Hart v. Department of Treasury
Filing
28
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 9/23/13. (c/m 9/23/13 bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SYDNEY S. HART,
Plaintiff,
v.
Civil Action No. ELH-12-03482
JACOB J. LEW, Secretary, U.S.
Department of the Treasury,
Defendant.
MEMORANDUM OPINION
Sydney Hart, a male-to-female transsexual, filed suit, pro se, against the Department of
the Treasury (the “Department”),1 alleging sex discrimination in employment (Count I) and
retaliation (Count II), in violation of Title VII of the Civil Rights Act of 1964, codified, as
amended, at 42 U.S.C. §§ 2000e et seq. See Complaint ¶¶ 122–136 (ECF 1). At the relevant
time, Hart worked as a Revenue Agent for the Internal Revenue Service (“IRS”) but was
discharged from her position.
Now pending is defendant’s “Motion to Dismiss, Or, in the Alternative, for Summary
Judgment” (“Motion,” ECF 22), supported by a memorandum of law (“Memo,” ECF 22-1) and
an extensive record of prior administrative proceedings related to plaintiff’s claims (ECF 22-2,
22-4). Along with her Opposition to the Motion (“Opp.” or “Opposition,” ECF 26), plaintiff has
1
Plaintiff initially brought suit against the Department of the Treasury. See ECF 1.
However, in a Title VII action, “the head of the department, agency, or unit as appropriate shall
be the defendant.” 42 U.S.C. § 2000e-16(c). In ECF 22-1, the Department stated that Neal
Wolin, Acting Secretary, “should be substituted in his official capacity as the sole Defendant.”
ECF 22-1 at n.1. However, Jacob J. Lew was confirmed as Secretary of the Treasury on
February 27, 2013. Accordingly, the Clerk is directed to substitute Secretary Lew as the
defendant, in his official capacity.
filed an affidavit under Fed. R. Civ. P. 56(d), challenging defendant’s request for the prediscovery conversion of the motion to dismiss to a motion for summary judgment. Defendant
has replied (ECF 27).
No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons
that follow, I will construe defendant’s Motion as a motion to dismiss, and I will grant it in part
and deny it in part.
I. Factual Summary2
Hart was employed by the IRS, a sub-agency of the Department, from April 3, 2006 until
May 20, 2011. Plaintiff underwent gender reassignment surgery on November 3, 2009. Compl.
¶ 1. Prior to the surgery, plaintiff was known as Stuart Hart.3
From the inception of her employment, Hart filed numerous complaints regarding various
actions taken by her supervisors and coworkers. Plaintiff’s first complaint arose out of an
incident that occurred on June 9, 2006, while plaintiff was still expressing as a male.4 Plaintiff
alleges that he appeared at work in “jeans and a shirt,” and his on-the-job instructor, Larry
Norris, told him that his attire was not appropriate for the office. Id. ¶ 6. Norris reminded
plaintiff that he was still a probationary employee and advised him to “watch the way [he]
conducted himself” so as to avoid termination. Id. Two weeks later, plaintiff met with Mary
2
The facts are gleaned largely from the Complaint. As required, I have assumed the truth
of the factual allegations and construed them in the light most favorable to plaintiff. See, e.g.,
Brockington v. Boykins, 637 F.3d 503, 505–06 (4th Cir. 2011). However, because the Complaint
consists of 34 pages, it is difficult to recount all of the factual allegations.
3
Plaintiff has amended her birth certificate, passport, Social Security Administration
records, and driver’s license to reflect her new name and gender. ECF 1 at 1.
4
Like plaintiff, I use masculine pronouns when referring to the plaintiff in connection
with events prior to February 2009, when plaintiff began Hormone Replacement Therapy.
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Jones, his first-line supervisor; they discussed the allegedly inappropriate attire plaintiff had
worn on June 9 and Jones’ perception that plaintiff needed to improve in his interactions with
others. Id. ¶¶ 5, 7. One month later, on July 13, 2006, plaintiff filed an informal Equal
Employment Opportunity (“EEO”) complaint with the IRS about the series of incidents. Id. ¶ 8.
However, after another meeting with Jones, plaintiff voluntarily withdrew the complaint. Id.
¶¶ 8–9.
On August 16, 2006, Norris rated plaintiff negatively on two performance reviews, which
allegedly led another of plaintiff’s supervisors, LaTosha Keown, to reduce plaintiff’s caseload.
Id. ¶ 10. In response, plaintiff filed an EEO complaint, alleging retaliation and discrimination
based on sexual orientation and race.5 Id. ¶ 11. In addition, plaintiff met with Jones on
September 1, 2006, to discuss the negative performance reviews. Jones acknowledged factual
inaccuracies in the reviews and agreed to revise them but, according to plaintiff, she failed to do
so. Id. ¶ 13. On September 15, 2006, plaintiff entered into an EEO Settlement Agreement
(“Settlement Agreement #1”) with the Department.6 Id. ¶ 17. The Agreement provided, among
other things, that the Department would revise the disputed performance reviews. Id.
Plaintiff received citations for two instances of misconduct in late 2006 and early 2007.
According to Hart, both were issued in retaliation for the prior EEO complaints. As to the first
incident, Norris reported that plaintiff was “deliberately avoiding [him] in the hallways.” Id.
5
Plaintiff does not specify her own race, but indicates that Jones is “a black female . . . .”
Compl. ¶ 5. Hart does not indicate where she filed the EEO complaint, but presumably it was
again with the IRS.
6
Throughout the course of her employment, plaintiff and the Department entered into six
separate settlement agreements with regard to plaintiff’s EEO claims. The settlements were
entered on September 15, 2006, id. ¶ 17, July 21, 2010, id. ¶ 86, October 14, 2010, id. ¶ 97,
February 1, 2011, id. ¶ 114, March 11, 2011, id. ¶ 115, and May 15, 2012, id. ¶ 121.
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¶ 18. The second citation arose out of allegations that plaintiff acted disruptively during a
workshop on November 17, 2006. Id. ¶ 26.
Plaintiff discussed the first issue with Jones on two occasions.
During the second
discussion, on November 1, 2006, Jones stated that she would “officially document” the incident.
Id. ¶ 19. Thereafter, on November 3, 2006, Hart filed an EEO complaint, alleging that he was
being retaliated against for his prior EEO activity. Id. ¶ 20. Jones issued a memorandum to
plaintiff on November 21, 2006, stating that he had acted unprofessionally by avoiding Norris in
the hall. According to plaintiff, Jones stated that Territory Manager Peter Hendricks, plaintiff’s
“second-line supervisor,” directed Jones to issue the memorandum. Compl. ¶¶ 5, 21. Id. ¶ 21.
On December 1, 2006, fearing “further reprisal,” plaintiff withdrew the EEO complaint he had
filed on November 3, 2006. Id. ¶ 22.
With regard to the second citation, Jones notified plaintiff on January 18, 2007, that she
would formally document the incident. Plaintiff voiced his suspicion that the threatened censure
was “reprisal for Plaintiff’s prior EEO activity.” Id. ¶ 26. Jones formally documented the
incident on February 12, 2007. Id. ¶ 27. On February 14, 2007, plaintiff “contacted the EEO
office to lodge another complaint.” Id. ¶ 28.
In the interim, on December 23, 2006, the IRS notified plaintiff that he had been “found
suitable for his position as a Revenue Agent.” Id. ¶ 24.
The National Treasury Employees Union (“NTEU”) filed three grievances on plaintiff’s
behalf in 2007 and 2008.7 The first grievance alleged that Hendricks, plaintiff’s Territory
7
The collective bargaining agreement between the IRS and the NTEU establishes a
grievance procedure for union members who believe they have suffered employment
discrimination. An aggrieved employee may challenge the alleged discrimination under Title
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Manager, refused to use plaintiff’s proper entrance-on-duty date when assigning priority for
selection of office space. Id. ¶ 30. Three days later, the matter was apparently resolved when
Jones informed plaintiff that Hendricks would use the proper date. Id. ¶ 31. Jones also agreed to
allow plaintiff to telecommute to the office (i.e. to work from home). Id. The second grievance
was filed on June 21, 2007, id. ¶ 33, and arose out of plaintiff’s annual performance appraisal on
June 7, 2007, pertaining to the period of April 6, 2006 to February 28, 2007.
Id. ¶ 32.
