Dailey v. Lew et al
Filing
42
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 4/18/2016. (c/m 4/18/16 ca2s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MITZI E. DAILEY,
:
Plaintiff,
:
v.
:
JACOB J. LEW, et al.
:
Defendants.
Civil Action No. GLR-15-2527
:
MEMORANDUM OPINION
THIS MATTER is before the Court on Defendant Leonard Getz’s
Motion to Dismiss (ECF No. 15) and Defendant Secretary of the
United States Department of the Treasury (“Treasury”) Jacob J.
Lew’s Motion to Dismiss or, in the Alternative, Motion for Summary
Judgment1 (ECF No. 24).
Dailey’s
Motion
for
Also pending are pro se Plaintiff Mitzi E.
Extension
of
Time
to
Serve
Process
on
Defendants2 (ECF No. 23), Motion for Preliminary Injunction (ECF
No.
30),
1
and
Motion
for
a
Temporary
Restraining
Order
and
Under Title VII of the Civil Rights Act of 1964 (“Title
VII”), as amended, 42 U.S.C. §§ 2000e et seq. (2012), civil actions
against federal employers must be brought against “the head of the
department, agency, or unit, as appropriate.” § 2000e-16(c); accord
Gardner v. Gartman, 880 F.2d 797, 799 (4th Cir. 1989) (“[T]he head
of the department for which the plaintiff works is the proper
defendant in a sex or race discrimination suit”).
“Title VII
prohibits a plaintiff from filing an employment discrimination
claim against an individual federal employee.” Stoyanov v. Mabus,
126 F.Supp.3d 531, 540 (D.Md. 2015) (quoting Stoyanov v. Mabus, No.
CCB–06–2968, 2010 WL 4918700, at *4 (D.Md. Nov. 24, 2010)).
As
head of Treasury, Lew is the only proper government defendant for
Dailey’s Title VII claims. Accordingly, the Court will grant the
Motion to Dismiss (ECF No. 24) as to the nine IRS Appeals Office
employees named in Dailey’s Complaint, leaving Lew as the sole
remaining government defendant.
2
Because counsel have entered their appearance on behalf of
all Defendants, the Court will deny this Motion as moot.
Preliminary Injunction (ECF No. 31).3
The Court, having reviewed
the Motions and supporting documents, finds no hearing necessary.
See Local Rule 105.6 (D.Md. 2014).
For the reasons outlined below,
the Court will grant Getz’s and Lew’s Motions and deny Dailey’s
Motions.
I.
BACKGROUND4
Dailey is an Internal Revenue Service (“IRS”) Appeals Officer
in IRS’s Baltimore Office of Appeals, a National Treasury Employees
Union (“NTEU”) Local 90 member, and
Maryland.
2007.
an
attorney licensed in
Dailey has been employed by the IRS Appeals Office since
She is the only African-American female employee in the
Baltimore Appeals Office.
Getz is
an IRS Appeals employee,
President of NTEU Local 90, and Dailey’s union representative.
On or about December 13, 2013, Dailey filed an appeal with the
United States Equal Opportunity Employment Commission (“EEOC”)5
regarding an admonishment letter she received for complaining to
upper level management about her supervisor invading her privacy.
Dailey asserts that since filing the EEOC appeal, the IRS Appeals
3
Also pending before the Court are Dailey’s two Motions for
Entry of Default Final Judgment: one as to Defendant Lawrence W.
Ford (ECF No. 34) and the other as to Defendant Milissa K. Riggs
(ECF No. 35). Because the Court will grant Lew’s motion to dismiss
the IRS Appeals Office employees, thereby terminating Ford and
Riggs as Defendants, the Court will deny Dailey’s Motions.
4
The Court has taken the facts from Dailey’s Complaint and
its exhibits.
The Court assumes the truth of these facts for
purposes of resolving Lew’s Motion to Dismiss.
5
Dailey does not state when she filed her initial charge with
the EEOC.
2
Office management has subjected her to “the most severe, harsh, and
outrageous acts of retaliation.”
(Compl. ¶ 22, ECF No. 1).
Dailey
also alleges the NTEU “president and/or its representatives” owed
her a duty of fair representation, but “refused and repeatedly
denied” her representation and allowed these acts of retaliation to
continue.
(Id. ¶ 45).
Dailey does not assert any specific
allegations against Getz.
The alleged retaliatory conduct perpetrated by the IRS Appeals
Office management began in February 2014 when Dailey’s performance
rating was lowered from 4.8 to a 4.6 (on a 5.0 scale).
Then, on
November 7, 2014, Dailey’s supervisor, Glen Polser, suspended her
Telework Arrangement, effective November 15, 2014, due to Dailey
failing to communicate with him, failing to provide her work
schedule,
and
disabling
the
Office
Communicator
Server.
