Lim v. Burwell et al
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 4/19/2018. (c/m 4/19/2018 heps, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
ALEX M. AZAR II,l
Secretary, Us. Department of
Health and Human Services,
U.S. DEPARTMENT OF HEALTH AND
SCOTT GOTTLIEB, Commissioner,
LUCIANA BORIO, Chief Scientist,
JAMES M. SIGG,
Chief Operating Officer, and
U.S. FOOD AND DRUG
Civil Action No. TDC-17-0438
Plaintiff Dr. Chang Lim, a former Commissioner's
and Drug Administration
Fellow with the United States Food
("FDA"), has filed this action against the Secretary of Health and
Human Services ("the Secretary" or "HHS"), the United States Department of Health and
Human Services, the FDA, and three FDA officials (collectively, "Defendants"), alleging that he
was subjected to a hostile work environment and discrimination on the basis of race, color, and
national origin, as well as unlawful retaliation for filing complaints with the FDA and the United
States Equal Employment Opportunity Commission ("EEOC"), all in violation of Title VII of the
Defendant Thomas E. Price is no longer the Secretary of Health and Human Services. The
Clerk is directed to substitute the present Secretary as the Defendant in this case. See Fed. R.
Civ. P. 25(d).
Civil Rights Act of 1964,42 U.S.C.
Court are Defendants'
2000e to 2000e-17 (2012). Presently pending before the
Motion to Dismiss and Lim's Motion for Leave to File a Second
Amended Complaint ("Motion to Amend"). Having reviewed the submitted materials, the Court
finds that no hearing is necessary. See D. Md. Local R. 105.6. For the reasons set forth below,
the Motion to Amend is GRANTED, and the Motion to Dismiss is GRANTED IN PART and
DENIED IN PART.
In October 2008, Dr. Chang Lim, an Asian American of South Korean descent, was
selected as one of 50 FDA Commissioner's
a program that allowed
scientists such as Lim to work on specific research projects under the guidance of a senior FDA
scientist, known as a "preceptor."
Second Am. Compl. ("SAC"),-r,-r 14, 16, ECF No. 68-2. In the
following months, Lim's relationship with his colleagues in the program deteriorated.
Fellow, Juandria Williams, asserted that Lim had sent a condescending
email to the other
Fellows as part of a proposal to start a study group with membership conditioned on a certain
level of commitment.
On March 5, 2009, Lim received a memorandum from L'Tonya Davis, the
Executive Officer in the FDA Office of the Commissioner, which set forth expectations for
appropriate interactions with other FDA employees.
In response, on March 16, 2009, Lim
submitted a 29-page "Internal Memorandum" accusing Williams and other Fellows of intentional
misbehavior, extortion, and conspiracy based on emails sent during the discussions about the
proposed study group and the selection of a representative to communicate information from
Fellows to the management of the Commissioner's
SAC,-r 27; Internal
Memo., J.R. 1205-33.2 The FDA took no formal action in response to Lim's memo.
Beginning in December 2008, Lim's preceptor, Dr. Jonathan Sackner-Bernstein, required
Lim to develop a research project independently.
Between December 2008 and March 2009,
Sackner-Bernstein provided various positive comments on Lim's research proposal, but none of
his proposals were accepted.
According to Lim, Sackner-Bernstein
also prevented him from
attending various mandatory classes.
Lim further alleges that, on March 15, 2009, Sackner-Bernstein
learned from Kelly
Wilkicki, the coordinator ofthe Commissioner's Fellows Program, that Lim is of Korean origin.
By April 1, 2009, Sackner-Bernstein was expressing serious concerns about Lim. Dissatisfied
with one of Lim's research proposals, Sackner-Bernstein wrote to Wilkicki and Nathan Dickey,
an FDA Human Resources Specialist, "I don't think he sees the big picture that we need to craft
a project and its proposal quickly."
SAC,-r 35. Sackner-Bernstein stated in a separate email to
Wilkicki and Dickey that "I must conclude that [Lim] is unlikely to make great progress as a
member of the Agency" and that Lim "doesn't understand scientific methods nor possess the
skills to work effectively/productively
in a large or intense organizational
Sackner-Bernstein Email at 2, J.R. 1235. On April 2, 2009, Sackner-Bernstein wrote
to Wilkicki and Dickey that, "If you were to decide it best for [Lim] to leave, I would not
SAC,-r 37. He added that Lim "does not appear to know what he does not know and
does not understand where the limits should be for him in a group setting." SAC,-r 31. On April
13,2009, Sackner-Bernstein told Lim "[s]orry, I can't work with Korean like you." SAC,-r 44.
Lim attached several documents to both the First and Second Amended Complaints. The
Court finds that these documents are integral to the complaint and will consider them when
deciding the motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Sec'y of
State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007).
