Combs-Burge, Mapes harassed and discriminated
against her in several ways. Combs-Burge contends that she never
received training on the SAMMS system and that Mapes denied her
request for the training. She also contends that she never
received a performance appraisal during the first two-and-a-half
years she worked at DSCR. She further alleges that Mapes treated
3
Combs-Burge’s white counterparts “much more favorably” and that
Combs-Burge and her employees were subjected to heightened scrutiny
and additional work assignments compared with other Lead and
Supervisory IMS’s. An employee under Combs-Burge’s supervision
stated that Mapes “unfairly and discriminatorily criticized, micro-
managed, and harassed Ms. Combs-Burge.” (J.A. at 54.) Another
DSCR employee whose desk was near Mapes’s office stated that Mapes
was warm and pleasant toward white employees but that Mapes
“constantly nit-pick[ed]” Combs-Burge about the quality of her
work. (J.A. at 105.) Combs-Burge also alleges that she was
assigned additional work that other Lead IMS’s were not required to
perform. For example, the helicopters under her responsibility
were particularly difficult and demanding systems, and Mapes
required her to develop a “get-well plan” for these helicopters.
In March 2001, Combs-Burge complained to Mapes’s supervisors
that Mapes had discriminated against another African-American
employee by giving a white employee a larger performance-based
monetary award than the more experienced African-American employee.
According to Combs-Burge, after she made this complaint, Mapes told
her that she would be “removed from the government or at least
demoted.” (J.A. at 49.)
In November 2001, Combs-Burge complained to the DSCR Equal
Employment Opportunity (EEO) office that she was being harassed.
Less than a month later, Mapes issued Combs-Burge a notice of
4
proposed demotion. On February 19, 2002, Combs-Burge filed a
formal EEO complaint alleging harassment by Mapes. On June 3,
2002, Colonel Ross Pennington, USMC, the director of business
operations for DSCR, demoted Combs-Burge to a GS-11 pay grade.
On July 31, 2002, Combs-Burge filed a formal administrative
complaint alleging, inter alia, that her demotion was the result of
discrimination.3 On May 4, 2004, Combs-Burge filed this civil
action in district court alleging a racially hostile work
environment, race discrimination, and unlawful retaliation.4
Combs-Burge moved for summary judgment, and the district court
denied her motion on November 3, 2004, after concluding that
“genuine issues of material fact” existed. (J.A. at 28.)
In response to Combs-Burge’s allegations, the DSCR produced
evidence showing that Combs-Burge was subjected to increased
scrutiny and was eventually demoted because of her unacceptable job
performance. This evidence included Records of Counseling that
Combs-Burge had received monthly during a nine-month performance
3
Combs-Burge’s complaint was a “mixed case” under 37 C.F.R.
§ 1614.302 because she could have appealed her demotion to the
Merit Systems Protection Board. On April 15, 2003, the Defense
Logistics Agency notified Combs-Burge that a final decision would
be issued due to the mixed nature of her complaint. Shortly
thereafter, she filed the instant civil action, and the Defense
Logistics Agency then dismissed her complaint.
4
Combs-Burge’s complaint also alleged sex discrimination and
a violation of the Equal Pay Act, 29 U.S.C.A. § 206(d) (West 1998).
The parties agreed to a dismissal of Combs-Burge’s sex
discrimination and Equal Pay Act claims. (Appellant’s Br. at 3
n.1.)
5
improvement period, in which the DSCR placed her to improve her job
performance.5 Each month, Combs-Burge’s performance was reviewed
to determine if it fulfilled certain critical elements, and each
month her performance was found unacceptable. Although she
generally does not dispute the accuracy of these records, Combs-
Burge contends that the records “glossed over” the tasks she
performed successfully and provided only “a terse recommendation”
as to how she could improve her performance.6 (J.A. at 47.)
The DSCR also explained that Combs-Burge’s poor performance
prevented her from receiving a required formal annual performance
rating for year 2000 –- her first full year at the DSCR –- by its
due date of February 15, 2001.7 The annual performance rating
5
The original performance improvement period was 180 days, but
it was extended by ninety days because Combs-Burge’s position
changed from Lead IMS to Supervisory IMS.
6
In her brief, Combs-Burge asserts that the Records included
a “blatantly false accusation” that she failed to hold regular team
meetings. (Appellant’s Br. at 21.) Her evidence of this “falsity”
is an email she sent on September 21, 2001, to inform Mapes that a
conference room was reserved for bi-weekly meetings. Nevertheless,
the Record of Counseling for November 2001 indicates that Combs-
Burge held only three regular meetings during the entire nine-month
performance improvement period, rather than bi-monthly meetings as
she was directed. Although an employee supervised by Combs-Burge
stated that Combs-Burge held team meetings three times a month,
there is no indication that these meetings were “for the purpose of
clarifying policies, improving team performance, etc.,” as
instructed by the Record of Counseling, as opposed to meetings
focused on the completion of a particular task. (J.A. at 254.)
7
Although Combs-Burge acknowledges that an interim performance
appraisal dated July 27, 2001, bears her signature, she alleges
that the signature was affixed without her consent. Other than her
assertions, she presented no evidence to support this allegation.
6
analyzes the employee’s performance for the preceding calendar
year. Mapes could not give Combs-Burge a formal annual performance
rating for 2000, however, because the DSCR regulations do not allow
a supervisor to rate an employee as “unacceptable” without first
giving the employee an opportunity to improve. Accordingly, when
the time came for Combs-Burge’s formal annual performance rating
for her first full year at the DSCR, Lisa James, a DSCR employee
relations specialist, advised Mapes that “the appropriate course of
action was to begin counseling Ms. Combs-Burge on her performance
and give her an opportunity to improve her performance.” (J.A. at
350.) In fact, the first Record of Counseling, dated February 8,
2001, informed Combs-Burge that her performance rating for year
2000 was being deferred until she completed the performance
improvement period. On November 14, 2001, at the completion of her
performance improvement period, Combs-Burge received a performance
rating of unacceptable.
The DSCR also contradicted Combs-Burge’s claim that she had
not been provided the necessary training. In early 2000, she
attended the DLA Supply Management Class, a class that includes
instruction on the use of SAMMS. After her performance was found
to be deficient, the first Record of Counseling informed her that
she would be resent to the DLA Supply Management Class. Although
she was scheduled for the class, she missed the first two days of
the three-week class because she was sick. Against Mapes’s
7
instructions, Combs-Burge failed to attend the remainder of the
class, a failure characterized in a Record of Counseling as
“unacceptable and inexcusable.” (J.A. at 272.)
Finally, the DSCR presented evidence that Combs-Burge’s job
performance remained unacceptable even after she was reassigned for
ninety days to a new job with a different supervisor, who did not
know of Combs-Burge’s employment history. Nevertheless, she still
failed to perform at the level expected for her grade, and about
six weeks into her reassignment, her new supervisor approached
Colonel Pennington with concerns about Combs-Burge’s job
performance. Combs-Burge’s performance remained unsatisfactory in
her new position, and she was demoted.
After presenting this evidence, the DSCR moved for summary
judgment, which the district court granted on February 17, 2005.
II.
“Summary judgment is appropriate when there is no genuine
issue of fact and the moving party is entitled to judgment as a
matter of law.” Catawba Indian Tribe v. South Carolina, 978 F.2d
1334, 1339 (4th Cir. 1992) (en banc); accord Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “The party moving for summary
judgment has the burden of establishing that there is no genuine
issue as to any material fact and that [it] is entitled to judgment
as a matter of law.” Catawba Indian Tribe, 978 F.2d at 1339. This
8
burden must be considered in light of the “substantive evidentiary
standard of proof that would apply at the trial on the merits.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). We
review de novo the district court’s grant of summary judgment.
Catawba Indian Tribe, 978 F.2d at 1339.
1.
Combs-Burge first contends that summary judgment to the DSCR
was improper because the district court had previously denied
summary judgment to her after concluding that genuine issues of
material fact existed. She argues that the record before the
district court had not changed sufficiently to warrant an about-
face on the existence of issues of material fact. This argument
misunderstands the nature of a denial of summary judgment. “When
faced with cross-motions for summary judgment, the [district] court
must review each motion separately on its own merits to determine
whether either of the parties deserves judgment as a matter of
law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.