On
December 1, 2014, Dailey filed a grievance with the IRS Appeals
Office management, requesting reconsideration of her removal from
telework.
On December 10, 2014, while her grievance was still
pending, Dailey filed a request for a new Telework Arrangement with
her new supervisor, Defendant Larry Ford.
request because of her pending grievance.
Ford denied Dailey’s
Also in December 2014,
Dailey’s performance rating was lowered again, this time from 4.6
to 4.2.
On
January
13,
2015,
Defendant
Director
of
IRS
Appeals
Operations East, Scott Reisher, issued a memorandum addressing
3
Dailey’s telework grievance.6
In the memorandum, Reisher proposed
reinstatement of a Frequent Telework Arrangement conditioned upon
Dailey maintaining acceptable communication with her manager and
providing “evidence of [her] withdrawal of [her] EEO complaint/case
no later than January 21, 2015.”
(Compl. Ex. 6, ECF No. 1-7).
Dailey does not state whether she accepted Reisher’s proposal.
On April 2, 2015, Ford denied another request from Dailey for
a Telework Arrangement.7
In his response to Dailey, Ford cited
Article 50, Section 2K of NTEU 2012 National Agreement II, which
permits a supervisor to “temporarily suspend, modify or terminate a
Telework arrangement” for specific reasons, including failure to
communicate with managers.
(Compl. Ex. 9, ECF No. 1-11).
Ford
identified instances in which Dailey failed to communicate with
him, including not timely responding to action items and not
responding
to
two
electronic
Dailey’s telework request.
calendar
(Id.)
invitations
to
discuss
During this timeframe, on or
about February 11, 2015, Dailey alleges Ford conducted a “search
and
seizure”
of
her
case
files
and
then
issued
managerial
directives and an admonishment letter addressing Dailey’s failure
6
Dailey correctly notes that the year on Reisher’s
memorandum, dated January 13, 2014, is incorrect.
7
Dailey also alleges she was wrongfully denied the ability to
telework during the civil unrest in Baltimore in April 2015.
Dailey does not, however, provide specific dates on which she was
denied the ability to telework or the circumstances surrounding the
denials.
4
to make her files available and refusal to meet with him.8
(Compl.
¶ 34).
Dailey further asserts that since December 2014, Ford and
“upper levels of Appeals Management” have wrongfully imposed Leave
Without Pay (“LWOP”) or Away Without Leave (“AWOL”).
(Id. ¶ 40).
Dailey alleges that her supervisors improperly charged her with
AWOL hours on five specific dates in March and August 2015.
27, 2015,
On May
Ford issued Dailey a Leave Counseling Memo, which
notified Dailey that she had used all of her advanced annual leave
for the year, and, as such, Ford would charge her AWOL hours if she
did not request LWOP.
On June 25, 2015, Ford issued Dailey a Leave
Restriction Memorandum, notifying her that her sick leave balance
was negative 164.5 hours and her annual leave balance was negative
83.5 hours.
(Compl. Ex. 11, at 2, ECF No. 1-13).
The Leave
Restriction Memorandum also set forth the conditions under which
her requests for leave would be approved for the next six months.
On August 26, 2015, Dailey filed her Complaint alleging
employment discrimination based on her race and sex (Count I9) and
retaliation (Counts II through XII) in violation of Title VII.
(ECF No. 1).
8
In Counts II through XII, Dailey also includes claims
Dailey does not state when the managerial directives or
admonishment letter were issued.
9
Dailey uses the term “Claim,” which the Court will construe
as a Count. Also, Dailey does not number her discrimination claim
or her third retaliation claim. The Court will consider Dailey’s
discrimination claim as Count I and sequentially number her
successive claims.
5
for breach of the duty of fair representation.10
(Id.).
On
November 30, 2015, Getz filed a Motion to Dismiss for lack of
subject-matter
jurisdiction.
(ECF
No.
15).
Dailey
filed
an
Opposition11 to Getz’s Motion on December 17, 2015 (ECF No. 21), to
which Getz filed a Reply on December 31, 2015 (ECF No. 25).
On
December 23, 2015, Lew filed a Motion to Dismiss or, in the
Alternative, for Summary Judgment (ECF No. 24).
10
Dailey filed an
At the end of her Complaint, Dailey presents an entirely
unadorned
laundry
list
of
additional
claims,
including:
“American[s] with Disability Act,” “Family Medical Leave Act,”
“Reasonable Accommodations,” “Privacy Laws,” “First Amendment,”
“Fourteenth
Amendment,”
and
“Contractual
violations.”