On April 15, 2009, Lim submitted a "Petition for Waiver" to Wilkicki requesting
to begin his proposed
research project without
Wilkicki never responded to this request.
From December 2008 to May 2009, Lim made
repeated, unsuccessful requests that FDA allow him to change his preceptor.
allowed at least four white Fellows to change their preceptors during the same time period.
During the same time frame, according to Lim, FDA management concealed his findings from a
study relating to "patient safety risk signals." SAC ~ 66.
On May 20, 2009, Lim applied for a "Flexible Workplace
temporary accommodation that allows an employee to work from home, in order to allow his
wife to travel to Korea to be with Lim's terminally ill father. Id. ~ 48. The FDA denied this
request but granted FW AP requests by two white employees with unspecified circumstances.
On June 5, 2009, the FDA terminated Lim's employment based on both his conduct and
Specifically, FDA cited the March 16, 2009 "Internal Memorandum"
and a waste of "valuable agency resources."
Memo. at 2, J.R. 1252. Lim refused to sign the termination memorandum.
below the signature
line stating that he intended
Instead, Lim wrote a
to file a lawsuit
"[ d]iscrimination based on national origin," "retaliation," and "negligence."
SAC ~ 52; see also
Termination Mem. at 3, J.R. 1253.
Following Lim's termination, he was not paid for 124 hours of unused vacation time and
was instead charged for 68.63 hours of "negative work hours."
SAC ~ 54. According to Lim,
the FDA altered his leave and earnings statement, created various false financial accounts
showing that he owed more than $20,000, and over the next four years referred these accounts to
debt collection agencies and the Internal Revenue Service ("IRS").
The FDA also falsely characterized Lim's departure as voluntary, thus preventing him
from obtaining unemployment benefits. In September 2009, however, the Maryland Department
of Labor, Licensing and Regulation ("DLLR") found that Lim was entitled to unemployment
According to Lim, between 2009 and 2015, FDA implemented various programs based
on his previously rejected research proposals.
On September 16, 2009, Lim filed a formal complaint with the FDA Office of Equal
Employment Opportunity and Diversity Management ("EEO Office").
On the complaint form,
Lim asserted claims of race, color, and national origin discrimination and retaliation. The issues
he identified were non-sexual harassment, termination, performance evaluations, assignment of
duties, duty hours, reassignment, reinstatement, time and attendance, and terms and conditions of
On September 22,2009 and October 16,2009, Lim amended his complaint to add
that both FDA's
of his departure
voluntary, and its claims at a DLLR hearing that he had sent condescending emails, lacked an
understanding of scientific language, and had showed no signs of improvement, were forms of
retaliation for filing complaints.
On January 29,2010, the EEO Office informed Lim that it had accepted for investigation
six discrete claims from his complaint and amendments, consisting of Lim's claims that (1) he
was not allowed to change his preceptor; (2) his research proposals were rejected; (3) FDA did
not consider his FW AP application; (4) he was inappropriately terminated; (5) his supervisors
criticized his scientific knowledge; and (6) FDA management concealed his
findings related to patient safety information.
The EEO Office conducted an investigation into these claims and issued a report on May
Lim elected to proceed to a hearing before an EEOC Administrative Judge ("AJ"),
which was held May 4-5, 2011.
On April 8, 2013, the AJ issued a decision denying each of
HHS issued its final decision dismissing Lim's complaint on April 29, 2013,
which Lim appealed to the EEOC Office of Federal Operations.
decision on August 6, 2015.
That office affirmed HHS's
On November 9, 2015, Lim filed the instant case in the United
States District Court for the Western District of Virginia.
On October 6, 2016, following a
successful Motion to Transfer Venue filed by Defendants, the case was transferred to this Court.
On September 27, 2010, during the processing of his first EEO complaint, Lim filed a
second formal complaint with the EEO Office alleging post-termination retaliation. Specifically,
Lim alleged that on August 2, 2010, the Chief of the HHS Debt Services Section referred Lim to
a debt collection agency, which resulted in Lim receiving a collection letter in retaliation for his
The EEO Office dismissed
to 29 C.F.R.
1614.107 (a)(3) on the grounds that the AJ had not accepted these claims for consideration in the
proceedings on the first complaint.
On July 7, 2011, Lim filed a third formal complaint with the EEO Office, alleging that he
was retaliated against for his prior complaints when he was reported to the IRS and a debt
collection agency. This complaint was dismissed on October 4, 2011 for failing to state a claim
that affected the terms, conditions, or privileges of Lim's employment.
Lim also claims that he
filed a fourth formal complaint on January 9, 2013 alleging retaliation after he "received two
documents from the U.S. Treasury stating 'Debt Information,''' but he has not provided copies of
the complaint or decision. SAC,-r 68.
