Forgus v. Carter
Filing
37
OPINION. Signed by District Judge John A. Gibney, Jr. on 12/12/2017. Copy mailed to Plaintiff. (walk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
ASHIDDA FORGUS
Plaintiff,
V.
Civil Action No. 3:16-cv-673
JAMES MATTIS, Secretary of Defense,
Defendant.
OPINION
Ashidda Forgus works at the Defense Logistics Agency ("DLA"), an agency of the
Department of Defense, as a Business Process Analyst. The Court ordered Forgus to amend her
initial complaint, instructing her to include a clear, brief statement of facts, a separately titled
section identifying each legal claim and the facts that support it, as well as the reliefsought, a list
of defendants, and any documents she wished the Court to consider. After filing her amended
complaint, Forgus moved for leave to amend again, which the Court granted. She filed a second
amended complaint, containing three claims. She alleges (1) disparate treatment based on race
and sex in violation of Title VII; (2) retaliation in violation of Title VII; and (3) hostile work
environment.
Forgus' second amended complaint does not state a claim for relief. She fails to identify
the adverse employment action required for her disparate treatment and retaliation claims, and
she does not allege sufficient facts to meet the high bar for hostile workenvironment claims.
Accordingly, the Court grants the defendant's motion to dismiss the second amended
complaint.
I. BACKGROUND
Forgus alleges numerous facts spanning several years. The Court, however, may only
consider actions or claims contained in the underlying Equal Employment Opportunity
Commission ("EEOC") claim. King v. Seaboard Coast Line R. Co., 538 F.2d 581, 583 (4th Cir.
1976). Thus, the Court will not consider any actions before Forgus began working for DLA in
2009, or after March 23, 2012, when she filed her formal EEOC complaint. The Court has
summarized the pertinent facts below.
Forgus, a black woman, began working at DLA in December 2009. DLA consists of
several directorates, including the Business Process Support Directorate, which includes the
Order Fulfillment Division.
The Order Fulfillment Division has two branches: Order
Management and Inventory Management. Forgus works as a Business Process Analyst, a
position which exists in both the Order Management and Inventory Management branches. She
works exclusivelywithin the Order Management branch.
Forgus describes several instances in which she made complaints or requests, only to
make more complaints or requests once her supervisors acquiesced. These include complaints
about seating arrangements, assigned alternates,' trainings, informal office meetings, and, in
January 2011, her discomfort with the office environment. Similarly, when Forgus complained
her workload was too light, her supervisor assigned her to an important project, and then Forgus
requested a reduction in her workload. This cycle repeated several times.
Forgus also describes her many attempts to transfer to the Inventory Management branch.
On January 6, 2011, DLA posted a vacancy announcement for a Business Process Analyst, and
Forgus applied. Although the selecting official put her on a list of qualified candidates, that
' Forgus uses the term "alternate" throughout her complaint, and it refers to employees assigned
as backup on projects. See, e.g.. Second Am. Compl., at 8-9.
2
official said she would not consider Forgus because the vacancy described the position she
already held. Her supervisor, Naomi Wilcox, told Forgus she could submit a written request if
she wished to transfer to the Inventory Management branch.
On January 31, 2011, Forgus
emailed Wilcox stating she wanted to work within both branches and broaden the scope of her
current job. In February 2011, Forgus had two meetings with her superiors in which she
requested a transfer, and voiced concerns about her workload being too light. Wilcox again told
Forgus she would have to submit a written request for the specific transfer, rather than utilize the
application process. Nevertheless, Forgus told Wilcox to treat her application for Business
Process Analyst as a written request. At one of these meetings, the selecting official said, "Well
anyway, you're not getting the position," referring to the vacancy to which Forgus applied, a
comment which Forgus describes as "caustic." (Second Am. Compl., at 11.) Two black men
from outside the division were eventually chosen as Business Process Analysts, one in Order
Management, and one in Inventory Management.
In October 2011, Wilcox assigned Forgus to a high priority project, which Forgus now
argues was an attempt to force her out of her position by giving her too much work. On
November 1, 2011, Forgus contacted an EEOC counselor. The next day, Wilcox, unaware of
Forgus' EEOC contact, attempted to meet another of Forgus' requests by allowing her to split
her time between her normal workload and the special project. When Forgus expressed concern
about being fired for failure to keep up with her normal workload, Wilcox assured her she would
not be removed. As far as the record shows, Forgus still holds the same position at DLA.
