Sellers v. United States Department of Defense (654 F. Supp. 2d 61, 2009)

United States District Court for the District of Rhode Island 2009-07-16

Government Organization and Employees

Citations

Full opinion text

MEMORANDUM AND ORDER

WILLIAM E. SMITH, District Judge.

Before the Court is Plaintiffs Appeal of Magistrate Judge Martin’s January 23, 2009 Report and Recommendation (“R & R”) urging this Court to grant Defendants’ Motion for Summary Judgment. Plaintiff objects only to the Magistrate Judge’s conclusions regarding the narrow issue of comparative evidence. For the reasons set forth below, Plaintiffs objection is denied and the R & R is adopted in full.

I. Standards of Review

In considering Plaintiffs objection, this Court must conduct “a de novo determination of those portions of the [R & R] to which objection is made” and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also Fed.R.Civ.P. 72(b)(3); Hartford Ins. Co. v. Gen. Elec. Co., 526 F.Supp.2d 250, 251 (D.R.I.2007).

Summary judgment is appropriate only if, viewing all factual disputes in the light most favorable to the nonmoving party, there is no genuine issue of material fact that would prevent judgment for the moving party as a matter of law. Meuser v. Federal Express Corp., 564 F.3d 507, 515 (1st Cir.2009); see also Fed.R.Civ.P. 56(c). “Genuine issues of material fact are not the stuff of an opposing party’s dreams. On issues where the nonmovant bears the ultimate burden of proof, he must present definite, competent evidence to rebut the motion.” Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.1991); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although the Plaintiff in this case has the benefit of all reasonable inferences, judgment as a matter of law for the Defendants is appropriate “[ejven in employment discrimination cases where elusive concepts such as motive or intent are at issue ... if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.” Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir.2000) (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990) (internal quotation marks omitted)); see Bonilla v. Electrolizing, Inc., 607 F.Supp.2d 307, 314 (D.R.I.2009).

II. Facts & Travel

Magistrate Judge Martin’s R & R contains a detailed and thorough recitation of the facts, which need not be repeated here. The Court briefly relates those facts relevant to this appeal.

Plaintiff, an African American woman, began working at the Newport Naval Commissary in Newport, Rhode Island in 1988 and was promoted to store worker in 1997. Her direct supervisor was grocery manager Mary Gibson (“Gibson”). In the Commissary’s managerial hierarchy, Gibson reported to store administrator Steven J. Furtado (“Furtado”), and he in turn reported to store director John T. Blythe (“Blythe”). In 2003, Furtado and Blythe promoted Plaintiff to Commissary Management Specialist trainee.

On December 5, 2003, Plaintiff was stocking shelves when Gibson instructed her to go to the “chill” area to stock. The “chill” area held boxes of cold products such as cheese, butter, milk, and eggs. Plaintiff refused, claiming both an injury to her hand and a lack of appropriate clothing, although Gibson informed her that jackets were available for that purpose. After consulting with Blythe about the incident, Gibson indicated to Plaintiff that there was nothing in her personnel file documenting any current restrictions and again directed her to stock the “chill” area. Plaintiff loudly refused this second instruction; Gibson subsequently stocked the chill area herself. On February 25, 2004, Gibson issued a letter of reprimand to Plaintiff for failure to follow instructions and disrespectful conduct.

In April 2004, Plaintiff filed an EEO complaint alleging several incidents of racial discrimination, including Gibson’s letter of reprimand. The agency found no discrimination or retaliation. On September 2, 2005, Plaintiff filed her complaint with this Court, and on January 31, 2008, Defendants’ Motion for Summary Judgment was referred to Magistrate Judge Martin for preliminary review, findings, and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Martin granted the motion in Defendants’ favor on each of Plaintiffs claims of disparate treatment, hostile work environment and retaliation. (See R & R at 110-12.) On March 9, 2009, Plaintiff filed a limited objection to the R & R, claiming the Magistrate Judge erred in his consideration of the comparative evidence she offered regarding the letter of reprimand to establish discrimination based on race.

III. Discussion

In opposing summary judgment, Plaintiff relied on a cavalcade of comparative evidence allegedly demonstrating that Gibson, Furtado, and Blythe disciplined similarly situated white employees that engaged in more egregious misconduct less severely than Plaintiff or not at all. (Pl.’s Mem. 17-30.) Since the only remaining discipline issue before Magistrate Judge Martin was Gibson’s letter of reprimand to Plaintiff, he concluded that incidents which did not involve the imposition or withholding of discipline by Gibson were not comparable. (R & R at 97-98.) The Magistrate Judge reasoned that employees disciplined by different supervisors were not similarly situated in all material respects, absent evidence of a company-wide discipline policy or coordination. (R & R at 97-98.) In short, he found Plaintiff was comparing apples to oranges in an unsuccessful attempt to conjure up a speck of pretext behind Gibson’s letter.

Citing a laundry list of cases, Plaintiff argues in her objection that this conclusion is erroneous because “the law makes clear that employees do not have to report to the same supervisor in order to be similarly situated.” (PL’s Obj. 2.) Plaintiff also raises a new argument in her objection that she offered evidence demonstrating that Gibson could not have disciplined Plaintiff without consultation, input, and approval from Furtado and Blythe; thus, she contends, the purported comparators were indeed similarly situated. .In response, Defendants urge this Court to adopt the R & R in its entirety. They contend the Magistrate Judge’s findings on comparative evidence are consistent with the decisions of numerous courts, and that in any event the additional alleged comparators are not similarly situated to Plaintiff. (Def.’s Resp. 2.)

Based on its de novo review, this Court concludes that Magistrate Judge Martin correctly found that the comparative evidence Plaintiff offered involving different supervisors was not comparable. See Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 21 (1st Cir.1999); Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir.1989), overruled on other grounds by Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 64 (1st Cir.2004). Furthermore, assuming for purposes of argument that the Magistrate Judge erred, Defendants are nonetheless entitled to summary judgment because even with these so-called additional comparators, Plaintiff lacks sufficient evidence of pretext with respect to race to overcome the undisputed, legitimate disciplinary rationale behind Gibson’s letter of reprimand. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Shorette v. Rite Aid of Maine, Inc., 155 F.3d 8, 13 (1st Cir.1998).

It is fundamental that “[a] claim of disparate treatment based on comparative evidence must rest on proof that the proposed analogue is similarly situated in all material respects.” Rodriguez-Cuervos, 181 F.3d at 21 (quoting Perkins v. Brigham & Women’s Hosp., 78 F.3d 747, 751 (1st Cir.1996)). Plaintiff must demonstrate that the circumstances of the incidents involving Furtado, Blythe, and the other Commissary employees were reasonably comparable to those surrounding the letter of reprimand Gibson issued to Plaintiff. See Dartmouth, 889 F.2d at 19. The test is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated. Id. The comparators need not be exact replicas, but should be “fair congeners ... [i]n other words, apples should be compared to apples.” Id. at 21.

