Abdullah v. Pritzker

Filing 52

ORDER ADOPTING 50 Memorandum and Recommendations, GRANTING 38 MOTION for Summary Judgment . (Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
WANDA ABDULLAH,
Plaintiff,
v.
WILBUR ROSS, Secretary
U.S. Department of Commerce,
Defendant.

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February 28, 2018
David J. Bradley, Clerk

CIVIL ACTION H-16-1411

ORDER
Pending before the court is a memorandum and recommendation (“M&R”) in which the
Magistrate Judge recommends that the court grant defendant Wilbur Ross’s motion for summary
judgment (Dkt. 38). Dkt. 50. Plaintiff Wanda Abdullah has filed objections to the M&R. Dkt. 51.
After considering the M&R, objections, relevant documents in the record, and the applicable law,
the court is of the opinion that the objections (Dkt. 51) should be OVERRULED and the M&R (Dkt.
50) should be ADOPTED IN FULL.
I. BACKGROUND
This is an employment discrimination and whistleblower retaliation case. Dkt. 50. Abdullah
worked as a field representative for the U.S. Census Bureau from on or about January 2008 until
February 2015. Dkt. 13. She was assigned to the Dallas Regional Office through October 2012 and
then to the Denver Regional Office through February 2015. Id. However, she actually worked in
Houston, Texas. Id. She contends that she was retaliated against because she reported fraud to her
employer. Id. She also asserts that the supervisors and staff at the Denver Regional Office
discriminated against her because of her race and age by not allowing her to keep certain cases and
denying her within grade increases. Id. Additionally, she claims that she was a victim of a hostile

work environment. Id. She resigned in February 2015, and she claims that she was forced to resign
because her job was causing her so much stress that she could no longer do the job. Id. Her claims
against her employer include (1) retaliation for whistleblowing; (2) age and race discrimination; and
(3) retaliation and hostile work environment relating to her age and race. Id.
Ross moved for summary judgment, arguing that the court is not required to reach the merits
of Abdullah’s claims because she did not timely seek Equal Employment Opportunity (“EEO”)
counseling, which is a requirement for federal employees who wish to file claims with the EEOC
and eventually sue their employers. Dkt. 38. Abdullah contends that she timely sought EEO
counseling and, alternatively, that the court should consider the continuing violations doctrine or
equitable tolling. Dkt. 44. The Magistrate Judge determined that Abdullah failed to seek EEO
counseling within the forty-five day limitations period, as required for federal employees who allege
discrimination. Dkt. 50. The Magistrate Judge also held that the continuing violation doctrine does
not apply and that there is insufficient evidence to support equitable tolling. Dkt. 50. The Magistrate
Judge thus recommends that the court grant Ross’s motion for summary judgment. Id.
Abdullah filed objections to the M&R. Dkt. 51. She contends that the Magistrate Judge
erred in finding that Abdullah did not initiate EEO counseling within forty-five days of the incident
giving rise to discrimination because her harm was of a continuing nature, taking place over a
number of key dates and a series of key events. Id. at 5. Abdullah argues that, as a matter of law,
“any one of the dates and every one of the events . . . must be considered to determine timeliness.”
Id. at 5–6. She asserts that a letter she received in July 2015 is one example of an event that gave
rise to discrimination because it represents an adverse employment action. Id. at 6. This letter, in
memorandum form, is dated July 20, 2015; it is a decision on a formal administrative grievance
related to which cases Abdullah worked and her overall rating. Dkt. 44-7. The author of the
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memorandum thanks Abdullah for “bringing this to [the agency’s] attention” and grants partial relief.
Id.
Abdullah also contends that she made her initial contact with the EEO counselor in July
2015, citing a counselor’s report dated August 16, 2015, in which the counselor notes Abdullah
contacted him on July 31, 2015. Id.; Dkt. 44-9. The report contains a timeline stating that the “date
of harm” was July 15, 2015. Id. Abdullah contends that this timeline demonstrates that she sought
EEO counseling within forty-five days of the incident or event giving rise to discrimination.
Dkt. 44-9; Dkt. 51. Abdullah asserts that many of her claims arose from the fact that she
encountered further bias and reprisal after filing complaints. Dkt. 51. Abdullah additionally
contends that equitable tolling should apply because her employer deliberately failed to respond to
her grievances, citing a complaint she made on October 1, 2014, that received a response from
Human Resources on February 2, 2015—about four months after filing. Id. She asserts that the
employer was required to respond to formal complaints within ninety days and failed to do so.1 Id.
She also argues that the court should note that she called EEO, Office of the Special Counsel, and
Office of Civil Rights repeatedly to report misconduct and the untimeliness of Human Resources’
response. Id. (citing Dkt. 51, Ex. B (log showing various calls made from October 2014 through