(Compl. ¶¶ 59–65). Because Dailey fails to provide any factual
support for these claims, the Court will dismiss them. See Eriline
Co. S.A. v. Johnson, 440 F.3d 648, 655 n.10 (4th Cir. 2006) (“Where
the face of a complaint plainly fails to state a claim for relief,
a district court has ‘no discretion’ but to dismiss it.” (quoting
5A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1357 (2d ed. 1990))).
11
In her Opposition to Getz’s Motion to Dismiss, Dailey
advances for the first time her Title VII claims against Getz, and
requests leave to amend her Complaint accordingly. (Pl.’s Opp’n to
Def.’s Getz Mot. to Dismiss 7, ECF No. 21). Federal Rule of Civil
Procedure 15(a) provides that a party may amend its pleading once
as a matter of course within twenty-one days after service of a
motion under Rule 12(b).
Because Dailey did not meet this
deadline, the Court may grant her leave to amend her Complaint if
“justice so requires.” Fed.R.Civ.P. 15(a)(2). The Court should
deny leave to amend when the amendment would be futile. Laber v.
Harvey, 438 F.3d 404, 426 (4th Cir. 2006). Futility is apparent
when an amended complaint could not survive a motion to
dismiss. Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995
(first citing Glick v. Koenig, 766 F.2d 265, 268–69 (7th Cir.
1985); then citing 6 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1487 n.26 (2d ed. 1990)).
As previously established, out of all Defendants that Dailey
names, Lew is the only proper Defendant for Dailey’s Title VII
claims. 42 U.S.C. § 2000e-16(c); see supra note 1. The Court,
therefore, concludes that granting leave to amend would be futile
and will deny Dailey’s request.
6
Opposition to Lew’s Motion on January 11, 2016 (ECF No. 26) to
which Lew filed a Reply on February 11, 2016 (ECF No. 32).
II.
A.
DISCUSSION
Getz’s Motion to Dismiss
1.
Standard of Review
Rule 12(b)(1) governs motions to dismiss for lack of subjectmatter jurisdiction.
While the plaintiff bears the burden of
proving the court has jurisdiction over the claim or controversy at
issue, a Rule 12(b)(1) motion should only be granted if the
“material jurisdictional facts are not in dispute and the moving
party is entitled to prevail as a matter of law.”
Ferdinand–
Davenport v. Children’s Guild, 742 F.Supp.2d 772, 777 (D.Md. 2010)
(quoting Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.
1999)).
The pleadings should be regarded as “mere evidence on the
issue,” and courts “may consider evidence outside the pleadings
without converting the proceeding to one for summary judgment.”
Evans, 166 F.3d at 647 (quoting Richmond, Fredericksburg & Potomac
R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991)).
Pro se pleadings are liberally construed and held to a less
stringent standard than pleadings drafted by lawyers.12
Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S.
97, 106 (1976)); Brown v. N.C. Dep’t of Corr., 612 F.3d 720, 722
12
It should be noted, however, that Dailey is an attorney
licensed to practice law in Maryland.
7
(4th Cir. 2010).
“Liberal construction does not mean, however,
that the court can ignore a clear failure in pleadings to allege
facts which set forth a claim cognizable in a federal district
court.”
Deabreu v. Novastar Home Mortg., Inc., No. DKC 11-3692,
2012 WL 2000689, at *2 (D.Md. June 4, 2012) (citing Weller v. Dep’t
of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990)).
2.
Analysis
Getz argues the Court lacks subject-matter jurisdiction over
Dailey’s claims for breach of the duty of fair representation
because
the
Federal
Labor
Relations
Authority
exclusive jurisdiction over those claims.
(“FLRA”)
has
Because Dailey is a
union member in the federal, rather than private, sector, Title VII
of the Civil Service Reform Act (“CSRA”), 5 U.S.C. §§ 7101 et seq.
(2012), governs her claims.
Karahalios v. Nat’l Fed’n of Fed.
Emps., Local 1263, 489 U.S. 527, 531 (1989).
Title VII of the CSRA
does not permit federal employees to sue their unions in federal
court for breach of the duty of fair representation.
536.
Id. at 533,
Rather, the FLRA has exclusive enforcement authority over
this duty.
Id. at 533.
Thus, the Court concludes that it lacks
subject-matter jurisdiction over Dailey’s claims for breach of the
duty of fair representation and will grant Getz’s Motion.
8
B.
Lew’s Motion to Dismiss or, in the Alternative, Motion for
Summary Judgment
1.
Standard of Review
Lew styles his Motion as a motion to dismiss under Rule
12(b)(6) or, in the alternative, for summary judgment under Rule
56.