OnMarch 23, 2012, Forgus filed a formal discrimination complaint withthe EEOC. She
requested a hearing before an Administrative Judge, and on January 8, 2014, the judge disposed
of her allegations regarding discrimination, including hostile work environment and retaliation.
On February 26, 2014, she filed an appeal with the EEOC, which affirmed the Administrative
Judge's findings. Forgus then brought this suit.
IL STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss gauges the sufficiency of a complaint without
resolving any factual discrepancies, testing the merits of the claim, or judging the applicability of
any defenses raised by the non-moving party. Republican Party ofN.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992). In considering the motion, a court must accept all factual allegations in the
complaint as true and draw all reasonable inferences in favor of the plaintiff. Nemet Chevrolet,
Ltd. V. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)). "The tenet that a court must accept as true all of
the allegations contained in a complaint[, however,] is inapplicable to legal conclusions."
Ashcroft V. Iqbah 556 U.S. 662, 678 (2009). To survive a Rule 12(b)(6) motion to dismiss, a
complaint must state facts that, when accepted as true, "state a claim to relief that is plausible on
its face." Id. (quoting 5e//^//. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
In Swierkiewicz v. Sorema, the Supreme Court held that a plaintiff alleging employment
discrimination must follow only "theordinary rules for assessing the sufficiency of a complaint."
534 U.S. 506, 511 (2002). Although Iqbal and Twombly "did alter the criteria for assessing the
sufficiency of a complaint," the Fourth Circuit has held that "those cases did not overrule
Swierkiewicz's holding that a plaintiff need not plead the evidentiary standard" to survive a
motion to dismiss under Rule 12(b)(6) in an employment discrimination case. McCleary-Evans
V. Md Dept. ofTransp, State Highway Admin., 780 F.3d 582, 586-87 (4th Cir. 2015) (emphasis
in original). Accordingly, at the pleadings stage, the Court must determine only whether a
plaintiffhas alleged sufficient facts to renderplausible her claim.
in. DISCUSSION
A. Disparate Treatment Claim
In order to survive dismissal on a disparate treatment claim, Forgus must allege, as a
threshold matter, some sort of adverse employment action. James v. Booz-Allen & Hamilton,
Inc., 368 F.3d 371, 375 (4th Cir. 2004). "An adverse employment action is a discriminatory act
that 'adversely affect[s] the terms, conditions, or benefits of the plaintiffs employment.'"
Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (quoting
368 F.3d
at 375). Mere dissatisfaction fails to meet the standard; the plaintiff must show "some significant
detrimental effect." Id.
Most of the facts Forgus alleges, such as problems with her seating arrangement and her
level of work, fall far short of constituting adverse employment actions. The only event
resembling an adverse employment action, and the only one the Court will discuss in more
depth, is Forgus' request for a transfer to another branch.
Forgus applied for a position she already held, and the selecting official put her on a list
of qualified candidates for the position. That official did not select Forgus; instead, she selected
two black men from outside the division. Forgus' supervisor told her she needed to submit a
written request to receive a transfer, but Forgus claims she orally requested a transfer in several
meetings. In these meetings, Forgus requested a transfer in addition to changes in her workload.
Afterward, her supervisor assigned her to a new project in which she received both an increased
workload and experience in Inventory Management, the department to which she desired a
transfer.
Forgus pleads insufficient facts to show an adverse action with regard to her transfer
requests. An employee cannot expect to receive everything she requests from her employer. See
James, 368 F.3d at 377 ("an employee's dissatisfaction with this or that aspect of work does not
mean an employer has committed an actionable adverse action").
Forgus cannot reasonably
argue her requests were ignored, and has not shown any "significant detrimental effect" because
she has not received a transfer. Holland 487 F.3d at 219. In fact, her supervisor made efforts to
give Forgus experience in the Inventory Management branch. She thus fails to state a claim for
disparate treatment.
