Opinion
C/A No. 3:17-cv-000682-JMC-KDW
07-23-2019
Tysha S. Holmes, Plaintiff, v. Dr. Mark T. Esper, Secretary of the Army; Department of the Army, Defendants.
REPORT AND RECOMMENDATION
Proceeding pro se, Plaintiff filed an employment action against her former employer, the Department of the Army. Compl., ECF No. 1. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation (R&R) on Defendants' Motion for Summary Judgment, ECF No. 84, to which Plaintiff has responded, ECF No. 95. The undersigned requested and received supplemental briefing from both parties, ECF Nos. 107, 113, and heard oral argument on June 26, 2019. Based on the parties' submissions, argument, and applicable law, the undersigned recommends that Defendants' Motion for Summary Judgment, ECF No. 84, be granted in part and denied in part. I. Background
Plaintiff was previously employed in a civilian capacity as a Physician's Assistant at Moncrief Army Hospital at Fort Jackson, SC.
This matter is before the court for review of Plaintiff's November 8, 2014 Formal Complaint of Discrimination to the Department of the Army's Equal Employment Opportunity Office ("EEOO"). "EEO Complaint," ECF No. 107-1. Plaintiff's EEO Complaint includes claims of alleged discrimination based on race, physical disability, and reprisal for previous EEO activity. Id. at 1. To consider issues as raised in Defendants' Motion for Summary Judgment and Plaintiff's response thereto, background regarding Plaintiff's prior administrative actions is informative.
A. Administrative EEO process applicable to Plaintiff, a federal employee
Title VII creates a right of action for federal employees such as Plaintiff alleging discrimination on the basis of race. See 42 U.S.C. § 2000e-16 (concerning claims by federal government employees); 29 U.S.C. § 794a (indicating Rehabilitation Act, which concerns federal employees' claims of job discrimination based on disability, incorporates "remedies, procedures, and rights set forth in" Title VII); Laber v. Harvey, 438 F.3d 404, 415 (4th Cir. 2006) (en banc). Prior to filing an action in this court, an employee such as Plaintiff must contact an EEO counselor and seek pre-complaint counseling within 45 days of the alleged discriminatory action. 29 C.F.R. § 1614.105(a). If counseling is unsuccessful, then the EEO must provide the complainant with notice of his right to file a formal complaint of discrimination. 29 C.F.R. § 1614.105(d). The complainant must file any formal complaint within 15 days receipt of the notice. 29 C.F.R. § 1614.106(b).
Prior to a complainant's request for a hearing, a federal agency "shall dismiss" all or part of a discrimination charge on any number of several enumerated grounds, including failure to state a claim. 29 C.F.R. § 1614.107(a)(1). A partial dismissal of an employee's discrimination charge—the dismissal of "some but not all" of the claims in a charge—"is reviewable by an administrative judge if a hearing is requested on the remainder of the complaint, but it is not appealable until final action is taken on the remainder of the complaint." Id. § 1614.107(b).
Following investigation of the formal complaint, the complainant may either request a hearing and decision from an administrative judge or request a final decision from the agency with which the complaint was filed. 29 C.F.R. § 1614.108(f). If the complainant chooses the former course of action, then "[w]hen [the] administrative judge . . . issue[s] [his or her] decision . . ., the agency shall take final action on the complaint by issuing a final order within 40 days of receipt of the hearing file and . . . decision." 29 C.F.R. § 1614.110(a). The agency's final order must provide the complainant with notice of his right to appeal to the EEOC and right to file a civil action in federal district court, as well as notice of required deadlines for taking such actions. Id. If the agency fails to issue a final order within the required 40-day time period, "then the decision of the administrative judge ... become[s] the final action of the agency." 29 C.F.R. § 1614.109(i). A complainant may appeal the agency's final action to the EEOC's Office of Federal Operations ("OFO") within 30 days following receipt of the final agency decision. 29 C.F.R. § 1614.402(a). Alternatively, the complainant may "opt-out of the administrative process . . . by filing a de novo civil action." Laber, 438 F.3d at 416 (citing 29 C.F.R. §§ 1614.401(a), 1614.407(a); and 42 U.S.C. § 2000e-16(c)). Such judicial action must be filed "[w]ithin 90 days of receipt of notice of final action taken by a department, agency, or unit,"—here the Department of the Army's EEO Decision. 42 U.S.C. § 2000e-16(c).
Here, Plaintiff chose to opt-out of the EEOC's OFO review of the Army's Decision and filed this action for de novo review, naming both the Department of the Army and the Secretary of the Army as Defendants. ECF No. 1. Defendants initially sought dismissal of Plaintiff's Complaint based on its untimely filing. In an earlier R&R and Order adopting same the court considered Plaintiff's Complaint to have been timely filed and permitted this matter to proceed. See Oct. 4, 2017 R&R, ECF No. 40; Nov. 15, 2017 Order, ECF No. 42.
Defendants are sometimes referred to collectively herein as the "Army."
B. Plaintiff's administrative actions
As more fully discussed in the court's order on Defendants' Motion for Expenses and to Compel Plaintiff's Deposition, see ECF No. 125, Plaintiff did not appear for her deposition that had been noticed for several weeks before the Motion for Summary Judgment was due and filed. Based on Plaintiff's apparent misunderstanding of the discovery procedure under the Federal Rules of Civil Procedure Plaintiff neither appeared for her own deposition nor did she take any witness depositions. This dearth of discovery-based testimony makes decision in this matter challenging.
Further, no party has provided a concise history of events leading up to Plaintiff's filing the Complaint now under review. Concision admittedly is difficult when, as here, there are other administrative actions that touch on the issues raised in Plaintiff's EEO action now under review. The Army has proffered two declarations of Robert J. Barham, Esquire, which include some factual background and attach selected documents regarding Plaintiff's EEO action and other administrative actions discussed herein. Plaintiff has also provided various documents. The undersigned has reviewed all submissions and provides the following distillation to put potentially relevant events into context. This timeline is intended to inform the court's analysis but does not endeavor to be a full accounting of everything that has taken place since Plaintiff's January 14, 2011 termination or to catalog every document submitted. To the extent supported by the record, these facts are construed in the light most favorable to Plaintiff.
Plaintiff complains that Mr. Barham's affidavit is deficient because he does not have first-hand knowledge of matters that occurred before he began working with the Fort Jackson EEO Office in September 2014. See Pl. Mem. 4; Pl. Post-Hearing Filing 9, ECF No. 113. However, Mr. Barham's declarations indicate that his job responsibilities include representing the Army in EEO and MSPB matters. See Barham Decl. ¶ 2; Barham Suppl. Decl. ¶ 1. The court appropriately may consider Mr. Barham's declarations as they provide information contained in Army records.
