Plummer v. Burwell

Filing 24

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 10/3/2017. (tds, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

JO'EL PLUMMER,
Plaintiff,
v.
DON WRIGHT, I
Acting Secretary, United States Department of
Health and Human Services,

Civil Action No. TDC-16-2957

Defendant.

MEMORANDUM OPINION
Plaintiff Jo'e1 Plummer, currently employed as a Program Specialist with the United
States Food and Drug Administration ("FDA"), has brought this action against Defendant Don
Wright, the Acting Secretary of Health and Human Services ("HHS"), alleging that she has been
subjected to discrimination

on the basis of disability, age, and race through the denial of

reasonable accommodations

and promotion opportunities,

complaint

as well as retaliation for filing a

in 2009 against HHS with the United States Equal Employment

Commission ("EEOC"), all in violation of the Rehabilitation Act of 1973,29 U.S.C.
(2012); Title VII of the Civil Rights Act of 1964, 42 U.S.C.
the Age Discrimination

SS 2000e

in Employment Act ("ADEA"), 29 U.S.C.

Opportunity

SS 701-796

to 2000e-17 (2012), and

SS

621-634.

Presently

pending before the Court is HHS's Motion to Dismiss or, Alternatively, for Summary Judgment
and Plummer's "Motion, Pursuant to Fed. R. Civ. P. 12(d) and 56(d), for Court to Deny or Defer

The original Defendant, Sylvia Mathews Burwell, is no longer the Secretary of Health and
Human Services. The Clerk is directed to substitute the present Acting Secretary as the
Defendant in this case. See Fed. R. Civ. P. 25(d).

Entry of Summary Judgment or Dismissal to Permit Plaintiff to Conduct Discovery" ("Rule
56(d) Motion").

Having reviewed the Complaint, briefs, and other submitted materials, the

Court finds that no hearing is necessary.

See D. Md. Local R. 105.6. For the reasons set forth

below, the Rule 56(d) Motion is GRANTED, and HHS's Motion, construed as a Motion to
Dismiss, is GRANTED IN PART and DENIED IN PART.

BACKGROUND
The following facts are presented in the light most favorable to Plummer, the nonmoving
party:
I.

Requests for Reasonable Accommodations
Jo'el Plummer is a 52-year-old African American woman currently employed as a GS-II

Program Specialist in the FDA Office of Surveillance and Epidemiology ("OSE").

Since 2001,

Plummer has suffered from chronic rhinitis, a medical condition that causes severe inflammation
of the mucous membranes in her nose when exposed to fumes, smoke, chemicals, or similar
airborne irritants.

When symptomatic, Plummer experiences difficulty breathing, talking, and

thinking, which limits her ability effectively to perform her job.

In 2006, Plummer's negative

reaction to the cleaning agents at the FDA's Rockville, Maryland office prompted Plummer to
transfer to the FDA office in Silver Spring, Maryland.
This transfer did not alleviate Plummer's

condition, and in 2009 she filed an equal

employment opportunity ("EEO") complaint with the FDA seeking reasonable accommodations
for her rhinitis.

As a result, the FDA provided Plummer with her own office and a High

Efficiency Particulate Arrestance ("HEP A") filter. Plummer's symptoms persisted.

Over time,

Plummer took various other measures to avoid airborne irritants, such as closing the door to her
office and designating it as a fragrance-free

zone.

2

FDA management,

however, permitted

Plummer's door to remain open at times and did not prevent co-workers wearing fragrances from
entering her office. Plummer also began to wear a surgical mask to meetings but stopped doing
so after she was ridiculed by managers and co-workers. In 2010, shortly after being promoted to
GS-ll,

Plummer's supervisor told her that "she never would receive another promotion."

Am.

CompI. ~ 35, ECF No. 12.
On June 27, 2013, Plummer provided her supervisor with a doctor's note recommending
that she be allowed to telework. Although initially reluctant, her supervisor allowed her one day
of telework per week and told her that she would need to submit another formal request for any
additional accommodations.

Plummer filed that request and also submitted, on July 31, 2013

and September 19,2013, two more doctor's notes advising that her health remained at risk from
the presence of chemicals and irritants at the office. Among the accommodations she sought but
did not receive were additional days of telework, a transfer to another building at the FDA Silver
Spring campus or to a different FDA complex, moving Plummer's work station to a different
location on the same floor where there is better air flow, and barring fragrances from the OSE
office.