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Abdullah titled the October 1, 2014 letter she wrote to the Director of Human Resources
as a “Formal Grievance.” Dkt. 44-3. However, when Don Keener responded to the letter on
February 2, 2015, he advised Abdullah that it was a response to a letter and that if she disagrees with
the decision she may file a formal grievance. Dkt. 51-3. He gave instructions on how to file a
formal grievance. See id. Abdullah apparently followed those instructions, as she received a
memorandum in response to her “Formal Grievance” of May 15, 2015, on July 20, 2015. Dkt. 44-7.
It appears that she supplemented the May grievance in June, as the memorandum refers to
documentation sent on June 27, 2015. See id. The policy Abdullah cites states that employees will
receive written notification of a decision within ninety calendar days of filing a “formal grievance.”
See Dkt. 51 at 7 (quoting the employee manual). Thus, while clearly the employer needed to act
within ninety days of a formal grievance, the record evidence does not provide a specific timeline
for responses to complaints that did not follow the formal grievance procedures.
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August 20, 2015)). Abdullah alleges that her complaints were overlooked by her employer, and she
urges the court to not do the same. Id.
II. LEGAL STANDARD
A.

Review of an M&R
A party may file objections to a Magistrate Judge’s ruling fourteen days of being served with

a copy of a written order. Fed. R. Civ. P. 72; see also 28 U.S.C. § 636(b)(1)©. The standard of
review used by the district court depends on whether the Magistrate Judge ruled on a dispositive or
non-dispositive motion. See Fed. R. Civ. P. 72; see also 28 U.S.C. § 636(b)(1)©. District courts
must “modify or set aside any part of [an order on a nondispositive motion] that is clearly erroneous
or is contrary to law.” Fed. R. Civ. P. 72(a). For dispositive motions, district courts “must determine
de novo any part of the magistrate judge’s disposition that has been properly objected to.” Fed. R.
Civ. P. 73(b)(3).
B.

Motions for Summary Judgment
A court shall grant summary judgment when a “movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “[A] fact is genuinely in dispute only if a reasonable jury could return a verdict for
the nonmoving party.” Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006). The
moving party bears the initial burden of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548 (1986). If the moving party meets
its burden, the burden shifts to the non-moving party to set forth specific facts showing a genuine
issue for trial. Fed. R. Civ. P. 56(e). The court must view the evidence in the light most favorable
to the non-movant and draw all justifiable inferences in favor of the non-movant.
Conservation Org. v. City of Dallas, 529 F.3d 519, 524 (5th Cir. 2008).
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Envtl.

III. ANALYSIS
The M&R is extremely detailed and addresses all of the issues Abdullah now raises. See
Dkt. 50. The only issue Abdullah cites that she claims was not addressed by the M&R relates to an
alleged report to EEO in October 2014. Abdullah contends that the Magistrate Judge did not
consider evidence that she made phones calls to the EEO Office in October 2014 because a clerk
erroneously failed to attach the records to Abdullah’s surreply. Dkt. 51. The Magistrate Judge noted
in the M&R that Abdullah referred to phone records in her surreply that were not actually attached
to the surreply. See Dkt. 50 at 13. Importantly, however, the Magistrate Judge determined that
“[e]ven if [Abdullah] had a phone record that showed she called the EEO Office on that date, this
does not raise a fact issue that she attempted to invoke the informal grievance procedure required
by the regulation,” which “contemplates the initiation of an informal resolution process, not simply
a phone call.” Id. The Magistrate Judge stated that it was “undisputed that [the call or alleged call]
did not commence the required informal grievance process.” Id. The Magistrate Judge thus
addressed this issue even absent the evidence. And, as more fully explained below, she addressed
it correctly.
Abdullah reiterates the same arguments in her objections that she made to the Magistrate
Judge, arguing that (1) she timely contacted an EEO counselor; (2) her report should be considered
timely under the continuing violation doctrine; and (3) equitable tolling should apply. The court will
address these in seriatim.
As the Magistrate Judge noted, Abdullah, as a federal employee, was required to advise an
EEO Counselor within forty-five days of any adverse employment action before she could file a
claim with the EEOC. Dkt. 50 at 10–11. Abdullah contends that she filed a formal grievance with
Human Resources on October 1, 2014, relating to how her performance rating was calculated and
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alleging a hostile work environment.2 Dkt. 51 at 6–7. This was an administrative grievance, not a
formal complaint to an EEO Counselor. Abdullah complains that she did not receive a response to
her October 1 complaint until February 2, 2015, even though the employee handbook requires a
response within ninety days. Id. at 7. This timing is inconsequential to the instant analysis, as these
dates relate to Abdullah’s administrative grievance—not to a formal complaint beginning the EEO
process. Abdullah received a partially favorable decision on her administrative grievance on July
20, 2015, which was several months after she resigned. Abdullah made a complaint to her EEO
Counselor on July 31, 2015. While she urges the court to consider this complaint timely because it
was made within forty-five days of receipt of the decision on her administrative grievance, the
Magistrate Judge correctly noted that the receipt of this decision does not qualify as a “adverse
employment action.” Dkt. 50 at 14–15 (noting that an “adverse employment action” must affect the
“terms and conditions of employment” and that the “partially favorable decision” on Abdullah’s
administrate grievance, received after Abdullah resigned, does not meet this definition). A federal
employee who raises a matter in a negotiated grievance procedure may not collaterally attack the
decision in an EEO proceeding, as the formal grievance procedure is an election by the employee
to pursue the non-EEO process. 29 C.F.R. § 1614.107(a)(14). Since the complaint to the EEO
Counselor was made more the forty-five days after Abdullah resigned and the resolution of her
formal grievance—the only post-employment act she alleges gave rise to her claims—is not an
adverse employment action that may give rise to an EEO action, the complaint to the EEO Counselor
was, as the Magistrate Judge found, not timely.