1. Plaintiff's Merit System Protection Board ("MSPB") Actions
a) MSPB Removal-from-Employment Action
While not a part of the EEO Complaint being considered by this court Plaintiff's MSPB actions, related to her January 2011 separation from employment, a basic understanding of Plaintiff's MSPB actions is helpful in considering the EEO Complaint. The following is not intended to be a full accounting of what has transpired in Plaintiff's MSPB actions. Both MSPB actions remain on appeal to the full MSPB Board. January 13, 2011 Plaintiff began receiving compensation under the Office of Workers' Compensation Programs ("OWCP"). She received those payments through December 14, 2013. See Declaration of Army Attorney Robert J. Barham, Esq. ("Barham Decl.") ¶ 7, ECF No. 84-2. January 14, 2011 Effective date of Plaintiff's removal from employment with the Army as a civilian physician assistant. See Barham Decl. ¶ 6, ECF No. 84-2; see also FAD 5, ECF No. 31-3; Notification of Personnel Action (SF 50) effective January 11, 2011 and approved January 20, 2011, ECF No. 84-3 at 204. April 30, 2012 Plaintiff refiled an appeal of her removal to the MSPB. See Barham Decl. ¶ 8; Initial MSPB Decision by Administrative Judge Lynn P. Yovino (AJ Yovino Decision) 1, ECF No. 84-3. This action is sometimes referred to as Plaintiff's "MSPB Removal Action" or, simply, her "Removal Action." January 2, 2013 MSPB AJ Yovino issued Initial Decision reversing Army's removal of Plaintiff. AJ Yovino Initial Decision.
The Initial MSPB Decision indicates Plaintiff's removal from service took effect November 17, 2010. In this matter, however, neither Plaintiff nor the Army has looked to that date as the date of Plaintiff's removal from employment.
• AJ Yovino ordered that, if either party appealed her decision, the Army was to "provide interim relief" to Plaintiff, effective the date of her decision and in effect until the decision of the MSPB becomes final. Id. at 8.July 9, 2014 MSPB issued a Remand Order, granting the Army's request for review, reversing AJ Yovino's reinstatement decision, and remanding the matter for a decision on the merits of Plaintiff's removal action. Remand Order, ECF No. 84-3 at 15-24.
• The Army petitioned for review of the AJ Yovino decision. The interim relief reinstated Plaintiff's employment "with pay and benefits effective the date of the Yovino decision," but the Army did not return Plaintiff to the workplace. Barham Decl. ¶¶ 11, 12. As part of its appeal of the MSPB Initial Decision the Army argued that Plaintiff should not be receiving interim relief while she was also receiving OWCP payments. Id. ¶ 12.
• In the Remand Order the MSPB found Plaintiff was not entitled to interim relief because she was receiving OWCP payments. Id. at 2 n.2, ECF No. 84-3 at 16 n.2. [As discussed more fully below in connection with Plaintiff's Petition for Enforcement filed in her MSPB action, contrary to the Remand Order's statement, Plaintiff was no longer receiving OWCP payments at the time of the Remand Order. See Barham Decl. ¶ 14.]July 24, 2014 Based on the Remand Order's reversal of Plaintiff's reinstatement to employment the Army effected a personnel action that ended Plaintiff's entitlement to the interim-benefits pay awarded by AJ Yovino effective January 2, 2013—the date of the AJ Yovino Decision. See FAD 6, Barham Aff. ¶¶ 15, 16.
• The undersigned notes that how Plaintiff's status and pay were changed at this time is part of her EEO Complaint and is discussed within in detail.October 18, 2014 Date of two letters from the federal Defense Finance and Accounting Service ("DFAS") to Plaintiff seeking to collect a debt from her based on what it termed the overpayment of her pay as "a result of a Time and Attendance change(s)." DFAS Letter to Plaintiff, ECF No. 84-3 at 129-32. January 15, 2016 Plaintiff filed a "Contested Motion for Restoration of Interim Relief and Cancellation of Debt," ECF No. 84-3 at 123-88, arguing she was not required to repay the interim relief she had received. Plaintiff sought to have the debt cancelled. She also argued she remained entitled to interim relief. Id. January 20, 2016 MSPB AJ Richard W. Vitaris, to whom Plaintiff's MSPB action had been reassigned upon the retirement of AJ Yovino, ECF No. 84-3 at 254, issued an order denying Plaintiff's request for continuation of interim relief. AJ Vitaris January 20, 2014 Order, ECF No. 84-3 at 178-79. Indicating he believed the debt collection sought to deprive Plaintiff of interim relief benefits that had been ordered at the time, AJ Vitaris advised that he would docket a separate Petition for Enforcement on this issue to be considered separately. Id. AJ Vitaris issued an "Acknowledgement Order" indicating he had docketed a petition for enforcement of the interim relief that had been ordered and setting briefing deadlines as to the Petition for Enforcement ("PFE"). Id. at 186-87. (Details of the PFE are discussed below.) January 27-29, 2016 MSPB AJ Vitaris conducted a hearing on Plaintiff's Removal action. See April 22, 2016 Initial Decision of AJ Vitaris ("AJ Vitaris Removal Decision"), ECF No. 84-3 at 25-33. April 22, 2016 AJ Vitaris issued an Initial Decision on Plaintiff's Removal action, affirming the Army's removal of Plaintiff and finding no race discrimination. Id. September 26, 2016 Plaintiff filed a petition for review of the Vitaris Removal Decision. ECF No. 84-2 at 62-86.
• As of Barham's June 6, 2019 Supplemental Declaration, ECF No. 107-5, Plaintiff's Petition for Review of AJ Vitaris's decision to uphold her removal from service remains pending before the MSPB. Barham Suppl. Decl. ¶ 9.
b) PFE Action Concerning Entitlement to Interim Relief July 21, 2016 After receiving additional briefing as to the PFE, see ECF No. 84-3 at 189-252, AJ Vitaris issued an Initial Decision granting in part and denying in part the relief sought by Plaintiff, AJ Vitaris PFE Decision, Id. at 253-62 ("Vitaris PFE Decision").
• AJ Vitaris found that Plaintiff was entitled to interim relief for the period of time between AJ Yovino's order of reinstatement and the July 2014 Remand Order, to the extent she was not also receiving OWCP payments. Accordingly, for the period from when Plaintiff's OWCP payments ended until the date of the July 2014 Remand Order, Plaintiff was entitled to interim relief (salary) payments. Accordingly, DFAS was to cease any collection efforts for that period of time, which AJ Vitaris termed "Period Two." Id. at 257. For "Period One," that is the time from the AJ Yovino's order of reinstatement while Plaintiff was receiving OWCP payments, AJ Vitaris determined Plaintiff was not entitled to receive interim relief as well. Id. at 256. AJ Vitaris ordered DFAS to cease collection efforts for Period Two, "the period from December 14, 2013 through July 9, 2014." Id. at 258.August 17, 2016 The Army filed a petition for review of AJ Vitaris's PFE Decision, seeking only to correct alleged typographical errors in that decision that would impact the period of time for which Plaintiff was to be paid. ECF No. 84-3 at 266-73.
• The Army indicates the date of the AJ Yovino decision was January 2, 2013, making that the date on which Plaintiff had been reinstated and, hence, the beginning date of "Period One." Id. at 267-68.December 2, 2016 Plaintiff filed a Petition and Cross Petition for Review of AJ Yovino's PFE Decision. ECF No. 84-3 at 276-99. Essentially, Plaintiff argues the Army has not complied with the PFE Decision and that Plaintiff should not be required to repay any of the interim relief sought.