By October 2013, Plummer developed a rash on her arms, legs, and torso and was

advised by her doctor not to return to work. Although the FDA issued Plummer a temporary
reasonable accommodation

letter in November 2013, according to Plummer, FDA has not

approved her requests or taken any remedial action other than testing the air quality in her office.
During 2013, Plummer used 543 hours of sick and annual leave because of her condition.

II.

Procedural History
On December 2,2013, Plummer filed an informal discrimination complaint with the FDA

Office of Civil Rights, Employment Complaints Division.

3

In that complaint, Plummer alleged

that she had been subjected to discrimination

based on her age and disability, as well as

retaliation for earlier protected activity.
On April 18, 2014, Plummer filed an "Individual Formal Complaint of Employment
Discrimination"
("OEEO")

("EEO Complaint") with the FDA Office of Equal Employment Opportunity

alleging age, race, and disability discrimination

reasonable accommodations

based on a failure to 'provide

and on harassment in the workplace.

EEO Complaint at 1, Mot.

Dismiss Ex. 27, ECF No. 15-29.2 In the EEO Complaint, Plummer included three notes from her
doctor describing her "chemical sensitivities" and recommending a change in office space, a
reduction in her amount of work, and two to three days of telework per week. Id. at 4. In an
attachment to her EEO Complaint consisting of a letter drafted by Plummer's attorney, Plummer
summarized her medical diagnosis and symptoms and alleged that the FDA "insisted that [she]
remain in an environment that is toxic for her disability."

!d. at 17. Plummer further charged

that the limited accommodations approved by the FDA had "no practical effect," and that her
supervisors "seemed unconcerned about remedying [Plummer's]
and the toxicity to which [she] is exposed."

complaints about air quality

Id. She also asserted that she "has been treated

disparately because of her disability, race, and age compared to others similarly situated to her
and not in her protected classifications."

!d. In the letter, Plummer sought:

(l) an isolated

workplace at another location other than the FDA's Silver Spring office; (2) telework every
Wednesday and Friday; (3) permission to call in to conferences and meetings; (4) discretion to
use rest periods and leave when medically necessary; (5) the reinstatement

of 60 hours of

personal leave and 40 hours of sick leave; (6) a review of her negative leave balances; and (7)
$35,000 in monetary damages.

2

The page numbers cited for this exhibit are those assigned by the CMIECF system.
4

On May 7, 2014, OEEO responded with a letter accepting and acknowledging receipt of
the EEO Complaint ("the Acceptance Letter").

In the Acceptance Letter, OEEO identified the

claims in Plummer's complaint as: (1) "Whether you were subjected to disparate treatment when
on November

19, 2013, you were only issued a temporary approval of your request for a

Reasonable Accommodation";

and (2) "Whether you were discriminated against when from

February 2013, you were required to return to work in an office environment where the air
quality and toxicity is intolerable."

Acceptance Letter at 1, Mot. Dismiss Ex. 28, ECF No. 15-

30. The letter required that Plummer notify OEEO within seven days if its characterization of
her claims was incorrect.
After OEEO completed its investigation, Plummer opted to proceed to the EEOC for
review of her complaint by an administrative judge ("AJ"). See 29 C.F.R.

S 1614.108(f)

(2017).

Before the case proceeded to a hearing, however, Plummer withdrew her request for AJ review.
See U.S. Equal Emp. Opportunity Comm'n, EEO-MD-IlO,

Equal Employment Opportunity

Management Directive for 29 C.F.R. Part 1614, As Revised, Ch 7,

S I (2015).

The case was then

returned to HHS, and the agency issued a final order dismissing her complaint. See 29 C.F .R.

S

1614.11O(a).
On September 1, 2016, Plummer filed her Complaint in this Court.

