Cox v. Rumsfeld , 190 F. App'x 329 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1758
SHARON S. COX,
Plaintiff - Appellant,
versus
DONALD H. RUMSFELD, Secretary Department of
Defense,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CA-04-476-1)
Submitted: July 7, 2006 Decided: July 20, 2006
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Steven G. Raikin, Washington, D.C., for Appellant. Paul J.
McNulty, United States Attorney, Rachel C. Ballow, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Sharon Cox appeals from the district court's award of summary
judgment to her former employer, the United States Department of
Defense ("DOD"), on her claims of multiple violations of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e at seq. (2000).
Cox challenges on appeal only the award of summary judgment on her
retaliation claims. For the reasons that follow, we affirm.
I.
Because of the procedural posture of the case, we recite the
facts in the light most favorable to Cox. She began work as a DOD
Office of Inspector General ("OIG") auditor in October 1998, and
was terminated a year later. Almost immediately after starting at
the OIG, Cox began to complain of harassment by her supervisor,
Neal Gause. In her complaint, she alleges that she was subjected
to "a hostile work environment, sexual harassment, repeated
threats, intimidation, unfair treatment because of her gender, and
one instance of unwanted physical contact." J.A. 14.
In terms of her work, Cox experienced difficulty submitting
required reports in a timely manner and in the proper format.
After noticing these ongoing problems, Gause and his supervisor,
John Snider, met with Cox to discuss their concerns. Shortly after
this meeting, Snider and his supervisor, John Meling, contacted the
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DOD personnel office to discuss problems that they had been having
getting Cox to meet auditing standards and deadlines.
Cox attributed any deficiencies in her work to the fact that
the DOD delayed in providing her with required training and to the
stress caused by ongoing public humiliation by Gause. On February
22, 1999, Cox asked to be removed from Gause's supervision. Snider
acquiesced to this request and placed her under his direct
supervision until a lower level supervisor, John Dizik, became
available in March 1999. Three days after making the request to
have no further contact with Gause, Cox filed an Equal Employment
Opportunity ("EEO") complaint alleging gender discrimination and a
hostile work environment.
Once Cox was under Snider's supervision, he began to closely
monitor her progress and ability to meet deadlines. This
monitoring continued until she was transferred to Dizik's
supervision. Dizik often attempted to meet with Cox to discuss her
performance but was unable to do so prior to her midyear review as
she consistently rescheduled the meetings.
On May 6, 1999, Cox had her midyear review. The review
indicated that she needed improvement in every area of auditing
necessary for her job, but, because she had not received the
necessary training, provided for a three month period for
reevaluation. Cox attended the requisite training session for
three weeks starting May 8, 1999, but, upon completion, only came
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back to the office for one day. On June 21 1999, she briefly
returned to the office and filed a second EEO complaint alleging
that her poor review was retaliation for her initial complaint.
She immediately thereafter took a combination of sick and annual
leave until she was terminated on October 15, 1999.
In August 2000, the EEO office issued a Final Agency Decision
finding for the DOD on all of Cox's complaints. Cox timely
appealed the decision to the Equal Employment Opportunity
Commission ("EEOC"), where an Administrative Law Judge conducted
hearings and then ruled for the defendant in August of 2003. Six
months later, the EEOC denied her petition for a rehearing. Cox
timely appealed the EEOC's decision to the district court, which
granted summary judgment for the DOD on all of her claims. This
appeal followed.
II.
This court reviews a grant of summary judgment de novo,
viewing all inferences in the light most favorable to the nonmoving
party. Bagir v. Principi, 434 F.3d 733, 741 (4th Cir. 2006).
Summary judgment should only be granted when there are no issues of
material fact. See Celotex Corp v Catrett, 477 U.S. 317, 322
(1986). The sole issue on appeal is whether the district court
erred in granting summary judgment on the retaliation claims.
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To establish a claim of retaliation, a plaintiff must show (1)
that she engaged in a protected activity, (2) that the employer
took an adverse action against her and (3) that a causal connection
existed between the protected activity and the adverse action.