• The Army also indicates the end of Period One should be December 14, 2013, which was the last date Plaintiff received OWCP benefits. Based on this change, "Period Two" would begin on December 15, 2013 and run through July 9, 2014.
• In this filing Plaintiff references an issue with her unpaid leave. Id. at 277, 279. Plaintiff indicates she had raised the issue of her unpaid leave before AJ Yovino, but he had not addressed it in the PFE Decision. Id. at 279. As with the Army's Petition for Review, Plaintiff's Cross Petition for Review remains pending before the MSPB. Barham Suppl. Decl. ¶ 11.
2. EEO Appeal
In considering Plaintiff's EEO Complaint, the following timeline is instructive: November 8, 2014, Plaintiff's EEO Complaint, ECF No. 107-1: Dated November 8, 2014, and received by the Army's EEO Office on November 10, 2014, on the EEO Complaint form Plaintiff checked certain boxes (and included the underlined information) claiming she was discriminated against based on:
Race Black,EEO Complaint 1. The EEO Complaint Form included a box in which Plaintiff was permitted to explain her claims. She filled the allotted space and includes an additional page (see ECF No. 107-1 at 1, 4). On the Complaint Form, Plaintiff numbered her claims 1 through 4; her claims listed on the carry-over page are not numbered but are written in a more narrative form. November 24, 2014, EEOO November 24, 2014 Letter Response to Plaintiff (dismissing certain claims for investigation), ECF No. 107-2: In a detailed letter dated November 24, 2014, EEO Officer Samuel "Mike" Good, Jr. wrote Plaintiff in reference to her November 8 Formal Complaint and identified six claims that were included in Plaintiff's EEO Complaint.
Physical, Neck/Shoulder, and
Reprisal (prior EEO activity) Filed previous November 2010.
1) On 11 August 2014, you were denied reinstatement as a Physician Assistant by MAJ Wilson and MAJ Michael Barton based on advice from Attorney L. Patricia Smith (Agency Representative) and Ms. Carla Laird (Human Resources Manager, MACH)?
2) On 22 August 2014, you were placed in non-pay status by your supervisor, MAJ Christopher Wilson?EEOO Response Letter 1 (italics added to indicate the claims investigated by the Army during its EEO investigation). Based on his review of "the complaint file," Officer Good "accepted claims 4 & 6 for investigation." Id. at 2. Officer Good explained that he had "dismissed claims (1, 2, 3 & 5)" based on 29 C.F.R. § 1614.107 and AR 690-600.
3) On 22 August 2014, you were given a constructive suspension by MAJ Wilson?
4) On 22 August 2014, your pay was deducted per MAJ Wilson's instructions based on advice from Attorney L. Patricia Smith (Agency Representative) and Ms. Carla Laird (Human Resources Manager, MACH)?
5) On 2 January 2014, you were forced to take an involuntary leave from your position.
6) That, for a period of time not specifically identified, the Agency did not pay out leave that you accumulated over 1.5 years.
States the same claim : Reference 29 CFR Section 1614.107(a) (1): Claims 1, 2, and 3 are matters identical to those raised in a previous complaint. You elected to appeal the claims to the Merit Systems Protection Board (MSPB). The appeal of your removal [from employment] is currently pending a decision before the MSPB pursuant to a remand order of the MSPB, dated 9 July 2014.ECF No. 107-2 at 2 (emphasis in original). The letter went on to advise Plaintiff of the next administrative steps available to her, not all of which are repeated herein. Id. at 2-8. Potentially relevant herein, the letter explained the following:
Untimely EEO Counselor Contact . Claim 5 is a discrete act and is therefore time barred. 29 CFR Section 1614.105(a)(1) states, "An aggrieved person must initiate contact with a counselor within 45 days of the matter alleged to be discriminatory or, in the case of a personnel action[,] within 45 days of the effective date of the action."
The dismissed portion (four claims) of your complaint will not be investigated and is not appealable to the [EEOC] Office of Federal Operations (OFO) until final action is taken on the remainder of the complaint. However, an EEOC administrative judge may review the dismissed portion if a hearing is requested on the remainder of the complaint.ECF No. 107-2 at 2. Plaintiff was to respond to Officer Good within 5 days if she believed the claims had not been correctly identified. The letter went on to explain that the EEO Complaint would be assigned to an investigator; the investigation was to be completed within 180 days (unless agreed-to extension or extension for classified information); and provided information about post-investigation actions and options. Id. at 3-8. January 16 - March 19, 2015: EEOO investigation by Army. See EEOC Order Granting Agency's Motion to Dismiss Hearing Request 1 ("EEOC Order") (Sept. 21, 2016), ECF No. 107-4; see also Transcript of February 12, 2015 Fact-Finding Conference (conducted by EEOO Investigator), ECF No. 120. April 28, 2015: Plaintiff requested a hearing before the EEOC. See EEOC Order 1. May 11, 2016: "Initial Conference (IC) was conducted[.]" Id. During the IC the Army "referenced matters that were interrelated currently before the [MSPB]." Id. During the IC, the parties provided the Administrative Judge with a copy of the January 2, 2013 MSPB decision (AT-0752-11-0263). That decision "clearly reviewed the agency's reasons for removing [Plaintiff] from employment." Id. The EEOC Order also references a Petition for Enforcement for back pay that had been ordered by the MSPB when it reversed its earlier decision [with a blank left for the date it was filed]. The Order indicates that the Petition for Enforcement discussed two time periods: December 14, 2013 through July 9, 2014 and January 2, 2013 through December 14, 2013. Id. July 28, 2016: The Army filed a Motion to Dismiss for Improper Venue and Failure to State a Claim (presumably this motion was filed in the appeal/request for hearing before the EEOC). EEOC Order 1. In that Motion to Dismiss, the Army argued (1) Plaintiff's allegations are inextricably intertwined with appeals before MSPB; (2) Plaintiff fails to state a valid independent claim and is collateral attack against MSPB; and (3) Plaintiff's claims are moot because MSPB has provided the ordered relief. EEOC Order 1-2. August 10, 2016: Plaintiff objected to Motion to Dismiss, arguing the motion was untimely. EEOC Order 2. She also "explains the events that occurred after she was returned to work[ and] states she is 'asking EEO[C] to be the truth finder of agencies [sic] actions in 2014.'" Id. (quoting Plaintiff's submission). September 21, 2016: The EEOC issued its Order granting the Army's Motion to Dismiss Hearing Request (which seems to be the same as the referenced "Motion to Dismiss for Improper Venue and State a Claim" referenced in the Order). EEOC Order, ECF No. 107-4. In that Order the EEOC found:
Since Complainant initially pursued her case with the MSPB, she cannot attempt to collaterally attack that decision or the related relief through the EEO process. If Complainant wishes to contest the [MSPB] Board's decision, her recourse is to file with the U.S. Court of Appeals, as she was previously advised of her right to do so by the MSPB's final decision. This case is returned to the Agency for final decision, with appeal rights.EEOC Order 2. December 6, 2016: Date of Final Agency Decision ("FAD") by Army, signed by Spurgeon A. Moore, Director, EEO Compliance and Complaints Review. ECF No. 31-3. The FAD considered only the following claims:
a. On August 22, 2014, her pay was deducted, per MAJ Wilson's instructions based on advice from Attorney L. Patricia Smith (Agency Representative) and Ms. Carla Laird (Human Resources Manager, MACH); and
b. The Agency did not pay out leave that she accumulated over 1.5 years.FAD 1, ECF No. 31-3. The FAD briefly notes that Plaintiff's matter was investigated, Plaintiff was given the option of seeking a hearing before an EEOC administrative judge or a final Army decision based on the evidence in the case file, and that Plaintiff requested such a hearing. Id. at 1-2. The administrative judge dismissed the request "because Complainant initially pursued her case with the [MSPB]. The EEOC administrative judge stated that [Plaintiff] cannot attempt to collaterally attack that [MSPB] decision or the related relief through the EEO process." Id. at 2. After outlining applicable law, the FAD sets out facts as gleaned from the Investigative Transcript and the case file before it. See FAD 2-5. The FAD analyzed Plaintiff's claims and found Plaintiff "was not the victim of discrimination[.]" Id. at 9. March 2017: Plaintiff filed the instant civil action. Compl., ECF No. 1. II. Standard of review
The MSPB actions are summarized above.