According to Hart, the appraisal was due by April 1, 2007. Id. Although Jones and Hendricks
awarded plaintiff a rating of “Fully Successful” in all job performance categories, id., the
grievance was filed because the review failed to include narrative descriptions of “critical job
elements” (as allegedly required by an Agreement between the IRS and the NTEU). Id. ¶ 33.
Hendricks denied that grievance on October 9, 2007. Id. ¶ 38. The NTEU filed a third grievance
on May 19, 2008, alleging that management “obstructed Plaintiff’s promotional opportunities.”
Id. ¶ 41. Hendricks denied the grievance on June 19, 2008. Id. ¶ 42.
In the meantime, in September 2007, the NTEU steward notified Hendricks that
counseling memoranda issued to plaintiff on November 26, 2006, and February 12, 2007
regarding his “poor workplace interactions” were untimely, because they were issued more than
15 work days after the manager learned of the events. Id. ¶ 36. On December 6, 2007, Labor
Relations Specialist Philip Wilcox advised that the two counseling memoranda were timely, and
that they would not be removed from Hart’s personnel file. Id. ¶ 39.
VII’s administrative procedure or under the collective bargaining agreement, but not both. See
generally 5 U.S.C. § 7121; Madej v. Brady, Civ. No. HAR 89-1736, 1990 WL 8039 (D. Md. Jan.
29, 1990), aff’d, 911 F.2d 723 (4th Cir. 1990).
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Plaintiff began Hormone Replacement Therapy in February 2009. Id. ¶ 43. Hart legally
changed her first name from Stuart to Sydney on March 9, 2009. Id. ¶ 44. That month, plaintiff
informed Jones that she had begun her transition from male to female and that because of her
hormone therapy, she might “experience hot flashes, mood swings, and emotional lability.” Id.
¶ 45. Plaintiff also requested a key to the women’s restroom so that she could avoid using the
men’s restroom while dressed as a woman. Id. Jones and Hendricks denied her request. Id. On
April 1, 2009, plaintiff appeared for the first time at the office dressed as a female. Id. ¶ 46.
Hart surrendered her key to the men’s bathroom on April 15, 2009. Id. ¶ 47. But, the next day,
EEO Territory Manager Sarah Wilson denied plaintiff access to the women’s restroom, because
she “still had male genitalia.” Id. ¶ 48.
On July 1, 2009, “while Plaintiff was attempting to secure access to the women’s
restroom facilities,” Hendricks issued plaintiff a “letter of admonishment,” claiming that plaintiff
had sent several “unprofessional” emails. Id. ¶ 49. Five days later, the NTEU filed a grievance
on plaintiff’s behalf, objecting to the letter of admonishment. Id. ¶ 50. The grievance was
denied on February 26, 2010. Id. ¶ 78.
On July 10, 2009, plaintiff learned that she was promoted to a new position, which
required her to transfer from her post in Fairfax, Virginia to Baltimore, Maryland. Id. ¶ 51. The
transfer was scheduled to take place on August 3, 2009. Id. ¶ 53. Hart’s new supervisors would
be manager Steve Hansen in Baltimore and Barbara Tobias, the “Second-line Manager,” in
Florida. Id. On July 16, 2009, Jones notified Hart that she could use the women’s restroom
facilities at the Fairfax Office. Id. ¶ 52. Hansen and plaintiff executed an agreement on August
3, 2009, allowing plaintiff to telecommute, i.e., to work from home. Id. ¶ 55.
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In late August and early September 2009, plaintiff and her workgroup attended training
workshops in Denver, Colorado and Washington, D.C. Id. ¶ 57–58. In both cities, plaintiff’s
coworkers allegedly ridiculed her, laughed at her appearance, and balked at her use of the
women’s restroom. Id. ¶ 59. Additionally, Hansen allegedly ignored plaintiff on one occasion
and “set an improper tone for the workgroup.” Id. ¶ 61. At a meeting between Hart and Hansen
on September 9, 2009, Hansen told Hart that he was angry with Hart for bringing her grievances
to the NTEU rather than first addressing them with him. Id. ¶ 62. Hansen also told plaintiff that
she needed sensitivity training, that her skirts were too short, that Hansen’s colleagues in the
Fairfax office had informed him that “Plaintiff files too many EEO complaints,” and that “the
EEO office no longer takes Plaintiff seriously.” Id.; see also id. ¶ 63. In late September and
early October 2009, plaintiff notified the EEO office, verbally and in writing, of the incidents
involving Hansen. Id. ¶ 67. Also in early October, the IRS transferred plaintiff’s workgroup.
Id. ¶ 66. As a result, Director Lori Nichols became Hart’s third-line supervisor. Id.
On October 22, 2009, Hansen requested that plaintiff, who had been working from home,
report to the Baltimore office for a workload review on October 26, 2009. Id. ¶ 68. Plaintiff,
who “had to prepare” for her impending gender reassignment surgery on November 3, 2009, id.,
requested that they instead conduct a telephone review. Id. Hansen denied the request despite
the fact that, according to plaintiff, Hansen knew about Hart’s upcoming surgery, id., and
regularly conducted telephone reviews with other revenue agents. Id. ¶ 70. The workload
review did not take place prior to plaintiff’s surgery. Id. ¶ 75.
Plaintiff underwent reassignment surgery on November 3, 2009, and returned to work on
December 16, 2009. Id. ¶¶ 72, 73. On January 12, 2010, Hansen met with plaintiff for the
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workload review that they had previously failed to conduct. Id. ¶ 75. Through Hansen, Tobias
charged plaintiff with insubordination based on Hart’s failure to meet with Hansen in October
2009. Id. Tobias gave plaintiff the choice of a five-day suspension or the option of proposing an
alternative form of discipline. Id. On February 25, 2010, plaintiff opted to donate twenty-four
hours of her annual leave to the IRS Annual Leave Bank. Id. ¶ 77.
On April 26, 2010, plaintiff received an annual performance appraisal for the period of
March 1, 2009, to February 28, 2010. Id. ¶ 79. Plaintiff’s overall performance rating was less
favorable than it had been the previous year, prior to her surgery. Id. Also, “Management failed
to provide to Plaintiff her Mid-Year Review” and belatedly issued only one workload review in
January 2010. Id. ¶ 79. In response to the unfavorable performance review, plaintiff filed an
EEO complaint on May 21, 2010, alleging sex discrimination. Id. Then, on June 17, 2010,
plaintiff emailed Acting Territory Manager Louis Liotine, notifying him that Hansen had treated
her “in an inappropriate and unprofessional manner on many numerous occasions, beginning
when he learned that [plaintiff] had filed an EEO complaint 4 years ago.” Id. ¶ 80.
On June 29, 2010, an IRS secretary, Robert Curry, told a coworker that “all the plaintiff
does is file grievances.” Id. ¶ 82. Curry allegedly “spit something into a garbage can” after
plaintiff greeted him. Id. ¶ 85. However, Curry missed the trash can and then allegedly told
plaintiff: “It’s a man thing.” Id. Curry also allegedly told plaintiff that she “needs to learn how
to get along with others.” Id. ¶ 82. Plaintiff reported these incidents to Tobias in two separate
emails. Id. ¶¶ 82, 85.
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On July 21, 2010, plaintiff and the Department entered into a second EEO settlement
agreement (“EEO Settlement #2”). They agreed that the EEO office would provide diversity
training to plaintiff’s workgroup. Id. ¶ 86. The training took place on October 5, 2010. Id. ¶ 94.
Plaintiff received a mid-year review on September 22, 2010, in which Hansen gave her
ratings identical to those she had received in the April annual review. Id. ¶ 89. In response,
plaintiff filed another EEO complaint on September 22, 2010, alleging sex discrimination and
reprisal. Id. ¶¶ 89, 90.
Commissioner Shulman sent an email to all IRS employees on September 30, 2010,
reaffirming his commitment to equal opportunity. Id. ¶ 92. Then, on October 6, 2010, Hansen
allegedly criticized the length of plaintiff’s skirt, chastised her for contacting NTEU and EEO
counselors, and said, “‘Why don’t you just resign?’” Id. ¶ 95. According to plaintiff, Hansen’s
tone, body language, and facial expressions made her “afraid and fearful.”
Id. After the
meeting, plaintiff left Hansen’s office, notified him that she was feeling sick, and returned to her
home. Id. Hansen denied Hart’s request for a sick day, instead charging her with 6.5 hours of
“AWOL.” Id.