In their Motion to Dismiss the First Amended Complaint, Defendants argue that (1)
because the Secretary of HHS is the only proper defendant in a Title VII action, all claims
against the other Defendants must be dismissed; (2) Lim fails to state a plausible Title VII hostile
work environment claim; (3) Lim's discriminatory treatment claims should be dismissed because
he has not asserted any adverse employment actions within the meaning of Title VII, with the
exception of discriminatory termination, for which he has failed to state a plausible claim; (4)
retaliation claims should be dismissed because Lim did not engage in
protected activity until he was terminated; and (5) Lim failed to exhaust administrative remedies
relating to his post-termination retaliation claims and some of his discrimination claims.
Lim filed a memorandum in opposition to the Motion as well as a Motion for Leave to
File a Second Amended Complaint.
The proposed Second Amended Complaint does not add
new claims or defendants, but "accounts for the factual findings that have occurred since the
[First Amended Complaint] was filed."
Mot. Amend at 1, ECF No. 68.
opposed the Motion to Amend, arguing that granting Lim a third opportunity to amend the
complaint is excessive and that amendment is otherwise futile for the same reasons articulated in
the Motion to Dismiss.
Motion to Amend
Pursuant to Federal Rule of Civil Procedure 15(a), "[a] party may amend its pleading
once as a matter of course within 21 days after serving it, or if the pleading is one to which a
responsive pleading is required, 21 days after service of a responsive pleading or 21 days after
service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed. R. Civ. P. 15(a)(1).
"In all other cases, a party may amend its pleading only with the opposing party's written
consent or the court's leave." Fed. R. Civ. P. 15(a)(2). Rule 15 dictates that "[t]he court should
freely give leave when justice so requires." Id.
Although Lim claims that the proposed Second Amended Complaint is intended to
account for factual developments since the filing of the First Amended Complaint on July 10,
2017, a review of Lim's proposal shows that all of the additional facts occurred prior to 2013 and
therefore could have been included in either the original Complaint or the First Amended
Many of Lim's changes appear to be stylistic edits, such as changing "asked" to
SAC ~ 25, or adding conclusory statements of law, such as "Lim exhausted
administrative remedies," id. ~~ 39, 45, 57, 67, 68. The most substantive additions are Lim's
details regarding post-termination
retaliation, his filing of formal complaints with the EEO
Office, and his assertion that he was forced to conceal safety information.
Lim also expands on
his claim that his supervisors inappropriately criticized his scientific knowledge.
Lim has not put forth a compelling justification for failing to include these facts in the
First Amended Complaint.
However, the additional facts asserted in the Second Amended
Complaint do not affect the Court's analysis of Lim's claims.
Defendants' arguments in their
Motion to Dismiss are equally applicable to the Second Amended Complaint, and Defendants
were explicitly provided the opportunity to supplement, in their memorandum in opposition to
the Motion to Amend, their argument for dismissal by specifically addressing how even with the
additional facts in the proposed Second Amended Complaint, Lim's claims should be dismissed.
The Court therefore finds that Defendants are not prejudiced by the Second Amended Complaint.
Given Lim's pro se status in this case, the Motion to Amend will be granted.
granted any additional opportunities to amend absent exceptional circumstances.
Lim will not be
Motion to Dismiss
To the extent that Defendants seek dismissal of Lim's discrimination 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
See Jones v. Calvert Group, Ltd, 551 F.3d 297, 300-01 (4th Cir. 2009).3
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.
The Defendants' 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
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
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.'"
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.
Lynchburg College, 300 F.3d 400, 404 (4th Cir. 2002).
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002), the "(f]actual 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).
Defendants first argue that the only proper Defendant is the Secretary of HHS. They are
Under Title VII, civil actions by current or former federal employees must be brought
against the head of the federal department that employed the plaintiff, not against component
agencies or individual supervisors. See 42 U.S.C.
("(A]n employee ... may file a
civil action" in which "the head of the department, agency, or unit, as appropriate, shall be the
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
Therefore, the Court will grant the Motion to Dismiss as to all Defendants except the
Hostile Work Environment
In Count I, Lim alleges that Defendants subjected him to a hostile work environment in
violation of Title VII.
A hostile work environment exists "when the workplace is permeated
with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to
alter the conditions of the victim's employment and create an abusive work environment."
Boyer-Liberto v. Fontainebleau
Corp., 786 F.3d 264, 277 (4th Cir. 2015).
To prove such a
claim, a plaintiff must show that (1) the plaintiff experienced unwelcome harassment; (2) the
harassment was based on the plaintiffs race, color, religion, national origin, or age; (3) the
harassment was sufficiently severe or pervasive to alter the conditions of employment and to
create an abusive atmosphere; and (4) there is some basis for imposing liability on the employer.
Baquir v. Principi, 434 F.3d 733, 745-46 (4th Cir. 2006). A court's determination whether such
an environment exists includes a consideration of "the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee's work performance."