The MSPB proceedings are set out within. As of June 2019 the MSPB Decisions await the MSPB's ruling on several Petitions for Review of the Initial Decisions.
The court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;" or "showing . . . that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. All that is required is that "sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." Anderson, 477 U.S. at 249. "Mere unsupported speculation . . . is not enough to defeat a summary judgment motion." Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own argument, affidavit, or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 F. App'x 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact). In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002) (Title VII). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court must determine whether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See Id. at 148 (stating that "[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory").
Plaintiff is proceeding pro se and is entitled to a liberal construction of her pleadings. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, "[p]rinciples requiring generous construction of pro se complaints are not . . . without limits." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). "A court considering a motion [for summary judgment] can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). III. Analysis
A. Consideration of Plaintiff's Claims 1, 2, 3, and 5 from EEO Complaint
In its Motion for Summary Judgment, the Army claims entitlement to judgment as a matter of law as to the two "discrete" issues considered in the FAD:
a. On August 22, 2014, [Plaintiff's] pay was deducted, per MAJ Wilson's instructions based on advice from Attorney L. Patricia Smith (Agency Representative) and Ms. Carla Laird (Human Resources Manager, MACH); andDefs. Mem. 1, ECF No. 84-1 (Claims 4 and 6 from Plaintiff's EEO Complaint). The Army's six-page legal memorandum in support of its motion includes few facts, relying instead on the lengthy declaration from Attorney Barham to set out the history of the case, including the MSPB actions. The Army's discussion of the two EEO discrimination claims mirrors in large part the Agency's discussion of those claims in the FAD and focuses on what it describes as Plaintiff's claims of "disparate treatment in two circumstances concerning her pay[.]" Id. at 3. In responding to summary judgment Plaintiff submits that the Army failed to respond to the other four issues she raised in her EEO Complaint. Pl. Mem. 4, ECF No. 95 (claiming the motion is deficient because, inter alia, Defendants only addressed two out of six issues she raised in the EEO Complaint). As a result the undersigned requested and received additional briefing as to whether the two "discrete issues" investigated by the Army and considered in the FAD were the only issues before the court in this judicial action. See ECF No. 98.
b. The Agency did not pay out leave that she accumulated over 1.5 years.
As noted within, Plaintiff's EEO Complaint also indicates she claims discrimination based on her "physical" disability in her neck and shoulder and based on reprisal for filing a November 2010 EEO claim. ECF No. 107-1 at 1. The pending Motion does not address those portions of Plaintiff's EEO Complaint as to any of the issues.
1. The Army argues dismissal of Claims 1, 2, 3, and 5 was appropriate.
In a nutshell, the Army argued that the Army's EEO Officer had appropriately dismissed four of Plaintiff's six claims because three of them were included in the MSPB actions and one had not been timely raised in the EEO process. Def. Suppl. Mem. 4-7. Defendants focus on the EEO Response Letter, ECF No. 107-2, in which the EEO Officer "dismissed claims (1, 2, 3 & 5)" based on 29 C.F.R. § 1614.107 and AR 690-600. The letter went on to advise Plaintiff of the next administrative steps available to her, not all of which are repeated herein. ECF No. 107-2 at 2-8. Potentially relevant herein, the letter explained the following:
The dismissed portion (four claims) of your complaint will not be investigated and is not appealable to the [EEOC] Office of Federal Operations (OFO) until final action is taken on the remainder of the complaint. However, an EEOC administrative judge may review the dismissed portion if a hearing is requested on the remainder of the complaint.ECF No. 107-2 at 2. Plaintiff was to respond to Officer Good within 5 days if she believed the claims had not been correctly identified. The letter explained that the EEO Complaint would be assigned to an investigator; the investigation was to be complete within 180 days (unless agreed-to extension or extension for classified information); and provided information about post-investigation actions and options. Id. at 3-8.
Defendants state the record includes no indication that Plaintiff responded to Officer Good's letter within five days and that they are "unable to determine at this time whether Plaintiff included the dismissed claims in her request for an administrative hearing." Def. Suppl. Mem. 3. Nonetheless, Defendants note the EEOC dismissed the request for administrative hearing, finding that Plaintiff "'initially pursued her case with the MSPB [and] cannot attempt to collaterally attack that decision or the related relief through the EEO process.'" Id. at 4 (quoting Sept. 21, 2016 EEOC Order, ECF No. 107-4).
Defendants explain that the dismissal was based on 29 C.F.R. § 1614.107(a)(4). The regulation directs that an agency should dismiss a complaint if the "complainant has raised the matter . . .in an appeal to the Merit Systems Protection Board and . . . § 1614.302 indicates that the complainant has elected to pursue the non-EEO process." Defendants indicate they are aware of no cases considering whether an agency has properly applied 29 C.F.R. § 1614.107(a)(4), but note several cases in which the court left such rulings untouched. Def. Suppl. Mem. 5. Defendants argue the EEO Officer's dismissal of Claims 1, 2, and 3 pursuant to 29 C.F.R. § 1614.107(a)(4) was proper. In addition, Defendants submit Claim 5 was appropriately dismissed as untimely.
2. Plaintiff disagrees with dismissal of Claims 1, 2, 3, and 5 from her EEO Complaint.
In response, Plaintiff provided a brief email dated December 1, 2014, in which she apparently advised the EEO Officer, inter alia, that she "definitely [did] not agree with the agency dismissal" of part of her EEO Complaint. ECF No. 113-1 at 4; Pl. Suppl. Mem.3, ECF No. 113. Further, Plaintiff submits that she requested a hearing before an EEOC administrative judge but did not receive one and now, pursuing her appeal rights as given in the FAD, she has filed this case in federal court and claims entitlement to pursue all of the claims from her EEO Complaint. Pl. Suppl. Mem. 113.
