Smith v. NASA
Filing
11
MEMORANDUM OPINION. Signed by Judge Alexander Williams, Jr on 9/25/2012. (c/m 9/25/2012 eb) (eb2, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
AGNES LOUISE SMITH,
Plaintiff,
v.
Civil Action No. 12-cv-01331-AW
NASA,
Defendant.
MEMORANDUM OPINION
Pro se Plaintiff Agnes Louise Smith brings this action against Defendant NASA. Plaintiff
asserts claims of racial discrimination, retaliation, and hostile work environment under Title VII.
Defendant’s Motion to Dismiss or, Alternatively, for Summary Judgment is outstanding. The
Court has reviewed the record and deems no hearing necessary. For the reasons articulated
herein, the Court GRANTS Defendant’s Motion to Dismiss.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Except where otherwise indicated, the Court draws the following facts from Plaintiff’s
pro se Complaint and construes them in the most favorable light. Plaintiff (Smith) is an AfricanAmerican female. Smith has worked at Defendant NASA since the 1970s. Smith alleges that
NASA suspended her for one day for “disrespectful conduct.” Doc. No. 1 at 5. NASA proposed
the suspension on October 14, 2012 and it took place on October 26, 2010. Smith also alleges
that NASA’s decision to suspend her for one day was not supported by the evidence.
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According to Smith, the Parties conducted settlement discussions under the auspices of
an EEOC judge. Smith alleges that NASA agreed to repay her for the one day for which it
suspended her during these settlement discussions.
Smith also alleges that the NASA employee who proposed her suspension referenced an
incident in the late 1990s in which NASA had suspended Smith for unspecified reasons. Finally,
Smith alleges that the NASA employee who proposed her 2010 suspension relied on erroneous
information and that other people “played a significant part in this suspension.” Id.
In January 2011, Smith filed an EEO complaint. Doc. No. 7-18 at 2. The EEO complaint
states a claim for only retaliation. Id. On April 3, 2012, Smith received a right to sue letter. Doc.
No. 1-1 at 1. The following month, Smith lodged the instant Complaint. In the Complaint, Smith
asserts claims for racial discrimination and retaliation under Title VII. Doc. No. 1 at 2.
NASA filed a Motion to Dismiss or, Alternatively, for Summary Judgment (Motion to
Dismiss) on August 1, 2012. Doc. No. 7. NASA makes two main arguments in its Motion to
Dismiss. First, NASA argues that Smith failed to exhaust administrative remedies with respect to
her racial discrimination claim. Second, NASA argues that Smith failed to state a cognizable
retaliation claim.
Smith replied on August 20, 2012. Doc. No. 9. The Court will treat the response as both a
response and Amended Complaint inasmuch as the Complaint is deficient on its face. The
response contains three categories of allegations. First, Smith alleges that she has a history of
filing EEO complaints, the last one (before the instant one) being filed on 2002. Second, she
alleges that various NASA employees have relentlessly pursued her since 2002, thereby fueling a
hostile work environment. Third, she suggests that the NASA employee who proposed her
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suspension reviewed the 2002 EEO complaint in forming the recommendation that NASA
suspend her.
II.
STANDARD OF REVIEW
A.
Motion to Dismiss for Lack of Subject Matter Jurisdiction—Rule 12(b)(1)
“There are two critically different ways in which to present a motion to dismiss for lack
of subject matter jurisdiction.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). “First, it
may be contended that a complaint simply fails to allege facts upon which subject matter
jurisdiction can be based.” Id. Where the defendant contends that the complaint fails to allege
facts sufficient to establish subject matter jurisdiction, “all the facts alleged in the complaint are
assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as he
would receive under a Rule 12(b)(6) consideration.” Id. “Second, it may be contended that the
jurisdictional allegations of the complaint [are] not true.” Adams, 697 F.2d at 1219. In such
cases, “the court is free to consider exhibits outside the pleadings to resolve factual disputes
concerning jurisdiction.” Zander v. United States, 843 F. Supp. 2d 598, 603 (D. Md. 2012)
(internal quotation marks omitted) (quoting Smith v. Wash. Metro. Area Transit Auth., 290 F.3d
201, 205 (2002)).
B.