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The “hostile work environment” alleged in the October 1, 2014 letter relates to the agency
“forcing [field representatives] to return to hostile respondents when respondent[s] have expressed
with anger not to come back.” Dkt. 44-3.
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Abdullah contends, however, that the Magistrate Judge erred because she ruled that the
continuing violations doctrine did not apply. Under this doctrine, courts may link recent conduct to
past conduct if it is part of a continuing practice. See Stewart v. Miss. Transp. Comm’n, 586 F.3d
321, 328 (5th Cir. 2009). For this doctrine to apply, the plaintiff must demonstrate that the separate
acts are related and not discriminatory discrete acts. Id. Here, Abdullah would have to demonstrate
that the resolution of her formal administrative grievance in July 2015 is part of a serial violation and
not a discrete discriminatory act. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114–15,
122 S. Ct. 2061 (2002) (finding that the “prior discrete discriminatory acts” were untimely and not
actionable but noting that the “very nature” of hostile environment claims “involves repeated
conduct”). As the Magistrate Judge noted, the letter resolving Abdullah’s formal grievance did not
occur during her employment and thus cannot be considered part of a continuing hostile
environment. See Dkt. 50 at 16–17. Accordingly, the continuing violations doctrine does not apply.
Abdullah also argues that “[e]quitable tolling applies as a matter of law.” Dkt. 51 at 9.
Equitable tolling should be applied sparingly and only generally only in specific situations, such as
if “despite due diligence[, the employee] was prevented by circumstances beyond his or her control
from contacting the counselor within the time limits.” 29 C.F.R. § 1614.105(a)(2); Irwin v. Dep’t
of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453 (1990). Abdullah contends that the defendant
deliberately failed to respond to her grievances and that more than four months went by without any
resolution even though the handbook requires action within ninety days. Id. She notes that she
“called EEO, Office of Special Counsel, and Office of Civil Rights repeatedly to report the
misconduct and untimeliness of Human Resources response,” placing over 100 phone calls to
various departments. Id. at 9–10. First, it does appear that Abdullah’s employer took more than
ninety days to provide its formal response to Abdullah’s October 1, 2014 letter regarding issues with
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her ratings. See Dkt. 51-3 (February 2, 2015 letter addressing October 1, 2014 letter). However, she
did receive a response, and the employer agreed to make some adjustments to the ratings. See id.
Thus, there is no showing that her employer deliberately failed to respond. Second, the phone
records do not justify equitable tolling. The phone records indicate that Abdullah made numerous
calls to the Census Bureau during the time period following her resignation on February 15, 2015.
Dkt. 51-2. One of the calls was to “EEO” on April 20, 2015. See id. However, this call to “EEO”
is more than forty-five days after she resigned on February 15, 2015. Additionally, there is no record
or evidence in the record regarding what was discussed during these calls. Equitable tolling is only
warranted in the most exceptional cases, and Abdullah has not met her burden to show it should be
applied. The Magistrate Judge discussed this extensively in her order on pages 17 through 21, and
this court agrees with the Magistrate Judge’s assessment.
IV. CONCLUSION
Abdullah’s objections to the M&R (Dkt. 51) are OVERRULED. The M&R (Dkt. 50) is
ADOPTED in full. Ross’s motion for summary judgment (Dkt. 38) is GRANTED. Abdullah’s
claims are DISMISSED WITH PREJUDICE. The court will issue a final judgment concurrently
with this order.
Signed at Houston, Texas on February 28, 2018.

___________________________________
Gray H. Miller
United States District Judge

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