3. Claims 1, 2, 3, and 5 were appropriately dismissed.
Construing Plaintiff's filings most liberally, the undersigned will consider Plaintiff to have raised an "appeal" of the dismissal of her EEO Complaint Claims 1, 2, 3, and 5. Although not cited by Plaintiff (or Defendants), it appears that Plaintiff's federal action could be construed as an appeal of the FAD's partial dismissal of her EEO Complaint. Subsection (b) of 29 C.F.R. 1614.107 provides as follows:
Although not expressly briefed by either party as an "appeal" of the dismissal of the action because it impacts Defendants' Motion for Summary Judgment the undersigned considers Plaintiff's challenge herein.
(b) Where the agency believes that some but not all of the claims in a complaint should be dismissed for the reasons contained in paragraphs (a)(1) through (9) of this section, the agency shall notify the complainant in writing of its determination, the rationale for that determination and that those claims will not be investigated, and shall place a copy of the notice in the investigative file. A determination under this paragraph is reviewable by an administrative judge if a hearing is requested on the remainder of the complaint, but is not appealable until final action is taken on the remainder of the complaint.29 C.F.R. § 1614.107(b) (emphasis added).
Independent research offers little interpretation of 29 C.F.R. § 1614.107(b) in analogous situations. The authority that exists focuses on exhaustion-of-administrative-remedies defenses brought by agencies. In any event, the undersigned has reviewed the arguments and documents provided and finds that, to the extent Plaintiff is appealing the partial dismissal of Claims 1, 2, 3, and 5, that appeal is without merit.
As explained by the First Circuit in the context of reviewing the dismissal of an entire EEO complaint:
We begin with the basics. A federal employee who claims to have been cashiered for discriminatory reasons typically may challenge that adverse employment action along either of two routes. For one thing, she may appeal to the Board [MSPB]. See 5 C.F.R. § 1201.151. Alternatively, she may lodge an EEO complaint with her agency. See 29 C.F.R. § 1614.103(a). An aggrieved employee (or, as in this case, an aggrieved former employee) has a choice between these two options—but she may not avail herself of both. See 29 C.F.R. § 1614.302(b) (recognizing that once a formal appeal or complaint is filed in either forum, it "shall be considered an election to proceed in that forum"); see also Castro v. United States , 775 F.2d 399, 404 & n. 5 (1st Cir.1985) (per curiam). The lodging of either a formal appeal with the Board or a formal complaint with the agency demarcates the point of no return. See 29 C.F.R. § 1614.302(b). From that point forward, the complainant must exhaust her claim in the chosen forum. See Economou v. Caldera, 286 F.3d 144, 149 (2d Cir.2002) (holding that a federal employee who had first filed a formal appeal with the Board was required to exhaust his administrative remedies in that forum and could not move at will to the other track).Stoll v. Principi, 449 F.3d 263, 265-66 (1st Cir. 2006) (emphasis added).
The Commission's regulations highlight the mutually exclusive nature of the two fora. They provide explicitly that "the agency shall dismiss an entire complaint . . . [w]here the complainant has raised the matter . . . in an appeal to the [Board]." 29 C.F.R. § 1614.107(a). The Commission dismissed the appellant's complaint on precisely that ground.
Plaintiff seems to argue that Claims 1, 2, and 3 should be considered herein and would not present a collateral attack because she is not affirmatively challenging the determination of the MSPB. See Pl. Suppl. Mem. 7, ECF No. 113. She also arguably claims her situation is different because she is challenging matters that took place after she had filed the MSPB action. Id. at 5-6.
The undersigned recommends a finding that dismissal of Claims 1 (denial of reinstatement on August 11, 2014), 2 (placement in non-pay status on August 22, 2014), and 3 (being constructively suspended by Major Wilson on August 22, 2014) is appropriate because those claims relate to the MSPB actions and would collaterally attack them. Plaintiff initially brought the MSPB action based on her 2011 removal from service. Nonetheless, that action (and its ancillary action concerning her pay) is still not yet final. Any employment-related activity that took place in August 2014 relates to the MSPB's July 2014 Remand Order. To permit Plaintiff to second-guess whether she should have been reinstated at that time, whether it was appropriate for her to be placed in non-pay status, and whether she was "suspended" at that time would, by definition, be an impermissible collateral attack on the MSBP's actions. In other words, the undersigned agrees with the conclusion reached by EEOC Administrative Judge when dismissing Plaintiff's request for a hearing. See ECF No. 107-4. Because Plaintiff "initially pursued her case with the MSPB, she cannot attempt to collaterally attack that decision or the related relief through the EEO process." ECF No. 107-4 at 2 (emphasis added).
The Army's EEO decision also dismissed Plaintiff's Claim 5—that, on January 2, 2014, she was "forced to take an involuntary leave" from her position. That claim was dismissed as time-barred because Plaintiff did not speak with an EEO counselor within 45 days of the alleged January 2, 2014 act. ECF No. 107-2 at 2 (citing 29 C.F.R. § 1614.105(a)(1), which requires an aggrieved person to initiate contact with a counsel within 45 days of the matter or its effective date).
Plaintiff's challenge to consideration of Claim 5 is that she "did not know that specific discriminatory personnel action had occurred until August 2014." Pl. Suppl. Mem. 8. She also seems to argue consideration of this issue would be timely because it is part of a hostile-work-environment claim. See Id.
Plaintiff's EEO Complaint plainly listed the date of her "involuntary leave" claim as January 2, 2014. She should not now be permitted to change her "facts" about the alleged involuntary leave, and she has provided no cogent evidence or explanation of Claim 5 and its timing. In any event, the undersigned is of the opinion that, even if considered timely raised, the issue of "constructive suspension" relates sufficiently to the MSPB actions to collaterally attack such actions. Plaintiff has not made it clear what she means by having been placed on "involuntary leave" on January 2, 2014, regardless of when she was made aware of such action. The court will not create arguments for Plaintiff. Dismissal of Claim 5 should be upheld.
Any placement on "involuntary leave" that resulted from an action of the MSPB could also be considered an impermissible collateral attack of the MSPB process.
Finally, the undersigned acknowledges Plaintiff's argument that the dismissal of Claims 1, 2, 3, and 5 was improper because of an "innate conflict of interest [in that] the same person who has to defend agency against claims is in charge of which claims they want to defend." Pl. Suppl. Mem. 6. Without citing to specific evidence, Plaintiff indicates the EEO Officer and the EEO Labor Attorney are the same people, claiming it was Attorney Barham (with assistance of Attorney Smith) who decided which claims should be accepted and which should be dismissed. Id. Regardless of who may have been copied on correspondence, the EEO Officer in this matter is Samuel "Mike" Good, Jr. Attorney Barham represents the agency. See ECF No. 107-2 at 5. It is far from clear that this forum would be the appropriate venue to raise such a concern with the administrative process itself. Even assuming, arguendo, that it were, Plaintiff has not presented evidence that would necessitate the reversal of the dismissal of Claims 1, 2, 3, and 5 on such grounds.
In sum, to the extent Plaintiff is considered to be appealing the Army's administrative dismissal of Claims 1, 2, 3, and 5, it is recommended that her appeal be denied. Based on this recommendation, the court now considers Defendants' Motion for Summary Judgment as to Claims 4 and 6.