786 F.3d at 277 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
behavior by [one's] superiors," Bass v. E.! DuPont de Nemours & Co., 324 F.3d 761, 765 (4th
Cir. 2003), or "a routine difference of opinion and personality conflict with [one's] supervisor,"
Hawkins v. PepsiCo, Inc., 203 F.3d 274, 276 (4th Cir. 2000), in contrast, do not rise to the level
of actionable harassment.
Here, Lim's hostile work environment claim is based on the alleged denial of his requests
to change his preceptor, the setting of "bogus deadline[s]" for submitting project proposals,
plagiarism of his work, derogatory statements about his competence and professionalism, and
"treating him as a jerk." SAC ~~ 72-78. These and the other allegations in the Second Amended
Complaint do not describe harassment that is severe or pervasive enough to establish a hostile
Lim alleges no physically threatening conduct, abusive communication, or
even raised voices in his description of each of the above incidents. The alleged conduct consists
primarily of denials of requests to supervisors, negative evaluations of his job performance, and
emails from colleagues criticizing Lim for being insensitive and exclusionary.
declined to find a hostile work environment based on workplace conduct far more severe than
See, e.g., Buchhagen v. ICF Int'l, Inc., 545 F. App'x 217, 219 (4th Cir. 2013)
(stating that allegations of a supervisor mockingly yelling at the plaintiff in a meeting, "yelling
and pounding her hands on her desk during another meeting," "repeatedly harping on a mistake"
by the plaintiff, "making snide comments" to the plaintiff, "playing favorites with employees and
pitting employees against each other," and "unfairly scrutinizing and criticizing" plaintiffs
of leave and lack of compliance with directives fall "far short of being severe or pervasive
enough to establish an abusive environment" (internal alterations omitted)).
Moreover, Lim offers virtually no facts that suggest that any of these actions were
motivated by his membership in a protected class. The emails he has attached as exhibits to both
his First and Second Amended Complaints, whether by FDA management, his preceptor, or
other Fellows, make no mention of his race, color, or national origin. The only allegation that
Lim's national origin was referenced is his claim that Sackner-Bernstein told Lim on April 13,
2009 that he "can't work with Korean like you."
conduct toward an employee, particularly
SAC ~ 44.
by a supervisor,
A single incident of abusive
can establish a hostile work
environment if the offensive action was egregiously severe. See, e.g., Boyer-Liberto, 786 F.3d at
278,280 ("[A] reasonable jury could find that [the supervisor's] two uses of the "porch monkey"
epithet ... were severe enough to engender a hostile work environment.").
Liberto, however, Sackner-Bernstein's
Unlike in Boyer-
lone comment did not consist of an explicit, odious racial
slur or other comparably severe conduct that would support the finding that the comment,
standing alone, established a hostile work environment based on national origin.
Liberto, 786 F.3d at 280.
Particularly where most of the alleged offensive conduct was not
perpetrated by Sackner-Bernstein, the Court finds that Lim has not stated a plausible claim that
the conduct, even if sufficient to constitute a hostile work environment, was based Lim's race or
national origin. Accordingly, the Court grants Defendants' Motion to Dismiss as to Count 1.
In Count II, Lim alleges that Defendants impermissibly discriminated against him on
account of race, color, or national origin in violation of Title VII by (1) denying him "equal
terminating his employment.
Title VII makes it unlawful for an employer "to discharge any individual, or otherwise
against any individual with respect to his compensation,
privileges of employment, because of such individual's
terms, conditions, or
race, color, religion, sex, or national
To evaluate Title VII claims in the absence of convincing
direct evidence of discriminatory intent, courts apply the burden-shifting
analysis outlined in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See Adams v. Trs. of the Univ.
640 F.3d 550, 558 (4th Cir. 2011). The burden is first on the plaintiff to
establish a prima facie case of discrimination.
Id. Upon such a showing, the burden shifts to the
employer to assert a "legitimate, nondiscriminatory
reason" for the allegedly discriminatory
conduct. Id. (quoting Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277,285 (4th Cir.
If the employer makes that showing, the burden shifts back to the plaintiff to
demonstrate that the employer's purported reasons are a "pretext for discrimination."
Id. at 558-
59 (quoting Hill, 354 F.3d at 285).
To establish aprimafacie
claim for race, color, or national origin discrimination based on
disparate treatment, a plaintiff must present facts demonstrating:
in a protected class, (2) the plaintiffs
(1) the plaintiff s membership
satisfactory job performance, (3) that the plaintiff was
subjected to an adverse employment action, and (4) that similarly situated employees outside the
protected class received more favorable treatment.
White v. BFI Waste Svcs., Inc., 375 F.3d 288,
295 (4th Cir. 2004).
When the claim is discriminatory termination, the elements are altered
slightly. A plaintiff must then present facts demonstrating:
(l) the plaintiff s membership in a
protected class, (2) that the plaintiff was terminated, (3) that at the time of the termination, the
plaintiff was performing at a level that met the employer's legitimate expectations, and (4) that
the position was filled by a similarly qualified applicant from outside the protected class. King v.
Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003).
Although Lim does not need to allege facts
sufficient to establish a prima facie case under Title VII on a motion to dismiss, he nevertheless
must plead facts sufficient to support a reasonable inference that an alleged adverse employment
action was motivated by bias or discrimination.
780 F.3d 582, 584-85 (4th Cir. 2015).
See McCleary-Evans v. Md. Dep't of Transp.,
There is no dispute that Lim, an Asian American of
Korean descent, is a member of a protected class.
employment, Lim asserts a variety of allegedly discriminatory
actions, including that FDA
officials required him to develop his own research proposal without guidance,
memorandum reminding him of professional conduct standards, prevented him from attending
required classes, rejected the research proposals that he developed, ignored his request to submit
a research proposal without his preceptor's
signature, and concealed his research findings.
However, he identifies only two situations in which other Fellows outside of his protected class
allegedly received more favorable treatment.
First, Lim contends that his repeated requests to
change preceptors were denied, but four white Fellows were allowed to do so. Second, he claims
that his request for an FW AP was denied by FDA officials while similar requests were granted
for two white female Fellows.
These incidents do not support a disparate treatment claim under Title VII because they
are not adverse employment actions. "An adverse employment action is a discriminatory act that
'adversely affects the terms, conditions, or benefits of the plaintiffs employment.'"
Washington 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)). Examples of adverse employment actions
demotion, decrease in payor
benefits, loss of job title or supervisory
responsibility, or reduced opportunities for promotion."
Boone v. Goldin, 178 F.3d 253, 255 (4th
Cir. 1999). The denial of Lim's request to change his preceptor had no effect on his pay,
benefits, job title, or responsibilities and thus is not an adverse employment action that could
support a claim of discrimination based on disparate treatment. See, e.g., Kortan v. California, 5
F. Supp. 2d 843, 852-53 (C.D. Cal. 1998) (holding, in the context of a retaliation claim, that the
denial of a request to change supervisors was not an adverse employment action), aff'd sub nom,
Kortan v. Cal. Youth Auth. 217 F.3d 1104 (9th Cir. 2000). Likewise, the denial of Lim's FWAP
did not affect his payor
benefits, downgrade his title, or reduce his job responsibilities.
Parsons v. Wynne, 221 F. App'x 197, 198 (4th Cir. 2007) (holding, in the context of a retaliation
claim, that denial of an alternative work schedule was not an adverse employment action); see
also Burlington N & Santa Fe. Ry. V White, 548 U.S. 53,67 (2006) (noting that the standard for
conduct to be an adverse employment
action is lower for a retaliation claim than for a
qualifies as an adverse employment
action for the
purposes of a Title VII claim, but Lim has not provided sufficient allegations to support a
plausible claim of discriminatory termination.
Specifically, he has not alleged that he was
replaced by a new Fellow from outside his protected class. According to Lim, HHS "left [the]
position open," such that there is no allegation that it was filled by someone who was not Asian
American or of Korean descent.
SAC ~ 63. Moreover, Lim does not claim that other Fellows
from outside the protected class had submitted documents such as the Internal Memorandum and
had difficulty submitting a satisfactory research proposal, yet were not terminated.
The only reference in the Second Amended Complaint to Lim's race or national origin is
the allegation that Sackner-Bernstein told him on April 13,2009, "I can't work with Korean like
you." SAC ~ 44. However, Sackner-Bernstein did not have the authority to terminate Lim. See
Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 291 (4th Cir. 2004) (en bane)
(holding that an employer is not liable when "an improperly motivated person . . . merely
influences the decision").
In limited circumstances, discriminatory intent can be imputed to the
"when that official has no discriminatory animus but is influenced by
previous company action that is the product of a like animus in someone else." Staub v. Proctor
Hosp., 562 U.S. 411, 417 (2011) (applying this principle to an alleged violation of the Uniformed
Services Employment and Reemployment Rights Act, which "is very similar to Title VII"); see
also e.g., Lobato v. New Mexico Env't Dep't, 733 F.3d 1283, 1294-96 (lOth Cir. 2013) (applying
Staub to a Title VII national origin claim). Under this eat's paw theory ofliability, evidence that
who was not the formal decisionmaker
"perform [ed] an act motivated
[discriminatory] animus that [was] intended by the supervisor to cause an adverse employment
action" could support a finding of discrimination "if that act [was] a proximate cause of the
ultimate employment action." Staub, 562 U.S. at 422 & n.3 (footnote omitted). The supervisor,
however, cannot merely have "substantial
influence on the ultimate decision"
role in the decision; rather, a supervisor's
liability only if the supervisor was, in effect, "principally
or play a
animus may support
for, or the actual
behind, the action," such as when the formal decisionmaker
stamped the supervisor's recommendation.