A
motion
styled
in
this
discretion under Rule 12(d).
manner
implicates
the
Court’s
See Kensington Vol. Fire Dep’t, Inc.
v. Montgomery Cty., 788 F.Supp.2d 431, 436–37 (D.Md. 2011), aff’d
sub nom., Kensington Vol. Fire Dep’t, Inc. v. Montgomery Cty., Md.,
684 F.3d 462 (4th Cir. 2012).
Pursuant to Rule 12(d), when
“matters outside the pleadings are presented to and not excluded by
the court, the [Rule 12(b)(6)] motion must be treated as one for
summary
judgment
under
Rule
56.”
The
Court
“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.’”
Wells-Bey v.
Kopp, No. ELH-12-2319, 2013 WL 1700927, at *5 (D.Md. Apr. 16, 2013)
(quoting 5C
Charles Alan Wright & Arthur R. Miller,
Federal
Practice and Procedure § 1366 (3d ed. 2004 & 2012 Supp.)).
Because
the
Court
will
not
consider
the
extra-pleading
material
Lew
presents in support of his Motion, the Court will construe the
Motion as a Rule 12(b)(6) motion to dismiss.
“The
purpose
of
a
Rule
12(b)(6)
motion
is
to
test
the
sufficiency of a complaint,” not to “resolve contests surrounding
9
the
facts,
the
defenses.”
merits
of
a
claim,
or
the
applicability
of
Edwards v. City of Goldsboro, 178 F.3d 231, 243–44 (4th
Cir. 1999) (quoting Republican Party v. Martin, 980 F.2d 943, 952
(4th Cir. 1992).
A complaint fails to state a claim if it does not
contain “a short and plain statement of the claim showing that the
pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), or does not
state “a plausible claim for relief,”
Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
556 (2007)).
“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference
that
alleged.”
Id.
“Threadbare
the
at
defendant
678
recitals
of
is
(citing
the
liable
for
the
Twombly,
550
U.S.
elements
of
a
cause
misconduct
at
of
556).
action,
supported by mere conclusory statements, do not suffice.”
(citing Twombly, 550 U.S. at 555).
Id.
Though the plaintiff is not
required to forecast evidence to prove the elements of the claim,
the complaint must allege sufficient facts to establish each
element.
Goss v. Bank of Am., N.A., 917 F.Supp.2d 445, 449 (D.Md.
2013) (quoting Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.
2012)), aff’d sub nom., Goss v. Bank of Am., NA, 546 F.App’x 165
(4th Cir. 2013).
In considering a Rule 12(b)(6) motion, a court
must examine
the complaint as a whole, consider the factual allegations in the
10
complaint as true, and construe the factual allegations in the
light most favorable to the plaintiff.
Albright v. Oliver, 510
U.S. 266, 268 (1994); Lambeth v. Bd. of Comm’rs of Davidson Cty.,
407 F.3d 266, 268 (4th Cir. 2005) (citing Scheuer v. Rhodes, 416
U.S. 232, 236 (1974)).
unsupported
or
conclusory
The court need not accept, however,
factual
allegations
devoid
of
any
reference to actual events, United Black Firefighters v. Hirst, 604
F.2d 844, 847 (4th Cir. 1979), or legal conclusions couched as
factual allegations, Iqbal, 556 U.S. at 678.
As stated above, pro se pleadings are liberally construed and
held to a less stringent standard than pleadings drafted by
lawyers.13
Erickson, 551 U.S. at 94 (citing Estelle, 429 U.S. at
106); Brown, 612 F.3d at 722.
be
dismissed
relief.’”
if
it
does
But, “even a pro se complaint must
not
allege
‘a
plausible
claim
for
Forquer v. Schlee, No. RDB–12–969, 2012 WL 6087491, at
*3 (D.Md. Dec. 4, 2012) (quoting Iqbal, 556 U.S. at 679).
2.
Analysis
a.
Title VII
Title VII provides that “[i]t shall be an unlawful employment
practice
for
an
employer
.
.
.
to
discriminate
against
any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color,
13
As stated previously, Dailey is an attorney. As a result,
the less stringent standard may not be applicable. Because Dailey
is self-represented, the Court will nevertheless apply the less
11
religion, sex, or national origin.”
42 U.S.C. § 2000e-2(a)(1).
Title VII also makes it unlawful “to discriminate against any
individual . . . because he has opposed any practice made an
unlawful employment practice by [Title VII], or because he has made
a charge, testified, assisted, or participated in any manner in an
investigation,
proceeding,
or
hearing
under
[Title
VII].”
Id. § 2000e-3(a).
Dailey raises Title VII claims for retaliation and race and
sex discrimination.
To prove these claims, Dailey may rely on the
burden shifting framework outlined in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).
See Lightner v. City of Wilmington,
N.C., 545 F.3d 260, 264-65 (4th Cir. 2008) (applying framework to
race and sex discrimination claims); Foster v. Univ. of Md.-E.
