Maria Gorrasi v. Alex Azar, II

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-2191
MARIA GORRASI,
Plaintiff - Appellant,
v.
ALEX M. AZAR, II, Secretary of U.S. Department of Health and Human Services,
National Institutes of Health,
Defendant - Appellee.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Catherine C. Blake, Senior District Judge. (1:20-cv-02389-CCB)
Submitted: August 26, 2022 Decided: October 12, 2022
Before DIAZ, HARRIS, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Eden Brown Gaines, BROWN GAINES, LLC, Washington, D.C., for
Appellant. Erek L. Barron, United States Attorney, Kimberly S. Phillips, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Maria Gorrasi appeals the district court’s order granting summary judgment to the
Secretary of Health of Human Services on her discrimination, retaliation, and hostile work
environment claims raised under Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. §§ 2000e to 2000e-17, the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. §§ 621-634, and the Rehabilitation Act of 1973
(RA), as amended, 29 U.S.C. §§ 701-796l. Gorrasi contends that the district court erred in
concluding that she failed to exhaust her claim concerning a reassignment to a
nonsupervisory position. * We affirm.
We review the district court’s summary judgment ruling de novo, “applying the
same legal standards as the district court and viewing all facts and reasonable inferences in
the light most favorable to the nonmoving party.” Ballengee v. CBS Broad., Inc., 968 F.3d
344, 349 (4th Cir. 2020). “Summary judgment is warranted ‘if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “A genuine question of material fact
exists where, after reviewing the record as a whole, a court finds that a reasonable jury
could return a verdict for the nonmoving party.” J.D. ex rel. Doherty v. Colonial
*
We briefly reject Gorrasi’s other contentions. The Secretary complied with Fed.
R. Civ. P. 56(c), and the district court did not grant summary judgment without notice in
contravention of Fed. R. Civ. P. 56(f). And she has waived appellate review of her
argument that she exhausted her administrative remedies as to her hostile work
environment claim because she failed to raise her continuing violation argument in the
district court. See Hicks v. Ferreyra, 965 F.3d 302, 310 (4th Cir. 2020).
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Williamsburg Found., 925 F.3d 663, 669 (4th Cir. 2019) (internal quotation marks
omitted). In conducting this inquiry, courts may not “weigh conflicting evidence or make
credibility determinations.” Id. But “the nonmoving party must rely on more than
conclusory allegations, mere speculation, the building of one inference upon another, or
the mere existence of a scintilla of evidence.” Humphreys & Partners Architects, L.P. v.
Lessard Design, Inc., 790 F.3d 532, 540 (4th Cir. 2015) (internal quotation marks omitted).
It is well established that every Title VII plaintiff must exhaust her administrative
remedies prior to filing suit in federal court. See Fort Bend Cnty. v. Davis, 139 S. Ct. 1843,
1846 (2019); 42 U.S.C. § 2000e-16(c). In the case of a federal employer, the aggrieved
party must consult with an EEO counselor at the discriminating agency within 45 days of
any allegedly discriminatory agency action. 29 C.F.R. § 1614.105(a)(1) (2022). If this
informal counseling does not resolve the issue, the EEO counselor must inform the
employee in writing of her right to file a formal EEO complaint with the agency. Id.§ 1614.105(d) (2022). After an employee receives that notice, she has 15 days to file a
formal complaint with her employing agency. Nielsen v. Hagel, 666 F. Appx 225, 227 (4th
Cir. 2016) (unpublished). An employee may amend her complaint at any time prior to the
end of the investigation to include similar issues and, after requesting a hearing, can ask an
administrative law judge to amend her complaint similarly. 29 C.F.R. § 1614.106(d)
(2022). The agency must acknowledge receipt of amendments in writing. Id.§ 1614.106(e) (2022). “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
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lawsuit.” Stewart v. Iancu, 912 F.3d 693, 705 (4th Cir. 2019) (internal quotation marks
omitted).
We conclude that the district court correctly found that Gorrasi did not exhaust her
administrative remedies for the reassignment claim. Gorrasi’s handwritten letter, allegedly
signed in May 2016, was not sufficient to show exhaustion. Gorrasi did not submit a sworn
statement that she in fact submitted the letter to the agency. Thus, we are left to speculate
whether she indeed submitted it or the agency received it. The regulation required the
agency to acknowledge receipt of any amendments, but no acknowledgement of the May
2016 letter appears in the record. While the reassignment was mentioned during the
investigation into a different charge, those references were isolated and the reassignment
was never addressed by the administrative law judge. Most importantly, the record shows
that the agency received a later amendment in July and, in its letter acknowledging that
amendment, omitted the reassignment claim in describing Gorrasi’s claims. That letter
specifically advised Gorrasi’s counsel to contact the agency if she did not agree with the
letter’s description of her claims. Yet Gorrasi did not respond. Nor does the record reflect
that she remedied that silence at any other time during the administrative process. Given
this course of events, we conclude that Gorrasi failed to exhaust her administrative
remedies for the reassignment claim.
Therefore, we affirm the district court’s order. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
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