On October 14, 2010, plaintiff and the Department entered into EEO Settlement
Agreement #3, which provided that the Department would work with plaintiff to develop a
“Career Learning Plan.”
Id. ¶ 97.
That same day, plaintiff emailed several Department
employees, informing them that she was “licensed as an armed private investigator awaiting
personal protection specialist and security officer arrest authority status.” Id. ¶ 97. The next day,
a Special Agent with the Treasury Inspector General for Tax Administration (“TIGTA”)
contacted plaintiff with regard to her email of October 14, 2010. Id. ¶ 98.
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Plaintiff filed an EEO complaint on October 20, 2010, pointing out that an IRS official
had reported her to TIGTA less than one day after the execution of Settlement Agreement #3.
Id. ¶¶ 99, 100. Throughout October 2010, plaintiff and Hansen feuded via email. On multiple
occasions, Hansen requested that plaintiff report to the office, plaintiff refused because she was
medically unable to work and was fearful of Hansen, and Hansen designated plaintiff as
“AWOL.” Id. ¶¶ 97–104. On October 21, 2010, Hansen terminated plaintiff’s telecommuting
privileges, which she had held since 2007, and directed her to report to the office as of October
25, 2010. Id. ¶ 101.
Tobias emailed plaintiff on October 22, 2010, advising that another manager would be
present so as “‘to minimize [Hart’s] concerns about meeting with [Hansen].’” Id. ¶ 102. But,
she reiterated that Hart could not work from home. Id. Plaintiff responded on October 23, 2010,
stating that Tobias’ suggestion “was unacceptable, and did not allay [Hart’s] fears,” given the
prospect of “chance encounters” with Hansen while at work. Id. ¶ 102. Moreover, Hart claimed
she was still experimenting “after-effects” from numerous medical procedures as part of her
“gender transition.” Id. Thus, she was “unable to come off flexiplace.”8 Id.
By email of November 2, 2010, Hart wrote to Tobias, accusing her of terminating
plaintiff’s telecommuting privileges “out of retaliatory spite” and without addressing Hart’s
“medical and safety concerns.” Id. ¶ 108. Plaintiff maintained that she was afraid of Hansen and
could not report to the office as directed. Id. ¶¶ 100, 101, 108.
8
“Flexiplace” is the name of the IRS program that allows employees to work from home.
See Nanette v. Snow, 343 F. Supp. 2d 465, 474 (D. Md. 2004) aff’d, 143 F. App’x 551 (4th Cir.
2005).
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In the meantime, plaintiff was interviewed by TIGTA agents on October 27, 2010. Hart
described how IRS managers, including Hansen and Tobias, discriminated and retaliated against
Hart. Id. ¶ 105. Tobias notified plaintiff on November 1, 2010, that two TIGTA Special Agents
would come to her residence on November 3, 2010, to secure her files and government items.
Id. ¶ 107. That night, plaintiff told members of her group that she would be leaving the IRS “due
to ongoing sex discrimination and reprisal from Management.” Id. She also filed a breach of
contract claim with the Department’s Office of Civil Rights and Diversity, claiming that the IRS
had breached EEO Settlement Agreement #3. Id.
Both Hansen and Tobias wrote emails to Hart on November 2, 2010, asking if she
intended to resign. Id. ¶ 108. Plaintiff informed them that she did not intend to resign. Id.
Two federal agents went to plaintiff’s residence on November 3, 2010, and confiscated
her case files and other government property. Id. ¶ 109. Five days later, on November 8, 2010,
Tobias issued plaintiff a “Proposal to Remove from Federal Service” (“Removal Proposal”). Id.
¶ 110. According to plaintiff, the Removal Proposal included a notation signifying that the
removal process had begun on October 6, 2010, the day after the Department satisfied the
conditions of EEO Settlement #2 by providing diversity training to its employees. Id. Hansen
continued to designate plaintiff as “AWOL.” Id. ¶ 113.
On November 18, 2010, Hansen asked Hart to discuss her “Career Learning Plan.” But,
because the IRS did not intend to withdraw its Removal Proposal, Hart claims the request was “a
sham.” Id. ¶ 111.
Also on November 18, 2010, the EEO gave plaintiff a “Notice of Right to File a Formal
Complaint.” Id. ¶ 112. On February 1, 2011, plaintiff and the Department entered into EEO
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Settlement Agreement #4, in which the IRS agreed to reveal the name of the person who, on
October 14, 2010, made the TIGTA referral. The terms also included a commitment to the
discussion of the importance of EEO and diversity at a senior leadership meeting. See ECF 22-4
at Bates No. 00086.
Then, on February 24, 2011, plaintiff filed another EEO complaint, alleging that Tobias
had failed to return calls from plaintiff’s NTEU representative. Id. ¶ 115. Two weeks later,
plaintiff and the Department entered into their fifth EEO Settlement Agreement, which provided
plaintiff the opportunity to respond to the Removal Proposal by participating in an Oral Reply.
Id. ¶ 115. The Oral Reply took place on March 24. Id. ¶ 116. As part of the Oral Reply,
plaintiff included an email from Hansen to Tobias of October 7, 2010, in which Hart explained
that she did not discuss her issue with Hansen before filing an EEO complaint, because “‛you
can’t reason with a fool.’” Id. ¶ 116.
Hart filed another EEO Complaint on April 11, 2011, alleging that she did not receive her
annual performance review for the period of March 2010 through February 2011. Id. ¶ 117.
The Department issued its Decision Letter to Hart on May 9, 2011, informing plaintiff of
the Agency’s decision to dismiss her from her position. Id. ¶ 118. Plaintiff contacted an EEO
counselor on May 31, 2011, and proceeded to file a formal complaint challenging the termination
decision. Id. ¶ 119.
The Department issued its Final Agency Decision on April 17, 2012. It found that
Hansen had made discriminatory remarks but that plaintiff’s termination was not based on sex
discrimination or retaliation. Id.
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Plaintiff and the IRS executed EEO Settlement Agreement #6 on May 15, 2012, with
respect to plaintiff’s complaint of April 11, 2011. Id. ¶ 121. The IRS agreed to provide plaintiff
with a copy of a tax training manual. Id.
Hart filed suit in the United States District Court for the District of Columbia on May 31,
2012, alleging employment discrimination in violation of Title VII. See ECF 1. Title VII’s
venue provision, however, requires that Title VII actions be brought in the judicial district in the
state where: (1) the alleged wrongdoing was committed, (2) the relevant employment records are
maintained and administered, or (3) the plaintiff would have worked but for the alleged
discrimination.
42 U.S.C. § 2000e-5(f)(3).
Because “the plaintiff was working at the
defendant’s office in Baltimore, Maryland, when a substantial part of the alleged misconduct
occurred and when she was fired,” ECF 17, defendant moved to transfer the case to the District
of Maryland. See ECF 11. The District Court for the District of Columbia granted the motion on
November 7, 2012, ECF 17, and the case was docketed in this Court on November 29, 2012. See
ECF 18.
II. Standard of Review
Defendant’s motion is styled as a motion to dismiss under Fed. R. Civ. P. 12(b)(6) or, in
the alternative, for summary judgment under Fed. R. Civ. P. 56. The motion is supported by an
extensive record of administrative proceedings before the Department of the Treasury. See ECF
22-2, 22-4.
The purpose of a motion to dismiss is to test the sufficiency of the complaint. See
McBurrey v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010); Presley v. City of Charlottesville, 464
F.3d 480, 483 (4th Cir. 2006). A plaintiff’s complaint need only satisfy the standard of Rule
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8(a), which requires a “short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). However, “Rule 8(a)(2) still requires a ‘showing,’ rather than
a blanket assertion, of entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3
(2007). That showing must consist of more than “a formulaic recitation of the elements of a
cause of action” or “naked assertion[s] devoid of further factual enhancement.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted); see Painter’s Mill Grille, LLC v.
Brown, 716 F.3d 342, 350 (4th Cir. 2013).
To survive a motion under Fed. R. Civ. P. 12(b)(6), a complaint must contain facts
sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see
Iqbal, 556 U.S. at 684 (“Our decision in Twombly expounded the pleading standard for ‘all civil
actions’ . . . .”) (citation omitted); see also Simmons v. United Mortg. & Loan Inv., LLC, 634
F.3d 754, 768 (4th Cir. 2011). “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged, but it has not
‘show[n] . . . that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ.
P. 8(a)(2)). Thus, “[d]etermining whether a complaint states a plausible claim for relief will . . .
be a context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679.