In her Amended

Complaint, filed on January 17,2017, Plummer alleges four counts: (I) disability discrimination
in violation of the Rehabilitation Act, including a failure to accommodate Plummer's disability
and the denial of promotion opportunities; (II) retaliation in violation of the Rehabilitation Act,
consisting of the failure to accommodate and the denial of promotion opportunities following the
filing of her 2009 EEO complaint; (III) race discrimination in violation of Title VII, based on the
denial of reasonable accommodations and promotion opportunities; and (IV) age discrimination

5

in violation of the ADEA,

based on the denial of reasonable accommodations and promotion

opportunities.
DISCUSSION
In its Motion to Dismiss or, in the Alternative, for Summary Judgment, HHS asserted
four grounds for dismissal:

(1) all of Plummer's claims are barred because she failed to file her

civil action within 90 days of the final agency decision on her EEO Complaint; (2) Plummer
failed to exhaust

administrative

remedies

for her claims relating to non-promotion

and

retaliation; (3) Plummer has not shown a failure to grant reasonable accommodations in violation
of the Rehabilitation Act; and (4) Plummer has failed to state a plausible claim for, or to establish
a genuine

issue of material fact on, her remaining

claims of age, race, and disability

discrimination and of retaliation. Having reviewed Plummer's assertion that the 90-day deadline
for filing should be equitably tolled because the agency's final order did not provide adequate
notice of her right to file a lawsuit in federal court, HHS has now withdrawn its first claim.
In addition to responding to the merits of HHS' s arguments, Plummer has filed her Rule
56(d) Motion, in which she argues that it is premature for the Court to consider a motion for
summary judgment because she has not had an opportunity to conduct discovery.
I.

Rule 56( d) Motion
With its Motion, HHS has attached 34 exhibits, including four affidavits and internal

FDA correspondence relating to some ofthe events at issue. Generally, when deciding a motion
to dismiss under Federal Rule of Civil Proce4ure

12(b)(6), the Court considers only the

complaint and any attached documents "integral to the complaint."

Sec'y of State for Defence v.

Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007). If a court considers matters outside
the pleadings, it must treat the motion as a motion for summary judgment.

6

Fed. R. Civ. P. 12(d).

A court may convert a motion to dismiss into one for summary judgment, and thus consider
exhibits and evidence outside the pleadings, only if the nonmoving party has had "a reasonable
opportunity to present all the material that is pertinent to the motion."

Gay v. Wall, 761 F.2d

175, 177 (4th Cir. 1985) (citation omitted). "Reasonable opportunity" has two requirements:

(1)

the nonmoving party must have some indication that the court is treating a Rule 12(b)(6) motion
as a motion for summary judgment; and (2) the nonmoving party "must be afforded a reasonable
opportunity for discovery" to obtain information essential to oppose the motion. Id. The notice
requirement is not onerous, requiring only that the nonmoving party be aware that material
outside the pleadings is pending before the Court. Id. Here, the notice requirement is met. HHS
titled its Motion
demonstrated

as seeking, in the alternative,

summary judgment,

and Plummer

that she has received notice by titling her responding memorandum

has

as one

opposing the "Motion to Dismiss or, Alternatively, for Summary Judgment."
The reasonable opportunity requirement is more demanding.

To show that a reasonable

opportunity for discovery has not been afforded, the nonmoving party must file an affidavit or
declaration under Rule 56(d) explaining why "for specified reasons, it cannot present facts
essential to justify its opposition."

Fed. R. Civ. P. 56(d); see Harrods Ltd. v. Sixty Internet

Domain Names, 302 F.3d 214, 245 (4th Cir. 2002); Hamilton v. Mayor & City Council of Bait.,
807 F. Supp. 2d 331, 341 (D. Md. 2011).
proceedings on her EEO Complaint,
relevant

documents,

accommodation

including

her

HHS produced to Plummer approximately 1,800 pages of
personnel

requests, the environmental

supervisors received on EEO matters.

HHS asserts that, during the administrative

file

and

conditions

records

relating

in her building,

to reasonable

and training her

Although these records address many of the proposed

document requests referenced in Plummer's Rule 56(d) Motion, they do not address all of them.

7

For example, the previously produced records do not include comparator evidence relating to
other employees who were granted similar accommodations

to those sought by Plummer,

evidence that Plummer alleges is necessary to contest the Motion's assertion that she cannot
establish that she was subject to disparate treatment in the terms and conditions of emploYment.
on account of her race, age, or disability.

Moreover, it appears that during the aborted

administrative proceedings, no depositions were taken of key witnesses, whose accounts are
currently limited to the contents of affidavits submitted to the EEO investigator.
Where Plummer has a right to bring a civil action in federal court, rather than a right to
appeal an administrative action to federal court, she should not be denied the opportunity to use
the discovery provisions of the Federal Rules of Civil Procedure to supplement the record before
adjudication of the merits of her case.
for summary judgment.

