Brackman v. Fauquier County , 72 F. App'x 887 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EDITH N. BRACKMAN, 
Plaintiff-Appellant,
v.  No. 02-1161
FAUQUIER COUNTY, Virginia,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-01-918-A)
Argued: February 24, 2003
Decided: July 9, 2003
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Seth Charles Berenzweig, ALBO & OBLON, L.L.P.,
Arlington, Virginia, for Appellant. David Patrick Corrigan, HAR-
MAN, CLAYTOR, CORRIGAN & WELLMAN, P.C., Richmond,
Virginia, for Appellee. ON BRIEF: David A. Oblon, ALBO &
OBLON, L.L.P., Arlington, Virginia, for Appellant. Jeremy D. Capps,
HARMAN, CLAYTOR, CORRIGAN & WELLMAN, P.C., Rich-
mond, Virginia, for Appellee.
2 BRACKMAN v. FAUQUIER COUNTY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Edith N. Brackman sued Fauquier County, Virginia (the County)
in the U.S. District Court for the Eastern District of Virginia, asserting
a retaliatory firing claim under Section 704(a) of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. The dis-
trict court granted summary judgment in favor of the County. For the
reasons that follow, we affirm.
I.
Because Brackman was the nonmovant in the summary judgment
proceedings, we construe the facts in the light most favorable to her
and draw all justifiable inferences in her favor. Anderson v. Liberty
Lobby, 477 U.S. 242, 255 (1986). Brackman began working for the
County in 1986 as a Program Manager in the Park Recreation Depart-
ment. In June 1994 she applied for and obtained the position of
County Recycling Coordinator. Her position was placed under the
County’s Department of Solid Waste Management. (The record is not
clear, but it appears that this department was later renamed the
Department of Environmental Services.) Ellis Bingham was her
immediate supervisor. In July 1996 Brackman applied for the position
of Assistant Solid Waste Manager, and Bingham was responsible for
selecting the new person for this position. When Bingham learned
that Brackman had applied, he told her that she was not qualified
because it was "not a job for a woman." Brackman was not selected
for the position. Instead, Bingham placed Tim Bridges, a male
employee with fewer qualifications than Brackman, in the position.
Brackman and Bridges were the only applicants for the position. In
October 1996 Brackman filed a complaint with the Equal Employ-
ment Opportunity Commission (the EEOC) against the County,
claiming that her nonselection for the assistant manager’s position
was due to gender discrimination. The EEOC found in Brackman’s
BRACKMAN v. FAUQUIER COUNTY 3
favor in November 1997 and specifically cited Bingham’s statement
to Brackman as a basis for its determination. The County never disci-
plined Bingham for his discriminatory conduct, nor was he required
to attend training sessions or receive counseling concerning discrimi-
nation or retaliation against employees. In December 1997 Bingham
went to the County Personnel Director seeking to have Brackman ter-
minated; Bingham was told that he did not have sufficient grounds.
The County determined that it would provide Brackman with a new
position in an effort to resolve her EEOC charge. In March 1998
Brackman and the County entered into a Conciliation Agreement to
close out the discrimination charge. Under the Agreement, Brackman
was reassigned to the Department of Support Services (later called
General Services), where she headed a small recycling division that
handled mostly white paper recycling. She was afforded a grade-23
position (the equivalent of the position given to Bridges), and she was
promised that her personnel records would be purged of references to
her EEOC complaint. As part of the Agreement, the County promised
not to retaliate against Brackman for her successful EEOC charge.
Phillip Farley, the head of the Department of Support Services, was
told by the County Administrator that "the county would be better
served if [Brackman] were in [his] division." Farley was "very
pleased" about Brackman’s arrival because "they had a real need" for
her in Support Services. Bingham allegedly was opposed to Brack-
man’s transfer out of his department to a position where she had sepa-
rate recycling responsibilities of her own. The jobs that Brackman
performed in her new position were distinct from the recycling tasks
performed in Bingham’s Department of Environmental Services,
which dealt primarily with the County’s landfill and recycling sites.