“A court decides whether this standard is met by separating the legal conclusions from
the factual allegations, assuming the truth of only the factual allegations, and then determining
whether those allegations allow the court to reasonably infer” that the plaintiff is entitled to
relief. A Society Without A Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011). Dismissal “is
inappropriate unless, accepting as true the well-pled facts in the complaint and viewing them in
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the light most favorable to the plaintiff, the plaintiff is unable to ‘state a claim to relief.’”
Brockington v. Boykins, 637 F.3d 503, 505-06 (4th Cir. 2011) (citation omitted).
As indicated, under Rule 12(b)(6), the court must assume the truth of all well-pleaded
allegations in the complaint, as well as the reasonable inferences drawn from the facts. Albright
v. Oliver, 510 U.S. 266, 268 (1994); Brockington v. Boykins, supra, 637 F.3d at 505–06; E. I.
duPont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). So, it must
construe all factual allegations in the light most favorable to the plaintiff. See Harrison v.
Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). But, the court need not accept unsupported or
conclusory factual allegations devoid of any reference to actual events.
United Black
Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d
186, 193 (4th Cir. 2009). Nor must it accept legal conclusions couched as factual allegations.
Iqbal, 556 U.S. at 678.
Disputes of fact ordinarily “cannot be decided on a motion to dismiss . . . .” Andrew v.
Clark, 561 F.3d 261, 267 (4th Cir. 2009). Consequently, a motion pursuant to Rule 12(b)(6)
typically “does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)
(internal quotation marks omitted).
But, “in the relatively rare circumstances where facts
sufficient to rule on an affirmative defense are alleged in the complaint,” the court may resolve
the applicability of a defense by way of a Rule 12(b)(6) motion. Goodman v. Praxair, Inc., 494
F.3d 458, 464 (4th Cir. 2007). “This principle only applies, however, if all facts necessary to the
affirmative defense ‘clearly appear[] on the face of the complaint,’” or in other documents that
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are proper subjects of consideration under Rule 12(b)(6).
Id. (quoting Richmond,
Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993)) (emphasis in
Goodman). Moreover, because Hart is self-represented, her submissions are liberally construed.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Ordinarily, a court “is not to consider matters outside the pleadings . . . when ruling on a
motion to dismiss.” Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). However, a
motion styled in the alternative, i.e., to dismiss or for summary judgment, implicates the court’s
discretion under Fed. R. Civ. P. 12(d) to consider matters outside of the pleadings.
See
Kensington Vol. Fire Dept., Inc. v. Montgomery County, 788 F. Supp. 2d 431, 436–37 (D. Md.
2011). A district judge has “complete discretion to determine whether or not to accept the
submission of any material beyond the pleadings that is offered in conjunction with a Rule
12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not
consider it.” 5C Wright & Miller, Federal Practice & Procedure § 1366, at 159 (3d ed. 2004,
2011 Supp.). But, this discretion “should be exercised with great caution and attention to the
parties’ procedural rights.” Id. at 149. In general, courts are guided by whether consideration of
extraneous material “is likely to facilitate the disposition of the action,” and “whether discovery
prior to the utilization of the summary judgment procedure” is necessary. Id. at 165–67.
Where, as here, the movant expressly captions the motion “in the alternative,” as one to
dismiss or for summary judgment, and submits matters outside the pleadings for the court’s
consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may
occur; the court “does not have an obligation to notify parties of the obvious.” Laughlin v.
Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998). If the court determines to treat
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the motion as one for summary judgment under Rule 56, “[a]ll parties must be given a
reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P.
12(d).
Nevertheless, summary judgment is ordinarily inappropriate “where the parties have not
had an opportunity for reasonable discovery.” E.I. du Pont de Nemours and Co. v. Kolon Indus.,
Inc., 637 F.3d 435, 448 (4th Cir. 2011). In that circumstance, however, “the party opposing
summary judgment ‘cannot complain that summary judgment was granted without discovery
unless that party has made an attempt to oppose the motion on the grounds that more time was
needed for discovery.’” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th
Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)).
To raise adequately the issue that discovery is needed, the non-movant typically must file
an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why, “for
specified reasons, it cannot present facts essential to justify its opposition” without needed
discovery.
Fed. R. Civ. P. 56(d); see Harrods, 302 F.3d at 244–45 (discussing affidavit
requirement of former Rule 56(f)). Notably, “‘Rule 56(d) affidavits cannot simply demand
discovery for the sake of discovery.’” Hamilton v. Mayor & City Council of Baltimore, 807 F.
Supp. 2d 331, 342 (D. Md. 2011) (quoting Young v. UPS, No. DKC–08–2586, 2011 WL 665321,
at *20 (D. Md. Feb. 14, 2011)). “Rather, to justify a denial of summary judgment on the grounds
that additional discovery is necessary, the facts identified in a Rule 56 affidavit must be
‘essential to [the] opposition.’” Scott v. Nuvell Fin. Servs., LLC, 789 F. Supp. 2d 637, 641 (D.
Md. 2011) (alteration in original) (citation omitted). A non-moving party’s Rule 56 request for
additional discovery is properly denied “where the additional evidence sought for discovery
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would not have by itself created a genuine issue of material fact sufficient to defeat summary
judgment.” Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995); see
Amirmokri v. Abraham, 437 F. Supp. 2d 414, 420 (D. Md. 2006), aff’d, 266 F. App’x. 274 (4th
Cir. 2008), cert. denied, 555 U.S. 885 (2008).
Along with her Opposition, plaintiff submitted an affidavit under Rule 56 asserting a
need to conduct discovery. See 56(d) Affidavit, ECF 26-1.9 In the affidavit, plaintiff avers that,
in order to respond to defendant’s motion for summary judgment, she “requires the opportunity
to depose Defendant and others who have information relevant to the claims of this lawsuit.”
56(d) Affidavit at 2.
Defendant insists that the extensive administrative record provides plaintiff with all of the
information necessary for her to respond to the motion for summary judgment. See Reply at 8.
To be sure, the administrative record contains voluminous documentation of plaintiff’s claims of
discrimination, the steps the Department took to address Hart’s claims, the resolution of Hart’s
claims at the agency level, and affidavits from those Hart accuses of misconduct. None of the
administrative proceedings took place in an adversarial context, however. See 29 C.F.R. §
1614.108 (describing inquisitorial nature of investigation process); 29 C.F.R. § 1614.302 (noting
that a complainant in a mixed case complaint is not entitled to a hearing).
In a case such as this one, credibility is often in issue, and cannot be decided by a judge
on summary judgment. Moreover, without depositions, at which plaintiff can cross-examine
those she accuses of sex discrimination and retaliation, plaintiff has no means of ferreting out
inconsistencies or falsehoods in the statements of her alleged harassers. Cf. Goldberg v. Kelly,
9
Plaintiff’s affidavit is erroneously titled “Rule 56(f) Affidavit of Plaintiff Sydney S.
Hart.” But, the title of the affidavit does not alter its substance.
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397 U.S. 254, 269 (1970) (“In almost every setting where important decisions turn on questions
of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.”);
Elm Grove Coal Co. v. Dir., O.W.C.P, 480 F.3d 278, 301 (4th Cir. 2007) (extolling virtues of
cross-examination). Cross-examination is particularly valuable where, as here, a case turns on
the motives and intentions of those alleged of wrongdoing. It is only by subjecting a witness to
the rigors of cross-examination that a plaintiff, and eventually a factfinder, can assess the
credibility of those who disclaim any improper motivations. See, e.g., 5 Wigmore on Evidence §
1367 (3d ed. 1940) (referring to cross-examination as the “greatest legal engine ever invented for
the discovery of truth.”).
And, as defendant acknowledges, the findings made at the
administrative level have no force in this Court. See Memo at 16 n.7 (“Plaintiff’s claims are
subject to de novo review in this Court.”).
Accordingly, I conclude that it would be premature to consider a motion for summary
judgment before plaintiff has had an opportunity to engage in discovery. Accordingly, I will
consider defendant’s motion under Fed. R. Civ. P. 12(b)(6), without converting it into a
summary judgment motion under Rule 56.