See Hill, 354 F.3d at 291; Ousley v. McDonald, 648
346, 348-49 (4th Cir. 2016) (considering
only the motivations
of the formal
decisionmaker when the individual alleged to have a discriminatory motive "merely acted as a
consultant" on the final employment decision).
Here, there is no allegation that Sackner-Bernstein was either the formal decisionmaker
or the actual decisionmaker for Lim's termination.
authored by FDA Assistant
Rather, the termination memorandum was
Bernstein's correspondence reveals that although he was asked to and did provide input on Lim's
professional performance and workplace behavior, he made no mention of Lim's race or national
origin and did not specifically recommend Lim's termination.
See SAC ~ 37 (quoting an email
from Sackner-Bernstein to Wilkicki and Dickey where Sackner-Bernstein states "(i]fyou were to
decide it best for David to leave, I would not disagree"). Moreover, Sackner-Bernstein's
focused on Lim's inability to complete a research proposal on time, while Holden's termination
memorandum emphasized Lim's submission of the Internal Memorandum and inability to work
effectively with his peers.
Mem., J.R. 1251-53.
Compare Sackner-Bernstein Email, J.R. 1235-36 with Termination
Thus, even accepting as true Lim's assertion that Sackner-Bernstein had
once mentioned his national origin, it is clear that Holden did not simply rubber-stamp
termination decision effectively made by Sackner-Bernstein.
Because Lim has not alleged facts
that could reasonably support the claim that his termination was based on race, color, or national
origin, the Court will grant Defendants'
Motion to Dismiss as to this claim.
See Ramos v.
Molina Healthcare, Inc., 630 F. App'x 173, 178 (4th Cir. 2015) (affirming the dismissal of a
Title VII discriminatory termination claim where, "(a]part from some conclusory allegations of
causation," the plaintiff "merely alleged that [his supervisor] once made a derogatory comment
about Hispanics and that [his] supervisors generally disliked Hispanics").
In Counts III and IV, Lim alleges that he was subjected to various retaliatory actions for
opposing discriminatory practices within the FDA Commissioner's
Fellows Program, including
acts taken before his termination, the termination itself, and acts taken after his termination.
Specifically, Lim alleges that the issuance of the March 5, 2009 memorandum on professional
conduct; the denial of his requests to change preceptors; the rejection of his research proposals;
statement that he could not "work with Korean like" Lim, SAC
termination as an FDA Commissioner's
Fellow; the denial of a post-termination payment to him
for accrued leave; and the creation of allegedly false accounts in his name that were referred to
debt collection agencies were all undertaken by HHS officials in retaliation for "exercising his
federally protected rights." SAC
Title VII makes it unlawful for an employer to retaliate against an employee "because he
has opposed any practice made an unlawful employment practice by this subchapter."
Employment practices made unlawful by Title VII are those that discriminate against
employees on the basis of race, color, religion, sex, or national origin. See 42 U.S.C.
(delineating unlawful employment practices under Title VII). To establish aprimafacie
retaliation, a plaintiff must present facts that establish that (1) the plaintiff engaged in a protected
activity; (2) the employer took an adverse employment action against the plaintiff; and (3) "there
was a causal link between the two events." Boyer-Liberto, 786 F.3d at 281.
Pre-Termination and Termination
Defendants argue that Lim's retaliation claims arising from his termination and actions
taken prior to his termination cannot support a cause of action for retaliation because Lim did not
engage in any protected activity before he filed his EEO complaint on September 16, 2009. In
response, Lim argues that he engaged in protected, oppositional
conduct on three separate occasions:
activity to discriminatory
(1) by filing the "Internal Memorandum"
on March 16,
2009; (2) by requesting to change his preceptor; and (3) by refusing to sign his termination
memorandum and instead stating that he intended to file a lawsuit based on discrimination and
Courts take an "expansive view of what constitutes oppositional conduct." DeMasters v.
Carilion Clinic, 796 F.3d 409, 417 (4th Cir. 2015). It "encompasses 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."
Laughlin v. Metro. Wash. Airports Auth.,
149 F.3d 253, 259 (4th Cir. 1998). To qualify as protected activity, the employment practices
opposed may be either "actually unlawful under Title VII" or reasonably believed by the
employee to be unlawful.
Boyer-Liberto, 786 F.3d at 282 (quoting EEOC v. Navy Fed Credit
Union, 424 F.3d 397 (4th Cir. 2005)). However, to qualify as protected activity, an employee's
complaints must still communicate "a belief that the employer has engaged in . . . a form of
employment discrimination" based on a protected class. Crawford v. Metrop. Gov't of Nashville
and Davidson Cty., 555 U.S. 271, 276 (2009); Johnson v. Mechanics & Farmers Bank, 309 F.