While there is no exhaustive list of relevant factors, in general terms a plaintiff must show purported comparators “have dealt with the same supervisor, been subject to the same standards and engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or [their employers’] treatment of them for it.” Walker v. Ohio Dep’t of Rehab. & Corr., 241 Fed.Appx. 261, 266 (6th Cir.2007) (internal citation and quotation omitted); see also Rodriguez-Cuervos, 181 F.3d at 21 (adopting nearly identical language and citing Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir.1992)). Employees are generally not similarly situated if they are subject to the decisions of different supervisors. See, e.g., Fields v. Shelter Mut. Ins. Co., 520 F.3d 859, 864 (8th Cir.2008) (“[W]hen different decision-makers are involved, two decisions are rarely similarly situated in all relevant aspects.”) (quoting Stanback v. Best Diversified Prods., Inc., 180 F.3d 903, 910 (8th Cir.1999)); Radue v. Kimberly-Clark Corp., 219 F.3d 612, 618 (7th Cir.2000) (“[D]ifferent employment decisions, concerning different employees, made by different supervisors, are seldom sufficiently comparable.”).

In Rodriguez-Cuervos, the First Circuit affirmed summary judgment for the defendant where evaluations completed by different supervisors, at different times, and in different stores did not yield evidence of discrimination. 181 F.3d at 21. This holding echos the sound reasoning that “[d]ifferent supervisors will inevitably react differently to employee insubordination.” Metzler v. Federal Home Loan Bank of Topeka, 464 F.3d 1164, 1175 (10th Cir.2006) (internal citation and quotation omitted). Here, Plaintiff seeks to compare Gibson’s letter of reprimand to a hodgepodge of different disciplinary actions meted out by different supervisors at different times. Thus, as in Rodríguez-Cuervos, the Magistrate Judge properly concluded that employees disciplined by Furtado and Blythe were not comparable. See 181 F.3d at 21; see also Franklin v. City of Evanston, 384 F.3d 838, 847-48 (7th Cir.2004) (affirming summary judgment for defendant where alleged comparator was disciplined by different supervisor who determined the level of discipline).

Plaintiff is correct that the existence of different supervisors is not per se dispositive in a comparative evidence/pretext analysis. But the facts here are distinguishable from cases where courts have found comparable evidence involving different supervisors. See Petsch-Schmid v. Boston Edison Co., 914 F.Supp. 697 (D.Mass.1996); Bratton v. CSX Transp., Inc., 586 F.Supp.2d 12 (D.Mass.2008). For example, the Court in Petsch-Schmid rejected the necessity of the “same supervisor” criterion where the defendant introduced evidence of company-wide policies intended to provide guidance to all supervisors. See 914 F.Supp. at 705 n. 17. Here, Plaintiff adduced no evidence of such policies before the Magistrate Judge, and unsupported speculation or allegation that supervisors at the Commissary somehow acted in concert is plainly insufficient to survive summary judgment. See Bratton, 586 F.Supp.2d at 20 (rejecting application of the same supervisor criterion only where disciplinary actions reflected company-wide policies and the specific supervisor was not particularly relevant to the inquiry). In sum, Plaintiff offers no basis on which the Court could, in essence, ignore or overlook the fact that the additional incidents to which Plaintiff points involve Furtado and Blythe but not Gibson.

Supposing, nevertheless, that the Magistrate Judge erred in his consideration — or lack thereof — of Plaintiffs “non-Gibson” comparative evidence, Defendants are still entitled to summary judgment on Plaintiffs disparate treatment claim. The letter of reprimand was issued for failure to follow instructions and disrespectful conduct. (Def.’s App., Ex. lb at D-0194.) There is no question this is a legitimate and non-discriminatory rationale. Therefore, the burden shifts to Plaintiff to show that Gibson’s stated reason was pretextual. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. Plaintiff must prove not only that Gibson’s articulated reason was a sham, but also that her true reason was fueled by Plaintiffs race. See Rodriguez-Cuervos, 181 F.3d at 19 (citing Shorette, 155 F.3d at 13).

Plaintiff admits she refused to comply with Gibson’s request that she stock the chill area, and it is undisputed that there was at least one jacket available for that purpose. (Def.’s SUF ¶ 55; R & R at 103-04.) Additionally, the evidence indicates Gibson honestly believed Plaintiff was under no medical restrictions based upon the information in her personnel file. (Def.’s SUF ¶ 67; Gibson Dep. 74:24-75:3, July 25, 2007.) This belief is bolstered by the fact that Plaintiff was stocking another part of the store at the time the request was made. (Def.’s SUF ¶ 64.) Plaintiff provided no documentation showing otherwise. (Gibson Decl. ¶ 8, Nov. 30, 2007.) The only shred of evidence suggesting a pretextual purpose and discriminatory animus is a list of white employees who allegedly engaged in more egregious conduct than Plaintiff and received different discipline. (PL’s Mem. 17-30.)

The circumstances of the other employees Gibson disciplined differ materially from the circumstances of the letter of reprimand, and therefore cannot function as comparable comparators. See Rodriguez-Cuervos, 181 F.3d at 21. In particular, Gibson’s incident with McCollum was based on hearsay, rather than direct interaction; Texeira’s appeals to Furtado to escape work from Gibson did not involve disrespectful defiance of a supervisor’s request; refusals to provide written statements and a letter of reprimand are too dissimilar for reasonable comparison. (R & R at 98-101.) “Human relationships are inherently complex. Large employers must deal with a multitude of employment decisions, involving different employees, different supervisors, different time periods, and an incredible array of facts that will inevitably differ among seemingly similar situations.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1232 (10th Cir.2000) (quoting E.E.O.C. v. Flasher Co., 986 F.2d 1312, 1319 (10th Cir.1992)). The bald assertion that other employees refused to perform tasks when directed (Pl.’s Mem. 20) or engaged in other misconduct is insufficient to make them valid comparators in this case. See Dartmouth, 889 F.2d at 19.

Furthermore, even when the “non-Gibson” comparators are added to the mix, the incidents involving supervisors Furtado and Blythe do little to shore up Plaintiffs pretext argument. Blythe did not consider McCollum disrespectful, nor did the incident involve a refusal to perform particular duties, but rather a strong expression of opinion. (Pl.’s Resp. 19; Def.’s App. 15; Furtado Dep. 87:23-88:7). Similarly, Venable’s cursing in front of the supervisors and Blythe’s failure to discipline her for being “absent without leave” are not reasonably comparable to the circumstances of the chill incident. See Ney v. City of Hoisington, 264 Fed.Appx. 678, 683 (10th Cir.2008) (finding refusal to meet with supervisors was not similar to cursing); Kendrick, 220 F.3d at 1232 (holding verbal abuse alone was not comparable to plaintiffs cursing combined with other conduct). Even if the alleged disruptive, disrespectful argument between Blythe and Venable was similar to Plaintiffs encounter with Gibson, the single incident falls woefully short of establishing competent evidence of racially motivated pretext to rebut Defendants’ motion. See Mesnick, 950 F.2d at 822. Thus, even if the Magistrate Judge’s consideration of Plaintiffs comparative evidence was erroneous, his ultimate recommendation was correct.