B. Retaliation Claim
A plaintiff bringing a retaliation claim must allege that (1) she engaged in protected
activity, (2) the employer took adverse action against her, and (3) a causal relationship existed
between the protected activity and the adverse employment action. Causey v. Balog, 162 F.3d
795, 803 (4th Cir. 1998) (citation omitted).
Complaining about potential Title VII violations can constitute protected activity. Okoli
V. City ofBaltimore, 648 F.3d 216, 224 (4th Cir. 2011). In this case, the EEOC identifies as the
first instance of potential protected activity an internal complaint Forgus made to her supervisor
regarding her work environment in January 2011.^ Assuming this constitutes protected activity,
only actions occurring after that date could possibly be retaliatory.
In the retaliation context, an adverse action is one which "might have 'dissuaded a
reasonable worker from making or supporting a charge of discrimination.'" Burlington Northern
and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citations omitted). Forgus alleges
several adverse actions, such as increases and decreases in her workload, a "caustic" comment.
^ The EEOC decision dated January 8, 2014, attached to the second amended complaint,
describes Forgus' internal complaint in January 2011 as the first instance of alleged protected
activity. (Second Am. Compl. Exh. 4, at 9.) Though the factual section of the EEOC decision
states that Forgus complained about her "discomfort" within the Order Management branch in
January 2011, the decision later describes those complaints as pertaining to "disparate treatmenf
for the purposes of Forgus' retaliation claim. Id. at 3, 9.
and refusal to interview or select her for a transfer position. (Second Am. Compl. Exh. 1, at 11.)
As with her disparate treatment claim, Forgus has failed to show that any of these actions would
have dissuaded a reasonable worker from engaging in protected activity. She thus fails to state a
claim for retaliation.
C. Hostile Work Environment Claim
To state a claim for hostile work environment, the plaintiff must plead (1) unwelcome
conduct; (2) based on the plaintiffs protected characteristic; (3) which is sufficiently severe or
pervasive to alter the plaintiffs conditions of employment and to create an abusive work
environment; and (4) which is imputableto the employer. Causey, 162 F.3d at 801.
Forgus belongs to a protected group. Section 15 of the EEOC Compliance Manual
describes intersectional discrimination as discrimination based on "the intersection of two or
more protected bases." Forgus' status as a black woman thus establishes her as a member of a
protected group.
In order to show unwelcome conduct, however, Forgus must show some sort of conduct,
based on that protected characteristic, which she made clear was unwelcome. MentorSav. Bank,
FSBV. Vinson, All U.S. 57, 68 (1986). Furthermore, that conduct must be severe and pervasive,
for which the Fourth Circuit has established a high bar:
[PJlaintiffs must clear a high bar in order to satisfy the severe or
pervasive test. Workplaces are not always harmonious locales, and
even incidents that would objectively give rise to bruised or
wounded feelings will not on that account satisfy the severe or
pervasive standard. Some rolling with the punches is a fact of
workplace life. Thus, complaints premised on nothing more than
"rude treatment by [coworkers]," "callous behavior by [one's]
superiors," or "a routine difference of opinion and personality
conflict with [one's] supervisor," are not actionable under Title
VII.
E.E.O.C. V. Sunbelt Rentals, Inc., 521 F.3d 306, 315-16 (4th Cir. 2008) (internal
citations omitted).
Although Forgus has alleged facts indicating she complained to her superiors generally
about the office environment, these allegations are too vague to demonstrate unwelcome
conduct. Furthermore, she has not alleged any facts showing the environment about which she
complained was a result of her protected characteristic. Even if Forgus could show unwelcome
conduct based on a protected characteristic, none of the actions she alleges meet the high burden
for severe or pervasive conduct. The actions Forgus alleges constitute, at best, merely rude or
callous behavior.
IV. CONCLUSION
Forgus fails to allege sufficient facts to state a claim for disparate treatment, retaliation,
and hostile work environment. For the reasons stated, the Court grants the defendant's motion to
dismiss.
The Court will enter an appropriate order.
Let the Clerk send a copy of this Opinion to all counsel of record and to the pro se
plaintiff.
JohnA.Gibney,Jr.
Date:
Richmond, VA
.2017
United States District J
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?