App'x 675, 685-86 (4th Cir. 2009) (emphasizing, when applying Title VII retaliation analysis to
an Age Discrimination in Employment Act claim, that "it is fundamental" that a plaintiff must
have engaged "in activities opposing discrimination").
Complaints about management activities
that would not constitute unlawful discrimination
do not count as protected activity.
Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 216-17 (4th Cir. 2002) (finding no
Americans with Disabilities Act retaliation claim because the plaintiff could not reasonably
believe that the conduct she had opposed violated the ADA, even though the opposed conduct
could have violated state medical malpractice law); Bowman v. Bait. City Bd. of Sch. Commr's,
173 F. Supp. 3d 242, 248 (D. Md. 2016) ("General complaints of unfair treatment are not
Here, Lim's pre-termination
activities did not communicate opposition to an alleged
discriminatory practice and are thus not protected activities within the meaning of Title VII.
There is no mention of Lim's race, color, or national origin within the 29 pages of the "Internal
See Internal Mem., J.R. 1205-1233.
Although Lim now labels his preceptor,
Sackner-Bernstein, as an intolerant "Jewish extremist" in support of his claim that his requests to
change preceptors constituted attempts to oppose discrimination, Lim does not allege in the
Second Amended Complaint or elsewhere that he communicated
his views about Sackner-
Bernstein's motivations to agency officials when making his requests. Opp'n Mot. Dismiss at 3,
ECF No. 61. Finally, the statement written by Lim on his termination memorandum announcing
his intention to file a discrimination complaint cannot constitute protected activity underlying a
claim of retaliatory termination because the FDA's decision to terminate Lim had already taken
place, and had been communicated to him, before Lim wrote that statement.
Court dismisses Lim's claims that his termination or any pre-termination
Defendants argue that Lim's post-termination retaliation claims, in which he asserts that
FDA retaliated against him by providing misleading information to the DLLR and by falsifying
debts and referring them to collection agencies, should be dismissed because he failed to exhaust
Lim filed his first EEO complaint on September
16, 2009, in which he alleged
treatment and termination, hostile work environment, and retaliation for pre-
He then amended. his EEO complaint on September 22 and October 16,
2009 to include claims of retaliation based on the FDA's representations to the DLLA allegedly
aimed at causing his post-termination claim for unemployment benefits to be denied. On August
9,2010, Lim contacted an EEO counselor to assert a claim of retaliation based on FDA's August
2, 2010 referral of Lim's account to a debt collection agency. Lim filed a second formal EEO
complaint on this issue on September 27, 2010, which was denied on January 5, 2011 because
the AJ had declined to accept the claim in the adjudication of the first EEO complaint. On May
10, 2011, Lim contacted an EEO counselor to report allegedly retaliatory activity consisting of
the referral of three financial accounts in his name to the IRS and a debt collection agency. Lim
filed a formal complaint on this issue on July 7, 2011. The complaint was denied on October 4,
2011, on the grounds that it was an identical matter to one of his earlier EEO complaints.
the Final Agency Decisions on the second and third EEO complaints, Lim was notified that he
could file an appeal to the EEOC within 30 days of the Final Agency Decision, and that he must
file a civil action within 90 days of the Final Agency Decision if he did not file an appeal or
within 90 days ofthe EEOC's appeal decision. Lim did not appeal those decisions.
Defendants argue that where Lim failed to file appeals of the second and third EEO
complaints or file a federal lawsuit within 90 days of the Final Agency Decision, he did not
They also claim that he did not pursue any part of the
process, beginning with contacting an EEO counselor, for any other post-
retaliation claims, including his allegations that he was retaliated against through the fabrication
of negative leave balances and alleged false statements to the DLLA that his termination was
voluntary. The Court concludes that Lim's claim that FDA's statements to the DLLR constituted
retaliation may proceed, because that claim was added to the September 16,
2009 EEO complaint by amendment and was thus exhausted.
Unlike a discrimination claim, a retaliation claim can be alleged for the first time in
federal court if it alleges retaliation for the filing of the EEOC charge or EEO complaint itself.
Jones, 551 F.3d at 302; 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 federal court when the
allegation was that the Army retaliated against her for filing an EEOC charge).
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
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").
Thus, Lim's post-termination retaliation claims need not be exhausted to the extent that
they allege that FDA took certain actions in retaliation for the filing of his September 16, 2009
The fact that Lim filed additional EEO complaints for some of his post-
retaliation claims but did not complete the administrative process does not alter this conclusion,
particularly where the EEO complaints relating to post-termination
retaliation appear to have
been summarily dismissed because the issues were already being addressed in the first EEO
See Churchill v. Prince George's Cty. Pub. Schs., No. PWG-17-0980, 2017 WL
5970718, at *7-8 (D. Md. Dec. 1, 2017) (stating that "a plaintiff asserting a Title VII claim of
retaliation for filing a previous EEOC charge ... may raise the retaliation claim for the first time
in federal court," even though the plaintiff filed a later EEOC charge without raising the
retaliation claim); Tripp v. Cty. of Gates, No. 16-cv-00023-FL,
2017 WL 3528653, at *5
(E.D.N.C. Aug 16,2017) (noting, in a case involving two EEOC charges, that "if plaintiff's first
EEOC charge was properly before this court, plaintiff's related retaliation claim would also be
properly before this court").