IV. Conclusion

For the reasons discussed above, Plaintiffs objection is DENIED, and the Report and Recommendation issued on January 29, 2009 in the above-captioned matter is accepted in full pursuant to 28 U.S.C. 636(b)(1).

It is so ordered.

ROSEZOLA SELLERS, Plaintiff, v. UNITED STATES DEPARTMENT OF DEFENSE AND SECRETARY OF OF THE DEPARTMENT OF DEFENSE, ROBERT M. GATES, Defendants.

REPORT AND RECOMMENDATION

DAVID L. MARTIN, United States Magistrate Judge.

Before the Court is Defendants’ Motion for Summary Judgment (Doc. # 32) (“Motion for Summary Judgment” or “Motion”). The Motion has been referred to me for preliminary review, findings, and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). After reviewing the filings, listening to oral argument, and performing independent research, I recommend that the Motion be granted for the reasons stated below.

Index

I. Overview.................................................................71

II. Facts.....................................................................72

A A pi" fives 72

b. promotion to cao !.’!!!!!"."!!!!!!"!!!'i"!!!.’!""!!”".’.'.’.’.' '72

C. Annual Leave Requests ................................................73

D. Request for Restoration of Leave........................................75

E. Letter of Reprimand...................................................76

F. Change in Schedule....................................................79

G. Fourteen Day Suspension...............................................80

H. Administrative EEO Complaints.........................................81

1. First EEO Complaint...............................................81

2. Second EEO Complaint (Subject of this Case)..........................81

III. Travel....................................................................82

IV. Summary Judgment Standard...............................................83

V. Defendants’ Objection to “Surreply”..........................................84

VI. Claims against Dep’t of Defense.............................................85

VII. Count I — Disparate Treatment..............................................86

A. Employment Discrimination Law........................................86

B. Administrative Exhaustion..............................................87

1. Annual Leave Requests.............................................87

2. Promotions and Pay................................................89

3. Fourteen Day Suspension...........................................90

C. Prima Facie Case......................................................91

1. Less Favorable Treatment..........................................92

a. Annual Leave Requests.........................................92

b. Restoration of Leave............................................93

c. Change in Work Schedule.......................................93

2. Adverse Action....................................................94

a. Denial of Annual Leave Requests.................................94

b. Change in Schedule.............................................96

3. Summary Re Prima Facie Case......................................96

D. Non-discriminatory Reasons............................................97

E. Pretext...............................................................97

1. Comparative Evidence..............................................97

a. William McCollum..............................................98

b. Mike Texeira..................................................99

c. Ryan Diego...................................................100

d. Richard Walsh................................................101

e. Charles Cloud and Thelma Edens ...............................101

2. Pretext Analysis Re Specific Claims.................................101

a. Denial of Annual Leave Requests................................101

b. Denial of Restoration of Leave..................................102

c. Letter of Reprimand...........................................103

d. Promotion and Change in Schedule..............................103

VIII. Count II — Hostile Work Environment.......................................106

A. Law ................................................................106

B. Application ..........................................................106

IX. Count III — Retaliation ....................................................108

A. Law ................................................................108

B. Application ..........................................................109

1. Adverse Employment Action .......................................109

2. Causal Connection ................................................109

a. Temporal Proximity...........................................109

b. Gibson’s Lack of Knowledge....................................110

X. Summary................................................................110

A. Count I — Disparate Treatment....................................... 110

B. Count II — Hostile Work Environment...................................Ill

C. Count III — Retaliation................................................Ill

XI. Conclusion...............................................................Ill

1. Overview

Plaintiff Rosezola Sellers (“Plaintiff’ or “Sellers”), who is black, formerly worked at the Navy commissary in Newport, Rhode Island. See Defendants’ Corrected Statement of Facts as to Which There Is No Genuine Dispute (Doc. # 37) (“Statement of Undisputed Facts” or “SUF”) ¶¶ 1, 6. The commissary is operated by the Defense Commissary Agency (“DeCA”), an independent agency within the United States Department of Defense (“Department of Defense”). See id. ¶ 2. Plaintiff alleges that while employed at the commissary she was subjected to disparate treatment (Count I) and a hostile work environment (Count II) because of her race and that, after complaining about this discrimination and harassment, she was subjected to retaliation (Count III). See First Amended Complaint (Doc. # 2) (“Amended Complaint”) ¶¶ 10, 12, 17-25. Plaintiff avers that the disparate treatment and harassment are evidenced by the different treatment she received with respect to promotions, pay, time off, work hours, and work assignments compared to similarly situated white employees. See id. ¶ 11. She claims that the retaliation included disciplining her for no legitimate reason. See id. ¶ 13. The Department of Defense and the Secretary of the Department of Defense (“Defendants”) deny these allegations, see Answer (Doc. #4), and by the instant Motion seek summary judgment, see Motion.

II. Facts

A. Actors

Plaintiff began working as a laborer at the Newport commissary in 1988. SUF ¶ 6. Sometime thereafter she went to work at the commissary in New London, Connecticut. SUF ¶ 8. In 1993, she was reassigned to the Newport commissary. SUF ¶ 9. John T. Blythe, Sr. (“Blythe”), became store director of the Newport commissary in 1994. SUF ¶ 10. Plaintiff was promoted to store worker in 1997. SUF ¶ 11. Three years later, Steven J. Furtado (“Furtado”) became store administrator, the position immediately below store director. Id.; see also Appendix of Exhibits and Exhibits in Support of Defendants’ Motion for Summary Judgment (“Defendants’ App.”), Ex. lb at D-0161 (Organizational Chart). In August of 2003, Mary Gibson (“Gibson”) became the grocery manager. SUF ¶ 35. In the store hierarchy, Gibson reported to Furtado and Furtado reported to Blythe. See Defendants’ App., Ex. lb at D-0161. Thus, Gibson was Plaintiffs supervisor, Furtado was Plaintiffs second-level supervisor, and Blythe was Plaintiffs third-level supervisor. See id.; see also SUF ¶ 4.

