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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JENNIFER ASKEW : v. : Civil Action No. DKC 98-2134 : DONNA E. SHALALA : : MEMORANDUM OPINION This case arises out of nearly two years of Plaintiff's employment at the National Institutes of Health (NIH). :

Plaintiff alleges that while an employee she suffered both discrimination based upon a disability and sexual harassment. Defendant has moved for summary judgment. The issues are fully Local Rule

briefed, and the court now rules without a hearing. 105.6.

For the reasons stated more fully below, the court will

GRANT the motion for summary judgment. Background Although the merits of Plaintiff's discrimination suit are not relevant to the court's ruling below, the timing of events leading up to the instant suit is. Plaintiff is a thirty-one year old white female, born and raised in Minnesota. At the age of fifteen, Plaintiff was in an The accident left

automobile accident that broke her neck.

Plaintiff partially paralyzed, unable to turn her left hand over or lift her left arm. suffered from Moreover, in her mid-twenties, Plaintiff addiction. Nevertheless, Plaintiff

alcohol

graduated from college in Minnesota in 1994 and worked for several months in Milwaukee, Wisconsin for a medical records company. Plaintiff moved to the Washington, D.C. area and began working at NIH on February 18, 1995, as a Grade 7 medical records section. administration specialist in the Protocol Services Plaintiff

Her supervisor at that time was Kim Jarema.

alleges that in March 1995, during the course of a meeting concerning her individual development plan (IDP), she asked Ms. Jarema about either a brace or training in one-hand typing to assist her in her work. According to Plaintiff, Ms. Jarema

responded that any special request would be denied for monetary reasons. However, Ms. Jarema noted the typing issue on the

written IDP and suggested that Plaintiff go to the office of occupational medical services (OMS).1 OMS. Plaintiff never went to

Plaintiff's Deposition at 53 ("I didn't get a chance to go

In her affidavit, Plaintiff changed her version of the events from that recited in her complaint and deposition: "She [Ms. Jarema] did not refer me to any particular department or section at NIH that could help me with my requests to overcome my handicap." Opposition Exhibit 1. 2

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up there.").2

According to Plaintiff, her subsequent difficulty

in typing led her to increased fatigue in her arm and increased criticism from Ms. Jarema for her slow work. In June 1995,

Plaintiff was transferred to another section, Medico-Legal, where she worked until taking a leave of absence in January 1997. In spring 1995, Plaintiff also alleges that the head of another section, Ryan Link, sexually harassed and assaulted her. Plaintiff shared a townhouse with Mr. Link and another colleague and friend from college, Mai Khuu. Plaintiff alleges that Mr.

Link expressed both emotional and sexual feelings for Plaintiff on numerous occasions after she moved to Washington. He left

hand-written notes on her desk and even made physical advances

Apparently, there was an understanding between Ms. Jarema and Plaintiff that Plaintiff would also look into the one-handed typing course: Q: Whose ballpark was this solution in, yours or somebody else's? A: Mine. Q: What did you do to find a one-handed typing course? A: I went to a bookstore and looked a t a text. I didn't try to find a one-handed typing course. Q: Why not? A: Because I didn't -- my mother brought it up to me over the telephone as a solution, and I didn't know if it was an option. Plaintiff's Deposition at 57. 3

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at times.

In April 1995, Plaintiff awoke in the middle of one

night to find Mr. Link in her bedroom, where he allegedly sexually assaulted her. Plaintiff moved out soon after the

incident and only interacted with Mr. Link once more before he left NIH on January 1, 1996.3 Plaintiff does not allege that she

told any supervisors about the incidents with Mr. Link although she did seek counseling on one occasion from a psychologist at NIH's Employee Assistance Program. In Medico-Legal, Plaintiff's direct supervisors were Allison Thompson and Elizabeth Colligan. Plaintiff alleges that her new

position required lifting heavy boxes and again she suffered from shoulder pain. Ms. Colligan allegedly required Plaintiff

to process four cases per day, which she had difficulty doing

Again, there is a discrepancy between Plaintiff's affidavit and the rest of the record. In her deposition, Plaintiff stated that she only interacted with Mr. Link once after the alleged assault: Q: He interacted with you less frequently after he assaulted you? A: Yes. The -- probably the only other time we interacted is when he asked me -- he gave me the money that I had put down for the deposit on the town home. Plaintiff's Deposition at 116. The record shows that Mr. Link resigned on December 5, 1995. Motion Exhibit 17. However, Plaintiff's affidavit states: "Despite Mr. Link's conduct, he remained in the medical records department at NIH, near my office. I was afraid to be near him, but could do nothing about it. Much to my alarm, I was even placed on a committee with him in 1996." Opposition Exhibit 1. 4

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within normal business hours. she requested any

Plaintiff does not allege that from Ms. Colligan or Ms.

accommodation

Thompson regarding the lifting of boxes or typing. at 61-62, 71.

Deposition

In fact, Plaintiff does not allege that she ever

requested accommodation from a supervisor after March 1995. Plaintiff also alleges that David Richey, a coworker in Medico-Legal, discriminated against her based upon gender.