Lim's factual assertions are sufficient to state a plausible claim of post-termination
retaliation for the filing of his first EEO complaint. On the first prong of a prima facie retaliation
claim, Lim engaged in protected activity by participating in post-termination
between June 11, 2009 and September 8, 2009, and by filing a formal EEO complaint on
September 16, 2009. See Hashimoto v. Dalton, 118 F.3d 671,680 (9th Cir. 1997) (holding that
contact with an EEO counselor was "protected activity").
Lim has also satisfied the second
Unlike a discrimination claim, an "adverse employment action" for the purposes of a
Title VII retaliation claim is any action which "could well dissuade a reasonable worker from
making or supporting a charge of discrimination."
Burlington Northern, 548 U.S. at 57.
Accepting as true Lim's allegation that FDA falsely declined to pay him for his unused vacation
time and falsely created debts amounting to $20,000 against him, such actions would be
sufficient to dissuade a reasonable worker from pursuing a discrimination claim following their
Cf Aviles v. Cornell Forge Co., 183 F.3d 598, 605-06 (7th Cir. 1999) (holding that
filing of a false police report was an "adverse employment action" for the
purposes of a Title VII retaliation claim).
Finally, Lim has pleaded a causal link between his protected activity and the retaliatory
Lim claims that FDA altered his civilian leave and ~amings statement of August 29,
2009, approximately ~2 weeks after Lim informed HHS that he intended to file a lawsuit against
the agency and during his informal pre-complaint counseling with the EEO Office. Lim alleges
that the debt collecti~:mreferrals began in August 2010, which was almost a year after the filing
of his first EEO complaint in September 2009, but was three months after the completion of the
EEO investigation and during discovery prior to the May 4-5, 2011 EEOC hearing.
see also 29 C.F.R.
before an EEOC AJ).
SAC ~ 55;
1614.1 09(d) (20 17) (allowing parties to seek discovery prior to a hearing
Lim asserts that the referrals were made by Dickey who, as a Human
Resources Specialist, was aware of Lim's EEOC actions. Moreover, it appears that Lim's only
interaction with the FDA following his termination was through the EEO process, either through
the filing of complaints or participation in the adjudication of his complaints.
On a motion to
dismiss, the temporal proximity with Lim's ongoing engagement in the EEO process is sufficient
to state plausibly that the debt collection referrals, by someone with knowledge of Lim's EEO
complaint, were caused by a retaliatory motive.
See, e.g., Waag v. Sotera Defense Solutions,
Inc., 857 F.3d 179, 192 (4th Cir. 2017); Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004)
(holding that, although it was "a very close question," a plaintiff established a prima facie case of
retaliation despite a "nine to ten month" gap between protected activity and the adverse
decision); Kachmar v. Sungard Data Systems, Inc., 109 F.3d 173, 178 (3d Cir. 1997) ("It is
important to emphasize that it is causation, not temporal proximity itself, that is an element of
plaintiff s prima facie case").
Particularly where the retaliation provision of Title VII protects
those who "participated in any manner in an investigation, proceeding, or hearing," 42 U.S.C.
. 2000e-3(a), the Court denies the Motion to Dismiss as to Lim's post-termination
This decision extends to the alleged alteration of Lim's leave and earnings statement.
Although this alleged retaliation occurred prior to the September 16, 2009 EEO Complaint, it is
not clear from the pleadings when Lim learned of the alteration, leaving open the possibility that
Lim learned of the alleged changes to his leave statement after he submitted the September 16,
2009 EEO complaint. Since it is not clear that Lim "had knowledge of the factual basis for [his]
retaliation claim before [he] filed [his] charge with the EEOC," this claim may be raised for the
first time in a judicial complaint. See Tonkin, 605 F. App'x at 194.
For the foregoing reasons, Lim's Motion for Leave to File a Second Amended Complaint
is GRANTED, and Defendants' Motion to Dismiss is GRANTED IN PART and DENIED IN
PART. Defendants' Motion is GRANTED as to Counts I, II, and III. The Motion is DENIED
with respect to Count IV. Count IV is limited to claims of post-termination retaliation for the
filing of the September 16, 2009 EEO Complaint or claims of which Lim was not aware when
the first EEO complaint was filed. All claims against Defendants other than the Secretary of
HHS are DISMISSED.
Date: April 19, 2018
THEODORE D. CHUA
United States Distri~
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