As noted, a court ordinarily does not “consider matters outside the pleadings” when
ruling on a motion to dismiss.” Bosiger, supra, 510 F.3d at 450. However, “when a defendant
attaches a document to its motion to dismiss, ‘a court may consider it in determining whether to
dismiss the complaint [if] it was integral to and explicitly relied on in the complaint and [if] the
plaintiffs do not challenge its authenticity.’” Am. Chiropractic Ass’n v. Trigon Healthcare, Inc.,
367 F.3d 212, 234 (4th Cir. 2004) (alterations in original) (quoting Phillips v. LCI Int’l Inc., 190
F.3d 606, 618 (4th Cir. 1999)); see also Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th
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Cir. 2009) (observing that a court may properly consider documents “attached to the complaint,
as well those attached to the motion to dismiss, so long as they are integral to the complaint and
authentic” (citations omitted)). To be “integral,” a document must be one “that by its ‘very
existence, and not the mere information it contains, gives rise to the legal rights asserted.’”
Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F. Supp. 2d 602, 611 (D.
Md. 2011) (citation omitted) (emphasis in original).
In her complaint, plaintiff listed each of her settlement agreements and explicitly relied
on them in asserting that Raytheon retaliated against her immediately after executing the
agreements or fulfilling their terms. See, e.g., Compl. ¶¶ 17, 86, 97, 110, 114, 115, 121.
Moreover, plaintiff has not contested the authenticity of the settlement agreements appended to
defendant’s Motion.
Accordingly, I will consider them in analyzing various contentions
presented by the parties.
III. Discussion
Title VII provides that “[i]t shall be an unlawful employment practice for an
employer . . . to discharge any individual, or otherwise to discriminate against any individual . . .
because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–
2(a)(1). Moreover, Title VII prohibits employers from discriminating against an employee
because the employee has filed a grievance or complaint regarding an employment practice that
allegedly violates Title VII’s antidiscrimination provision. See id. § 2000e-3(a).10
10
Until it was amended in 1972 by the Equal Employment Opportunity Act, Title VII did
not protect federal employees. See 42 U.S.C. § 2000e(b) (excluding the United States from the
definition of “employer”). In 1972, however, Congress amended Title VII to provide that a
federal employee who has exhausted his administrative remedies “may file a civil action as
provided in section 2000e–5 of this title” against the “head of the department, agency, or unit, as
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Plaintiff claims that the Department violated Title VII by discriminating against her on
the basis of sex,11 because she failed to conform to gender norms, and in retaliation for filing
multiple EEO complaints against her employer.
Plaintiff’s Complaint contains numerous
allegations in more than 120 paragraphs of factual averments. But, it does not clearly state
which particular employment actions are the subject of her Title VII claim. Construing Hart’s
Complaint liberally, as I must, see Pardus, supra, 551 U.S. at 94, I assume plaintiff alleges that
the negative performance reviews, letters of admonishment, offensive comments, termination of
telecommuting privileges, and her discharge all violated Title VII. Before assessing the merits of
plaintiff’s claims, however, I must first address whether any of them are properly before the
Court.
A. Timeliness/Exhaustion/Preclusion
Defendant reads plaintiff’s complaint as alleging multiple violations of Title VII, but
contends that only the allegations related to her discharge are timely. According to defendant,
the other claims are barred for failure to exhaust administrative remedies or by the multiple
settlement agreements between Hart and the Department. See Memo at 7–10. In her Opposition,
plaintiff does not appear to contest defendant’s assertion, noting only that “the Plaintiff may still
use these acts as background evidence to support her claims [of discriminatory termination].”
appropriate.” 42 U.S.C. § 2000e–16(c); see Bullock v. Napolitano, 666 F.3d 281, 283–84 (4th
Cir. 2012), cert. denied, 133 S. Ct. 190 (2012).
11
Plaintiff’s Complaint uses the term “gender discrimination.” See, e.g., Compl. at 30.
However, Title VII’s text prohibits discrimination on the basis of “sex.” See 42 U.S.C. § 2000e2(a)(1). I will use the latter term when discussing plaintiff’s substantive discrimination claims,
and will use the term “gender” when referring to “gender norms” or “gender stereotyping.” See,
e.g., Smith v. City of Salem, Ohio, 378 F.3d 566, 573–74 (6th Cir. 2004).
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Opp. at 2 n.1. Moreover, plaintiff characterizes her claims as “arising from the termination of
her employment with the Defendant Agency.” Id. at 2.
Although a party has been found to abandon a claim by failing to respond to an argument
made in a motion, see Ferdinand–Davenport v. Children’s Guild, 742 F. Supp. 2d 772, 777 (D.
Md. 2010), I am reluctant to so hold where, as here, the plaintiff is self-represented. Cf. United
States v. Sasscer, Civ. No. Y–97–3026, 2000 WL 1479154, at *2 n.6 (D. Md. Aug. 25, 2000).
(“[T]he Court need not grant a motion to dismiss based on the failure to file a timely opposition
when the motion is plainly lacking in merit.”).
Accordingly, I will examine defendant’s
contentions that, with the exception of the claims related to plaintiff’s termination, plaintiff’s
claims are barred.
As a prerequisite to a civil suit, a federal employee must seek administrative review of
her grievance and comply with various administrative procedures. See Young v. Nat’l Ctr. for
Health Serv. Research, 828 F.2d 235, 237 (4th Cir. 1987). First, the employee must contact an
EEO counselor “within 45 days of the date of the matter alleged to be discriminatory or, in the
case of personnel action, within 45 days of the effective date of the action.” 29 C.F.R.
§ 1614.105(a)(1). In some cases, counseling will result in a withdrawal of the claim or a
settlement agreement between the employee and employer; these settlement agreements may
include a waiver of the employee’s right to file a civil suit concerning the matters that are the
subject of the agreement. See id. § 1614.504(a); Campbell v. Geren, 353 F. App’x 879, 882 (4th
Cir. 2009); Rock v. McHugh, 819 F. Supp. 2d 456, 468 (D. Md. 2011).
If counseling fails to resolve the matter, the EEO counselor will inform the employee of
her “right to file a discrimination complaint within 15 days of receipt of the notice . . . .” 29
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C.F.R. § 1614.105(d).
If the employee’s complaint is one over which the Merit Systems
Protection Board (“MSPB”) has jurisdiction, see 5 C.F.R. § 1201.3, the complaint is deemed a
“mixed case complaint” and the employee may proceed on one of two paths: she may file a
formal complaint with the agency that allegedly discriminated against her, or she may file an
appeal on the same matter with the MSPB (but not both). 29 C.F.R. § 1614.302. Because the
MSPB has jurisdiction over claims challenging “terminations of employment,” 5 C.F.R.
§ 1201.3(a)(1), plaintiff’s complaint is a mixed case complaint.
Of import here, if an employee files a formal complaint or appeal, but withdraws or
settles it before a final decision is issued, the employee has not exhausted her remedies and thus
may not file suit. See, e.g., Khoury v. Meserve, 268 F. Supp. 2d 600, 610–11 (D. Md. 2003) (“It
is well-established that a complainant who withdraws an appeal before the MSPB fails to exhaust
administrative remedies and is barred from filing a civil action in federal court.”), aff’d, 85 F.
App’x 960 (4th Cir. 2004); Vinieratos v. U.S. Dep’t of Air Force, 939 F.2d 762, 770–71 (9th Cir.
1991) (“Previous decisions by this court and others have held that abandonment of the
administrative process may suffice to terminate an administrative proceeding before a final
disposition is reached, thus preventing exhaustion and precluding judicial review.”).
If the aggrieved employee chooses to proceed with a formal complaint with the agency,
the agency then conducts an investigation. See 29 C.F.R. § 1614.106(e)(2). Under 29 C.F.R.
§ 1614.108, “the agency shall develop an impartial and appropriate factual record upon which to
make findings on the claims raised by the written complaint . . . Agencies may use an exchange
of letters or memoranda, interrogatories, investigations, fact-finding conferences or any other
fact-finding methods that efficiently and thoroughly address the matters at issue.” Notably, the
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agency does not conduct a hearing on a mixed case complaint. Id. § 1614.302(d)(2). If the
aggrieved employee is not satisfied with the agency’s final decision, she may appeal the matter
to the MSPB or may file a civil action in federal district court. Id. § 1614.302(d). With some
exceptions not relevant here, the employee must file her civil complaint within 30 days of receipt
of the agency’s final decision. Id. § 1614.310(a).