B. Summary judgment as Title VII disparate-treatment claims related to Claims 4 and 6
Regarding Claims 4 and 6, Defendants seek summary judgment as to Plaintiff's Title VII claims of disparate treatment. As noted above, Plaintiff did not appear for her noticed deposition. Plaintiff has not taken any depositions. Shortly after filing a motion seeking costs and seeking to compel Plaintiff to appear for deposition, the Army filed its Motion for Summary Judgment. In support of its Motion for Summary Judgment, the Army relies on the FAD and cites to snippets of the Fact Finding Transcript ("Transcript" or "Tr."), which includes transcription of the "Fact Finding Conference" conducted by Army Investigator Johnny K. Jones as part of the Army's review of Plaintiff's EEO Complaint. Although the Army's Motion included only excerpts of the Transcript, see ECF No. 84-4, at the undersigned's request, the Army has now submitted the entire Transcript, which is available at ECF No. 120-1. The undersigned notes that although invited to participate in the FFC via telephone, Plaintiff and her then-counsel did not participate. Tr. 3-5.
Subsequent to the hearing Plaintiff also provided some supplemental materials, which appear to be portions of the EEO investigative file. See ECF No. 123. The undersigned has reviewed these documents. Without context, however, the undersigned is unsure what, if any, impact these documents have on Plaintiff's argument.
1. Burden of proof in Title VII disparate-treatment discrimination claims
Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . ." 42 U.S.C. § 2000e-2(a)(1). A plaintiff may demonstrate a violation of Title VII through direct or circumstantial evidence. When direct evidence is lacking, a plaintiff may produce circumstantial evidence and proceed under the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Plaintiff, as a pro se litigant, has not specified whether she is proceeding under the burden-shifting framework. However, as she has provided no direct evidence of discrimination or retaliation, the court considers her to be proceeding using the burden-shifting framework. Pursuant to this framework, once the plaintiff establishes a prima facie case of a violation of Title VII, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for its employment action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010). If the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason for its employment action, the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence that the proffered reason was "not its true reason[ ], but [was] a pretext." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
While intermediate evidentiary burdens shift back and forth, the ultimate burden of persuasion that the defendant engaged in intentional discrimination remains at all times with the plaintiff. See Reeves, 530 U.S. at 146-47 ("The ultimate question is whether the employer intentionally discriminated, and proof that 'the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct.'") (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993)). Nonetheless, in considering an employee's pretext argument, there is nothing in the "McDonnell Douglas burden-shifting framework that says 'a plaintiff must always introduce additional, independent evidence of discrimination.'" Guessous v. Fairview Prop. Investments, LLC, 828 F.3d 208, 220 (4th Cir. 2016) (quoting Reeves, 530 U.S. at 149)). "To the extent that the evidence supporting a plaintiff's prima facie case also undermines the employer's [] justification, that evidence may be called upon by the trier of fact in determining whether or not the proffered justification is pretextual." Id. at 220. The court is ever mindful, too, that such inquiry is "meant only to aid courts and litigants in arranging the presentation of evidence." Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 515-16 (4th Cir. 2006) (quoting Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 986 (1988)).
2. Defendants' argument
In seeking summary judgment, Defendants acknowledge that Plaintiff "may be able to establish a prima facie case of discrimination based on race/color," but argues they have articulated a legitimate, nondiscriminatory reason for the actions related to her pay. This legitimate, nondiscriminatory reason is that neither Smith nor Laird had any "role in the pay or leave actions" of which Plaintiff complains and had "no knowledge of the deduction or calculation until Plaintiff's complaint after the fact." Defs. Mem. 4. This, Defendants argue, indicates that Plaintiff's accusations are based only on her "personal assumption" that Smith and Laird were responsible for the pay deductions or leave calculations. Id.
As factual support for this assertion, Defendants generally cite to pages 35-38, 40, and 69-77 of the Transcript. Id. at 4 n.4. The undersigned has reviewed the cited pages and, as context, other information available in the Transcript. Smith advised the investigator that she was unsure of what Plaintiff meant by claiming she gave instructions regarding "pay being deducted" on August 22, 2014, but noted Plaintiff had never indicated to her (Smith) that she believed pay was being deducted based on her race, EEO activity, disability, or color. Tr. 38-39. Smith acknowledged, though, that she was aware of concerns that Plaintiff had "about other pay issues." Tr. 38. Smith was aware of and mentioned Plaintiff's ongoing appeal to the MSPB, some of which involved her pay. Tr. 38-39. Smith also testified that she had no knowledge of any issue with Plaintiff's leave being paid out until Plaintiff filed the EEO Complaint. Tr. 40.
HR Representative Laird also told the investigator that she had no knowledge of Plaintiff's pay being deducted on August 22, 2014, until the EEO Complaint was filed other than having received what she termed to be a "Data Call." Tr. 69. Based on information gained during the Data Call, Laird's understanding was that, "once [Plaintiff's] reinstatement was cancelled, that [was] retroactive back to 2011, that caused all of the pay that she had received to be indebted from the pay office." Tr. 70. Laird explained that the documentation effecting the change to Plaintiff's pay status would have been generated by another entity. Tr. 73. Laird testified that she did not advise Major Wilson to deduct any pay or anything at all from Plaintiff. Id.
Defendants submit Plaintiff is unable to establish pretext because she has provided no more than her own personal assumption that Smith and Laird were responsible for pay deductions or leave calculations. See Defs. Mem. 4 ("[I]t takes more than baseless accusations like those advanced by the Plaintiff to show that a proffered reason is pre-text.").
As Plaintiff is proceeding pro se the undersigned has made every effort to characterize and analyze her arguments. That stated, some materials submitted by Plaintiff are difficult to comprehend in the context of her claims. The court cannot create arguments for Plaintiff.
Plaintiff's responses (ECF Nos. 95 (Mem.), 113 (Suppl. Mem.), and 123 (Post-hearing Submission)) include many arguments and exhibits. While not an exhaustive list, the court notes the essence of Plaintiff's arguments seem to be comprised of the following (some of which are not properly before the court at this time):
• Attorney Smith and HR Representative Laird "purposely took actions against plaintiff and allowed no other person to be involved in all matters pertaining to Ms. Holmes, which is a pattern that all the persons identified[.]" Pl. Mem. 15. If Army personnel had not acted in "bad faith in performing their positions no harm would have occurred to the plaintiff" regarding her pay and leave. See Pl. Mem. 15.
? These referenced actions appear to involve, among other things, the handling of Plaintiff's pay as a result of the MSPB Remand Order, which arguably is contemplated by Claim 4, and the way Plaintiff's leave was paid out, which relates to Claim 6.
• Plaintiff also makes several references to the fact that she was not permitted to return to work during the period she was returned to the payroll on administrative leave based on the January 2, 2013 ruling in her MSPB action. See, e.g., Pl. Mem. 21. She indicates the Army exhibited "bad faith about Credentialing being the hold up for [her] return to duty and agency's compliance [presumably, with the January 2013 MSPB Order]." Id. Plaintiff does not specifically identify which of her 75 pages of exhibits contains that letter, but review of her documents indicates it could refer to an April 3, 2013 letter written by the Army to Congressman Joe Wilson regarding Plaintiff's "requests for job restoration." ECF No. 95-1 at 68-69. In a recently submitted "Affidavit," Plaintiff claims that the EEO Complaint "is not about the MSPB restoration. It is about the mishandling of personnel actions, creditialing packets, truthful time & attendance entries and not ones that purposely conflict with OWCP." ECF No. 113 at 10.