Shore, 787 F.3d 243, 250 (4th Cir. 2015) (applying framework to
retaliation claim).
the
initial
burden
Under this framework, the plaintiff must carry
of
establishing
discrimination or retaliation.
a
prima
facie
case
of
McDonnell Douglas, 411 U.S. at 798.
To survive a motion to dismiss, however, a plaintiff need not
establish a prima facie case.
Swierkiewicz v. Sorema N.A., 534
U.S. 506, 510–11 (2002) (concluding that “the prima facie case . .
. is an evidentiary standard, not a pleading requirement.”).
Complaints in employment discrimination cases, therefore, “must
satisfy only the simple requirements of Rule 8(a).”
stringent standard.
12
Id. at 513.
Nonetheless, a plaintiff must plead facts sufficient to state each
element of the asserted claim, Bass v. E.I. Dupont De Nemours &
Co., 324 F.3d 761, 765 (4th Cir. 2003), and “raise a right to
relief above the speculative level,” Coleman v. Md. Ct. of Appeals,
626 F.3d 187, 190 (4th Cir. 2010) (quoting Twombly, 550 U.S. at
555), aff’d sub nom., Coleman v. Ct. of Appeals of Md., 132 S.Ct.
1327 (2012).
i.
Retaliation
“To state a claim for retaliation under Title VII, a plaintiff
must allege (1) ‘that she engaged in a protected activity, as well
as (2) that her employer took an adverse employment action against
her, and (3) that there was a causal link between the two events.’”
Cobb v. Towson Univ., No. ELH-14-02090, 2015 WL 7878500, at *9
(quoting Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281
(4th Cir. 2015) (en banc)).
Lew argues that Dailey fails to allege
a single adverse employment action.
is
a
discriminatory
act
that
“An adverse employment action
‘adversely
affects
the
conditions, or benefits of the plaintiff’s employment.’”
terms,
Holland
v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (quoting
James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir.
2004)).
“In retaliation cases, ‘a plaintiff must show that a
reasonable
employee
would
have
found
the
challenged
action
materially adverse, which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge of
13
discrimination.’”
Jensen-Graf v. Chesapeake Emp’rs.’ Ins. Co., 616
F.App’x 596, 598 (4th Cir. 2015) (quoting Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
Dailey alleges that her supervisors retaliated against her for
filing an EEOC appeal on December 13, 2013 when they took six types
of employment actions against her.
The Court will review these
actions in turn.
First,
Dailey
alleges
that
her
supervisors
performance
evaluations
in
February
“[N]egative
performance
evaluation[s]
and
lowered
November
alone,
her
2014.14
without
any
accompanying injury or change in the terms or conditions of
employment, [are] insufficient to constitute a materially adverse
employment action.”
Altman v. McHugh, No. 5:11CV00061, 2012 WL
1190271, at *17 (W.D.Va. Apr. 9, 2012), aff’d, 478 F.App’x 762 (4th
Cir. 2012); see Fernandez v. Alexander, No. JFM-04-3009, 2007 WL
2475870, at *1 (D.Md. Aug. 27, 2007) (concluding that “performance
evaluations that were quite good (but not as good as plaintiff
wanted)” were not materially adverse employment actions), aff’d sub
14
Dailey also contends that as a result of her lowered
evaluation score, she was passed over for a Grade 14 Appeals
Officer position. (Mem. of Law in Supp. of Pl.’s Opp’n to Defs.’
Mot. to Dismiss or in the Alternative for Summ. J. Ex. 1 at 8, ECF
No. 26-1). The Court notes that Dailey raises these allegations
for the first time in her Opposition memorandum. A plaintiff “is
bound by the allegations contained in [her] complaint and cannot,
through the use of motion briefs, amend the complaint.” Zachair,
Ltd. v. Driggs, 965 F.Supp. 741, 748 n.4 (D.Md. 1997), aff’d, 141
F.3d 1162 (4th Cir. 1998). Thus, Dailey’s attempt to allege new
facts in her Opposition is improper, and the Court need not
14
nom.,
Fernandez
v.
Hayden,
307
F.App’x
725
(4th
Cir.
2009).
Because Dailey fails to allege an accompanying injury or
change in the terms or conditions of employment, the lowering of
her performance evaluations are not materially adverse employment
actions.
Thus, the Court concludes that Dailey fails to state a
retaliation claim related to her lowered performance evaluations.
Second, Dailey alleges that her supervisors restricted her
leave in May and June 2015 when they issued her Leave Counseling
and Restriction Memos.
Other district courts have held that
placing an employee on leave restriction is not a materially
adverse employment action.