Plaintiff alleges that she "was often the target of violent outbursts by Mr. Richey" and that he "made derogatory comments about her while she was out of the office." In her affidavit,

Plaintiff's description of Mr. Richey's behavior states: "He would lunge at me, yell at me, slam objects on his desk, and berate me for my productivity." Plaintiff alleges that Mr.

Richey's violent behavior was directed only at women: A: I think because I was a female, I think there was a gender issue with David Richey. . . . And I think he -- I think that it was -- I think he did that to women. I observed him doing it to women. . . . Q: Did Mr. Richey react in the ways you describe to men also? A: No, not that I saw. Q: Were there any men in the Medical-Legal department, section, excuse me, at that time? A: No.

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Plaintiff's Deposition at 63.

Plaintiff provided no other

specific allegations concerning Mr. Richey's conduct.4 Finally, Plaintiff alleges that the Director of Medical Records, Jerry King, created a hostile work environment for her. Plaintiff alleges that she felt pressure to attend "happy hours" where Mr. King purchased rounds of drinks for employees. On

January 3, 1996, Mr. King invited Plaintiff to dinner where allegedly Mr. King "began to question her about not drinking alcohol." Plaintiff alleges that she feared losing her job and,

as a result, ordered two martinis, her first alcoholic drinks in five years. On another occasion, Mr. King allegedly called Plaintiff also alleges that Mr. King came

Plaintiff a "doll."

to her office one day, mentioned that Plaintiff had a strong right arm, and reached out and felt her arm. Plaintiff has

alleged no other specific instances of harassment after November 1996. Plaintiff's Deposition at 134-35. 1994 to 1996, each October Plaintiff took an All

From

examination to become a Registered Records Administrator. three times Plaintiff failed the exam.

After the last attempt,

in November 1996, Mr. King informed Plaintiff that she would be demoted and no longer considered professional staff. However,

Initially, Askew alleged racial discrimination by Richey, but she withdrew that claim before the filing of this lawsuit. 6

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within several weeks, staff of the NIH Personnel office stepped in, and Plaintiff was informed that she would not be demoted because her position description did not include passing the registration examination. Accordingly, she was never demoted

and did not receive a pay decrease. On December 2, 1996, Plaintiff first approached the Equal Employment Opportunity Commission (EEOC) Office at NIH.

Plaintiff states that she located the office in late November or early December through the Yellow Pages. Plaintiff met with a

staff member at the NIH EEOC office who provided her with a precomplaint form which states at the top: The completion of this form will initiate a pre-complaint of employment discrimination based on race, color, religion, sex, sexual harassment, sexual orientation, national origin, age, physical or mental handicap or retaliation. Following a receipt of this form, an EEO Counselor will be assigned. Motion Exhibit 5. an attorney. By January 13, 1997, Plaintiff had retained On January 27, 1997, Plaintiff At the

Motion Exhibit 5.

delivered the pre-complaint form to the NIH EEOC office.

same time, Plaintiff left NIH on leave without pay to enter a facility for treatment of alcohol addiction. returned to NIH. On September 29, 1997, counseling efforts concluded and an EEOC counselor sent a report to Plaintiff's counsel, Thomas Plaintiff has not

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Gagliardo.5 Motion Exhibit 9.

Mr. Gagliardo received the report Motion Exhibit 10.

by certified mail on October 2, 1997.

However, Plaintiff went to the EEOC office on October 7, 1997 to inform the office that she no longer retained Mr. Gagliardo. She then signed a document stating "EEO Counseling Report

provided to me on this date."

Motion Exhibit 11.

The EEOC

office received a formal discrimination complaint from Plaintiff on October 23, 1997. Standard of Review Pursuant to Fed. R. Civ. P. 56(c), summary judgment is appropriate "if the and pleadings, admissions on depositions, file, answers with to the Motion Exhibit 12-13.

interrogatories,

together

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 477 U.S. 242, 248 (1986); Anderson v. Liberty Lobby, Inc.,

see also Matsushita Elec. Indus. Co. The movant,

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). then, bears two burdens.

First, the movant must show that no

genuine issues of material fact remain for the fact finder to

Mr. Gagliardo was Plaintiff's second counsel in the matter, after Gregory C. Mitchell who represented her at the time of the pre-complaint. 8

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determine at trial. is in his favor.

Second, the movant must show that the law

Conversely, the non-movant must demonstrate that genuine issues of material fact exist. 248-49. See Anderson, 477 U.S. at

This burden "is particularly strong when the non-moving Pachaly v. City of Lynchburg, A fact is material for

party bears the burden of proof."

897 F.2d 723, 725 (4th Cir. 1990).

summary judgment purposes if, when applied to the substantive law, it affects the outcome of the litigation. 477 U.S. at 248. material fact by See Anderson,

A non-movant cannot create a genuine issue of resting upon her own mere allegations or

denials contained in her pleadings, Fed. R. Civ. P. 56(e), nor can she create a dispute of fact by relying upon "mere

speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Instead, in

order for a genuine issue of material fact to exist, there must be sufficient evidence upon which a jury could return a verdict in the non-movant's favor. See Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991). Discussion Plaintiffs alleging employment discrimination "must pursue and exhaust available administrative remedies with the EEOC" prior to filing suit. 42 U.S.C.

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