Once under the Department of Support Services, Brackman was
informed that she would have to bring in revenues to keep her divi-
sion afloat, including raising enough to fund the salary of her assis-
tant, Heather Sewell. Brackman created programs and applied for
various grants in order to raise revenues. Brackman and Sewell suc-
cessfully developed an abandoned vehicle program and a confidential
document destruction program; they also obtained grants and held an
auction to raise revenues. In Fiscal Year 1999 Brackman’s division
exceeded its revenue goals and even hired a part-time assistant with
money secured through grants. Sewell personally deposited the reve-
4 BRACKMAN v. FAUQUIER COUNTY
nues generated from the programs at the County treasurer’s office. As
early as 1998, however, Brackman learned that the revenues were not
being properly deposited into her division’s accounts but were instead
going into the account of Bingham’s Department of Environmental
Services and were being recorded as revenue generated by that office.
In the fall of 1999 Brackman discovered that the County’s financial
records indicated that her division had not raised any revenue for the
prior fiscal year. Brackman met with County Budget Officer Marci
Kotov in the fall of 1999 to address the problem. Brackman and
Kotov tracked a year’s worth of revenue deposits for Brackman’s
division and found that a number of deposits were inexplicably depos-
ited into accounts for Bingham’s department. Brackman met with
County Treasurer Beth Ledgerton in early 2000 to address the reve-
nue allocation problem; Brackman also informed County Budget
Director Bryan Tippie of the issue. Neither Brackman nor the County
offers a solid explanation for why revenues from Brackman’s division
were incorrectly deposited into another account. Kotov referred to it
as a "mix up" following the transfer of Brackman’s recycling opera-
tions from Environmental Services to Support Services.
On January 1, 2000, three new Board members took office on the
five-member Board of Supervisors (the Board). On February 4, 2000,
County Administrator Robert Lee submitted two proposed county
budgets to the Board for the July 1, 2000, through June 30, 2001, bud-
get year (Fiscal Year 2001, or FY 2001). Both included funding for
Brackman’s recycling position based on her budget request; both also
included funding for recycling programs under the Department of
Environmental Services. One budget included a tax increase for
county residents, the other did not. Two of the Board’s new members,
Joseph Winkelman, the Vice-Chairman of the Board, and Ray Gra-
ham, the Chairman, were elected on platforms to cut spending, and
both served on the Board’s finance committee. According to Budget
Director Tippie, Winkelman and Graham "were very emphatic about
making adjustments to the budget, cutting the budget basically." Win-
kelman and Graham, who had not been around at the time of Brack-
man’s EEOC complaint or the Conciliation Agreement, noticed that
the County was operating two recycling programs (Brackman’s and
Bingham’s) under two different departments. They were concerned
that by having the recycling functions separated, the County was
unnecessarily duplicating efforts. Winkelman requested an estimate
BRACKMAN v. FAUQUIER COUNTY 5
on the amount of money the County could save if the two recycling
operations were combined. Winkelman learned of Brackman’s earlier
EEOC complaint and the resulting Conciliation Agreement only after
he consulted County administrators about the possibility of consoli-
dating the recycling operations. Winkelman determined that Brack-
man’s earlier charges were "history" and concluded that fiscal
responsibility required that the Board "eliminate the duplication and
the overstaffing of this operation, we’re going to combine them and
we’re going to do it the right way which is to say without discriminat-
ing any further."
In putting together a cost-savings estimate for the Board, Tippie
asked Bingham to estimate what it would cost the Department of
Environmental Services to assume the recycling functions of the
Department of Support Services. At that time, the Department of
Environmental Services handled approximately 95-98 percent of the
County’s recycling tonnage. Bingham estimated that it would cost
approximately $56,000 for his department to assume the functions.
Bingham testified that he came up with that number by figuring out
"the functions [of Brackman’s division] that [he] didn’t have money
to cover." Very little additional overhead was necessary to assume the
extra responsibilities. Bingham testified that he did not know at the
time he gave the estimate that the Board was thinking about cutting
Brackman’s position. Brackman’s estimated expenditures for per-
forming these same recycling functions was $161,985. Tippie thus
advised the Board that it could save up to $100,000 if the recycling
departments were combined. Tippie provided a memorandum to the
Board which stated that "Ellis Bingham feels that the projected over-
all financial status of the Solid Waste Enterprise Fund [which funds
his operations] can support such an adjustment [and] OMB concurs
with his projections."