Causey v. Balog, 162 F.3d 795, 803 (4th Cir. 1998). Once a prima
facie case is established, the court must consider whether the
defendant has proffered a legitimate, nondiscriminatory reason for
the action; if so, the plaintiff must prove that the rationale is
a pretext for retaliation. See McDonnell Douglass Corp v. Green
411 U.S. 792, 802-804 (1973); Mundy v. Waste Management of North
America, Inc., 126 F.3d 239, 242 (4th Cir. 1997). We consider
Cox's claims with respect to her poor midterm review and
termination separately.
A.
The DOD does not contest that Cox established a prima facie
case of retaliation upon receiving a poor midyear review shortly
after filing her first EEO complaint. See King v. Rumsfeld, 328
F.3d 145, 151 (4th Cir. 2003). Thus, the question becomes whether
the DOD offered a valid explanation for the midyear review, and, if
so, whether Cox carried her ultimate burden of proving that the
explanation was pretextual.
The record before us reveals no questions of fact with respect
to the accuracy and supportability of Cox's midyear review. As the
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district court noted, Cox's own evidence supports that the DOD
voiced concerns regarding her performance well before she filed her
first EEO complaint. That complaint references numerous critical
comments about the substantive deficiencies and untimeliness of her
work. Those comments are consistent with both the documented
assessment of the midyear review itself and the testimony of Cox's
supervisors, both of which detail her failure to complete
assignments in a satisfactory and timely manner. Cox's own
after-the-fact assertions about her performance are not enough to
prove that the justification was pretextual.* See Hawkins v.
PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir.2000); Evans v.
Technologies Services & Applications Co., 80 F. 3d 954, 960 (4th
Cir. 1996).
B.
Next, Cox asserts that her termination from the DOD was
retaliation for her second EEO filing. She bases this claim on the
fact that the proposal to dismiss her from her job was written in
August 1999, shortly after she had filed an EEO complaint in June
*
Cox also submitted an affidavit by Henry Schronagel, a
retired government auditor with a lengthy career in public service,
who had reviewed her work papers and found them to be acceptable,
given her level of training. Schronagel had no access to any audit
records beyond what was given to him by Cox, and, as the district
court noted, was therefore not in a position to determine whether
they were substantively accurate and complete or timely. Thus,
Schronagel’s testimony cannot prove that Cox’s work met the
defendant’s expectation.
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1999 and thus was prima facie retaliatory. See King, 328 F.3d at
151. As discussed above, however, once a prima facie case is
established, Cox must prove that the DOD's rationale for her
dismissal was pretextual.
The DOD responded to the prima facie case by first pointing to
the dissatisfaction with her work reflected in the mid-year review,
and then by noting that her absence from work meant that there was
no new work product for it to reevaluate. It then fell to Cox to
show that her absence, lack of work, and poor work product prior to
the review were merely a pretext for retaliation.
Once again Cox offers her own assertions, supported in some
respects by Schronagel, of abuse, retaliation, and her competence
as an auditor, none of which go to prove that the excuse offered by
the DOD was pretextual. See Evans, 80 F. 3d at 960. She also
points to alleged disparities between her treatment and that of
male employees whose midyear reviews showed that they needed
improvement. However, she provided a review for only one other
employee, and it was not, on its face, nearly as negative as Cox's.
J.A. 79, 183. More significantly, however, that employee did not
spend the next three months out of the office and thus not manifest
improvement. Finally, Cox points to the fact that her therapist
recommended that she not return to a harmful environment as
justification for her sick leave. We are not assessing the
legitimacy of her taking sick leave, however. We are determining
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whether one of the DOD's stated reasons for her termination--that
she produced no work to reevaluate--is pretextual. Cox's evidence
only proves that the DOD was aware that she had filed complaints
when it terminated her. Yet, "mere knowledge on the part of an
employer that an employee it is about to fire has filed a
discrimination charge is not sufficient evidence of retaliation."
Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989).
III.
Other than her own allegations, Cox has failed to present
evidence to refute the DOD's legitimate, nondiscriminatory reasons
for her negative midyear review or her termination. Accordingly,
the district court's award of summary judgment to the Department of
Defense is
AFFIRMED.
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