Carr v. United States

674 F.Supp.3d 234

Gloria CARR, Plaintiff, v. UNITED STATES of America, et al., Defendants.

No. 5:21-CV-245-D

United States District Court, E.D. North Carolina, Eastern Division

Signed May 24, 2023

Carena Brantley Lemons, The Lemons Law Firm, PLLC, Raleigh, NC, for Plaintiff.

Rudy E. Renfer, United States Attorney's Office, Raleigh, NC, for Defendants.

ORDER

JAMES C. DEVER III, United States District Judge

On June 7, 2021, Gloria Carr ("Carr" or "plaintiff"), an African-American woman, filed a complaint against the United States, Lloyd J. Austin, Secretary of Defense, and Christine E. Wormuth, Secretary of the Army, (collectively, "defendants") alleging race discrimination, sex discrimination, retaliation, and constructive discharge under Title VII of the Civil Rights Act, 42 U.S.C. 2000e, et seq. [D.E. 1]. On August 12, 2021, defendants moved to dismiss the complaint for failure to state a claim [D.E. 8] and filed a memorandum in support [D.E. 9]. See Fed. R. Civ. P. 12(b)(6). On September 1, 2021, Carr filed an amended complaint [D.E. 10] and responded to defendants' motion to dismiss [D.E. 11].

On September 29, 2021, defendants moved to dismiss Carr's amended complaint for failure to state a claim [D.E. 13] and filed a memorandum [D.E. 14]. See Fed. R. Civ. P. 12(b)(6). On October 19, 2021, Carr responded in opposition [D.E. 15] and filed a memorandum [D.E. 16]. On November 1, 2021, defendants replied [D.E. 17].

On March 1, 2022, the court denied as moot defendants' motion to dismiss and granted in part and denied in part defendants' motion to dismiss Carr's amended complaint [D.E. 18]. The only claim that survived was Carr's retaliation claim. See id. at 4-5. On November 28, 2022, defendants moved for summary judgment [D.E. 31] and filed a memorandum, a statement of material facts, and an appendix [D.E. 32, 33, 34]. On January 9 and 10, 2023, Carr responded in opposition [D.E. 40] and filed a memorandum, a statement of material facts, and an appendix in support [D.E. 39, 41, 42]. On January 23, 2023, defendants replied [D.E. 45] and filed a statement of material facts and an appendix [D.E. 46, 47].¹ As explained below, the court grants defendants' motion for summary judgment.

I.

The Army employed Carr as a Supervisory Contract Specialist and Director at Contracting Command, Mission and Installation Contracting Command ("MICC"), 419th Contracting Support Brigade ("CSB") at Fort Bragg, North Carolina. See Am. Compl. [D.E. 10] ¶¶ 8-21; [D.E. 33] ¶ 1; [D.E. 41] ¶ 1. As a Supervisory Contract Specialist and Director, Carr's responsibilities included supervising 80-100 people and being responsible for contracts totaling between $3 billion and $16 billion per year. See Am. Compl. ¶ 57. Jerry David King ("King") was Carr's first-line supervisor. See id. at ¶ 25. Colonel Carol Tschida ("Colonel Tschida") was Carr's second-line supervisor. See id. From December 2013 through July 2017, Brigadier General Jeff Gabbert ("General Gabbert") was Commanding General of Mission and Installation Contracting Command, Headquartered at Joint Base San Antonio, Fort Sam Houston, Texas. See [D.E. 33] ¶ 2; [D.E. 41] ¶ 2.

The parties dispute various issues that allegedly arose in 2015. Carr contends that King made discriminatory statements to her and that King and Colonel Tschida created a hostile work environment. See [D.E. 41] ¶¶ 8-62. The court, however, has dismissed Carr's hostile work environment claim. See [D.E. 18] 2-3. Moreover, defendants respond that Carr created a hostile work environment, that employees in her office complained and asked to be moved, that Carr could not handle her workload, and that Carr had numerous performance issues. See [D.E. 33] ¶¶ 7-62. In any event, these disputes are not material to Carr's retaliation claim.

On January 25, 2016, Colonel Tschida (with the approval of General Gabbert) offered Carr a Procurement Analyst Technical Director position ("Technical Director position"). Compare [D.E. 33] ¶ 14 with [D.E. 41] ¶ 14. Carr did not immediately accept the position, and on January 27, 2016, the office of the Chief Counsel notified King and Colonel Tschida that they should prepare to do a management-directed reassignment of Carr if Carr declined the Technical Director position. Compare [D.E. 33] ¶ 18 with [D.E. 41] ¶ 18; see [D.E. 34-3] 3. On January 27, 2016, Carr declined the offer to transfer to the Technical Director position. See [D.E. 34-3] 3.

