Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA )
SUSAN MORRIS, )
)
Plaintiff, )
) v. ) Civil Action No. 11-701 (RMC) )
LISA P. JACKSON, Administrator, )
Environmental Protection Agency, )
)
)
Defendant. )
) MEMORANDUM OPINION
Susаn Morris is a former employee at the Environmental Protection Agency (“EPA”). She complains of discrimination based on her sex (female) and race (Caucasian), relating to a seven-day suspension and later removal from her job. She also claims that she was subjected to a hostile work environment. Defendant moves (1) to dismiss the suspension and removal claims for failure to exhaust administrative remedies and (2) for summary judgment оn the hostile work environment allegation for failure to state a claim. As explained below, the motion will be granted with one exception — the suspension claim was, in fact, exhausted and will not be dismissed.
I. FACTS
Ms. Morris is a career federal employee who spent the last ten years with EPA in a GS-15 level position. She joined EPA’s Office of Civil Rights in 2001 as a Team Leader for the agency’s Workforce Diversity and Employment Program. She then became an Assistant *2 Director with the title “Equal Employment Manager.” Ms. Morris alleges that she received outstanding ratings from her supervisors as well as various awards, including a Bronze Medal in 2004 and an Award for Superior Accomplishment in 2006.
In 2005, a contractor produced Management Directive 715, which was critical of EPA’s personnel policies, procedures and practices. Ms. Morris certified the report and submitted it to EPA’s Director оf Civil Rights at the time, Karen Higginbotham. Ms. Morris alleges that “because this report raised issues that Ms. Higginbotham believed cast doubt on her leadership of EPA’s Office of Civil Rights, and that of management as a whole . . . she began a campaign to harass plaintiff and drive her from the agency and from federal employment.” Compl. ¶ 9.
Ms. Morris further contends that Ms. Higginbotham and Ray Spears, Deputy Chief of Staff at EPA, both of whom are African American, harassеd her because she is White. . ¶ 10. She claims that they created a hostile work environment as follows:
Beginning in 2005 and continuing into 2010, Ms. Higginbotham . . . [and Mr. Spears] engaged in a concerted effort to harass and discredit plaintiff by, among other things: (a) undercutting – indeed, usurping — her authority with subordinates though (sic) prevarication, deceit, threats, and racist remarks; (b) initiating and/or hyping knowingly false and scurrilous allegations of misconduct and ethics violations and substance abuse by plaintiff, and subjecting her to a year-long Inspector General’s investigation (2006-2007), in which she was ultimately exonerated; (c) inciting employee groups to attack plaintiff on false claims of bias and misconduct; (d) falsely charging plaintiff with insubordination when she merely responded to false allegations made against her and mistreatment she was made to endure as a result of Ms. Higginbotham’s and Mr. Spears’s actions; (e) withholding acclaim, visibility, and recognition from plaintiff; (f) denying her opportunities to exercise authority to the same degree as her peers; (g) unduly monitoring plaintiff’s time and attendance; and (h) *3 refusing to submit MD-715 reports to EEOC [the Equal Employment Opportunity Commission] which plaintiff has prepared and certified after 2005.
Id .
On April 29, 2008, Ms. Morris was suspended without pay for seven days, from May 5-11, 2008. She asserts that the suspension was due to a bogus charge that she engаged in insubordination.
Ms. Morris filed formal complaints of discrimination with the Department of Energy Office of Civil Rights, acting as EEO designee for EPA, on May 19, 2008 and January 8, 2009, and she amended them on April 21, 2009. Def.’s Mot. to Dismiss [Dkt. # 6], Ex. 1 (Notice of Acceptance/Dismissal of Formal Complaint of Discrimination). On June 19, 2009, the investigating agency issued a notice of acceptance for investigation of claims. The accepted claims included, among other things, whethеr Ms. Morris was discriminated against due to her gender and race based on (1) harassment and a hostile work environment from January 24, 2007 to May of 2008 and (2) a seven day suspension, from May 5-11, 2008. Id .
On March 23, 2010, Ms. Higginbotham issued a notice of proposed removal from federal service to Ms. Morris, charging insubordination, wrongful disclosure of confidential personal information of another employee, misuse of supervisory authority, and inapproрriate statements made in work product. Id. , Ex. 6 (Notice of Proposed Removal). The next day, Ms. Morris filed a whistleblower complaint with the Office of Special Counsel. ., Ex. 7 (OSC Complaint).
On September 8, 2010, Ms. Morris filed with the Merit Service Protection Board (“MSPB”) a “mixed case” appeal of the decision to remove her from federal service. MSPB [1] stayed the removal to allow the Office of Special Counsel to complеte its investigation of the whistleblower complaint. See id. , Ex. 9 (MSPB Decision) at 1. Finding that the Office of Special Counsel might resolve the issue between the parties, MSPB dismissed the appeal without prejudice, but indicated that the appeal would be automatically refiled after the stay was lifted. Id . at 3.