Accordingly, the Court will not treat the Motion as one

Except in addressing claims that dismissal is warranted for lack of

subject matter jurisdiction, Fed. R. Civ. P. 12(b)(l), the Court excludes all attached exhibits from
consideration and construes HHS' s filing as a motion to dismiss for failure to state a claim under
Rule 12(b)(6).
II.

Motion to Dismiss
A.

Legal Standards

To the extent that HHS seeks dismissal of Plummer's

non-promotion

and retaliation

claims based on a failure to exhaust administrative remedies, the Motion should be construed as
a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(l).

See Jones v. Calvert Group, Ltd, 551 F.3d 297, 300-01 (4th Cir. 2009).3

3 Whether failure to exhaust administrative remedies is always a subject matter jurisdiction
question has not been definitively established. The United States Supreme Court has noted that
"[o]n the subject-matter jurisdiction/ingredient-of-claim-for-relief
dichotomy, this Court and
8

On a Rule 12(b)(1) motion, the plaintiff bears the burden of proving that subject matter
jurisdiction exists. See Evans v. B.F Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). Because
this is a factual dispute over whether such exhaustion has occurred, the Court may consider
external materials in resolving this issue. Kerns v. United States, 585 F.3d 187, 192 (4th Cir.
2009).
HHS's remaining arguments are construed as seeking dismissal for failure to state a claim
under Rule 12(b)(6).

In deciding such a motion, the Court must determine whether the

complaint alleges facts sufficient to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). A claim is plausible when "the plaintiff pleads factual content that allows the
Court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Id. While a plaintiff in a discrimination case need not always plead a prima facie case under
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to state a plausible claim, see
Swierkiewicz v. Sorema NA., 534 U.S. 506, 510-15 (2002), the "(fJactual allegations must be
enough to raise a right to relief above the speculative level," Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). In making such a determination, the Court must examine the complaint as
a whole, consider the factual allegations in the complaint as true, and construe the factual
allegations in the light most favorable to the plaintiff
(1994); Lambeth v. Bd. ofComm'rs

Albright v. Oliver, 510 U.S. 266, 268

of Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005).

others have been less than meticulous," Arbaugh v. Y & H Corporation, 546 U.S. 500, 511
(2006), and has "cautioned ... against profligate use of the term ... 'jurisdictionaL'"
Union
Pacific Railroad Co. v. Brotherhood of Locomotive Engineers, 558 U.S. 67, 82 (2009). Notably,
the United States Court of Appeals for the Fourth Circuit has held that the question of whether an
administrative claim was timely filed with the EEOC is not jurisdictional.
Edelman v.
Lynchburg College, 300 F.3d 400,404 (4th Cir. 2002).
9

B.

Failure to Promote

In each Count of the Amended Complaint, Plummer alleges that she was denied
promotion opportunities on account of her disability (Count I), race (Count III), age (Count IV),
and in retaliation for prior protected activity (Count II).

HHS argues that Plummer's

non-

promotion claims must be dismissed for failure to exhaust administrative remedies because
Plummer's stated claims in her 2014 EEO Complaint were limited the FDA's alleged failure to
provide reasonable accommodations for Plummer's rhinitis and adverse reactions to chemicals
and irritants.
The "EEOC charge defines the scope of the plaintiffs

right to institute a civil suit."

Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d 124, 132 (4th Cir. 2002).

A court in a civil

action may consider "only those discrimination claims stated in the initial [EEOc] charge, those
reasonably related to the original complaint, and those developed by reasonable investigation of
the original complaint."

Jones, 551 F.3d at 300 (quoting Evans v. Techs. Applications & Servo

Co., 80 F.3d 954, 963 (4th Cir.1996)).

Because the principal purpose of this exhaustion

requirement is to place the defendant on notice of the alleged violations, if a defendant has
adequate notice of a claim, the plaintiff should not be held to "overly technical" requirements
that tum the exhaustion requirement into "a tripwire for hapless plaintiffs."
Cly., Va., 681 F.3d 591,593-94

Sydnor v. Fairfax

(4th Cir. 2012).

Notably, however, "a claim in formal litigation will generally be barred if the EEOC
charge alleges discrimination on one basis, such as race, and the formal litigation claim alleges
discrimination on a separate basis, such as sex." Jones, 551 F.3d at 300 (finding no exhaustion
of age, sex, or race discrimination claims when only the retaliation box was checked on the
EEOC Charge); Sydnor, 681 F.3d at 593-94 ("We have therefore not found exhaustion where ...