B. Promotion to CAO

In 2003 Plaintiff applied for and was selected over two other applicants for the position of Commissary Management Specialist trainee. SUF ¶ 12. This position is commonly referred to as “CAO,” apparently because its full title is “Commissary Management Specialist in charge of Computer Assisted Ordering.” Defendants’ App., Ex. Id at 26 (identifying position by this title). Both Blythe and Furtado believed that Plaintiff was the best candidate for the job at the time. SUF ¶ 13. Plaintiff was chosen over Mary Bucolo (“Bucolo”), a white employee. SUF ¶ 14. At the time Plaintiff was selected for the CAO position, Blythe was aware that Plaintiff had previously engaged in Equal Employment Opportunity (“EEO”) activity as he had been contacted a few years earlier by an EEO representative with reference to Plaintiff. SUF ¶ 15. Plaintiffs promotion to CAO became effective on September 9, 2003. SUF 1116.

C. Annual Leave Requests

On July 11, 2003, Plaintiff submitted three applications for leave. SUF ¶ 18. The first application sought annual leave for August 7 and 8, 2003; the second for August 28 and 29, 2003; and the third for August 31, 2003. SUF ¶¶ 19-21. On July 13, 2003, Furtado advised Plaintiff that she needed to submit a leave planner which was required by the Master Labor Agreement (“MLA”). SUF ¶ 22. Prior to 2003, Plaintiff had submitted a leave planner every year in her fourteen year career. See Sellers Deposition (“Dep.”) at 26.

On July 14, 2003, Blythe wrote a note to Plaintiff that stated:

I am still waiting for your required leave planner. I will not approve any leave requests until the planner is submitted. All employees are required to do this.

Defendants’ App., Ex. lb at D-0185. That same day Blythe denied Plaintiffs leave applications because she had not submitted a leave planner. See SUF ¶ 27; see also Defendant’s App., Ex. lb at D-0189 (Three Applications for Leave); Blythe Dep. at 270.

On July 15, 2003, Furtado directed Plaintiff to submit her annual leave planner by July 23, 2003. SUF ¶ 29. A similar directive was conveyed by Blythe two days later in a written memorandum addressed to Plaintiff and four other employees. See Defendants’ App., Ex. lb at D-0187 (Memorandum from Blythe to Sellers, et al., of 7/17/2003). The memorandum stated:

At a meeting I held with all department managers in January, I discussed the requirement for all employees to submit an annual leave planner. If you are receiving this memorandum, I have either not received one or the leave you have annotated on the planner does not equal your use or lose balance. I cannot over emphasize the importance of you submitting the planner as instructed. Failure to comply could result in disapproval of your request and forfeit of any unused balances at the end of the leave year. Please note no leave will be granted the week of Thanksgiving, Christmas and New Years.

Deadline for submission is July 22, 2003. Id

Subsequent to the issuance of this instruction, the other four employees submitted leave planners, but Plaintiff did not. See Blythe Dep. at 270. On July 22, 2003, she wrote a handwritten response on the bottom of the memorandum which stated:

Leave planners was [sic] given out in June, not January. Sense [sic] I am held strictly to what I put down — I’m not sure of my dates. I don’t want what happened last year to happen again.

Defendants’ App., Ex. lb at D-0187. Plaintiff was the only employee at the Newport commissary who did not submit a leave planner for 2003. SUF ¶ 33.

On October 15, 2003, Plaintiff submitted a request for annual leave during the period October 22-24, 2003. SUF ¶¶ 36-37. Although she had not submitted a leave planner listing these dates, Plaintiffs leave request was approved by Furtado on October 20, 2003. SUF ¶ 38.

On November 3, 2003, Plaintiff submitted two applications for leave. SUF ¶ 39. The first application sought annual leave for November 14-15, 2003, and the second sought annual leave for November 18-22, 2003. SUF ¶¶ 40-41. Furtado denied the applications for leave on the dates Plaintiff requested, SUF ¶42, because there were already people on leave during these weeks, SUF ¶43. William McCollum (“McCollum”), the other CAO, was not scheduled to work on November 15, 2003, and November 22, 2003. SUF ¶ 44. McCollum also had scheduled and eventually took annual leave on November 18, 2003. SUF ¶ 45.

On November 25, 2003, Plaintiff submitted an application for forty hours of sick leave for the dates of November 18-22, 2003. SUF ¶ 46. Furtado approved Plaintiffs leave request the same day. SUF ¶ 47.

Although Plaintiff was denied leave for certain dates in 2003, there were many occasions on which she was approved both annual and sick leave for 2003, even though she failed to include these dates on a leave planner. SUF ¶ 48. An audit of Plaintiffs leave in 2003 revealed that Plaintiff was approved and took 66 hours of annual leave and 129 hours of sick leave. SUF ¶ 49. Thus, Plaintiff was granted 195 hours of leave in the course of one year. SUF ¶ 50.

D. Request for Restoration of Leave

On March 4, 2004, Plaintiff submitted a request for restoration of annual leave, requesting that 99 hours of annual leave be restored from 2003. SUF ¶78. The four criteria that Plaintiff was required to meet to have leave restored were:

(1) The restoration request covers leave in excess of 240 hours[;]

(2) The employee scheduled leave in writing before the beginning [of] pay period # 24[;]

(3) The employee’s leave was cancelled for mission essential reasons[; and]

(4) Due to mission essential reasons, the employee’s leave could not be rescheduled before the end of the leave yeart j

Defendants’ App., Ex. lb at D-0192 (Request for Restoration of Annual Leave). For leave to be considered “sehedule[d] in writing,” id., it must be both requested and approved. SUF ¶ 80.

On Plaintiffs request for restoration of annual leave form, Furtado checked off two of the four criteria, SUF ¶81, and recommended approval of Plaintiffs request for restoration of leave, SUF ¶ 82. However, Blythe did not sign off on the form because Plaintiff did not meet all four criteria to have her leave restored. SUF ¶ 83. Blythe found that there was no prior scheduled leave that had been canceled, that Plaintiff had time to schedule her leave, and that there was no prior scheduled leave which was canceled for mission essential reasons. SUF ¶ 84. Although Furtado had originally recommended approval of Plaintiffs request for restoration of leave, he later became aware that Plaintiff did not meet the criteria to have her annual leave restored. SUF 85.

E. Letter of Reprimand

On December 5, 2003, Plaintiff was in the health and beauty aids (“HBA”) aisle, placing products contained in boxes on the shelves. SUF ¶ 54. Gibson instructed Plaintiff to go to “chill” to stock. SUF ¶¶ 51-52. The “chill” area was the area in the store that held boxes of cold products such as cheese, butter, milk, and eggs. SUF ¶ 53. Plaintiff refused. See SUF ¶ 55. According to Plaintiff, she told Gibson that she was “still having problems with [her] hand,” Sellers Dep. at 48, and that she was not dressed to work in chill, id. Gibson’s version of this initial exchange was that Plaintiff only mentioned her lack of appropriate clothing. See Defendants’ App., Ex. 18 (Gibson Declaration (“Decl.”) of 12/1/04) at D-0145. Gibson told Plaintiff that there were two jackets hanging on the wall for her to wear. SUF ¶ 58. Plaintiff replied that she was not wearing other people’s clothes. SUF ¶ 59.