If an employee fails to comply with the administrative procedures outlined above, she has
failed to exhaust her administrative remedies and is barred from filing suit in federal court. See,
e.g., Miles v. Dell, Inc., 429 F.3d 480, 491 (4th Cir. 2005); Bryant v. Bell Atl. Md., Inc., 288 F.3d
124, 132 (4th Cir. 2002). “The exhaustion requirement ensures that the employer is put on
notice of the alleged violations so that the matter can be resolved out of court if possible.” Miles,
429 F.3d at 491. The filing of an administrative charge, therefore, “is not simply a formality to
be rushed through so that an individual can quickly file his subsequent lawsuit.” Chacko v.
Patuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005). Rather, the charge itself serves a vital function
in the process of remedying an unlawful employment practice. See Balas v. Huntington Ingalls
Industries, Inc., 711 F.3d 401, 406–7 (4th Cir. 2013).
Notably, the exhaustion requirement is jurisdictional. See id. at 406 (“[F]ederal courts
lack subject matter jurisdiction over Title VII claims for which a plaintiff has failed to exhaust
administrative remedies.”); Jones v. Calvert Group, Ltd., 551 F.3d 297, 300–01 (4th Cir. 2009).
And, facts showing the existence of subject matter jurisdiction “must be affirmatively alleged in
the complaint.” Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999).
To the extent that plaintiff’s claims of discrimination and retaliation are premised on any
employment action other than her termination, she has not exhausted administrative remedies.
- 24 -
As to those employment actions, plaintiff either never filed an administrative complaint, filed a
complaint and later withdrew it, settled her complaint, and/or contractually agreed not to litigate
on the subject of the complaint.
As noted, an aggrieved employee seeking to sue in federal court must first file a
complaint or MSPB appeal, and she generally must see it through to a final decision. Here,
plaintiff completed the above process only for her claim that her termination was discriminatory
and/or retaliatory. To be sure, she initiated the process several times by filing EEO complaints
with the IRS. But, she either withdrew or settled all of the complaints, other than her complaint
of May 31, 2011, challenging her termination. Specifically, she filed EEO complaints on July
13, 2006, id. ¶ 8; August 16, 2006, id. ¶ 11; November 3, 2006, id. ¶ 20; May 21, 2010, id. ¶ 79;
September 22, 2010, id. ¶ 89; October 20, 2010, id. ¶ 100; February 24, 2011, id. ¶ 115; and
April 11, 2011, id. ¶ 117, and either settled or withdrew them on August 8, 2006, id. ¶ 9;
September 15, 2006, id. ¶ 17; December 1, 2006, id. ¶ 22; July 21, 2010, id. ¶ 86; October 14,
2010, id. ¶ 97; February 1, 2011, id. ¶ 114; March 11, 2011, id. ¶ 115; and May 15, 2012, id.
¶ 121, respectively.12
Moreover, each of the settlement agreements between plaintiff and the Department
contains the following waiver (or one functionally equivalent to it):
12
Plaintiff also alleges that she “contacted the EEO office to lodge another complaint” on
February 14, 2007, Compl. ¶ 28, presumably regarding a memorandum Jones issued plaintiff
about her allegedly disruptive behavior on November 17, 2006. See id. ¶ 27. It is not clear
whether plaintiff actually filed an EEO complaint, and if so, whether the complaint was ever
resolved. See ¶¶ 36, 39 (noting that the NTEU pursued the issue, but not alleging any EEO
involvement). To the extent that plaintiff did file a formal complaint that the agency never
resolved, she may pursue that claim in federal court pursuant to 29 C.F.R. § 1614.310(g). See id.
(permitting civil suit “[a]fter 120 days from the date of filing a formal complaint if there is no
final action or appeal to the MSPB”).
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The Aggrieved hereby releases the Agency, its employees, officers, or
agents in their official and individual capacities, from any claims or liability
relating to the Aggrieved’s employment up to and including the execution of this
agreement. The Aggrieved waives his/her right to pursue administrative or
judicial action in any forum concerning matters relating to his/her allegation(s)
and agrees that the Aggrieved will not raise these matters in any future litigation.
See, e.g., ECF 22-4 at Bates No. 00083. In these settlement agreements, plaintiff waived her
right to pursue a judicial remedy for (1) the allegedly inappropriate comments about plaintiff’s
attire on June 9, 2006, see ECF 22-4 at Bates No. 00140–42; (2) the August 2006 negative case
reviews, see id.; (3) comments about her skirt, see id. at Bates No. 00135–36; (4) the April 2010
performance appraisal, see id.; (5) the September 2010 mid-year review, see id. at Bates No.
00126–29; (6) the email reporting her to TIGTA, see id. at Bates No. 00090–97; and (7) Tobias’
alleged failure to return phone calls from plaintiff’s NTEU representative, see id. at Bates No.
00081–84.
These settlement agreements also contain a provision that permits the complainant, if she
believes that the Department has breached the agreement, to notify the Director of the Office of
Civil Rights and Diversity and to “request that the terms of the settlement agreement be
specifically implemented or, alternatively, that the complaint be reinstated for further
processing.” See, e.g., ECF 22-4 at Bates No. 00098; see 29 C.F.R. § 1614.504(a). If the
Director finds that the Department has not complied with the agreement and the complainant
requests reinstatement of her complaint, “[f]urther processing will begin from the point
processing ceased under the terms of the agreement.” See, e.g., ECF 22-4 at Bates No. 00098;
see 29 C.F.R. § 1614.504(c). As to those claims that were settled, there are no allegations as to
revival of the claims in accordance with this process.
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In sum, the allegations that are not related to Hart’s termination cannot form the basis of
her Title VII claim.
As to those allegations, plaintiff either never filed an administrative
complaint, withdrew her complaint, settled her complaint, and/or contractually agreed not to
litigate on the subject of the complaint. Accordingly, I will grant defendant’s motion to dismiss
as to all claims in Counts I and II, other than those alleging that plaintiff’s termination was the
product of discrimination or retaliation. Put another way, the only remaining claims are those
regarding Hart’s termination, to which I now turn.
The Department issued its Final Agency Decision on April 17, 2012. Id. ¶ 119. But,
plaintiff did not file suit in federal court until May 31, 2012. See ECF 1. Accordingly, her suit
was untimely. However, the 30-day filing requirement is not a jurisdictional prerequisite to suit
in federal court. Rather, it is akin to a statute of limitations and therefore subject to waiver,
estoppel, and equitable tolling. Zografov v. V.A. Med. Ctr., 779 F.2d 967, 969 (4th Cir. 1985);
Medlock v. Rumsfeld, 336 F. Supp. 2d 452, 462 (D. Md. 2002) aff’d, 86 F. App’x 665 (4th Cir.
2004). Because defendant has not contested the timeliness of plaintiff’s Complaint, the issue is
waived.
B. Employment Discrimination
In Count I, plaintiff claims that she was subjected to “different treatment on the basis of
her gender, because [she] failed to conform to Management’s expectations of gender norms,”
and that “IRS Management routinely impeded [her] gender transition, by failing to accommodate
her needs.” Compl. ¶ 123. Further, Hart avers that defendant discriminated against her “by
treating her differently from and less preferably than similarly-situated male employees . . . .”
Id. ¶ 124.
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In response, the Department argues that “Plaintiff cannot sustain a prima facie case of sex
discrimination because she was not performing her job at a level that met the Agency’s
legitimate expectations at the time of her removal and she cannot prove that her removal
occurred under circumstances giving rise to an inference of discrimination.” Memo at 11. In
this regard, defendant also points out that the decisionmakers were members of the same
protected class. Id. at 13; see, e.g., James v. Verizon, 792 F.Supp. 2d 861, 869-70 (D. Md. 2011).
Further, defendant asserts that plaintiff cannot show that the Department’s “legitimate
nondiscriminatory reasons” for terminating her employment were “a pretext for discrimination.”
Id. at 14.
As noted, Title VII provides: “It shall be an unlawful employment practice for an
employer . . . to discharge any individual, or otherwise to discriminate against any individual . . .
because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–
2(a)(1). As the statutory language makes clear, Title VII only provides a civil remedy to
individuals who were discriminated against on the basis of certain enumerated characteristics,
one of which is “sex.” See id. Plaintiff seems to allege that she was discriminated against based
on her sex, because she is a transsexual, and because she failed to conform to gender norms.
Defendant does not contend that plaintiff, as a transsexual, is not protected by Title VII’s
prohibition on sex discrimination, and so I will assume for purposes of this motion that plaintiff
is within Title VII’s aegis.13
13
Courts have disagreed about whether discrimination against transsexuals is discrimination on the basis of “sex” and thus whether a transsexual may state a claim for relief under
Title VII when she alleges that she was discriminated against because of her transsexuality. See
generally Jason Lee, Lost in Transition: The Challenges of Remedying Transgender Employment
Discrimination Under Title VII, 35 Harv. J. L. & Gender 423, 430 (2012); compare Schroer v.