Based on the estimates provided to them, Winkelman and Graham
proposed the elimination of the General Services recycling division
as one of their budget cuts, and the full Board approved the measure.
Of the $161,985 budgeted for Brackman’s recycling division, $97,655
was moved to the Department of Environmental Services. According
to Brackman, the County used flawed data to make decisions about
how it would operate its recycling program in the most cost-effective
way for the next year. But the FY 2001 budget data submitted to
6 BRACKMAN v. FAUQUIER COUNTY
County officials by Brackman herself showed projected revenues of
$58,054. In fact, before the Board began exploring the possibility of
consolidating recycling operations, the County Administrator had rec-
ommended that the Board adopt a budget that provided revenue pro-
jections in the amount of $57,000 for Brackman’s division for FY
2001 and $43,000 for FY 2000. Brackman does not allege that these
numbers were incorrect. Rather, she states only that the general ledger
submitted for auditing, rather than budgetary, purposes showed no
revenues for her division. According to Tippie, "revenue wasn’t
[even] the issue that [the Board was] looking at. They were looking
at the expenditure side, the board was, reducing expenditures." To the
extent that the Board looked at revenue, it was "in the context of how
the other department [Bingham’s] can run it, the same function, and
generate whatever revenue." (The County’s financial records show
that recycling expenditures in fact decreased by $89,209.45 during
Fiscal Year 2001 as a result of combining the two recycling opera-
tions. Revenues increased by almost $220,000.)
Having eliminated the funding for Brackman’s division, the Board
directed the implementation of a Reduction in Force (RIF). Both
Brackman and Sewell were informed on April 25, 2000, that their
positions were being eliminated under the RIF. The Board formally
approved the RIF on May 15, 2000. On May 22, 2000, Brackman
received official notification that her division was being eliminated
and that she was being placed on layoff status effective July 1, 2000.
Brackman was told by the Personnel Department that she met the
minimum qualifications for the position of Recycling/Convenience
Site Supervisor, which was a vacant position in the Department of
Environmental Services. The position stated that an applicant "[m]ust
be a qualified diesel mechanic with extensive experience," which
Brackman was not, or have "any equivalent combination of educa-
tion, training, and experience, which provides the requisite knowl-
edge, skills, and abilities for this job." The pay grade for the position
was a 26, two grades lower than Brackman’s grade 28 at the time of
the RIF. On July 7, 2000, Brackman told the County that she could
not accept the position based on the physical demands of the job.
Brackman alleges that the County’s own RIF procedures were not fol-
lowed in her case. Specifically, she claims that she was not afforded
"bumping rights," though the County asserts that its RIF procedures
do not afford such rights when an entire division is eliminated. Brack-
BRACKMAN v. FAUQUIER COUNTY 7
man also claims that the County created a new recycling position
within the same classification even though it was supposedly saving
money by eliminating recycling jobs; the County asserts that the new
recycling position, the position offered to Brackman, was necessary
regardless of whether Brackman’s position was eliminated. Brackman
also claims that she was not informed of her right to appeal the termi-
nation decision, but the letter sent to Brackman on May 22, 2000,
included a copy of the County’s RIF policy, which explains the griev-
ance procedure.
Finally, Brackman alleges that County employees were aware sev-
eral months before the Board voted to consolidate recycling opera-
tions that her department might be eliminated. Sewell stated that in
the fall of 1999 she heard from a "person who attended a meeting of
the Virginia Council for Litter Prevention" that Bingham had "said
that he soon expected to take over all of the recycling functions for
Fauquier County." Sewell also said that Billy Jenkins, Bingham’s
friend and a supervisor in his department, made derogatory comments
about Brackman and led Sewell "to believe that the County adminis-
trators had not forgotten about [Brackman’s] EEO complaint."