E.g., Douglas-Slade v. LaHood, 793
F.Supp.2d 82, 91, 98 (D.D.C. 2011) (finding leave restriction memo
not a materially adverse employment action when memo required
employee, for the term of a year, to (1) “request and obtain
approval for scheduled annual and sick leave at least two days in
advance; (2) personally contact [her supervisor] or her designee
within one hour after the start of her work day in cases of
emergency when leave cannot be scheduled in advance; and (3) submit
a
medical
“[f]ailure
certificate
to
abide
for
by
all
these
unscheduled
conditions
sick
would
leave”
‘result
and
in
[plaintiff] being charged Absence Without Leave (AWOL)’”); Pannell
v. Nicholson, No. 7:06CV00088, 2008 WL 565098, at *5 (W.D.Va. Feb.
29, 2008) (concluding that placing employee on leave restriction
consider them.
15
requiring the employee to “produce medical documentation in order
to take sick leave” and “request annual, paid leave in advance” or
“face disciplinary action if [the employee’s] pattern of absences
continued” was not a materially adverse employment action).
Here, the May 27, 2015 Leave Counseling Memo merely notified
Dailey that because she had used all of her available advanced
annual leave, she would have to request LWOP instead of advanced
annual leave in the future.
Additionally, the June 25, 2015 Leave
Restriction Memo required Dailey to, among other things: submit a
letter from a healthcare provider on days when she was absent due
to illness and a written explanation of absences in cases of
emergencies; request annual leave or leave without pay in advance
in writing; and report to her manager within two hours of the first
day of unanticipated illness.
Both memos cautioned Dailey that she
would be charged AWOL if she did not “request the use of LWOP in
writing and have it approved.”
(Compl. Ex. 11, ECF No. 1-13).
These requirements for requesting leave were in place for only six
months from the date of Dailey’s receipt of the Leave Restriction
Memo.
The leave restrictions in Douglas-Slade and Pannell were
similar to, if not more severe than, the restrictions imposed on
Dailey.
Moreover,
Dailey
does
not
allege
that
the
leave
restrictions resulted in a change in the terms, conditions, or
benefits of her employment or that they would dissuade a reasonable
employee from filing a charge of discrimination.
16
Thus, the Court
concludes that Dailey fails to state a retaliation claim related to
the leave restrictions.
Third,
Dailey
avers
that
her
supervisors
suspended
her
Frequent Telework Arrangement and denied her December 2014 and
April 2015 requests for a new telework arrangement.15
The parties
cite no cases, and the Court finds none, addressing whether the
suspension of a telework arrangement is a materially adverse
employment action.
Limiting or terminating an alternative work
schedule (“AWS”), however, is not a materially adverse employment
action
unless
schedule.”
there
is
a
“significant
modification
in
work
Nasis-Parsons v. Wayne, No. 4;05CV36, 2006 WL 1555913,
at *8 (E.D.Va. June 1, 2006), aff’d sub nom., Parsons v. Wynne, 221
F.App’x 197 (4th Cir. 2007).
In Wayne, the plaintiff alleged that her “maxiflex” AWS was
terminated and her attempt to return to maxiflex was denied in
retaliation for filing an EEOC charge.
Id. at *2, *4.
She further
alleged that as a result of not being returned to the maxiflex work
schedule, she had to use extra sick leave.
15
Id.
at *4.
The
Dailey also asserts that she was wrongfully denied the
ability to telework during civil unrest in Baltimore, but does not
provide any facts in support of this allegation. “[A] number of
courts have held that the denial of a request to work from home is
not, in and of itself, an actionable adverse action.”
Byrd v.
Vilsack, 931 F.Supp.2d 27, 41 (D.D.C. 2013) (collecting cases).
“[T]he denial of an employee’s request to work from home on a few
occasions, without more, does not constitute an adverse employment
action under Title VII . . . retaliation claims.”
Id.
Thus,
because the denial of a telework request is not a materially
17
maxiflex work schedule permitted flexible reporting and departure
times, but employees were still required to work eighty hours per
two-week pay period.
Id.
at *7.
AWS did “not alter the total
number of hours required of the employee, the employee’s salary,
nor the employee’s position or responsibilities.”
Id. at *8.
Employee participation in AWS was also at the discretion of the
employer.
Id.
The Wayne court, therefore, concluded that denial
of maxiflex AWS was not an adverse employment action.
Id.
Here, Dailey has not alleged that Ford’s suspension of her
telework arrangement and denials of her subsequent requests for
reinstatement altered her salary, the number of hours she is
required to work, or her position or responsibilities.
Further,
like the AWS in Wayne, telework agreements are at the discretion of
IRS management because the NTEU National Agreement II permits
supervisors to “temporarily suspend, modify or terminate a Telework
arrangement” for specific reasons, including failure to communicate
with managers.
denials
of
(Compl. Ex. 9, ECF No. 1-11). The suspension and
telework,
employment actions.16
therefore,
do
not
constitute
adverse
Consequently, the Court finds that Dailey
adverse employment action, the Court concludes that Dailey fails to
state a claim as to the denial of her telework request.