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1. Employment Discrimination - Methods of Proof
Title VII prohibits an employer from taking “adverse employment action” against an
employee on a prohibited basis. James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th
Cir. 2004). An “adverse employment action” is one that “‘constitutes a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.’” Hoyle v.
Freightliner, LLC, 650 F.3d at 337 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761
(1998)). Typically, an adverse employment action has been found in cases of “discharge,
demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, or reduced
opportunities for promotion.” Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999); see also
James, 368 F.3d at 376. But, “Title VII does not remedy everything that makes an employee
unhappy.” Jeffers v. Thompson, 264 F. Supp. 2d 314, 329 (D. Md. 2003).
In general, there are “two avenues” at trial by which a plaintiff may prove that an adverse
employment action amounts to intentional employment discrimination. Hill v. Lockheed Martin
Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004) (en banc). The first is to offer evidence
of discrimination, under “‘ordinary principles of proof.’” Burns v. AAF–McQuay, Inc., 96 F.3d
728, 731 (4th Cir. 1996) (citation omitted). To satisfy ordinary principles of proof, a plaintiff at
trial must provide direct or circumstantial evidence of discrimination that is sufficiently
probative to meet her burden of proof. See Evans v. Technologies Applications & Serv. Co., 80
F.3d 954, 959 (4th Cir. 1996).
Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) with Ulane v. E. Airlines, Inc., 742 F.2d 1081,
1082 (7th Cir. 1984).
- 29 -
The second avenue available to the plaintiff at trial is to follow the burden-shifting
approach first articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Under this approach, the plaintiff must first establish a “prima facie case of
discrimination.” Laing v. Fed. Exp. Corp., 703 F.3d 713, 719 (4th Cir. 2013); see Merritt v. Old
Dominion Freight Line, Inc., 601 F.3d 289, 294 (4th Cir. 2010).
Although the precise
formulation of the required prima facie showing will vary in “different factual situations,”
McDonnell Douglas, 411 U.S. at 802 n.13, the plaintiff in an employment discrimination suit is
generally required to show that the employer took adverse action against the plaintiff “under
circumstances which give rise to an inference of unlawful discrimination.” Texas Dept. of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the plaintiff/employee establishes a prima facie
case, “a presumption of illegal discrimination arises, and the burden of production shifts to the
employer” to produce evidence of a legitimate, non-discriminatory reason for its adverse
employment action. Hoyle, 650 F.3d at 336; see Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 142 (2000). “If the defendant carries this burden of production,” the plaintiff must
then prove, by a preponderance of the evidence, “that the proffered reason was not the true
reason,” and that the plaintiff “has been the victim of intentional discrimination.” See Burdine,
450 U.S. at 255–56; see also Reeves, 530 U.S. at 142.
These two methods of proof establish the standards to prove intentional employment
discrimination at trial. Hill, 354 F.3d at 284. But, at the motion to dismiss stage, they only serve
to inform a court’s evaluation of the allegations. Accordingly, in a Title VII discrimination
claim, “a complaint in an employment discrimination lawsuit [need] not contain specific facts
establishing a prima facie case of discrimination under the framework set forth in McDonnell
- 30 -
Douglas.” Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 508 (2002) (emphasis added). Rather,
as with any other claim falling within the purview of Rule 8(a), “to survive a motion to dismiss,
the complaint must ‘state a plausible claim for relief’ that ‘permit[s] the court to infer more than
the mere possibility of misconduct’ based upon ‘its judicial experience and common sense.’”
Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff’d, ––– U.S. ––––,
132 S. Ct. 1327 (2012).
2. Plaintiff’s Discrimination Claim
Plaintiff has alleged facts sufficient to state a claim of sex discrimination in employment
that is plausible on its face. Her allegations allow the Court “to draw the reasonable inference”
that she was discharged because of her sex, her status as a transsexual, and/or her failure to
conform with gender norms. See Iqbal, 556 U.S. at 680.
Hart’s Complaint is replete with allegations of incidents in which her supervisors made
improper remarks or took improper actions based on sex.14 Further, she alleges that these
incidents were motivated by animus or discomfort with plaintiff’s status as a transsexual or with
her status as a female. For example, plaintiff alleges that Hansen made several inappropriate
remarks regarding plaintiff’s transition from male to female. In particular, plaintiff alleges that
Hansen commented on her appearance, which led another manager to advise Hansen to “[not]
even go there,” id. ¶ 60; “set a tone for the workgroup” that prompted plaintiff to request EEO
sensitivity training for the workgroup, id. ¶ 61; criticized plaintiff’s skirt length, id. ¶ 62, 95;
made false accusations, id. ¶ 83; and was otherwise hostile and disrespectful toward plaintiff, id.
14
As noted, plaintiff is barred from premising a stand-alone claim of discrimination on
these or other incidents. However, as plaintiff recognizes, see Opp. at 2 n.1, she may still use
these acts as background evidence to support her claim that her termination was discriminatory
and/or retaliatory. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, (2002).
- 31 -
¶ 63. Additionally, plaintiff alleges that Tobias failed to take appropriate disciplinary action after
plaintiff reported that a coworker had made inappropriate remarks about Hart’s prior EEO
complaints and her sex. Id. ¶ 108; see id. ¶¶ 82, 85.
Moreover, plaintiff alleges that her supervisors attempted to impede her gender transition
in at least three ways. First, plaintiff alleges that even after she started Hormone Replacement
Therapy, her supervisors repeatedly denied her access to the women’s restroom, and in doing so
referred to her “male genitalia.” Compl. ¶¶ 45, 48. While the restroom dispute was ongoing,
Hendricks issued a letter of admonishment to Hart, which plaintiff suggests had more to do with
discomfort with her requests for restroom access than with actual misbehavior. Id. ¶¶ 49–50.
Second, although Hansen did not request medical documentation for plaintiff’s use of sick leave
unrelated to her gender transition, id. ¶ 64, plaintiff alleges that Hansen requested medical
documentation for plaintiff’s proposed use of sick leave in connection with her sex change
surgery. Id. ¶ 68. Third, plaintiff alleges that, just prior to her sex change surgery, Hansen
refused to accommodate her request for a telephone workload review despite his regular practice
of conducting telephone reviews with other revenue agents. Id. ¶ 70.
Plaintiff has also alleged that she was treated less favorably after her gender reassignment
surgery.
For example, plaintiff alleges that Tobias and Hansen decreased her ratings on
performance reviews from an average of 4.2 to an average of 3.2 after she returned to work
following her surgery, id. ¶ 79, and that “the severity and frequency of disciplinary action from
IRS Management” increased after she began her transition from male to female. Id. ¶ 115.
Defendant does not appear to seriously contest that plaintiff has stated a claim for sex
discrimination sufficient to survive a 12(b)(6) motion. Defendant’s Motion, styled alternatively
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as a motion to dismiss or for summary judgment, speaks almost entirely in the language of
summary judgment. For example, the Motion makes extensive references to the administrative
record, see, e.g., Memo at 11; argues that plaintiff has failed to make out a prima facie case
under the McDonnell Douglas proof scheme, see, e.g., id. at 13; and asserts that plaintiff cannot
show that the Department’s nondiscriminatory reasons for terminating her employment were
pretextual. Id. at 14. However, as discussed above, the Court generally does not refer to matters
outside of the pleadings in resolving a motion to dismiss, nor does it resolve factual disputes.
Moreover, and of critical import here, plaintiff is not required by Rule 8(a) to make out a prima
facie case at this stage. Put another way, the McDonnell Douglas burden-shifting approach,
central to defendant’s argument, does not apply at the motion to dismiss stage.
Defendant will have the opportunity to rebut plaintiff’s contentions and to proffer
legitimate, nondiscriminatory reasons for its termination of plaintiff’s employment, such as the
deficiencies and inadequacies of her performance. See Memo at 11 (arguing that “the Agency
proposed the removal of Plaintiff based on 14 specifications of failing to follow management
directives, two specifications of exhibiting unprofessional behavior, three specifications of
failing to follow proper leave procedures, and 15 specifications of being AWOL”); see also
McDonnell Douglas, 411 U.S. at 802.