According to Brackman, Sewell told her in January or February of
2000 that Jenkins said that "some things were happening with the
board of supervisors and that somebody’s job was in jeopardy down
there and that if [Sewell] got her loyalties straight, it wouldn’t be her
job." Brackman and Sewell first learned that their jobs might be in
trouble for real in March of 2000, when a newspaper article stated
that the County was thinking about combining its recycling functions.
They were not officially informed of the RIF for another month.
After Brackman left the County’s employment, she filed a retalia-
tion claim with the EEOC. She received a right to sue letter from the
EEOC on March 13, 2001. On June 12, 2001, Brackman filed a com-
plaint in the district court against the County alleging that she was ter-
minated from her position in retaliation for the filing of her successful
discrimination claim against the County in violation of Section 704(a)
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq., and the Civil Rights Act of 1991. On December 7,
2001, the County filed a motion for summary judgment, which the
district court granted on January 28, 2002. In granting the County’s
motion, the district court concluded that Brackman failed to establish
8 BRACKMAN v. FAUQUIER COUNTY
a prima facie case of retaliation. The district court further concluded
that even if Brackman established a prima facie case, the County
offered a legitimate, nondiscriminatory reason for her termination
which she failed to rebut with sufficient evidence of pretext. Brack-
man now appeals.
II.
A.
We review a district court’s summary judgment determination de
novo. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th
Cir. 2002). Summary judgment is appropriate only where there is no
factual dispute as to a material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c).
B.
Brackman challenges the district court’s grant of summary judg-
ment to the County on her retaliation claim. Brackman contends that
she was retaliated against for her successful 1996 EEOC complaint
against Bingham. To prove a prima facie case for retaliatory dis-
charge, Brackman must show that (1) she engaged in protected activ-
ity; (2) the County took adverse employment action against her; and
(3) a causal connection existed between the protected activity and the
adverse action. Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d
261, 271 (4th Cir. 2001); Causey v. Balog, 162 F.3d 795, 803 (4th
Cir. 1998). If Brackman establishes a prima facie case of retaliation,
the burden shifts to the County to proffer evidence of a legitimate,
nondiscriminatory reason for taking the adverse employment action.
See Tex. Dep’t of Comty. Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the County carries its burden, "the plaintiff must then have
an opportunity to prove by a preponderance of the evidence that the
legitimate reasons offered" were pretextual. Id. For the reasons that
follow, we conclude that Brackman fails to make out a prima facie
case of retaliation. We further conclude that even if Brackman could
make out her prima facie case, the County offers evidence of a legiti-
mate, nondiscriminatory reason for Brackman’s termination, which
Brackman does not rebut with sufficient evidence of pretext.
BRACKMAN v. FAUQUIER COUNTY 9
We turn first to Brackman’s prima facie case. Brackman has no
problem satisfying the first element of her prima facie case, as her fil-
ing of a complaint with the EEOC constitutes protected activity. King
v. Rumsfeld, 328 F.3d 145, 151 (4th Cir. 2003); Causey, 162 F.3d at
803. As to the second element, Brackman appears to argue that both
the incorrect allocation of revenues from her division and her dis-
missal under the RIF constitute adverse employment actions. We will
discuss these actions in turn. An adverse employment action can be
proved if a plaintiff establishes that the challenged discriminatory acts
"adversely affected the terms, conditions, or benefits of the plaintiff’s
employment." Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir.
2001) (internal quotation marks and citation omitted). But such acts
must have "some significant detrimental effect" on the plaintiff.
Boone v. Goldin, 178 F.3d 253, 256 (4th Cir. 1999). In this case, we
fail to see how the incorrect allocation of revenue from Brackman’s
division had a "significant detrimental effect" on Brackman. She does
not allege that the County disciplined her, changed her job status or
pay, or otherwise harmed her as a result of the misallocation of her
division’s revenue funds. To the extent that Brackman argues that the
misallocation of revenues led the County to implement the RIF, she
overlooks the record evidence that the County based its decision to
combine the recycling divisions on her estimates for her division’s
projected expenditures and revenues for FY 2000 and FY 2001, not
on the incorrect revenue figures reflected in the general ledger. That
is, Brackman does not allege that the revenue numbers relied upon by
the Board (if, in fact, the Board was looking at revenue) were wrong.