16
Dailey also fails to allege a causal link between her
December 2013 EEOC appeal and the suspension and denials of a new
telework arrangement. First, Dailey fails to allege that but-for
engaging in protected conduct, her telework arrangement would not
have been suspended. Next, Dailey’s allegations do not support a
reasonable inference of causation through temporal proximity. Dowe
v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653,
18
fails to state a retaliation claim related to the suspension and
denials of telework.
Fourth, Dailey avers that Reisher conditioned reinstatement of
her telework arrangement on withdrawal of her EEOC appeal.
parties
cite
addressing
no
whether
cases,
and
the
Court
finds
none,
The
directly
reinstatement of telework conditioned upon
withdrawal of an EEOC charge constitutes an adverse employment
action.
Courts have, however, found no adverse employment action
when an employer conditioned the receipt of an unearned benefit
upon
signing
either
a
waiver
of
rights
under
employment
discrimination laws or withdrawal of an EEOC charge, or both.
See
E.E.O.C. v. Allstate Ins. Co., 778 F.3d 444, 452 (3d Cir. 2015)
(waiver), as amended on reh’g in part, (Mar. 26, 2015); Douglass v.
Rochester City Sch. Dist., 522 F.App’x 5, 9 (2d Cir. 2013) (waiver
and withdrawal of EEOC charge).
Federal regulations also expressly
allow for the voluntary settlement of discrimination complaints
between federal agencies and their employees.
29 C.F.R. § 1614.603
(2016).
657 (4th Cir. 1998) (“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.”).
Dailey filed her appeal
eleven months before her telework arrangement was suspended, and
the two denials of Dailey’s request for a new telework arrangement
occurred twelve and sixteen months later, respectively. Pepper v.
Precision Valve Corp., 526 F.App’x 335, 337 (4th Cir. 2013)
(holding that ten-month gap is insufficient to establish temporal
proximity); Hall v. Greystar Mgmt. Servs., L.P., No. 14-2145, 2016
WL 241377, at *5 (4th Cir. Jan. 21, 2016) (same).
19
Here, Lew argues that there is no guaranteed right to telework
and telework agreements are at the discretion of Treasury based on
the satisfaction of certain criteria.
employee
telework
agreements
may
As discussed previously, IRS
be
suspended,
modified,
terminated at the discretion of the employee’s supervisor.
Compl. Ex. 9, ECF No. 1-11).
or
(See
In addition, Dailey’s supervisor did
not request that she waive her rights to bring EEOC charges or
employment discrimination claims—conduct that courts have found is
not an adverse employment action—but only requested that she
withdraw an existing EEOC appeal.
Thus, the Court concludes that
Dailey fails to state a retaliation claim related to reinstatement
of her telework arrangement conditioned upon the withdrawal of her
EEOC appeal.
Fifth, Dailey alleges three separated instances in which she
was either wrongfully denied leave or improperly charged leave: (1)
on March 3, 2015, her request for advanced leave was wrongfully
denied, and then she was charged eight AWOL hours when she did not
report to work; (2) on an unspecified date, she was wrongfully
charged thirty-two AWOL hours; and (3) on August 11, 17, 18, and
20,
2015,
she
“[C]onsidering
was
[an]
wrongfully
employee
charged
AWOL”
does
forty
not
AWOL
hours.
“constitute[]
adverse employment action in a retaliation claim.”
an
Wonasue v.
Univ. of Md. Alumni Ass’n, 984 F.Supp.2d 480, 492 (D.Md. 2013)
(quoting Rock v. McHugh, 819 F.Supp.2d 456, 470–71 (D.Md. 2011));
20
see also Byrd, 931 F.Supp.2d at 41 (finding no materially adverse
employment action when employee who “was charged as ‘AWOL’ and was
docked 7.75 hours of pay for her absence” after a request for and
denial of the ability to work from home for the day).
Thus, the
Court finds that Dailey fails to state a retaliation claim related
to the charging of AWOL hours.
Sixth, Dailey alleges that Ford issued her an admonishment
letter and managerial directives related to a case file review.
Dailey states that Ford “falsely accused” her of “not making all
case files available to him, then used that premise to issue . . .
Managerial Directives and a disciplinary Admonishment Letter.”
(Compl. ¶¶ 35).
Besides making conclusory statements about the
“hostile, aggressive actions” of her manager, Dailey does not state
any facts from which the Court could reasonably infer that the
admonishment letter or the managerial directives affected the terms
and conditions of her employment.
(Id.).