Gibson then spoke to Blythe who told Gibson to give Plaintiff another opportunity to follow her instructions. SUF ¶ 60. Gibson then instructed Plaintiff to report to chill. SUF ¶ 61. Plaintiff responded that she had an injury. SUF ¶ 62. Gibson told Plaintiff that there was nothing in Plaintiffs personnel file indicating any current restrictions. SUF ¶ 63. Gibson claims that she told Plaintiff that she would assist Plaintiff in loading the cart so that she would not have to lift heavy objects, see Defendants’ App., Ex. lb at D-0195, but Plaintiff denies that Gibson made this statement, see Sellers Dep. at 50. In any case, Plaintiff became loud and told Gibson that she would not report to the chill area. SUF ¶ 65.

The medical documentation in Plaintiffs file shows that the last time Plaintiff had any medical restriction was in October 2003 when she was instructed not to lift over ten pounds. SUF ¶ 66. Although in November 2003 Plaintiffs orthopedic doctor, Dr. Maher, recommended that she be out of work for one week, he did not provide any lifting restrictions upon her return to work. SUF 67.

In addition, at the time Gibson instructed Plaintiff to work in the chill area, there was at least one jacket available to all employees to be worn in the chill area. SUF ¶ 68. The jacket(s) was available for use by all employees and had been worn by other DeCA employees while in the chill area. SUF ¶ 69. The employees who used the jacket(s) included white employees such as Blythe, Gibson, Bucolo, McCollum, and Nathan Fields. SUF ¶ 70; Defendants’ App., Ex. 32 (McCollum Deck) ¶ 3.

After Plaintiff refused to report to the chill area to stock, Gibson went to the chill area to stock as it was a priority. SUF ¶ 71. Gibson loaded boxes of product to a cart, cut the boxes open, and stocked the products one at a time on the shelf. SUF ¶ 72. The products stocked included items such as cheese, milk, and eggs. SUF ¶ 73. When placing the product on the shelf, the heaviest item Gibson had to put on the shelf was one gallon of milk. SUF ¶ 74.

On February 25, 2004, Gibson issued Plaintiff a letter of reprimand for her failure to follow instructions and disrespectful conduct. SUF ¶ 75. Gibson was not aware of Plaintiffs EEO activity at the time she issued the Letter of Reprimand on February 25, 2004. SUF ¶ 76. The Letter of Reprimand stated:

You are hereby reprimanded for failure to follow instructions and disrespectful conduct.

Specifically, on December 5, 2003, I directed you to report for duty in the chill area to stock. I told you that jackets were available and that I would assist you by loading the cart with the items that you would stock. You became loud and told me that you would not report to that area. Although I repeatedly instructed you to report to the chill area, you still refused.

Defendants’ App., Ex. lb at D-0194; see also SUF ¶ 77.

F. Change in Schedule

Plaintiff’s schedule prior to December 12, 2004, was from 6:00 a.m. to 2:30 p.m. SUF ¶ 87. In a memorandum dated December 6, 2004, Plaintiff was advised by Gibson that effective December 12, 2004, her work schedule would be Monday through Friday, 10:00 a.m. to 6:30 p.m. SUF ¶ 88. According to Blythe, he told Plaintiff that her schedule was being changed because there were “afternoon functions which have to be completed in CAO.” Defendants’ App., Ex. 3a (Email from Blythe to Cook of 12/13/04). Plaintiff, however, denies that she was given a reason for the schedule change. See Sellers Dep. at 38. In an e-mail dated December 13, 2004, to DeCA Zone Manager Richard Cook, Blythe stated that he needed to know whether or not Plaintiff could do the afternoon functions of her job before he could promote her. See SUF ¶ 90; see also Defendants’ App., Ex. 3a. A month later, on January 16, 2005, Plaintiffs schedule was changed back to 6:00 a.m. to 2:30 p.m. SUF ¶ 91.

Plaintiffs position description provides that CAOs “[m]ay work uncommon tours of duty as required to meet [the] demands of effective mission accomplishment.” Defendants App., Ex. lb at D-0181. Further, the Performance Plan for the CAO position states a “Performance Element,” Defendants’ App., Ex. 25 (Civilian Performance Plan), of the job as being: “Utilizing morning and afternoon daily checklist [to] provide an accurate daily assessment of all comp[o]ne[n]ts of the Computer Assisted Ordering Systern.” Defendants’ App., Ex. 25. In addition, the Training Plan for Computer Assisted Ordering (CAO), states:

Stores that have two CAOS assigned should provide overlap coverage using a work schedule for these general time frames (0600 hours through 1500 hours or 1000 hours through 1900 hours). At locations with two CAOS assigned, a later schedule when the store is not open for business^ is the preferred arrangement, especially when CAO is first deployed to reduce/work down overwrites in the backroom.[]

Id., Ex. Id at 32 (CAO Functions). In addition, the Training Plan provides “a ‘model’ task list that identifies CAO processing that will occur throughout the day and when store operational tasks should be accomplished to use the system most effectively.” Id., at 33. These tasks include tasks between the hours of 10:00 a.m. and 6:00 p.m. Id. at 35-38.

G. Fourteen Day Suspension

In April of 2005, Plaintiff was suspended for fourteen days for disruptive behavior, disrespectful conduct involving a supervisor, and failure to comply with supervisory instructions. See Defendants’ App., Ex. le (Memorandum from Furtado to Plaintiff of 4/11/05). The disruptive behavior was based on complaints from three employees, McCollum, Bucolo, and Johnnie Spencer, that Plaintiff had harassed them by making derogatory, disparaging, threatening, or false statements to or about them and by making offensive sounds or facial expressions when they were in Plaintiffs presence. See id., Ex. If (Notice of Proposed Suspension) at D-0408. The disrespectful conduct involved three incidents in which Plaintiff yelled or became loud and was excessively demonstrative (e.g., banging hand on chest, rolling eyes, storming out of office) during meetings with Gibson or Gibson and Furtado. See id. at D-0408, D-0409. The failure to comply with supervisory instructions stemmed from Plaintiffs disregard of Gibson’s instructions on October 5, 2004, to provide Mike Texeira, the receiver, with a list of ordered items and failure to comply on January 24, 2005, with Gibson’s instruction to assist McCollum with a task. See id. at D-0409.