In March 2016, Carr remained as a Supervisor Contract Specialist and Director. On March 29, 2016, General Gabbert decided to notify Carr that he was reassigning her to the Technical Director position. Compare [D.E. 33] ¶ 47 with [D.E. 41] ¶ 47; see [D.E. 34-8]. On Thursday, March 31, 2016, General Gabbert instructed his office assistant, Velia Anstadt, to schedule a meeting with Carr to take place on Friday, April 1, 2016, so that General Gabbert could inform Carr of his recent decision to assign her to the position of Technical Director. See [D.E. 34-8] 2; compare [D.E. 33] ¶¶ 47-48 with [D.E. 41] ¶¶ 47-48. Anstadt could not reach Carr on the telephone, sent an email to Carr informing her that General Gabbert wanted to schedule a meeting with Carr on Friday, April 1, 2016, and enlisted King to help contact Carr. Compare [D.E. 33] ¶¶ 48-50 with [D.E. 41] ¶¶ 48-50; see [D.E. 34-3, 34-4]. King called Carr on her personal cell phone and directed Carr to schedule a meeting with General Gabbert for Friday, April 1, 2016. Compare [D.E. 33] ¶ 51 with [D.E. 41] ¶ 51; see [D.E. 34-3] 6. On Friday, April 1, 2016, Carr submitted a request for sick leave, declined to schedule a meeting with General Gabbert for that day, scheduled the meeting with General Gabbert for Monday, April 4, 2016, and took a day of sick leave on April 1, 2016. Compare [D.E. 33] ¶ 55 with [D.E. 41] ¶ 55. On April 1, 2016, Carr also scheduled an EEO appointment for Friday, April 4, 2016. Compare [D.E. 33] ¶ 56 with [D.E. 41] ¶ 56.

On April 4, 2016, Carr attended a meeting at the EEO office. After that meeting, Carr then met with General Gabbert. Compare [D.E. 33] ¶¶ 57-58 with [D.E. 41] ¶¶ 57-58. At the meeting with General Gabbert, General Gabbert notified Carr that he was reassigning her effective immediately to the Technical Director position. Compare [D.E. 33] ¶¶ 58-59 with [D.E. 41] ¶¶ 58-59. As Technical Director, Carr would have "reviewed contracts prepared by other specialists throughout the 419th Contracting Support Brigade." [D.E. 41] ¶ 58. On April 4, 2016, Carr retired. See [D.E. 33] ¶ 63; [D.E. 41] ¶ 63.

In Carr's amended complaint, Carr alleges that defendants retaliated against her after she "engaged in EEO activity on April 4, 2016 when she had her appointment with the EEO office." Am. Compl. ¶ 49. Referring to the April 4, 2016 meeting, Carr alleges that "[t]he retaliating officials knew of the protected activity in that prior to her appointment, she emailed COL Tschida and Mr. King to let them know she had an EEO appointment that morning." Id. at ¶50. Carr also alleges that "Mr. King acknowledged during the EEO investigation, that he learned on April 1, 2016, that [Carr] had a scheduled appointment with the EEO office." Id.² Carr alleges that she was "subjected to adverse treatment" after her EEO meeting on April 4, 2016, which consisted of being moved "from her position as Supervisory Contract Specialist and Director, NH-1102-04, MICC, Fort Bragg . . . to the position of [Technical Director], 419th CSB, Fort Bragg, North Carolina." Id. at ¶ 51.

II.

Summary judgment is appropriate when, after reviewing the record as a whole, no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Scott v. Harris, 550 U.S. 372, 378, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party seeking summary judgment must initially demonstrate the absence of a genuine issue of material fact or the absence of evidence to support the nonmoving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the nonmoving party may not rest on the allegations or denials in its pleading, see Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505, but "must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (cleaned up). A trial court reviewing a motion for summary judgment should determine whether a genuine issue of material fact exists for trial. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505. In making this determination, the court must view the evidence and the inferences drawn therefrom in the light most favorable to the nonmoving party. See Harris, 550 U.S. at 378, 127 S.Ct. 1769.

A genuine issue of material fact exists if there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505. "The mere existence of a scintilla of evidence in support of the [nonmoving party's] position [is] insufficient . . . ." Id. at 252, 106 S.Ct. 2505; see Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) ("The nonmoving party, however, cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another."). Only factual disputes that affect the outcome under substantive law properly preclude summary judgment. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

Carr does not have direct evidence of retaliation and proceeds under the McDonnell Douglas burden-shifting framework. To establish a prima facie case of retaliation, Carr must prove that (1) she engaged in protected activity under Title VII, (2) her employer took some action against her that a reasonable employee would find materially adverse, and (3) her employer...