10

a charge alleges only retaliation but the complaint alleges racial discrimination

as well.");

Bryant, 288 F.3d at 132-33 (finding no exhaustion of retaliation, color, and sex discrimination
claims where the EEOC charge and investigation related only to race discrimination).

In the

context of a discrimination claim asserted by a federal employee, the EEO complaint filed with
the employing agency constitutes the EEOC charge for purposes of the exhaustion requirement.
See 29 C.F.R.

S

1614.106(a) ("A complaint must be filed with the agency that allegedly

discriminated against the complainant."); 29 C.F.R.

S

1614.407 ("A complainant who has filed

an individual complaint ... is authorized under title VII, the ADEA and the Rehabilitation Act to
file a civil action in an appropriate United States District Court"); Bonds v. Leavitt, 629 F.3d 369,
379 (4th Cir. 2011); see also Reynolds v. Tangherlini, 737 F.3d 1093, 1101 n.4 (7th Cir. 2013)
(stating that "filing a complaint with the EEO office of the agency that allegedly engaged in the
discriminatory

conduct is equivalent to filing a complaint with the EEOC"); Figueroa v.

Geithner, 711 F. Supp. 2d 562, 570 (D. Md. 2010) (holding that when a federal employee files
an administrative complaint with the employing agency, "the scope of the subsequent civil suit is
constrained by the allegations in the administrative complaint").
Here, Plummer's

EEO Complaint

"Reasonable Accommodation"

specifically

includes

a check in the box for

as the basis for alleged discrimination, but does not include a

check in the box for "Promotion/Selection."

EEO Complaint at 1. Although the check boxes are

not necessarily dispositive on this issue, some allegation of non-promotion should appear in the
narrative description in the EEO Complaint.

Chacko v. Patuxent Institution, 429 F.3d 505, 509

(4th Cir. 2005) ("(T]he factual allegations made in formal litigation must correspond to those set
forth in the administrative charge."). There is none. The 2014 EEO Complaint includes doctor's
notes regarding Plummer's

diagnosis and treatment, a letter from her supervisor concerning

11

reasonable accommodation efforts, and even an overview of "Sick Building Syndrome" from the
EPA.

EEO Complaint at 4-7, 11-16.

describe

anything

symptoms.

The attached letter from Plummer's counsel failed to

related to non-promotion

and instead focused on Plummer's

medical

Thus, in context, Plummer's assertion in the letter attached to the EEO Complaint

that she had been subjected to disparate treatment because of her disability, race, and age could
refer only to a claim that other employees were treated more favorably than Plummer in terms of
receiving telework and other workplace accommodations.
The Acceptance Letter acknowledging receipt of the EEO Complaint similarly made no
mention of any claim relating to a failure to promote and instead interpreted Plummer's claims as
relating only to workplace accommodations.

Notably, the Acceptance Letter informed Plummer

that if she believed that OEEO had misidentified the claims, she had to notify OEEO within
seven days.

She did not challenge OEEO's characterization

of the claims.

The letter also

informed Plummer that "you may amend your formal complaint with issues that are 'like or
related' to those raised in the complaint" and that the FDA would acknowledge in writing any
such amendments.

Plummer filed no amendments adding claims relating to non-promotion.

Thus, Plummer failed to assert a non-promotion claim in her EEO Complaint.
The only time Plummer referenced the issue of non-promotion

was in an affidavit

submitted during the investigation in response to questions from the investigator.

However, a

complainant's assertion of new claims in documents other than the formal EEOC charge or EEO
complaint, even if directed to the EEOC, does not suffice to exhaust the claim.

See Balas v.

Huntington Ingalls Indus. Inc., 711 F.3d 401,408 (4th Cir. 2013) (holding that the plaintiff had
failed to exhaust administrative remedies relating to new claims not stated in the EEOC charge
even though she had asserted those claims in her intake questionnaire and two different letters

12

sent to the EEOC); see also Moraga v. Ashcroft,

110 F. App'x 55, 60-61 (loth Cir. 2004)

(holding that a statement to an EEOC investigator that the plaintiff was also asserting a gender
discrimination

claim did not 'procedurally

amend' an administrative

complaint to add that

claim). "(P]ersons alleging discrimination have a different form of recourse if they determine
that their initial charge does not read as they intended:

they may ...

file an amended charge

with the EEOC." Balas, 711 F.3d at 408. As noted, Plummer was informed in the Acceptance
Letter of her right to amend her complaint, but she failed to do so.
Because Plummer's non-promotion claims were not stated in the EEO Complaint and
were not added by her statements to the investigator, they may only be deemed exhausted if they
were "reasonably related to the original complaint" or "developed by reasonable investigation of
the original complaint."