Plaintiff was an employee covered by a collective bargaining agreement. SUF ¶ 17. The negotiated grievance procedure outlined in the MLA allows an employee to grieve “any matter relating to the employment of the employee^]” Defendants’ App., Ex. 15 (MLA) at 63. Plaintiff filed a grievance on April 26, 2005, concerning her fourteen day suspension. See id, Ex. lg at D-0404 (Grievance Form). Plaintiff was represented by her union in this grievance. See id. In Step 1 of the grievance procedure, Plaintiffs grievance was denied by Blythe, the store director. See id, Ex. lg at D-0402 (Letter from Blythe to Ware of 5/3/05). Subsequently, the Union requested mediation, but the matter was not resolved. See id, Ex. lg at D-0394 (Letter from Cook to Ware of 6/28/05). The Union filed a “Step 2 grievance,” id. at D-0394, on June 20, 2005, but the grievance was denied on June 28, 2005, by Zone Manager Cook, see id. Thereafter, the grievance was not pursued by going to the next step which was arbitration. See id, Ex. lg at D-0393 (Email from Ware to Blythe of 7/28/05); see also id., Ex. 15 at 67.

H. Administrative EEO Complaints 1. First EEO Complaint

On or about May 7, 2001, Plaintiff filed her first EEO complaint. SUF ¶ 97. Plaintiff alleged that she was discriminated against on the basis of race (African American) and disability (stomach ulcers) in that:

she was subjected to harassment when she was continuously switched from work assignment to work assignment; she was continuously assigned unfavorable assignments that required working in a freezer (without a coat) and heavy lifting (without a back brace); she was assigned to work nights, 3:00 pm to 11:30 pm or 6:00 pm to 2:00 am while others were not; and she was denied the use of annual leave on April 24, 2001.

Defendants’ App., Ex. 7 (Decision); see also SUF ¶ 98. On May 21, 2003, Administrative Judge Kevin J. Berry issued a decision finding no discrimination. Defendants’ App., Ex. 7. The decision was sent to Plaintiff and Attorney Steven Coaty, who was representing Plaintiff at that time. SUF ¶ 100. This decision was not appealed, and the time for appealing the decision has long passed. SUF 11101.

2. Second EEO Complaint (Subject of this Case)

On December 18, 2003, Plaintiff contacted an EEO counselor with respect to the denial of her annual leave application by Blythe on July 14, 2003, and by Furtado on November 4, 2003. SUF ¶ 102; see also Defendants’ App., Ex. lb at D-0064 (Memorandum from Johnson to Deputy EEO Officer of May 3, 2004, at 2), D-0071 (Counselor’s Intake Sheet); Sellers Dep. at 35-36. On February 26, 2004, Plaintiff contacted an EEO counselor concerning the Letter of Reprimand issued to her on February 25, 2004. SUF ¶ 103. On or about April 14, 2004, Plaintiff filed her second EEO complaint, id., which is the subject of this case, see Plaintiffs Memorandum in Support of Her Objection to Defendants’ Corrected Memorandum in Support of Their Motion for Summary Judgment (“Plaintiffs Mem.”) at 3.

In a letter dated June 22, 2004, Plaintiffs claims were defined as follows:

a. Whether the complainant was discriminated against based on race (Black) and reprisal (prior EEO activity) when, from July 14, 2003^ to November 4, 2003, the Commissary Officer, Mr. John Blythe, Sr., denied her requests for annual leave on the following dates: August 7, 8, 28, 29, and 31, 2003u (40 hours) and November 14, 15, and 18-22, 2003u (56 hours)?

b. Whether the complainant was discriminated against based on race (Black) and reprisal (prior EEO activity) when, on February 25, 2004, her supervisor, Ms. Mary Gibson, issued her a Letter of Reprimand for failure to follow instructions and disrespectful behavior?

c. Whether the complainant was discriminated against based on race (Black) and reprisal (prior EEO activity) when, on or about March 4, 2004, the Commissary Officer, Mr. John Blythe, Sr., disapproved her Request for Restoration of Annual Leave (96 hours)?

SUF ¶ 104.

The letter further advised Plaintiff that “[i]f you believe the issues in your complaint is [sic] not correctly defined, please notify me, in writing, within 5 calendar days after you receive this letter, and specify why you believe the issues are not correctly defined. If you fail to contact me, I will conclude you agree that the issues are properly defined.” SUF ¶ 105 (alterations in original). Plaintiff did not disagree that these were the defined issues in the EEO complaint, nor did she seek to amend her EEO complaint to include claims relating to promotions and pay. SUF ¶ 106. The only time Plaintiff sought to amend her EEO Complaint was to add a claim with respect to “[w]hether the complainant was discriminated against based on reprisal (prior EEO activity) when, on December 13, 2004u her duty hours and work assignments were abruptly changed with no explanation?” SUF ¶ 107 (quoting Defendants’ App., Ex. lb at D-0099 (Letter from Hill to Plaintiff of 12/22/04 at 1)).

On June 10, 2005, DeCA issued a final agency decision finding no discrimination based on race or retaliation regarding the EEO complaint which is the subject of this case. SUF ¶ 108.

III. Travel

On September 2, 2005, Plaintiff filed her Complaint in this Court. See Docket. Subsequent to the Complaint being filed, on or about December 10, 2005, Plaintiff was removed from her employment with the Defense Commissary. Plaintiff filed her Amended Complaint on January 25, 2006. See id. The amended pleading eliminated previous counts that alleged violation of the Civil Rights Act, 42 U.S.C. § 1981. See Amended Complaint. Defendants filed the instant Motion for Summary Judgment on November 30, 2007. See Docket. Plaintiff filed her response to the Motion on January 29, 2008. See Motion in Opposition to Defendants’ Motion for Summary Judgment (Doc. # 41). Defendants filed a reply memorandum on February 29, 2008. See Defendants’ Reply in Support of Their Motion for Summary Judgment (Doc. #46) (“Defendants’ Reply”).

On March 10, 2008, Plaintiffs counsel sent a letter to this Magistrate Judge, the body of which stated:

As you know, plaintiff did not previously provide deposition pages to which she made reference in her Opposition to Defendant’s [sic] motion for summary judgment. This is because Plaintiff does not believe the applicable rules include such a requirement. However, Defendant’s [sic] reply makes an issue of this. Given this, Plaintiff is enclosing the relevant transcript pages for the Court’s convenience.

Letter from Andrews to Martin, M.J., of 3/10/08. Accompanying the letter were hundreds of pages of excerpts from the depositions of Sellers, Blythe, Furtado, Gibson, Bucolo, McCollum, and B. Venable.

Defendants viewed Plaintiffs communication as an improper surreply and filed an objection to it. See Defendants’ Objection to Plaintiffs Surreply in Support of Her Opposition to Defendants’ Motion for Summary Judgment and Attached Transcripts Improperly Submitted to This Court (Doc. # 47) (“Defendants’ Objection to Surreply” or “Defendants’ Objection”). Defendants accurately noted that “[t]he surreply and deposition transcripts were submitted to United States Magistrate Judge David L. Martin and there is no indication that these documents were filed with the Clerk as no certificate of service was attached to these documents as required by Federal Rule of Civil Procedure 5(d).” Defendants’ Memorandum in Support of Their Objection to Plaintiffs Surreply in Support of Her Opposition to Defendants’ Motion for Summary Judgment and Attached Transcripts Improperly Submitted to This Court (“Defendants’ Objection Mem.”) at 1 n. 1. Because the documents had been submitted by Plaintiff without leave of the Court, Defendants “objected] to the surreply and deposition transcripts being made a part of the record.” Id. at 2.

On April 7, 2008, the Court conducted a lengthy hearing on the Motion for Summary Judgment and Defendants’ Objection to Surreply. Thereafter, the Court took both matters under advisement.

IV. Summary Judgment Standard

“Summary judgment is appropriate if ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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.’ ” Commercial Union Ins. Co. v. Pesante, 459 F.3d 34, 37 (1st Cir.2006)(quoting Fed.R.Civ.P. 56(c)); accord Kearney v. Town of Warekam, 316 F.3d 18, 21 (1st Cir.2002). “A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party. A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law.” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir.2000)(quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.1996)).

In ruling on a motion for summary judgment, the court must examine the record evidence “in the light most favorable to, and drawing all reasonable inferences in favor of, the nonmoving party.” Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir.2000)(citing Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670, 672 (1st Cir.1996)). “[W]hen the facts support plausible but conflicting inferences on a pivotal issue in the case, the judge may not choose between those inferences at the summary judgment stage.” Coyne v. Taber Partners I, 53 F.3d 454, 460 (1st Cir.1995). Furthermore, “[sjummary judgment is not appropriate merely because the facts offered by the moving party seem more plausible, or because the opponent is unlikely to prevail at trial. If the evidence presented is subject to conflicting interpretations, or reasonable men might differ as to its significance, summary judgment is improper.” Gannon v. Narragansett Elec. Co., 777 F.Supp. 167, 169 (D.R.I.1991) (citation and internal quotation marks omitted).

The non-moving party, however, may not rest merely upon the allegations or denials in its pleading, but must set forth specific facts showing that a genuine issue of material fact exists as to each issue upon which it would bear the ultimate burden of proof at trial. See Santiago-Ramos v. Centennial P.R. Wireless Corp., 211 F.3d at 53 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “[T]o defeat a properly supported motion for summary judgment, the nonmoving party must establish a trial-worthy issue by presenting enough competent evidence to enable a finding favorable to the nonmoving party.” ATC Realty, LLC v. Town of Kingston, 303 F.3d 91, 94 (1st Cir.2002)(quoting LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842 (1st Cir.1993)) (alteration in original) (internal quotation marks omitted).

V. Defendants’ Objection to “Surreply”

Defendants’ Objection to Plaintiffs surreply is well founded. See Defendants’ Objection Mem. at 2-3 (citing case law which supports striking unauthorized surreply filings). Defendants point out that Plaintiff submitted approximately 134 pages of her deposition testimony but that in her memorandum (in opposition to the Motion for Summary Judgment) Plaintiff only cites to seven pages of her deposition transcript. See id. at 3-4. Defendants validly observe that “Plaintiffs submission of hundreds of pages of deposition transcripts, to which she does not even cite, can hardly be said to be ‘for the Court’s convenience’ as Plaintiff so states in her surreply.” Id. at 4.

Nevertheless, after consideration, the Court concludes that Defendants’ Objection should be overruled for the following reasons. First, to the extent that Defendants argue that the depositions should be excluded because Plaintiff is in effect asking that the Court “sift through the record in search of evidence to support a party’s opposition to summary judgment,” Defendants’ Objection Mem. at 4 (quoting Stults v. Conoco, Inc., 76 F.3d 651, 657 (5th Cir.1996)), the Court has already determined that it will not undertake that task, see, e.g., n. 11, n. 15, n. 32, n. 33. As reflected in the footnotes in the Facts section, Plaintiffs failure to cite with specificity to evidence in the record, as required by LR Cv 56(a)(3), has resulted in the Court finding that many facts alleged in Defendants’ SUF are established notwithstanding Plaintiffs denials. Accordingly, it is unnecessary for the Court to exclude the depositions on this basis.

Second, in some instances the Court has found it less cumbersome to cite directly to a deponent’s deposition testimony rather than to an exhibit within Defendants’ App. which contains an excerpt from that deposition. Also, the print used for some of the deposition pages submitted by Plaintiff is larger than the print used in the compressed versions of the deposition excerpts found in Defendants’ App. Thus, Plaintiffs pages are easier to read.

Third, as counsel for Plaintiff noted at the hearing, Defendants themselves are guilty of a procedural misstep by filing the Motion for Summary Judgment without first requesting a conference with the Court as required by the Pretrial Order. See Pretrial Order (Doc. # 5) at 1. While the parties’ transgressions are not comparable, the Court sees little prejudice to Defendants if the deposition filings are allowed.

Fourth, the Court has ultimately determined that the Motion for Summary Judgment should be granted. The Court deems it preferable that the record in this matter be as complete as possible.

Accordingly, as reflected in a separate order issued this same date, Defendants’ Objection is overruled, and the Clerk is directed to make the deposition excerpts, which accompanied the March 10, 2008, letter from Plaintiffs counsel to this Magistrate Judge, part of the record in this case.

VI. Claims against Dep’t of Defense

Defendants initially request dismissal of all claims against the Department of Defense because it is not a proper defendant. The Court agrees. The only appropriate defendant in an employment discrimination action brought pursuant to Title VII against the federal government or any of its instrumentalities is the head of the agency in which the alleged discriminatory acts occurred. 42 U.S.C. § 2000e-16(c); see also Soto v. U.S. Postal Serv., 905 F.2d 537, 539 (1st Cir.1990)(citing § 2000e-16(c) and stating that “[i]n cases brought against the Postal Service, the Postmaster General is the only properly named defendant”); Mahoney v. U.S. Postal Serv., 884 F.2d 1194, 1196 (9th Cir.1989) (same). Accordingly, I recommend that the Department of Defense be dismissed as a defendant in this action. See Morales v. Mineta, 220 F.Supp.2d 88, 91 n. 1 (D.P.R.2002)(holding that Secretary of Transportation is the correct defendant for plaintiffs Title VII claims against the United States Department of Transportation and the United States Coast Guard and dismissing claims against them).

