Sercer v. Holder

104 F. Supp. 3d 746, 2015 U.S. Dist. LEXIS 52283, 2015 WL 1825495
CourtDistrict Court, E.D. Virginia
DecidedApril 21, 2015
DocketCivil Action No. 1:14-cv-0681
StatusPublished
Cited by2 cases

This text of 104 F. Supp. 3d 746 (Sercer v. Holder) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sercer v. Holder, 104 F. Supp. 3d 746, 2015 U.S. Dist. LEXIS 52283, 2015 WL 1825495 (E.D. Va. 2015).

Opinion

MEMORANDUM OPINION

CLAUDE M. HILTON, District Judge.

THIS MATTER comes before the Court on Defendant’s motion for summary judgment.

Following her promotion to Supervisory Special Agent in the Federal Bureau of Investigation’s (“F.B.I.’s”) Behavioral Assessment Unit 1 (“B.A.U. 1”), Plaintiff Angela Sercer experienced a series of workplace events that she found offensive and discriminatory. Because the events, taken individually or collectively, do not constitute, unlawful discrimination under Title VII, and because there is no genuine issue of material fact to be decided, summary judgment in favor of Defendant is warranted.

Plaintiff began her employment with the F.B.I. on March 10, 2002, and was first assigned to B.A.U. 1 on March 14, 2010. At the time, B.A.U. 1 primarily focused on counterterrorism and addressing threats of violent crime and terrorism. At all relevant times, the unit fell within the Investigative Operations Support Section (“I.O.S.S.”) of the Critical Incident Response Group (“C.I.R.G.”). Plaintiff claims she was the victim of numerous acts of discrimination based on her sex during her assignment with B.A.U. 1. She also claims the F.B.I. retaliated against her after she engaged in protected communication with the F.B.I.’s Office of Equal Employment Opportunity Affairs (“O.E.E.O.A.” or “E.E.O.”).

Plaintiff timely, alleged a) four discrete acts of sex discrimination, b) that she was subjected to a hostile work environment based on her sex, and c) the F.B.I.’s actions constitute unlawful retaliation against her for twice meeting with an O.E.E.O.A. counselor-first on March 5, 2012, and next on November 5, 2012.

The first two discrete acts both stem from her 2012 performance evaluation; she received an “Excellent” overall rating, lower than the “Outstanding” rating she feels she deserved. Following her receipt of the 2012 evaluation, Plaintiff filed a grievance with the assistant director of the C.I.R.G., asserting her overall rating and her rating in three specific categories were too low. The denial of that grievance on November 21, 2012 is the second alleged discrete act. The third discrete act was her transfer from B.A.U. 1 to a unit within [750]*750the FJBJ.’s Lab Division on November 8, 2012. Finally, Plaintiff alleges sex discrimination as the motivation for a recommendation that she be deemed to have lost effectiveness within B.A.U. l.'This recommendation was never acted upon, as it took place after Plaintiffs transfer to the Lab Division.

Plaintiffs hostile ■ work environment claim is based on the discrete acts listed above along with numerous additional incidents between 2011 and 2013. The additional incidents include: multiple offensive remarks made by one of Plaintiffs coworkers; distribution within B.A.U. 1 of “The ■Game,” a book described as an instructional manual for “pickup artists”; her unit chiefs allocation of an F.B.I. vehicle to, one of Plaintiffs male colleagues; Plaintiffs unit chiefs lack of support for her research project on lone offenders; Plaintiffs unit chiefs consideration of directing her -referral to the F.B.L’s Employee Assistance Program (“E.A.P.”); direction from her assistant section chief and unit chief to edit a document; and the placement of erroneous documents in Plaintiffs “drop file”-an unofficial file used to document performance throughout the year for use in annual performance evaluations. Following discovery, Defendant now moves for summary judgment.

Title VII states that “[i]t shall be an unlawful employment practice for an employer ... to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex.” ■ 42 U.S.C. § 2000e-2(a)(l). Similarly, it is unlawful for an agency to ■discriminate against an employee in retaliation for an employee’s exercise of her rights under Title VII. See Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir.2008).

Plaintiffs Title VII claims are subject to the familiar burden-shifting analysis first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The initial burden is on Plaintiff to raise an inference of discrimination by establishing a prima facie case of discrimination by a preponderance of the evidence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If she establishes a prima facie case, “the burden shifts to the defendant to ■ articulate some legitimate, nondiscriminatory reason” for its actions. Id. at 253, 101 S.Ct. 1089. Then, if the defendant successfully carries its burden, “the plaintiff [has] an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Id. As with all motions for summary judgment, this Court views the facts and draws reasonable inferences in the light most favorable to the nonmoving party.

In order to establish a prima facie case of sex discrimination, Plaintiff must show: “(1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) that similarly-situated employees outside the protected class received more favorable treatment.” Gerner v. Cnty. of Chesterfield, Va., 674 F.3d 264, 266 (4th Cir.2012).

As a female, Plaintiff is a member of a protected class. Further, her annual performance evaluations indicate that her job performance during the time period in question was not just “satisfactory,” but “excellent.” However, no adverse employment action was taken against her — to include the creation of a hostile work environment — and she has not shown that similarly-situated male employees received more favorable treatment by the F.B.I.

[751]*751As to discrete acts of discrimination, Plaintiff concedes that most of her allegations are untimely. In.order to exhaust her administrative remedies, something she must do before bringing a Title VII lawsuit in federal court, Plaintiff was required to report any discrete act of discrimination to an E.E.O. counselor within 45 days of its occurrence. 29 C.F.R. § 1614.105(a)(1). Aware of the 45-day requirement, Plaintiff first contacted an E.E.O. counselor on November 7, 2012.1 Therefore she did not timely exhaust her administrative remedies for any discrete acts that occurred prior to. September 21, 2012. See Jakubiak v. Perry, 101 F.3d 23, 26-27 (4th Cir.1996).

Regarding Plaintiffs four allegations of sex discrimination based on discrete acts taking place after September 21, 2012, she has not shown any adverse employment action taken by the F.B.I.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Brown v. Wolf
District of Columbia, 2023
Patton v. Forest River Inc
N.D. Indiana, 2020

Cite This Page — Counsel Stack

Bluebook (online)
104 F. Supp. 3d 746, 2015 U.S. Dist. LEXIS 52283, 2015 WL 1825495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sercer-v-holder-vaed-2015.