Jones, 551 F.3d at 300. In cases in which these conditions are deemed

to have been met, however, the new claim has been more closely related to the claim specifically
referenced in the EEOC charge or administrative

complaint.

For example, in Sydnor, the

plaintiff s civil suit sought a reasonable accommodation through the use of a wheelchair at her
job, a claim that was not specifically included in her EEOC charge, which sought a reasonable
accommodation for her limited ability to walk. 681 F.3d at 596-97. But both the administrative
and judicial complaints were based on the same factual description, and the plaintiff had made
repeated references to her wheelchair in the EEOC charge. Id. at 595-96. The court therefore
held that based on the similarities between the claims and the references to a wheelchair in the
EEOC charge, her claim for a reasonable accommodation to use a wheelchair could be "expected
to follow from a reasonable investigation."

Id. at 596. Similarly, in Chisholm v. United States

Postal Service, 665 F.3d 482 (4th Cir. 1981), although the plaintiffs

administrative complaint

alleged discrimination in promotions and temporary detail assignments to higher level positions,

13

the judicial complaint alleged discrimination in discipline and testing. Id. at 491. The court held
that the claims relating to discipline and testing "reasonably can be expected to follow the charge
of discrimination"

because

the allegation

in the administrative

complaint

that "USPS

discriminated in promotions sufficed to put USPS on notice that the entire promotional system
was being challenged, including aspects of the system such as discipline and testing which were
not specifically enumerated in the complaint." Id.
Here,

Plummer's

non-promotion

claims

allege

a distinctly

different

form

discrimination, so much so that the EEO Complaint form identifies "Promotion/Selection"
different category from "Reasonable Accommodation."

of
as a

The Fourth Circuit has noted that failure

to promote is a separate form of discrimination ordinarily distinct from others. See Chacko, 429
F.3d at 509 ("A claim will also typically be barred if the administrative charge alleges one type
of discrimination - such as failure to promote - and the claim encompasses another type - such
as discrimination

in pay and benefits.").

Notably, the EEO investigation, particularly the

questions posed to the parties, focused on reasonable accommodations, not non-promotion.

The

Court will therefore dismiss the portions of Counts I-IV in which Plummer asserts a claim of
discrimination based on a failure to promote. See id.
In the alternative, Plummer's

non-promotion

claims also fail because the Amended

Complaint does not allege a plausible claim for relief.

See Fed. R. Civ. P. 12(b)(6). In order for

Plummer to establish a prima facie case of discrimination based on a failure to promote, she
must show that: (l) she is a member of a protected class; (2) she applied for the position in
question; (3) she was qualified for the position; and (4) she was rejected for the position "under
circumstances giving rise to an inference of unlawful discrimination."

Brown v. McLean, 159

F.3d 898, 902 (4th Cir. 1998) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

14

(1973)). Although it is not strictly necessary for a plaintiff to establish all elements of a prima
facie case in the complaint, a plaintiff must allege sufficient facts to support a plausible inference
of discrimination and thereby raise a right to relief above the speculative level. See Swierkiewicz
v. Sorema NA., 534 U.S. 506, 510-11 (2002); Coleman v. Md. Court of Appeals, 626 F.3d 187,
190 (4th Cir. 2010).
Here, Plummer's allegations relating to discriminatory failure to promote are inadequate.
Although Plummer has alleged that she is a member of a protected class, and that other
employees outside protected classes have been promoted, she has not alleged that she applied
for, or would have applied for, any particular promotion that was denied on the basis of her race,
age, or disability.

She has not alleged that she was specifically qualified for any such higher

level position for which she applied, nor has she alleged specific circumstances showing that she
was rejected for a promotion because of her race, age, or disability. Therefore, even if her nonpromotion claims were not administratively

exhausted, they would be dismissed under Rule

12(b)( 6) because her allegations are insufficient to state a plausible claim of discriminatory
failure to promote.

C.