? Issues regarding the handling of the MSPB decisions, including Plaintiff's placement on administrative leave and her not being returned to her duty as a Physician Assistant, are not before the court. As noted above, issues regarding the MSPB matters, including its related relief such as Plaintiff's employment status, are not among the exhausted issues being considered in this judicial action as to Plaintiff's 2014 EEO Complaint.
• Much of Plaintiff's argument focuses on Smith's and Laird's involvement in the MSPB actions and in prior EEO actions brought by Plaintiff. Because of their prior involvement with her, Plaintiff suggests they "allowed no other persons to be involved in all matters pertaining to [Plaintiff.]" Pl. Mem. 15. Although never plainly articulated, this seems to be the basis of Plaintiff's reprisal claim. See ECF No. 113 at 10 ("[Defendants'] actions caused a significant change in plaintiff's terms of employment and future employment. Due to race, color, disability, reprisal plaintiff no longer had any privileges of employment. The conditions of employment (hostile work environment) allowed to fester by management officials actually left plaintiff with a 'deficit' in every sense of the word.").
Plaintiff's briefing includes little-to-no specific argument regarding the only cause of action before the court at this time: her Title VII disparate-treatment claim as to the issues regarding her pay around August 2014 and her leave payments (Claims 4 and 6). The undersigned construes Plaintiff's argument to be this: Plaintiff's reinstatement and related pay were handled differently than they would be handled for others, and Smith's and Laird's handling of her pay and leave subsequent to the MSPB July 2014 Remand Order (among other things) demonstrates pretext based on her race (and her disability and her prior EEO activity).
Plaintiff's supplemental filing also indicates she claims both race and color discrimination. See ECF No. 113 at 10. However, Plaintiff's EEO Complaint did not "check the box" for discrimination based on color, nor is there evidence before the court indicating a color discrimination claim might have arisen from the investigation of the EEO Complaint. See Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132-33 & n.5 (4th Cir. 2002) (holding plaintiff had not exhausted his remedies on a color discrimination claim where he alleged racial discrimination but not color discrimination in his EEOC charge).
4. Analysis
Having considered Plaintiff's briefing, exhibits, and argument in the light most favorable to her, the undersigned is of the opinion that she has not presented any evidence that Smith or Laird was involved in any decision to "mishandle" the personnel actions related to Plaintiff's pay and leave subsequent to the July 2014 Remand Order. Plaintiff offers no evidence in support of these claims other than evidence indicating Smith and Laird had been aware of Plaintiff's prior EEO activity. Nothing she has presented provides more than conjecture that Smith and Laird excluded others from working on matters pertaining to Plaintiff or otherwise ties their prior awareness of EEO activity in 2010 to any thing that took place around August 2014 regarding Plaintiff's pay "deductions" or leave.
Regarding Smith's involvement in how to handle her pay after the remand order the court notes Plaintiff's reliance on a statement by Army counsel in the MSPB PFE matter. In the Agency's Response to the PFE, counsel stated the following:
As a result of the Remand Order, the Civilian Personnel Advisory Center ("CPAC"), Fort Jackson, effected the personnel actions that cancelled the reinstatement of [Plaintiff] and the other personnel actions that had taken place during the reinstatement. The former Agency Representative, L. Patricia Smith, Esquire (now with the Department of Veterans Affairs) provided advice to the CPAC.ECF No. 84-3 at 193. Referencing this document, Plaintiff argues it was "highly unusual" for JAG (Smith) to "physically get into a vehicle and drive to CPAC in order to give 'special' instructions on the plaintiff's file." ECF No. 95 at 15. Plaintiff submits that Defendants have "never provided and cannot provide a list of persons who the agency attorney made a special in-person visit to discuss the technicality of how to process a personnel action." Id.
In any event, and assuming, arguendo, that statements in a PFE brief could be considered "evidence," the memorandum indicates only that Smith "provided advice to the CPAC." From this, Plaintiff apparently wishes to paint a picture of Smith making a special trip in her car in order to advise CPAC to handle the pay and leave subsequent to the remand order in a manner that was improper and intended only to harm Plaintiff because of her race (or disability or prior EEO activity). Such conjecture is far from sufficient to defeat summary judgment. As the Fourth Circuit recently noted,
[a plaintiff's] weav[ing] mischaracterizations of the record with pure speculation to contend that a jury could infer that her allegations actually occurred. That is not a valid means of surviving summary judgment, which requires evidence, not unsupported conjecture. See, e.g., Shirvinski v. U.S. Coast Guard, 673 F.3d 308, 320 (4th Cir. 2012) (rejecting plaintiff's "attempt[ ] to build his case through pure inference"); Hinkle v. City of Clarksburg, 81 F.3d 416, 423 (4th Cir. 1996) (holding a claim was "ripe for an adverse summary judgment determination" when "it was based upon a theory without proof" and dependent on "speculation and the piling of inferences"); Barwick v. Celotex Corp., 736 F.2d 946, 962 (4th Cir. 1984) (rejecting plaintiff's "attempt[ ] to build one vague inference upon another vague inference to produce a factual issue").Graves v. Lioi, ___ F. 3d ___, No. 17-1848, 2019 WL 3143757, at *12 (4th Cir. July 16, 2019). The court is not suggesting that Plaintiff is intentionally mischaracterizing the record or intentionally misleading the court with her version of events. Nonetheless, she cannot survive summary judgment as to her Title VII disparate treatment claim based on her own conjecture or theories of the evidence. In fact, at the hearing Plaintiff admitted to the court that she assumed the alleged actions of Smith and Laird were based on discrimination. These assumptions, not supported by cogent evidence, are insufficient. Plaintiff has not satisfied her burden to demonstrate pretext. See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004) (noting plaintiff's "burden to demonstrate pretext 'merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination.'" (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
It is worth noting that Smith and Plaintiff are the same race. See Tr. 27; Pl. EEO Complaint. Stewart v. Gestamp S.C. LLC, No. 7:17-CV-1023-TMC, 2018 WL 3454786, at *4 (D.S.C. July 18, 2018) (noting plaintiff's argument was weakened by fact that the primary decision-maker concerning plaintiff's disciplinary action was the same race as plaintiff), aff'd, 754 F. App'x 202 (4th Cir. 2019).
Regarding her claim for unpaid leave (Claim 6), Plaintiff's explains that the EEO claim is "about the leave accrual being deducted and now charged as a debt of over $4K even now on [her] credit report." ECF No. 113 at 10 (filed June 26, 2019). In connection with Plaintiff's October 30, 2018 opposition to summary judgment she proffered a portion of what appears to be a credit reporting agency's alert to her that the Department of Defense was reporting an uncollected balance due of $4747.00. ECF No. 95-1 at 63. It is unclear to the undersigned how this particular balance indicated as being in collection status as of December 2018 (or even today) is tied to Defendants' delay in paying her for her accrued leave. At the hearing Plaintiff acknowledged she had received a check for some of her unearned leave but seemed to argue that Defendants wanted that payment back to offset her pay-debt. She noted that she continued to have information regarding the leave appear as a debt on her credit report.