Motion to Dismiss for Failure to State a Claim—Rule 12(b)(6)
The purpose of a motion to dismiss is to test the sufficiency of the plaintiff’s complaint.
See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). In two recent cases, the
U.S. Supreme Court has clarified the standard applicable to Rule 12(b)(6) motions. Ashcroft v.
Iqbal, 129 S. Ct. 1937 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). These cases
make clear that Rule 8 “requires a ‘showing,’ rather than a blanket assertion, of entitlement to
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relief.” Twombly, 550 U.S. at 556 n.3 (quoting Fed. R. Civ. P. 8(a)(2)). This showing must
consist of at least “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.
In deciding a motion to dismiss, the court should first review the complaint to determine
which pleadings are entitled to the assumption of truth. See Iqbal, 129 S. Ct. at 1949–50. “When
there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id. at 1950. In so doing,
the court 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). The Court
need not, however, accept unsupported legal allegations, Revene v. Charles County
Commissioners 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual
allegations, Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations
devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847
(4th Cir. 1979).
III.
LEGAL ANALYSIS
A.
Racial Discrimination
1.
Failure to Exhaust
Federal courts generally lack subject matter jurisdiction over employment discrimination
claims concerning which the plaintiff has failed to file a charge of discrimination. See Jones v.
Calvert Grp., Ltd., 551 F.3d 297, 300–01 (4th Cir. 2009). The contents of the charge determine
the scope of the plaintiff’s right to file a federal lawsuit. See Bryant v. Bell Atl. Md., Inc., 288
F.3d 124, 132 (4th Cir. 2002). Usually, “[o]nly those discrimination claims stated in the initial
charge, those reasonably related to the original complaint, and those developed by reasonable
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investigation of the original complaint may be maintained in a subsequent [employment
discrimination] lawsuit.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir.
1996). Thus, plaintiffs typically may not bring claims where the EEO complaint alleges
discrimination on one basis and the complaint alleges discrimination on a separate basis. See
Bryant, 288 F.3d at 132–33.
In this case, in her EEO complaint, Smith states that NASA violated Title VII on the
basis of retaliation only. Furthermore, the contents of the EEO complaint mirror those of Smith’s
pleadings insofar as Smith makes no mention of alleged racial discrimination. The record
contains no indication that the EEOC conducted an investigation into racial discrimination on the
basis of the EEO complaint. The administrative judge who heard Smith’s complaint stated in her
decision that the issue was whether NASA had discriminated against Smith “on the basis of
reprisal.” See Doc. No. 7-12 at 5 (emphasis added). Therefore, Smith has failed to exhaust
administrative remedies on her racial discrimination claims. Consequently, the Court dismisses
this claim with prejudice.
2.
Failure to State a Claim
Assuming arguendo that Smith exhausted administrative remedies on her racial
discrimination claim, the claim is still not cognizable. Both the Complaint and the response
(which the Court treats as an Amended Complaint) are bereft of any allegations that create a
plausible inference of racial discrimination. Smith fails to allege that NASA treated her
differently than similarly situated employees outside her protected class; that NASA used
offensive language such as slurs or code words; that NASA has a history of discrimination
against African-American females; or that statistical data of NASA’s racial discrimination exists.
Therefore, Smith fails to state a facially plausible claim of racial discrimination.
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B.
Retaliation
To state a prima facie case of retaliation under Title VII, a plaintiff must establish: “(1)
that she engaged in protected activity; (2) that her employer took an adverse employment action
against her; and (3) that a causal connection exist[s] between the protected activity and the
adverse employment action.” Tasciyan v. Med. Numerics, 820 F. Supp. 2d 664, 675 (2011)
(citing Davis v. Dimensions Health Corp., 639 F. Supp. 2d 610, 616–17 (D. Md. 2009)). “An
employee may satisfy the first element by showing that she opposed a practice that Title VII
prohibits.” Id. (citing Davis, 639 F. Supp. 2d at 617). “One court has defined opposition as
‘utilizing informal grievance procedures as well as staging informal protests and voicing one’s
opinions in order to bring attention to an employer’s discriminatory activities.’” Id. (quoting
Davis, 639 F. Supp. 2d at 617). “For such activity to constitute opposition, the plaintiff must
have a reasonable and good faith belief that the conduct that she opposes constitutes unlawful
discrimination under Title VII.” Id. (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271
(2001)). “Opposition almost always arises when an employee communicates to her employer her
reasonable belief that the employer has engaged in discrimination.” Id. (citing Crawford v.