Ms. Morris returned to her job while the stay was in place. When the stay expired, EPA again removed Ms. Morris from her position, effective January 22, 2011. On January 24, 2011, the mixed case appeal was refiled with MSPB and a hearing was scheduled. On April 8, 2011, Ms. Morris filed this lawsuit and withdrew her appeal before the MSPB. Id ., Ex. 13 (Notice of Withdraw of Appeal). As a result, MSPB dismissed the appeal with prejudice. Id ., Ex. 14 (MSPB Apr. 21, 2011 Decision). On May 9, 2011, the EEOC also dismissed Ms. Morris’ administrative complaint because this suit had been filed and it advances the same claims. ., Ex. 15 (EEOC Order of Dismissal).
The Complaint alleges that EPA subjected Ms. Morris to a seven-day susрension, a hostile work environment, and removal from her job based on gender and race discrimination *5 in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e. EPA [2] moves to dismiss the claims relating to the seven-day suspension and termination due to failure to exhaust administrative remedies and moves for summary judgment with regard to the hostile environment claim.
II. LEGAL STANDARD
A. Motion to Dismiss
Motions for failure to exhaust administrative remedies are properly analyzed
undеr Federal Rule of Civil Procedure 12(b)(6).
Hairston v. Tapella
,
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6).
A complаint must be sufficient “to give a defendant fair notice of what the . . . claim is and the
grounds upon which it rests.”
Bell Atl. Corp. v. Twombly
,
A court must treat the complaint’s factual allegations as true, “even if doubtful in
fact.”
Twombly
,
B. Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall
be granted “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgement as a matter of law.” Fed. R. Civ. P. 56(a);
accord Anderson v.
Liberty Lobby, Inc.
,
In ruling on a motion for summary judgment, the court must draw all justifiable
inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.
*7
Anderson
,
III. ANALYSIS
A. Exhaustion of Claim Regarding Removal
Title VII complainants must exhaust administrative remedies before filing suit in
federal court.
Payne v. Salazar
,
A voluntary dismissal cannot be used tо circumvent the requirement of
exhaustion.
See, e.g., Noisette v. Geithner
,
Ms. Morris chose the MSPB as the administrative forum for her complaint regarding removal from federal service. Because Ms. Morris’ appeal was refiled on January 24, 2011, MSPB had 120 days — until May 24, 2011 — to render its final decision. Ms. Morris did not give it time to do so. Instead, on April 8, 2011 she filed suit in this Court and abandoned her administrative case. By dоing so, she failed to exhaust administrative remedies with regard to her removal claim. The claim must be dismissed without prejudice.
B. Exhaustion of Claim Regarding Suspension
Defendant also contends that Ms. Morris failed to exhaust administrative remedies
relating to her suspension because she filed her formal complaint before the informal EEO
counseling process was completed. While Defendant correctly points out that Ms. Morris filed
*9
her complaint before finishing the сounseling process, it does not meet its burden of showing a
failure to exhaust. Before filing a Title VII lawsuit, “[a]n aggrieved person must initiate contact
with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the
case of personnel action, within 45 days of the effective date of the action.” 29 C.F.R. §
1614.105(a)(1). The failure to do so constitutes failure to exhaust administrative remedies.
Drewrey v. Clinton
,
a plaintiff meet with a counselor within 45 days, just that she initiate contact within that time.
Boone v. Clinton
,
After filing a written complaint, the employee may file a civil action after the
agency issues an adverse final decision or 180 days elapse without a deсision, whichever happens
first. 42 U.S.C. § 2000e-16(c). Title VII is remedial in nature; the time limits are imposed are
not mere technicalities, but instead are imposed to insure that employers receive notice of
*10
complaints and have the opportunity to resolve an issue before litigation.
Hairston v. Tapella
,
Although Ms. Morris proceeded with her claim in a sequence that is different from the sequence contemplated by the regulations spelled out above, she nonetheless exhausted administrative remedies regarding the suspension claim. On April 10, 2008, the EEO counselor interviewed Ms. Morris regarding her claim of harassment. Then, on April 29, 2008, Ms. Morris was suspended. She filed a formal EEO complaint several days later — on May 19, 2008. The formal complaint included both the harassment and the suspension claim, and constituted an initiation of the counseling process well within the 45-day period that the regulation requires. Thereafter, Ms. Morris asked that EEO counseling be held in abeyance while she grieved the suspension through EPA’s Administrative Grievance process. Pl.’s Opp., Ex. 1 (EEO Counselor’s Report) at 2 n.2. Later on, the EEO counselor resumed her counseling activities and conducted a final interview on July 14, 2008. Def.’s Mot. to Dismiss, Ex. 1 (Notice of Acceptance/Dismissal of Formal Complaint of Discrimination) at 2. The EEO counselor was unable to resolve the issues and sent a notice of right to file an EEO complaint. Id . On June 19, 2009, the investigating agency accepted the harassment and suspension claims for investigation. Id . at 3. The agency noted that after the EEO Counselor sent the notice of right to file, a claimant ordinarily would have a 15-day period to file a formal complaint, but in this case the agency deemed Ms. Morris to have already filed the formal complaint. The agenсy considered the May 19, 2008 complaint, though filed before the counseling process was concluded, to be a timely filed complaint. . at 2. Because Ms. Morris initiated the EEO counseling process and timely *11 filed a formal complaint, she exhausted administrative remedies regarding her suspension and her related Complaint allegations will not be dismissed.
C. Hostile Work Environment
Defendant moves for summary judgment with regard to Ms. Morris’ harassment
claim. The Supreme Cоurt has determined that the language of Title VII is not limited to
economic or tangible discrimination. “The phrase ‘terms, conditions, or privileges of
employment’ evinces a congressional intent to strike at the entire spectrum of disparate treatment
of men and women in employment, which includes requiring people to work in a discriminatorily
hostile or abusive environment.”
Harris v. Forklift Sys.
,
In determining whether a hostile work environment claim is substantiated, a court
lоoks at all the circumstances of a plaintiff’s employment, specifically focusing on such factors
as the frequency of the discriminatory conduct, its severity, whether it was threatening and
humiliating or was merely offensive, and whether it unreasonably interfered with the employee’s
work performance.
Harris
,
For example, in
George v. Leavitt
,
Ms. Morris alleges that Ms. Higginbotham and Mr. Spears engaged in a concerted effort to harass her because she certified Management Directive 715 that was critical of EPA’s personnel policies, procedures, and practices. See Compl. ¶ 9. She claims that Ms. Higginbotham and Mr. Spears harassed her by:
(a) undercutting her authority with subordinates though (sic) prevarication, deceit, threats, and racist remarks; (b) falsely accusing her of misconduct, ethics violations, and substance abuse, and subjecting her to an Inspector General’s investigation;
(c) inciting employees to attack plaintiff on false claims of bias and misconduct;
(d) falsely charging plaintiff with insubordination; (e) withholding recognition for successful job performance; (f) denying her opportunities to exercise аuthority; (g) unduly monitoring her time and attendance; and (h) refusing to submit reports that plaintiff prepared and certified.
See Compl. ¶ 10. In response to Defendant’s motion, Ms. Morris supplemented these allegations. For example, she also contends that she was denied the opportunity to be the Acting Deputy Director; her supervisor attempted to move her to a dark and dingy office; she had to report daily to an Acting Deputy, unlike other Assistant Directors; she was left out of meetings; she was required to do work outside her area of responsibility; she had to give the bookcase she *14 ordered to her supervisor; she was falsely accused of having a drinking problem; and she was discredited, chastised, and mistreated in staff meetings. See Pl.’s Opp. at 9-13 & Ex. 3 (Morris Decl.) at 3-4.
While Ms. Morris recites this litany of perceived slights, she presents no evidence that the incidents are connected to one another or that they are connected to her gender or race. In fact, she alleges that the harassment was related to her certification of a Management Directive 715 that had criticized EPA. See Compl. ¶ 9. Because the alleged incidents are not alleged to be based on gender or race, they do not constitute discriminatory harassment in violation of Title VII. Moreover, the alleged incidents are insufficiently severe or pervasive to alter the conditions of employment. Accordingly, Defendant is entitled to summary judgment on the claim of a hostile work environment.
IV. CONCLUSION
The Court grants in part and denies in part Defendant’s motion to dismiss or for summary judgment [Dkt. #6] as follows: (1) the claim regarding termination of employment is dismissed without prejudice due to failure to exhaust administrative remedies; (2) the claims regarding reassignment of duties, age discrimination, and retaliatiоn are dismissed; (3) summary judgment is granted in favor of Defendant on the hostile work environment claim; and (4) the claim regarding the seven-day suspension remains. A memorializing Order accompanies this Memorandum Opinion.
Date: February 6, 2012 /s/ ROSEMARY M. COLLYER United States District Judge
Notes
[1] Covered federal employees who are removed from service may appeal their removal to the MSPB under the Civil Service Reform Act of 1978 (“CSRA”), Pub. L. 95-454, 92 Stat. 1111 (codified as amended in scattеred sections of 5 U.S.C.). A “mixed case” appeal is an appeal to the MSPB alleging that the removal was due both to a prohibited personnel action under the CSRA and discrimination prohibited by Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e. See 5 U.S.C. § 7702(a)(1)(B); 5 C.F.R. § 1201.151(a)(2); 29 C.F.R. § 1614.302(a)(2).
[2] Ms. Morris also alleged (1) reassignment of duties based on gender and race
discrimination; (2) age discrimination; and (3) retaliation. Defendant has moved to dismiss these
claims, or for summary judgment, and Ms. Mоrris has failed to respond. Her argument is
confined to her claims regarding removal, suspension, and hostile work environment. “It is well
understood in this Circuit that when a plaintiff files an opposition to a motion to dismiss
addressing only certain arguments raised by the defendant, a court may treat those arguments that
the plaintiff failed to address as conceded.”
Hopkins v. Women's Div., Bd. of Global Ministries
,
[3] The equitable doctrines of waiver, estoppel, and tolling may apply in extraordinary
circumstances.
Nat’l R.R. Passenger Corp. v. Morgan
,