While the issues related to the collection action and the apparent confusion regarding payment for leave are regrettable there is no cogent evidence tying issues related to the payment for earned leave to racial discrimination. Summary judgment as to the disparate-treatment race-discrimination claim is appropriate.
Simply put, there were some issues with the manner in which Defendants have processed her pay, pay status, leave, and collection efforts. Even construing all evidence in the light most favorable to Plaintiff, no evidence presented offers any supportable inference that the handling of Plaintiff's pay status or leave had anything to do with her race. Summary judgment is appropriate as to Plaintiff's Title VII claim of race-based disparate treatment.
Although summary judgment is recommended as to the Title VII race discrimination claim that was briefed by Defendants, the undersigned feels compelled to note the court's chagrin at Defendants' briefing. In seeking summary judgment, Defendants did little more than parrot the ruling of the EEO Administrative Judge's reasoning in the FAD. Plaintiff's case is now before this court for an appeal of her EEO Complaint. Here, the court undertakes a de novo review of the EEO Complaint, not an appellate review of the FAD. See Laber, 438 F.3d 404. Importantly for purposes of this R&R Defendants did not brief (or even seek) summary judgment as to other theories of discrimination raised by Plaintiff in her EEO Complaint: discrimination based on physical disability and reprisal (retaliation) based on November 2010 EEO activity and representation of coworkers in their EEO complaints in March 2011 and October 2013. See ECF No. 107-1. See Wilkins v. Sessions, No. CV 8:17-403-TMC-KDW, 2018 WL 3131027, at *17 (D.S.C. June 8, 2018), report and recommendation adopted, No. 8:17-CV-803-TMC, 2018 WL 3127323 (D.S.C. June 26, 2018) ("[B]y failing to address" claims raised by plaintiff, defendant "implicitly concedes that the evidence is sufficient to go forward." (internal citation omitted)). IV. Plaintiff's other EEO claims
Although Plaintiff's EEO Complaint includes allegations that she was also discriminated against as a result of her physical disability and was subjected to reprisal (retaliation) for prior EEO activity, Defendants do not address any claim of race-based retaliation or any claim of disability- based discrimination or retaliation. While it may be that portions of Defendants' Motion for Summary Judgment could apply to those claims the court will not make arguments for Defendants. Accordingly, the undersigned is of the opinion that Plaintiff's causes of action for discrimination based on disability and for retaliation based on her prior EEO activity remain before the court for trial. As with the Title VII discrimination claim, only matters relating to Claims 4 (pay deduction after the July 2014 Remand Order) and 6 (leave payment) are before the court.
Title VII proscribes discrimination against an employee because she participates in EEO enforcement proceedings or "has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a). Employees engage in protected oppositional activity when, inter alia, they "complain to their superiors about suspected violations of Title VII." Bryant v. Aiken Reg'l Med. Ctrs. Inc., 333 F.3d 536, 543-44 (4th Cir. 2003). When direct evidence is lacking, a plaintiff may produce circumstantial evidence and proceed under the McDonnell Douglas burden-shifting framework. See Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015)."To establish a prima facie case of retaliation in contravention of Title VII, a plaintiff must prove '(1) that she engaged in a protected activity,' as well as '(2) that her employer took an adverse employment action against her,' and '(3) that there was a causal link between the two events.'" Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (quoting EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405-06 (4th Cir. 2005)).
If the plaintiff presents a prima facie case, the burden then shifts to the employer to establish a legitimate, non-retaliatory reason for the adverse action. If the employer sets forth a legitimate, non-retaliatory reason for the action, the plaintiff then bears the burden of showing the employer's proffered reasons are pretextual or his claim will fail. See Price v. Thompson, 380 F.3d 209, 212 (4th Cir. 2004). In the Title VII retaliation context, a plaintiff must prove retaliation was the but-for cause of the adverse employment action. See Univ. of Tex. Sw. Med. Center v. Nassar, 133 S. Ct. 2517, 2533 (2013). In other words, the successful plaintiff in a Title VII retaliation suit must show that the complained-of injury would not have occurred "but for" the alleged retaliatory motive. Id.; see also Id. at 2524-25.
To establish a prima facie case under the Rehabilitation Act, a plaintiff must prove that: (1) she has a disability; (2) she is otherwise qualified for the benefit in question; and (3) she was excluded from the benefit "due to discrimination solely on the basis of the disability." Atkins v. Holder, 529 F. App'x 318, 319-20 (4th Cir. 2013). The Rehabilitation Act's causation requisite requires that the disability be the sole cause, as opposed to one of multiple causes, of the discrimination. See Thomas v. Salvation Army S. Territory, 841 F.3d 632, 641 (4th Cir. 2016). --------
While constrained to make this recommendation, the undersigned offers no opinion as to the relative success Plaintiff's claims based on physical disability or reprisal may have before a jury. In fact Plaintiff does not discuss her physical disability claim other than in the context of receiving worker's compensation payments. She does nothing to tie her alleged disability to the complained-of acts. Whether Plaintiff can present evidence to establish a Rehabilitation Act claim, including the sole-causation requirement, is not currently before the court.
Similarly, Plaintiff's evidence presented to date does not seem to tie her 2010 EEO action or her March 2011 and October 2013 EEO participation in the EEO actions of others to the alleged adverse actions before the court—the July/August 2014 handling of her pay-status and her leave. That Army employees or representatives such as Smith and Laird were aware of her prior EEO activity is not, in and of itself, sufficient to defeat summary judgment as to her reprisal/retaliation claim. To that end, it may be appropriate for the District Judge to permit further motions and briefing as to these issues and/or instruct the parties to participate in good-faith mediation to resolve this matter.
Finally, portions of Plaintiff's briefing suggest she may be attempting to pursue a hostile-work-environment claim. ECF No. 113 at 10 ("[Defendants'] actions caused a significant change in plaintiff's terms of employment and future employment. Due to race, color, disability, reprisal plaintiff no longer had any privileges of employment. The conditions of employment (hostile work environment) allowed to fester by management officials actually left plaintiff with a 'deficit' in every sense of the word.").
A hostile work environment is one that 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 working environment." Boyer-Liberto, 786 F.3d at 277. Nothing in Plaintiff's EEO Complaint indicates she is pursuing such a cause of action. The undersigned is of the opinion that Plaintiff did nothing to exhaust a hostile-work-environment claim. On that ground alone, dismissal of any such perceived cause of action could be appropriate. See Def. Suppl. Mem. 7, ECF No. 107 ("[A]ny recent claims presented in her response to summary judgment should be dismissed for failure to exhaust administrative remedies."). V. Recommendation
For the foregoing reasons, it is recommended that Defendants' Motion for Summary Judgment, ECF No. 84, be granted in part and denied in part. Summary judgment is appropriate as to Plaintiff's Title VII disparate-treatment discrimination claims as to the issues before the court. As summary judgment has not been sought as to Plaintiff's causes of action for Title VII retaliation and for discrimination and retaliation based on disability, they remain before the court.
IT IS SO RECOMMENDED. July 23, 2019
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge