UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-1875

AIMEE BARRETO,

Plaintiff - Appellant,

v.

SGT, INC.,

Defendant - Appellee.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. 

Paula Xinis, District Judge. (8:17-cv-02716-PX)

Submitted: August 31, 2020 Decided: September 11, 2020

Before GREGORY, Chief Judge, KEENAN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Paul V. Bennett, BENNETT & ELLISON, P.C., Annapolis, Maryland, for Appellant. 

Andrew P. Hallowell, PARGAMENT & HALLOWELL, PLLC, Washington, D.C., for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Aimee Barreto, a woman of Puerto Rican descent who identifies as Hispanic or 

Latina, sued her former employer, SGT, Inc. (“SGT”), alleging racial/ethnic discrimination 

and retaliation, in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as 

amended, 42 U.S.C. §§ 2000e to 2000e-17, and the Maryland Fair Employment Practices 

Act (“MFEPA”), Md. Code Ann. § 20-606 (2014 & Supp. 2019); retaliation in violation 

of the False Claims Act, 31 U.S.C. §§ 3729 to 3733; and retaliation in violation of 

Maryland common law. On appeal, Barreto challenges the district court’s order denying 

Barreto’s motion for sanctions due to the spoliation of evidence; denying Barreto’s motion 

to compel the National Aeronautics and Space Administration (NASA), a third party, to 

comply with a subpoena; granting NASA’s motion to quash the subpoena; and granting 

SGT’s motion for summary judgment. We affirm. 

Turning first to the district court’s denial of Barreto’s motion for sanctions due to 

the spoliation of evidence, “the district court’s ruling must stand unless it was an abuse of 

the district court’s broad discretion in this regard.” Turner v. United States, 736 F.3d 274, 

281-82 (4th Cir. 2013) (internal quotation marks omitted). “[T]he party disputing the 

district court’s ruling[] bears the burden of establishing spoliation” by proving that the 

other party (1) “had a duty to preserve material evidence”; (2) “kn[ew] that the evidence 

was relevant to some issue in the anticipated case”; and (3) “willfully engaged in conduct 

resulting in the evidence’s loss or destruction.” Id. at 282. Upon a review of the record, 

we conclude that the district court properly found that Barreto failed to establish that the 

missing evidence ever existed or, if it did exist, that it supported her causes of action and 
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that SGT willfully engaged in conduct resulting in its loss. We therefore affirm the district 

court’s denial of Barreto’s motion for sanctions. 

We turn next to the district court’s denial of Barreto’s motion to compel NASA to 

comply with her subpoena and the court’s grant of NASA’s motion to quash the subpoena. 

“When the government is not a party, the [Administrative Procedure Act (APA)] provides 

the sole avenue for review of an agency’s refusal to permit its employees to comply with 

subpoenas.” COMSAT Corp. v. Nat’l Sci. Found., 190 F.3d 269, 274 (4th Cir. 1999). “The 

APA . . . permits a federal court to order a non-party agency to comply with a subpoena if 

the government has refused production in an arbitrary, capricious, or otherwise unlawful 

manner.” Id. at 277. An agency’s refusal is not arbitrary, capricious, or unlawful if it acts 

in accordance with valid internal regulations concerning third-party subpoenas. See Boron 

Oil Co. v. Downie, 873 F.2d 67, 71-72 (4th Cir. 1989). 

NASA’s internal regulations require the party issuing the subpoena to “furnish the 

Office of General Counsel a written, detailed statement of the information sought and its 

relevance to the proceeding in connection with which it is requested.” 14 C.F.R. 

§ 1263.103. Here, the record reveals that Barreto failed to provide NASA with a statement 

explaining the relevance of the information she sought in connection with the proceeding. 

Accordingly, NASA’s decision not to comply with the subpoena was in accordance with 

its internal regulations and was not arbitrary, capricious, or unlawful. We therefore affirm 

the district court’s denial of Barreto’s motion to compel and grant of NASA’s motion to 

quash. 
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Finally, we turn to the district court’s grant of summary judgment in favor of SGT. 

We review an order granting summary judgment de novo, “drawing reasonable inferences 

in the light most favorable to the non-moving party.” Butler v. Drive Auto. Indus. of Am., 

Inc., 793 F.3d 404, 407 (4th Cir. 2015) (internal quotation marks omitted). “Summary

judgment is proper ‘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. at 408 (quoting Fed. 

R. Civ. P. 56(a)). The relevant inquiry is whether the evidence “presents a sufficient 

disagreement to require submission to a jury or whether it is so one-sided that one party 

must prevail as a matter of law.” McAirlaids, Inc. v. Kimberly-Clark Corp., 756 F.3d 307, 

310 (4th Cir. 2014) (internal quotation marks omitted).1

Barreto first claimed that she received disparate treatment based on her race and/or 

ethnicity, in violation of Title VII and the MFEPA. Where, as here, there is no direct 

evidence of intentional discrimination, courts analyze disparate treatment claims under the 

burden-shifting framework described in McDonnell Douglas Corp. v. Green, 411 U.S. 792 

(1973). See Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). 