Thus, the Court finds
that Dailey fails to state a retaliation claim related to the
admonishment letter and managerial directives.
In short, Dailey’s numerous allegations of retaliation are
best characterized as “instances where [she] disagreed with the
management style or decisions of those who supervised [her]—and
that alone is not actionable under Title VII.”
Thorn v. Sebelius,
766 F.Supp.2d 585, 601 (D.Md. 2011), aff’d, 465 F.App’x 274 (4th
Cir. 2012).
Dailey has not alleged a single materially adverse
21
employment action.
Accordingly, the Court will grant Lew’s Motion
as to Dailey’s retaliation claims.
ii.
Race and Sex Discrimination
Lew also contends Dailey’s allegations are insufficient to
state a claim for race and sex discrimination.
“To state a claim
for discrimination under Title VII, a plaintiff must allege: ‘(1)
membership in a protected class; (2) satisfactory job performance;
(3) adverse employment action; and (4) different treatment from
similarly situated employees outside the protected class.’”
Cobb,
2015 WL 7878500, at *8 (quoting Coleman, 626 F.3d at 190).
Dailey
must also allege that she was treated less favorably “because of”
her race or sex.
See 42 U.S.C. § 2000e-2(a).
Dailey sufficiently alleges the first and second elements of a
discrimination claim—she states she is an African-American female
and has always received high marks on her performance evaluations.
Dailey fails, however, to sufficiently allege the third and fourth
elements
of
supervisors
a
discrimination
discriminated
claim.
against
her
She
by
states
issuing
that
her
her
an
admonishment letter, but, as explained above, this is not an
adverse employment action.
Dailey does not allege that similarly-
situated IRS employees outside her protected classes were treated
more favorably.
Moreover, Dailey does not allege that she was
treated less favorably because of her race or sex.
Rather, Dailey
states in a completely conclusory manner that her supervisors
22
discriminated against her “on the basis of” her race and sex.
(Compl. ¶ 21).
Thus, the Court concludes that Dailey fails to
state a claim for discrimination and will grant Lew’s Motion as to
Count I.
C.
Dailey’s Motions for Preliminary Injunction and Temporary
Restraining Order
Dailey contends that she has suffered irreparable financial
injury because her supervisor has wrongfully charged her with AWOL
on several occasions, which resulted in lost wages, and wrongfully
suspended and denied reinstatement of her telework arrangement. To
prevail on a request for a preliminary injunction, the moving party
“must establish [1] that [she] is likely to succeed on the merits,
[2] that [she] is likely to suffer irreparable harm in the absence
of preliminary relief, [3] that the balance of equities tips in
[her]
favor,
interest.”
and
[4]
that
an
injunction
is
in
the
public
Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188
(4th Cir. 2013) (quoting Winter v. Nat. Res. Def. Council, 555 U.S.
7, 20 (2008)).
“[P]reliminary injunctions are ‘extraordinary
remed[ies] involving the exercise of very far-reaching power.’”
Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013) (quoting Direx
Isr., Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir.
1992)).
Because Dailey fails to state claims for Title VII violations,
the Court concludes she is not likely to succeed on the merits
against Lew.
Additionally, assuming Dailey were likely to succeed
23
on the merits, the harms she alleges do not rise to irreparable
injury.
Sampson v. Murray, 415 U.S. 61, 91–92 (1974) (loss of
income and damage to reputation as a result of being discharged
from employment not sufficient to establish irreparable injury);
see also Simmons v. Brown, 497 F.Supp. 173, 175–76 (D.Md. 1980)
(discussing Sampson).
Accordingly, the Court will deny Dailey’s
Motions.17
III. CONCLUSION
For the foregoing reasons, Getz’s Motion to Dismiss (ECF No.
15) is GRANTED.
Lew’s Motion to Dismiss (ECF No. 24) is GRANTED
and Motion for Leave to File Surreply (ECF No. 38) is DENIED AS
MOOT.
Dailey’s Motion for Extension of Time to Serve Process on
Defendants (ECF No. 23) is DENIED AS MOOT.
Dailey’s Motion for
Leave to Amend (ECF No. 21), Motion for Preliminary Injunction (ECF
No. 30), Motion for a Temporary Restraining Order and Preliminary
Injunction (ECF No. 31), and Motions for Entry of Final Default
Judgment (ECF Nos. 34, 35) are DENIED.
1) is DISMISSED.
Dailey’s Complaint (ECF No.
A separate Order follows.
Entered this 18th day of April, 2016
/s/
____________________________
George L. Russell, III
United States District Judge
17
Lew has also filed a Motion for Leave to File Surreply to
Dailey’s two motions for preliminary injunctive relief (ECF No.
38). Because the Court denies Dailey’s Motions, the Court will
deny Lew’s Motion as moot.
24
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