2003)(internal quotation marks omitted). In denying summary
judgment to Combs-Burge, the district court concluded that the
evidence in her favor was weak enough that a reasonable jury could
return a verdict for the DSCR; whereas in granting summary judgment
to the DSCR, the district court concluded that the evidence in
Combs-Burge’s favor was so weak that a reasonable jury could not
return a verdict for her. See Anderson, 477 U.S. at 248 (stating
9
that a genuine issue of material fact exists if “the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party”). The district court’s rulings, therefore, were
not inconsistent but merely recognized the shift in perspective
required to address each party’s motions.
2.
To prevail on her claim of a racially hostile work
environment, Combs-Burge must show that the harassment was (1)
unwelcome, (2) based on race, (3) sufficiently severe or pervasive
to alter the conditions of her employment and create an abusive
atmosphere, and (4) that there is some basis for imposing liability
on the employer. Causey v. Balog, 162 F.3d 795, 801 (4th Cir.
1998). The harassment must be both objectively and subjectively
severe or pervasive. Harris v. Fork Lift Sys., Inc., 510 U.S. 17,
21 (1993). The objective severity or pervasiveness of the
harassment is judged from the perspective of a reasonable person in
the plaintiff’s position. Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 81 (1998). The district court concluded that
the conduct at issue here was not objectively severe or pervasive
so as to create an abusive atmosphere. We agree.
The conduct that Combs-Burge alleges created a hostile work
environment -- counseling her about performance deficiencies and
assigning her remedial tasks to correct those deficiencies -- is
not the type of conduct that is objectively abusive because it was
10
the direct result of the documented shortcomings in Combs-Burge’s
job performance. In addition, Combs-Burge was responsible for
difficult and demanding helicopters, and as a result she was
assigned additional tasks to support those helicopters.
Nevertheless, assigning individuals remedial tasks to correct their
job performance and assigning individuals to difficult jobs are not
objectively abusive actions, particularly considering that we “do[]
not sit as a kind of super-personnel department weighing the
prudence of employment decisions made by [employers] charged with
employment discrimination.” DeJarnette v. Corning Inc., 133 F.3d
293, 299 (4th Cir. 1998)(internal quotation marks omitted).
Similarly, although other individuals stated that Mapes
“criticized, micro-managed,” and “nit-pick[ed]” Combs-Burge about
the quality of Combs-Burge’s work, Combs-Burge has not shown that
“but for” her race this “nit-picking” would not have occurred.
Causey, 162 F.3d at 802. In other words, Combs-Burge has not shown
that the alleged acts of mistreatment were based on her race rather
than her poor job performance. There has been no suggestion that
Mapes treated Combs-Burge more harshly than any other employee
performing unacceptably. Finally, although Combs-Burge alleges
that Mapes was more friendly to white employees than to her,
general complaints of rude treatment are not sufficient to sustain
a hostile work environment claim. See Baqir v. Principi, 434 F.3d
733, 747 (4th Cir. 2006) (stating that rude treatment by
11
supervisors is “conduct falling short of that required to sustain
a hostile work environment claim”).
3.
To prove her claim that her demotion was the result of
discrimination and retaliation, Combs-Burge relies on the burden-
shifting method of proof established by McDonnell Douglas Corp. v.
Green 411 U.S. 792, 802 (1973), and its progeny. See Causey, 162
F.3d at 800; Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th
Cir. 1989). Under the McDonnell Douglas framework, the employee
has the initial burden of establishing a prima facie case of
discrimination or retaliation. 411 U.S. at 802. If she
establishes a prima facie case, the burden then shifts to the
employer to produce a legitimate, non-discriminatory and non-
retaliatory reason for the adverse action against the employee.