VII. Count I — Disparate Treatment

A. Employment Discrimination Law

Employment discrimination claims arising under Title VII are analyzed under the burden-shifting method of proof outlined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), and further delineated in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-60, 101 S.Ct. 1089, 1093-97, 67 L.Ed.2d 207 (1981), and St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506-24, 113 S.Ct. 2742, 2747-56, 125 L.Ed.2d 407 (1993). See Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 53 (1st Cir.2000); Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 430-31 (1st Cir.2000); Smith v. Stratus Computer, Inc., 40 F.3d 11, 15-16 (1st Cir.l994)(explaining application of McDonnell Douglas and Burdine). The method employs a three stage framework. See Thompson v. Coca-Cola Co., 522 F.3d 168, 176 (1st Cir.2008).

The Plaintiff bears the initial burden of establishing a prima facie case of discrimination. See id. A plaintiff meets this burden by showing that: 1) she is a member of a protected class; 2) her employer took an adverse employment action against her; 3) she was qualified for the employment she held; and 4) and her position remained open or was filled by a person whose qualifications were similar to hers. Douglas v. J.C. Penney Co., 474 F.3d 10, 13-14 (1st Cir.2007); see also Rodriguez-Torres v. Caribbean Forms Mfr., Inc., 399 F.3d 52, 58 (1st Cir.2005) (explaining that “[b]eeause employment discrimination cases arise in a variety of contexts, the prima facie elements must be tailored to the given case”). The burden for establishing a prima facie case is not onerous. Douglas v. J.C. Penney Co., 474 F.3d at 14; Williams v. Raytheon Co., 220 F.3d 16, 19 (1st Cir.2000); Cruz-Ramos v. Puerto Rico Sun Oil Co., 202 F.3d 381, 384 (1st Cir.2000); see also Che v. Massachusetts Bay Transp. Auth., 342 F.3d 31, 38 (1st Cir.2003)(“the prima facie case is ‘a small showing that is not onerous and is easily made’ ”)(quoting Kosereis v. Rhode Island, 331 F.3d 207, 213 (1st Cir.2003) (citations and internal quotation marks omitted)).

After the plaintiff establishes a prima facie case, the burden shifts to the employer to establish a legitimate, nondiscriminatory reason for its adverse employment action. Douglas v. J.C. Penney Co., 474 F.3d at 14; Cordero-Soto v. Island Fin., Inc., 418 F.3d 114, 119 (1st Cir.2005); Cruz-Ramos v. Puerto Rico Sun Oil Co., 202 F.3d at 384. If the employer demonstrates such a reason, the burden returns to the employee to show that the proffered reason was mere pretext and that the true reason was prohibited discrimination. Douglas v. J.C. Penney Co., 474 F.3d at 14; Cruz-Ramos v. Puerto Rico Sun Oil Co., 202 F.3d at 384 (stating that after employer articulates a legitimate, nondiscriminatory reason for the adverse employment action, “it falls to the plaintiff to show both that the employer’s proffered reason is a sham, and that discriminatory animus sparked [its] actions”)(alteration in original) (internal quotation marks omitted); Dichner v. Liberty Travel, 141 F.3d 24, 30 (1st Cir.l998)(“a plaintiff must show both that the employer’s articulated reason is falsen and that discrimination was the actual reason for its employment action”)(internal quotation marks omitted).

B. Administrative Exhaustion

A federal employee alleging employment discrimination must exhaust her administrative remedies before bringing a court action. See Brown v. Gen. Servs. Admin., 425 U.S. 820, 832, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976)(noting “preconditions” before an aggrieved employee may file a civil action in a federal district court to review his claim of employment discrimination); Jensen v. Frank, 912 F.2d 517, 520 (1st Cir.l990)(“Title VII requires exhaustion of administrative remedies as a condition precedent to suit in federal district court”); see also Velazquez-Rivera v. Danzig, 234 F.3d 790, 794 (1st Cir.2000)(holding that fire fighter employed by Department of Navy had not exhausted administrative remedies for discrimination claim “since there had been no contact with an [EEOC] counselor within 45 days” of the date of the alleged discrimination) (citing 29 C.F.R. § 1614.105(a)(1)); id. (“a federal employee’s failure to contact an EEOC counselor within the limitations period causes him to lose his right to pursue a later de novo action in court”)(citing Roman-Martinez v. Runyon, 100 F.3d 213, 216-18 (1st Cir.1996)). In order to exhaust her administrative remedies, a plaintiff must contact an EEO counselor within 45 days of the allegedly discriminatory incident. 29 C.F.R. § 1614.105(a)(1); see also Machado v. Frank, 767 F.Supp. 416, 419 (D.R.I.1991)(“Failure to contact an EEO counselor within the allotted time period bars a civil action based on that event.”).

1. Annual Leave Requests

Plaintiffs three leave requests, which sought leave for the dates of August 7, 8, 28, 29, and 31, 2003, were denied on July 14, 2003. See Defendants’ App., Ex. lb at D-0189. Thus, Plaintiff was required to contact an EEO counselor by August 28, 2003. However, Plaintiff did not contact an EEO counselor regarding the July 14, 2003, denial of her leave until December 18, 2003. SUF ¶ 102; see also Defendants’ App., Ex. lb at D064; Sellers Dep. at 35-36 (stating that she first sought EEO counseling regarding the denial of this leave at “[t]he end of the year”).

Plaintiff attempts to argue that the doctrine of accrual enables her to avoid the preclusive effect of her failure to contact an EEO counselor within the required forty-five day period. See Plaintiffs Mem. at 5 (citing Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir.l990)(“Accrual is the date on which the statute of limitations begins to run. It is not the date on which the wrong that injures the plaintiff occurs, but the date — often the same, but sometimes later — on which the plaintiff discovers that he has been injured.”)). However, Plaintiff does not identify any date after July 14, 2003, as being the date on which she “discover[ed],” Cada, 920 F.2d at 450, that she had been injured. Rather, she asserts somewhat vaguely in her memorandum that “she was concerned, not so much with the fact that she could not take the days selected in August, but whether she was ultimately going to lose her leave by the end of the year.” Id. at 6.

This assertion is problematic for two reasons. First, the evidence Plaintiff cites in support thereof either fails to do so or has not been provided. See id. (citing Plaintiffs Ex. 14 and Sellers Dep. at 35-37, 240). Plaintiffs Ex. 14 is a certificate showing that Sellers completed “DeCA East CAO Training 2004,” Plaintiffs Ex. 14, and provides no support for the assertion. Plaintiff has not provided page 240 of her deposition, and pages 35-37 merely reflect her testimony that she first sought EEO counseling regarding the denial of leave when she “lost a hundred— 99 hours,” Sellers Dep. at 36, at “[t]he end of the year,” id. It does not indicate that Plaintiff attached a greater importance to avoiding the loss of leave than to being able to take leave on the days she selected in August. Indeed, Plaintiff was unable to recall if she