Retaliation

HHS further argues that Plummer's retaliation claim, Count II, must be dismissed for
failure to exhaust administrative remedies. Unlike a discrimination claim, a retaliation claim can
be alleged for the first time in federal court if it relates to the filing of the EEOC charge or EEO
complaint itself. Jones, 551 F.3d at 302 (stating that "a plaintiff that has already been retaliated
against one time for filing an EEOC charge will naturally be reluctant to file a separate charge
possibly bringing about further retaliation"); see also Nealon v. Stone, 958 F.2d 584, 590 (4th
Cir. 1992) (holding that an Army employee could bring a retaliation claim for the first time in

15

federal court when the allegation was that the Army retaliated against her for filing an EEOC
charge).

However, a retaliation claim need not be exhausted only if it relates to alleged

retaliation for the filing of the EEOC charge or EEO complaint underlying the federal complaint.
See Jones, 551 F.3d at 304 (finding that a retaliation claim did not need to be exhausted where it
could be construed as relating to retaliation for the filing of a second EEOC charge that gave rise
to the federal complaint). To the extent that a retaliation claim relates to an earlier EEOC charge
or protected activity, the Court may not consider it absent exhaustion. See id.; see also Tonkin v.
Shadow Mgmt., Inc., 605 F. App'x 194, 194 (4th Cir. 2015) (finding a failure to exhaust a
retaliation claim where the plaintiff "had knowledge of the factual basis for her retaliation claim
before she filed her charge with the EEOC").
Plummer's retaliation claims fall short of this standard. The Amended Complaint alleges
retaliation in response to a 2009 EEO Complaint, yet Plummer failed to check the "retaliation"
box in her 2014 EEO Complaint or otherwise allege retaliation elsewhere in that filing.
Although

Plummer

accommodations

now alleges, as retaliatory

acts, the continuing

denial of reasonable

and promotion opportunities, these same actions were described in the 2014

EEO Complaint and thus necessarily did not constitute retaliation for the filing of that claim.
There is nothing in the Amended Complaint stating that Plummer's retaliation claim arises out of
the filing of the 2014 EEO Complaint such that it could be asserted for the first time in this
action. Plummer's

retaliation claim as articulated in Count II of the Amended Complaint is

therefore dismissed for failure to exhaust administrative remedies.
D.

Rehabilitation Act

Count I alleges that Plummer's

supervisors at the FDA failed to provide reasonable

accommodations of her disability, in violation of the Rehabilitation Act, by denying her requests

16

for a fragrance-free workspace, 2-3 days of telework, and the relocation of her office either to a
location within the building with better air flow or to another building entirely.

To establish a

failure to accommodate claim under the Rehabilitation Act, a plaintiff must show that (l) the
plaintiff

has a disability;

accommodations,
employment

(2) the employer

knew of the disability;

(3) with reasonable

the plaintiff is otherwise qualified to perform the essential functions of the

position in question; and (4) the employer refused to make such reasonable

accommodations.

Reyazuddin v. Montgomery Cty., Md., 789 F.3d 407,413

(4th Cir. 2015). A

"disability" is defined as "a physical or mental impairment that substantially limits one or more
of the major life activities of [an] individual."

29 C.F.R.

S

1630.2(g)(l)(i) (defining "disability"

for purposes of the American with Disabilities Act); see also 29 U.S.C.

S

794 (stating that the

standards used to determine a violation of the Rehabilitation Act for employment discrimination
"shall be the standards applied" under the Americans with Disabilities Act); Reyazuddin, 789
F.3d at 413 ("Employment

discrimination claims brought under [the Rehabilitation Act] are

evaluated using the same standards as those applied under Title I of the Americans with
Disabilities Act of 1990"); Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1264 n.9 (4th Cir.
1995) (stating that because the language of the Americans with Disabilities
Rehabilitation

Act is "substantially

Act and the

the same, we apply the same analysis

to both").

"Reasonable accommodations" are "modifications or adjustments to the work environment, or to
the manner or circumstances under which the position held is desired or customarily performed,
that enable an individual with a disability who is qualified to perform the essential functions of
that position."

29 C.F.R.

S

1630.2(0)(ii) (defining reasonable

Americans with Disabilities Act); see also 29 U.S.C.

17

accommodation

S 794; Reyazuddin,

under the

789 F.3d at 413.

Plummer

has

sufficiently

pleaded

a failure

to accommodate

claim

under

the

Rehabilitation Act. The Amended Complaint asserts that Plummer has a disability in that her
chronic rhinitis has substantially limited her ability to work and breathe when exposed to various
irritants that are found in her office environment.

Plummer also recounts her various

notifications to her supervisors of her condition, including providing notes from her doctor
related to her rhinitis.

Plummer further contends that her symptoms can be mitigated, and she

can function at work, if management would implement a "fragrance-free

work area in the

office," move her to an office in the same building with better circulation or to another building,
or allow her to telework on a more regular basis. Am. CompI. ~ 26. Finally, Plummer alleges
that HHS has denied these accommodations despite repeated requests to approve them and no
significant cost to the government.
HHS contends that Plummer's proposed accommodations are not reasonable and asserts
that it has granted Plummer "more accommodations than even her physician recommended and
certainly every reasonable accommodation to allow her to perform the essential functions of her
position."

Mot. Dismiss at 20, ECF No. 15. However, viewing the complaint in the light most

favorable to Plummer, the Court cannot conclude that Plummer's proposed accommodations are
facially unreasonable or would not enable her to complete the essential elements of her position.
HHS will have the opportunity, at a later stage of the litigation, to present evidence to support its
claim that barring fragrances, additional telework, or moving Plummer's work station are not
reasonable accommodations.

Because the Amended Complaint has asserted facts supporting

each element of a failure to accommodate claim, Plummer's suit may proceed on those grounds.

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E. Age and Race Discrimination
In Counts III and IV, Plummer alleges discrimination on the basis of age and race, in
violation of the ADEA and Title VII. Under the ADEA, employers may not discriminate against
individuals because of their age, 29 U.S.C.

S

discrimination on the basis of race, 42 U.S.C.

623(a)(1), while Title VII prohibits employment

S 2000e-2(a).

establish a claim through one of two methods.

Both statutes require a plaintiff to

The plaintiff may either demonstrate through

direct or circumstantial evidence that race or age "motivated the employer's adverse employment
decision," Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004), or
the plaintiff may proceed through the approach adopted in McDonnell Douglas v. Green, 411
U.S. 792 (1973), "under which the employee,

after establishing

discrimination,

proffered permissible reason for taking an

demonstrates that the employer's

a prima facie

case of

adverse employment action is actually pretext for discrimination," Hill, 354 F.3d at 285.
Plummer alleges no direct evidence that her adverse employment action was based on her
age or race and does not rely on this method in opposing the Motion.

She therefore must

proceed through the McDonnell Douglas framework, under which she must establish a prima
facie

case of disparate treatment

by showing: (1) membership

in a protected

class; (2)

satisfactory job performance; (3) an adverse employment action; and (4) disparate treatment as
compared to similarly situated employees.
employment action "is a discriminatory
benefits of the plaintiffs

employment."

See Coleman, 626 F.3d at 190.

An adverse

act that adversely affects the terms, conditions, or
Holland v. Washington Homes, Inc., 487 F.3d 208,219

(4th Cir. 2007). A plaintiff need not strictly establish each of these elements in the complaint,
but the complaint must provide sufficient factual allegations to support a plausible inference of
discrimination.

See Swierkiewicz, 534 U.S. at 510-15.

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- --

HHS's only argument for dismissal of claims of disparate treatment based on age or race
in the terms and conditions of employment is that Plummer's requested accommodations were
not reasonable. As discussed above, however, the Court cannot at this stage of the case conclude
that Plummer's requests were facially unreasonable, and the Amended Complaint alleges that
similarly situated employees "have been treated more favorably than Plaintiff regarding their
terms and conditions of employment, including flexibility in telework requirements."

Am.

Compl. ~ 39. Plummer then proceeds to identify specific individuals outside of her protected
classes of race and age that have allegedly received the same terms and conditions

of

employment denied to her. Accordingly, HHS has offered no persuasive basis for the Court to
dismiss Plummer's claim of race and age discrimination in terms and conditions of employment.
CONCLUSION
For the foregoing reasons, Plummer's

Rule 56(d) Motion is GRANTED, and HHS's

Motion to Dismiss, or, in. the Alternative, for Summary Judgment, construed as a Motion to
Dismiss, is GRANTED IN PART and DENIED IN PART. HHS's Motion is GRANTED as to
the non-promotion claims in Counts I, III, and IV and the retaliation claim in Count II. The
Motion is DENIED with respect to Plummer's remaining claims.

Date: October 3,2017
THEODORE D. CH
United States Distric

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