Id. If the employer articulates a legitimate, non-discriminatory
or non-retaliatory reason, then the employee must show that the
stated reason was false and a pretext for discrimination or
retaliation. Id. at 804. In some instances, an employee who has
established a prima facie case can meet her ultimate burden of
persuasion by proving that the employer’s articulated reason is
false. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
148 (2000). It is important to note that the burden that shifts to
the employer is a burden of production, not persuasion. St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993). At all times the
12
employee retains “the ultimate burden of persuading the court that
she has been the victim of intentional discrimination [or
retaliation].” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 256 (1981).
A.
To establish a prima facie case of discriminatory demotion,
Combs-Burge must show that (1) she is a member of a protected
class, (2) she was qualified for her job and her performance was
satisfactory, (3) despite her qualifications she was removed from
her job, and (4) after her removal her job remained open to
similarly qualified applicants. Love-Lane v. Martin, 355 F.3d 766,
787 (4th Cir. 2004). The district court concluded that even if
Combs-Burge could establish a prima facie case, she could not
demonstrate that the DSCR’s proffered reason for her demotion was
false. We agree.
The DSCR introduced written documentation that Combs-Burge’s
job performance did not meet the DSCR’s legitimate expectations and
that, as a result, the DSCR delayed her annual performance rating
and placed her in a performance improvement period for nine months.
Although Combs-Burge contends that she was performing
satisfactorily, she does not support her assertion with relevant
evidence. She did produce evidence that her team performed well,
but this evidence does not refute the documented shortcomings of
13
her individual performance, such as her failure timely to inform
her subordinates of tasks and her failure to complete projects.
Furthermore, although Combs-Burge submitted declarations from other
individuals that she was performing satisfactorily, these
individuals could not provide a useful appraisal of Combs-Burge’s
job performance because they were either Combs-Burge’s subordinates
or individuals in a completely different job, and there is no
indication in the J.A. that these individuals were competent to
assess whether Combs-Burge was meeting the DSCR’s legitimate
expectations.8 We conclude that Combs-Burge has not introduced
sufficient evidence to satisfy her burden of demonstration that the
DSCR’s proffered legitimate reason for demoting her was false and
pretext. See Love-Lane, 355 F.3d at 789.
B.
To establish a prima facie case of retaliatory demotion,
Combs-Burge must show that “(1) she engaged in [a] protected
activity[, such as filing an EEO complaint]; (2) that [her
employer] took adverse employment action against her; and (3) that
a causal connection existed between the protected activity and the
8
Combs-Burge presented one declaration from a Program Analyst
at her grade level with whom she worked after her reassignment.
This Program Analyst appraised Combs-Burge’s work, however, based
on a joint project they were assigned in May 2002. Accordingly,
this appraisal is not probative of Combs-Burge’s performance as a
Lead and Supervisory IMS.
14
adverse action.” Williams, 871 F.2d at 457. We assume that Combs-
Burge can make out a prima facie case of retaliatory demotion.9
Nevertheless, as we explained in addressing her discrimination
claim, she has not demonstrated that the DSCR’s stated non-
retaliatory reason for her demotion -- her unacceptable performance
-- was false and pretextual. This conclusion is buttressed by the
fact that the evidence showed that the DSCR had counseled Combs-
Burge on her unsatisfactory job performance and had placed her in
a performance improvement period in February 2001 -- well before
she complained about the treatment of her African-American co-
worker or filed her EEO complaint. See Williams, 871 F.2d at 454,
457 (concluding that an employee could not show that the employer’s
legitimate reason for the discharge was pretextual because the
employer’s reason developed before the employee engaged in
protected activity).
III.
Because Combs-Burge does not allege conduct that was
objectively severe or pervasive, she has not established a hostile
work environment. In addition, she has not shown that the DSCR’s
reason for her demotion was false and pretext; thus, she cannot
9
Because the DSCR does not dispute that a federal employee
such as Combs-Burge may pursue a retaliation claim under Title VII,
we assume that such a right exists. See Baqir v. Principi, 434
F.3d 733, 748 n.16 (4th Cir. 2006).
15
establish that her demotion was the product of discrimination or
retaliation. We therefore affirm the district court’s grant of
summary judgment to the Secretary.
AFFIRMED
16