Metro. Gov’t of Nash. and Davidson Cnty., Tenn., 555 U.S. 271, 276 (2009)).
Element three of the prima facie case for retaliation relates to causation. Generally,
plaintiffs must demonstrate that the alleged opposition caused the at-issue adverse action through
two evidentiary routes. First, plaintiffs may show that the adverse act bears sufficient temporal
proximity to the protected activity. See, e.g., Breeden, 532 U.S. at 273–74. Second, as this Court
has consistently held, “plaintiffs may state a prima facie case of causation by relying on evidence
other than, or in addition to, temporal proximity where such evidence is probative of causation.”
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Jenkins v. Gaylord Entm’t Co., 840 F. Supp. 2d 873, 881 (D. Md. 2012) (citing cases); see also,
e.g., Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007) (holding that “other relevant
evidence may be used to establish causation” where temporal proximity is missing).
In this case, Smith fails to state a cognizable retaliation claim. The pleadings fail to create
a plausible inference that Smith opposed a practice that Title VII prohibits. Smith does not allege
that she communicated to NASA her belief that it discriminated or retaliated against her and that,
on this basis, NASA took the allegedly adverse action of suspending her for one day. The
pleadings simply say that Smith was suspended for one day because of “disrespectful conduct.”
Smith fails to specify the content of this allegedly disrespectful conduct.
Smith also seems to allege that NASA suspended her for her prior series of EEO
grievances that concluded in 2002. Yet, again, Smith fails to provide allegations creating a
plausible inference that she founded these charges on discrimination.
Even if one could plausibly construe the 2002 activity as opposition, Smith’s retaliation
claim would fail to create a plausible inference of causation. Smith does not offer any allegations
supporting the inference that discriminatory animus motivated NASA’s decision to suspend her
for a day. Therefore, Smith relies on temporal proximity alone in attempting to forge a nexus
between the 2002 activity and her suspension. It goes without saying that temporal proximity of
approximately eight years is too long to create a plausible inference of causation. See, e.g.,
Breeden, 532 U.S. at 274 (“Action taken . . . 20 months later suggests, by itself, no causality at
all.”). Accordingly, Smith’s retaliation claim is not cognizable. Since Smith’s response adds
nothing to her Complaint in this regard, the Court dismisses her retaliation claim with prejudice.
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C.
Hostile Work Environment
In light of her pro se status, the Court will assume that Smith alleges a hostile work
environment claim in her response. This claim likewise fails as a matter of law. First, Smith
failed to exhaust administrative remedies on this claim. In short, Smith failed to check in the
boxes for either racial or sex discrimination in her EEO complaint, and the EEO complaint
contains no factual contentions suggesting a hostile work environment. Doc. No. 7-18 at 2.
Second, the response’s allegations fail to create a plausible inference that the alleged
discrimination was either severe or pervasive or because of Smith’s status as an AfricanAmerican female. As for the severe or pervasive element, the response simply alleges that, since
the 2002 incident, NASA has engaged in the following conduct: (1) assigning Smith to a “special
unit”; (2) moving Smith to a “special building” and placing her in an isolated room; (3) assigning
Smith disproportionately large workloads; (4) requiring Smith to “hand-carry” her completed
work regardless of weather conditions; and (5) suspending her for one day. Given their
vagueness and occurrence over the span of eight years, these allegations fail to create a plausible
inference that the alleged discrimination was sufficiently frequent, severe, and/or humiliating to
satisfy the severe or pervasive element.
Even if these allegations stated a facially plausible claim under the severe or pervasive
element, they would fail to state a facially plausible claim under the “because of” element. The
allegations from both the Complaint and the response are devoid of any indication that Smith’s
race and/or sex animated NASA’s decision to engage in these acts.
Given its glaring deficiencies and Smith’s failure to state it in her Complaint, it is
implausible that granting Smith leave to amend would result in her pleading a cognizable hostile
work environment claim. Consequently, the Court dismisses this claim with prejudice.
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IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS NASA’s Motion to Dismiss. A separate
Order follows.
September 25, 2012
Date
/s/
Alexander Williams, Jr.
United States District Judge
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