Under this framework, 

(1) the plaintiff must first establish a prima facie case of employment 

discrimination or retaliation; (2) the burden of production then shifts to the 

employer to articulate a non-discriminatory or non-retaliatory reason for the 

adverse action; (3) the burden then shifts back to the plaintiff to prove by a 

1 On appeal, Barreto argues that the district court should have delayed ruling on 

summary judgment until her then-pending discovery motions were resolved. See Fed. R. 

Civ. P. 56(d). However, because the district court properly denied Barreto’s discovery 

motions, the court did not err in ruling on those motions concurrently with SGT’s summary 

judgment motion. 
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preponderance of the evidence that the stated reason for the adverse 

employment action is a pretext and that the true reason is discriminatory or 

retaliatory. 

Id. 

The district court assumed without deciding that Barreto had established a prima 

facie case of discriminatory termination.2 The court, however, denied Barreto’s claim on 

the ground that Barreto failed to establish that SGT’s legitimate, nondiscriminatory 

explanation for the termination of her employment was pretextual. We agree with the 

district court’s conclusion. Despite her arguments to the contrary, Barreto did not establish 

that she was treated differently than other similarly situated employees, see Spencer v. Va. 

State Univ., 919 F.3d 199, 207 (4th Cir.), cert. denied, 140 S. Ct. 381 (2019), that a nexus 

existed between the termination of her employment and her supervisor’s stray remarks 

about Puerto Ricans, see Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 300 

(4th Cir. 2010), or that SGT provided inconsistent explanations for her termination, see

Haynes v. Waste Connections, Inc., 922 F.3d 219, 225 (4th Cir. 2019). Moreover, the 

district court correctly determined that SGT was entitled to an inference of 

nondiscrimination because the same decisionmaker had promoted Barreto less than two 

years before terminating her. See Bing v. Brivo Sys., LLC, 959 F.3d 605, 619 n.9 (4th Cir. 

2 In her complaint, Barreto also alleged that SGT discriminated against her when it 

paid her a comparatively lower salary than similarly situated colleagues, assigned her 

menial work, and refused to provide her with a proper charge number to bill her hours. 

However, Barreto does not challenge the district court’s denial of these claims on appeal, 

and she has thus forfeited review of the issues. See Fed. R. App. P. 28(a)(8); Wilson v. 

Prince George’s Cty., 893 F.3d 213, 218 n.6 (4th Cir. 2018). 
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2020) (“[A] strong inference exists that discrimination was not a determining factor for the 

adverse employment action taken by the employer where the hiring and firing took place 

close in time and involve the same decision makers.” (internal quotation marks omitted)).3

 

Accordingly, we affirm the court’s grant of summary judgment in favor of SGT on 

Barreto’s disparate treatment claim. 

Barreto also challenges the district court’s rejection of her retaliation claims under 

Title VII, the MFEPA, and the False Claims Act.4

 Under Title VII and the MFEPA, courts 

apply the same McDonnell Douglas burden-shifting framework to claims of retaliation that 

they apply to discrimination claims. Strothers v. City of Laurel, 895 F.3d 317, 327 (4th 

Cir. 2018). To establish a prima facie case of retaliation under this framework, a plaintiff 

must show that “(1) she engaged in a protected activity; (2) the employer acted adversely 

against her; and (3) there was a causal connection between the protected activity and the 

asserted adverse action.” Id. (internal quotation marks omitted). To bring a successful 

retaliation claim under the False Claims Act, a plaintiff must show that “(1) [s]he engaged 

in protected activity by acting in furtherance of a qui tam suit; (2) [her] employer knew of 

these acts; and (3) [her] employer took adverse action against [her] as a result of these 

3 Barreto’s argument against such inference—that there was insufficient temporal 

proximity because she was terminated over a year after she was promoted—is meritless. 

See, e.g., Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 211 (4th Cir. 1994) (finding 

that “plaintiff failed to overcome the strong inference of nondiscrimination arising from 

the fact that the same individual who discharged her had hired her with full knowledge of 

her disability only two years earlier”).

4 Barreto does not appeal the district court’s rejection of her retaliation claim under 

Maryland common law.
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acts.” Glynn v. EDO Corp., 710 F.3d 209, 214 (4th Cir. 2013) (internal quotation marks 

omitted). 

The district court found that each of Barreto’s retaliation claims failed because she 

was unable to establish a causal link between her protected activity and the termination of 

her employment. We agree. The record plainly reflects that Barreto was notified that her 

position with SGT was ending before she engaged in any allegedly protected activities. 

The fact that Barreto had not yet received an official termination letter or been notified of 

her end date is immaterial. The district court thus did not err in granting summary judgment 

in favor of SGT on Barreto’s retaliation claims. 

We therefore affirm the district court’s judgment. 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