Rather, she alleges only that the general ledger, used for auditing pur-
poses, showed no revenues for her division. On these facts, we simply
fail to see how the misallocation of funds itself amounts to an "ad-
verse employment action." See Thompson, 312 F.3d at 651-52 (no
adverse employment action where plaintiff could not demonstrate that
the employer’s actions affected the terms, conditions, or benefits of
plaintiff’s employment). Moreover, even if we assumed that the mis-
allocation constituted an adverse employment action, Brackman prof-
fers no facts to establish a causal connection between her EEOC
complaint and the misallocation. There is simply no evidence in the
record that the revenue funds for Brackman’s division were attributed
to Bingham’s division because of Brackman’s earlier complaint
against Bingham. Marcia Kotov testified that "[t]here was a mix up"
with Brackman’s revenues following her shift from Environmental
10 BRACKMAN v. FAUQUIER COUNTY
Services to General Services. Brackman’s bare allegations that the
County was out to get her and therefore intentionally misallocated the
revenues from her division is insufficient to withstand a motion for
summary judgment. Accordingly, Brackman fails to make out a prima
facie case of retaliation based on her claim that the misallocation of
revenues itself amounted to an adverse employment action.
Brackman’s termination following the RIF is another matter.
Clearly, her termination qualifies as an adverse employment action.
See King, 328 F.3d at 151; Boone, 178 F.3d at 256. The question then
is whether Brackman can show a causal connection between the filing
of her EEOC complaint and her job loss under the RIF. See Dowe v.
Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657
(4th Cir. 1998) ("To satisfy the third element, the employer must have
taken the adverse employment action because the plaintiff engaged in
a protected activity."). We conclude that she cannot. For starters, the
time lag between Brackman’s EEOC complaint and her termination
under the RIF weighs heavily against causation. More than three
years elapsed between Brackman’s filing of an EEOC complaint
against Bingham in October 1996 and her termination in the spring
of 2000. Even looking at the date of the Conciliation Agreement, as
Brackman urges us to do, we see that more than two years elapsed
between the March 1998 Conciliation Agreement and the notification
to Brackman in April 2000 that her recycling position was being elim-
inated. See Causey, 162 F.3d at 803 (holding that a "thirteen month
interval between the charge and termination is too long to establish
causation absent other evidence of retaliation"); Dowe, 145 F.3d 653at 657.
Even if time was not an issue, Brackman offers insufficient evi-
dence to connect her EEOC charge with her termination. Brackman
must establish that she would not have been terminated but for the
fact that she engaged in statutorily protected activity. Dowe, 145 F.3d
at 657. Clearly Brackman believes that she was retaliated against, but
that alone is insufficient. Chappell v. Sch. Bd. of the City of Virginia
Beach, 12 F. Supp. 2d 509, 517 (E.D. Va. 1998). The record reflects
that at the time the Board began inquiring into the possibility of com-
bining Brackman’s recycling operations with those of the Department
of Environmental Services, the Board members initiating the inquiry
BRACKMAN v. FAUQUIER COUNTY 11
were unaware of Brackman’s earlier EEOC complaint. It is true that
by the time the Board decided to eliminate Brackman’s position, the
Board was aware of Brackman’s earlier protected activities. But, as
Winkelman put it, "that’s history and we’re going to eliminate the
duplication and the overstaffing of this operation." "Knowledge is
necessary to establish causation, but it is not sufficient." Gibson v.
Old Town Trolley Tours of Washington, D.C., Inc., 160 F.3d 177, 182
(4th Cir. 1998). Brackman needs something more to show causation.