And, I may ultimately be persuaded by evidence
supporting defendant’s explanation. However, to survive a motion to dismiss, a plaintiff need
only show that she was terminated “under circumstances which give rise to an inference of
unlawful discrimination.” Burdine, 450 U.S. at 253. In light of Hart’s allegations that her
supervisors harbored animus and hostility regarding her appearance, dress, sex, and gender
transition, I conclude that she has presented allegations sufficient to withstand a motion to
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dismiss. Accordingly, I will deny defendant’s Motion as it relates to plaintiff’s claim in Count I
that her termination was the product of sex discrimination.
C. Retaliation
In Count II, plaintiff asserts a claim for retaliation under Title VII. Hart avers that she
filed several EEO complaints and several collective bargaining grievances throughout her
employment with the Department.
See, e.g., Compl. ¶ 129.
Further, she alleges that, in
retaliation for her complaints, her supervisors took numerous adverse actions against her, leading
up to and including her termination. Id. ¶ 130. The Department assumes for the purposes of its
motion that plaintiff has stated a prima facie case of retaliation, but argues that she “she cannot
prove that Defendant’s legitimate nonretaliatory reasons for her removal are a pretext for
retaliation.” Memo at 16.
Title VII prohibits an employer from retaliating against an employee who exercises her
Title VII rights. See, e.g., Okoli v. City Of Baltimore, 648 F.3d 216, 223 (4th Cir. 2011). The
purpose of Title VII’s antiretaliation provision is to maintain “unfettered access to statutory
remedial mechanisms” for employees who fear reprisal. Robinson v. Shell Oil Co., 519 U.S.
337, 346 (1997). In order to establish a prima facie claim of retaliation under Title VII, a
plaintiff “must show that [she] engaged in protected activity, that [her employer] took adverse
action against [her], and that a causal relationship existed between the protected activity and the
adverse employment activity.” Price v. Thompson, 380 F.3d 209, 212 (4th Cir. 2004). As with a
substantive discrimination claim, the McDonnell Douglas framework applies at trial: “If a
plaintiff ‘puts forth sufficient evidence to establish a prima facie case of retaliation’ and a
defendant ‘offers a non-discriminatory explanation’ for [the adverse action], the plaintiff ‘bears
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the burden of establishing that the employer’s proffered explanation is pretext.’” Hoyle, 650
F.3d at 337 (quoting Yashenko v. Harrah’s Casino, 446 F.3d 541, 551 (4th Cir. 2006)).
As indicated, a plaintiff at trial must establish that she engaged in protected activity. “An
employer may not retaliate against an employee for participating in an ongoing investigation or
proceeding under Title VII, nor may the employer take adverse employment action against an
employee for opposing discriminatory practices in the workplace.”
Laughlin v. Metro.
Washington Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998). As the Fourth Circuit has said,
“[t]o fall under the protection of the opposition clause . . . behavior need not rise to the level of
formal charges of discrimination. The opposition clause has been held to encompass informal
protests, such as voicing complaints to employers or using an employer’s grievance procedures.”
Armstrong v. Index Journal Co., 47 F.2d 441, 448 (4th Cir. 1981) (citation omitted).
The second element of the prima facie case is an “adverse employment action.” In a
retaliation claim, the standard for an adverse employment action is more lenient than for a
substantive discrimination claim. Burlington Northern & Santa Fe Railway Co. v. White, 548
U.S. 53, 64 (2006) (“[T]he antiretaliation provision, unlike the substantive provision, is not
limited to discriminatory actions that affect the terms and conditions of employment.”). A
plaintiff need only show that the challenged action “might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.” Burlington Northern, supra, 548 U.S. at
68 (quotation marks and citations omitted). Nonetheless, “[t]he anti-retaliation provision of Title
VII does not protect against ‘petty slights, minor annoyances, and simple lack of good
manners.’” Geist, supra, 671 F. Supp. 2d at 738 (quoting Burlington Northern, 548 U.S. at 68).
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To satisfy the third element, a causal connection between the protected activity and the
adverse action, a plaintiff at trial must show that “the employer [took] the adverse employment
action because the plaintiff engaged in a protected activity.” Dowe v. Total Action Against
Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998) (emphasis in original). The Fourth
Circuit “has held that evidence that the alleged adverse action occurred shortly after the
employer became aware of the protected activity is sufficient to ‘satisf[y] the less onerous burden
of making a prima facie case of causa[tion].’” Id. (quoting Williams, supra, 871 F.2d at 457)
(emphasis and alterations in Dowe). Conversely, “the opposite [is] equally true,” so that “[a]
lengthy time lapse between the employer becoming aware of the protected activity and the
alleged adverse employment action . . . negates any inference that a causal connection exists
between the two.” Dowe, 145 F.3d at 657 (finding a period of time exceeding three years too
lengthy to give rise to the inference of a causal connection).
Plaintiff’s allegations “give rise to an inference” that she was terminated in retaliation for
filing numerous complaints and grievances against her supervisors. See Burdine, 450 U.S. at
253.
The Complaint is replete with allegations that Hart filed countless complaints and
grievances throughout her employment, alleging gender discrimination and retaliation. See, e.g.,
Compl. ¶¶ 8, 11, 20, 28, 49, 67, 79, 115, 117, 118.
These complaints clearly qualify as
“protected activity.” See, e.g., Okoli, 648 F.3d at 223. And, Hart clearly suffered an adverse
employment action when the Department terminated her employment.
Plaintiff has also alleged that she was terminated “because” she engaged in protected
activity. According to Hart, her supervisors expressed anger and disapproval with her for
repeatedly filing EEO complaints. For example, she alleges that Hansen chastised her for not
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having the “guts” to speak with him before contacting an EEO counselor, Compl. ¶ 95; accused
her of going “‘around his back to the NTEU,’” id. ¶ 62; told her that she filed “‘too many EEO
complaints,’” id. ¶ 62; and questioned her about how much time she had spent speaking with
EEO counselors, id. ¶ 95. Plaintiff’s allegations also demonstrate temporal proximity between
her protected activity and the alleged retaliatory action; the Department allegedly began the
process of discharging Hart from employment just one day after it fulfilled the terms of
Settlement Agreement #2. Id. ¶ 110.
Moreover, plaintiff suggests that her numerous complaints had a cumulative effect; that
is, she filed a complaint, was retaliated against, filed a new complaint alleging retaliation, and
was retaliated against for that subsequent complaint.
See, e.g., id. ¶¶ 27, 95, 130.
Her
allegations of retaliatory action during her employment include allegations that the Department
issued letters of admonishment to her, deprived her of promotional opportunities given to other
employees, terminated her telecommuting privileges, and repeatedly designated her as
“AWOL”—all as punishment for her protected activity. See, e.g., id. ¶¶ 26, 62, 80, 103, 108,
110, 119, 130. Plaintiff’s allegations that she was retaliated against multiple times throughout
her employment support her assertion that she was fired in retaliation for her history of
complaints.
As with plaintiff’s sex discrimination claim, defendant does not seriously contest that
plaintiff has stated a claim for retaliation sufficient to survive a 12(b)(6) motion.
Instead,
defendant argues that plaintiff “cannot prove that Defendant’s legitimate nonretaliatory reasons
for her removal are a pretext for retaliation.” Memo at 16; see also id. at 17 (“Plaintiff cannot
show by a preponderance of the evidence . . . .”). But, to survive a motion to dismiss, plaintiff
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need not prove anything.
Indeed, she need not even allege that defendant’s proffered
explanation is a pretext. This, of course, is because a plaintiff, when filing her complaint, does
not yet know what explanation a defendant will proffer and has not yet had the opportunity to
uncover evidence of pretext. Plaintiff need only allege sufficient facts that, when taken as true,
establish the plausibility of her claim.
Defendant’s Motion is largely written in the language of summary judgment. Because I
have declined to convert defendant’s Motion into one for summary judgment, many of
defendant’s arguments are inapplicable at this stage of the proceedings.
Although these
arguments may become applicable upon the conclusion of discovery, it would be premature to
consider them at this juncture. Given that plaintiff has adequately alleged facts that establish the
plausibility of her claim that her termination was retaliatory, I will deny defendant’s Motion as it
relates to plaintiff’s claim in Count II that her termination was retaliatory.
CONCLUSION
For the foregoing reasons, the Department’s Motion is granted in part and denied in part.
A separate Order, consistent with this Memorandum, follows.
Date: September 23, 2013
/s/
Ellen L. Hollander
United States District Judge
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