She emphasizes the fact that Bingham, Brackman’s former supervisor
about whom she complained to the EEOC in 1996, supplied the Board
with calculations during the budgetary process and that some of the
information furnished by Bingham was relied upon by the Board in
making its decision to eliminate Brackman’s division. Bingham, obvi-
ously, was aware of Brackman’s charges against him at the time he
provided the Board with the requested information. And Bingham had
a history of animus towards Brackman. But Brackman does not prof-
fer evidence showing that any of the information provided by
Bingham was in any way inaccurate or misleading. She points only
to the fact that the County’s FY 2001 budget gave Bingham’s depart-
ment $97,655 to assume the recycling operations of her former divi-
sion when Bingham had estimated it would take only $56,000 to
assume those costs. We think this falls short of showing that
Bingham’s input was false or in some way engineered to strip Brack-
man of her position. Brackman’s only other evidence on this score is
that Bingham and others allegedly were aware several months before
the RIF was made official that the County might consolidate its recy-
cling operations. Sewell claims to have heard through the grapevine
that Bingham was telling people in the fall of 1999 that he expected
his department to assume all of the recycling operations for the
County. And Brackman claims that Jenkins, a friend of Bingham’s,
made derogatory comments about her and suggested that "County
administrators had not forgotten about [her] EEO complaint." But
"[t]o find causation on the basis of this bare-boned evidence asks the
court to move beyond inference and into the realm of mere ‘specula-
tion and conjecture.’" Gibson, 160 F.3d at 181 (internal quotation
marks and citation omitted). With no further evidence supporting her
theory, a reasonable factfinder could not draw from the record the
conclusion that the County eliminated Brackman’s position under the
RIF in retaliation for her protected activity. Accordingly, we conclude
12 BRACKMAN v. FAUQUIER COUNTY
that Brackman fails to make out a prima facie case of retaliation suffi-
cient to withstand the County’s motion for summary judgment.
Even if we were to conclude that Brackman makes out a prima
facie case, we would conclude that the County offered legitimate,
nondiscriminatory reasons for the RIF. Specifically, Winkelman and
Graham, the two members of the Board most actively involved in the
budget cuts, had as their sole objective the elimination of needless
spending by the County. Maintaining two recycling divisions
appeared to be a waste of resources and thus the Board opted, based
upon its calculations, to consolidate the two operations into one divi-
sion. This explanation is sufficient to shift the burden to Brackman,
who must show that "the legitimate reasons offered by the defendant
were not its true reasons, but were a pretext for discrimination." Bur-
dine, 450 U.S. at 253. See also Causey, 162 F.3d at 803 (noting that
the defendant’s "budgetary constraints provide a legitimate non-
discriminatory reason for its decision to reduce its workforce").
(While perhaps not legally relevant, we note that time bore out the
Board’s theory: the County saved nearly $90,000 in Fiscal Year 2001
by combining the recycling operations.) Brackman fails to proffer suf-
ficient evidence to show that the County’s explanation for her termi-
nation is false, or put differently, that she was impermissibly
terminated because of her EEOC complaint. It is true that Brackman
presents evidence that the County incorrectly deposited revenues from
her division into Bingham’s division. And Brackman presents evi-
dence that some County employees may have been aware that her
position was at risk in advance of the official RIF. She even proffers
some evidence that the County’s RIF procedures were not followed
in her case. We note that the County did encourage Brackman to
apply for the position of Recycling/Convenience Site Supervisor,
which she declined to do because of the physical demands of the job.
"The ultimate question is whether the employer intentionally [retali-
ated], and proof that the employer’s proffered reason is unpersuasive,
or even obviously contrived, does not necessarily establish that
[Brackman’s] proffered reason . . . is correct." Reeves v. Sanderson
Plumbing Prods., Inc, 530 U.S. 133, 146-47 (2000) (internal quota-
tion marks and citation omitted). It is not enough to disbelieve the
County; the fact finder must believe Brackman’s explanation of inten-
tional retaliation. Id. We conclude that no rational jury could do so
BRACKMAN v. FAUQUIER COUNTY 13
based on the evidence in this record. See Tinsley v. First Union Nat’l
Bank, 155 F.3d 435, 444-45 (4th Cir. 1998).
III.
For all of the foregoing reasons, the judgment of the district court
is
AFFIRMED.