Opinion
C/A 3:22-3989-MGL-SVH
01-30-2024
Willa A. Pembleton, Plaintiff, v. USAF, Honorable Frank Kendall SECAF; Najee Crawford, Director of Human Resources; Corey Denson; Commander 20th FW; Commander 20th FSS; Francis Fappiano; Capt. Amy A. Allgood Abramo; Erica N. Brown; Jerome C. Brown; Tanya Wyatt; CMSgt Donald Pedro; American Federation of Government Employees; Commander, 20th Logistics Readiness Squadron, Defendants.
REPORT AND RECOMMENDATION AND ORDER
Shiva V. Hodges United States Magistrate Judge
In this employment discrimination case, a civilian federal employee proceeding pro see attempts to sue her former supervisor and others on multiple theories of recovery. Select defendants seek dismissal of all claims against them.
Willa A. Pembleton (“Plaintiff”) filed this complaint against USAF, Honorable Frank Kendall SECAF; Najee Crawford (“Crawford”), Director of Human Resources; Corey Denson (“Denson”); Commander 20th FW; Commander 20th FSS; Francis Fappiano (“Fappiano”); Capt. Amy A. Allgood (Abramo) (“Allgood”); Tanya Wyatt; CMSgt Donald Pedro (“Pedro”); and the 20th Logistics Readiness Squadron (collectively, “Defendants”).
Plaintiff has also sued the American Federation of Government Employees (“AFGE”), Erica N. Brown, AFGE secretary/treasurer, and Jerome C. Brown, AFGE president (collectively “Union Defendants”). Union Defendants have not appeared in this case.
In Plaintiff's amended complaint, she states her action is pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). [ECF No. 21 at 5].She also indicates that she is bringing claims against Defendants for race and sex discrimination and reprisal, including a claim for hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”). [See ECF No. 21-1 at 1, see also ECF No. 7 (Equal Employment Opportunity Commission (“EEOC”) decision)].
In briefing, however, Plaintiff states she “has brought this civil action against defendants, alleging violations of her Civil and Due Process Rights pursuant to 42 U.S.C. § 1983.” [ECF No. 57 at 1].
Plaintiff additionally challenges disciplinary action taken against her during her employment, including her discharge, more specifically stating Defendants committed a breach of contract, engaged in defamation and harassment, and violated her due process rights guaranteed by the Fifth Amendment, her rights guaranteed by the Privacy Act of 1974, 5 U.S.C. § 552a et. seq (“Privacy Act”), and her right to a reasonable accommodation for her disabilities in violation of Americans with Disabilities Act, 42 U.S.C. § 12102, et seq. (“ADA”).[ECF No. 21-1]. Plaintiff also asserts Defendants have violated the following statutes: 5 U.S.C. § 6385, 5 U.S.C. § 7102, 5 U.S.C. § 7114, 5 U.S.C. § 7116, 5 U.S.C. § 2302, 5 U.S.C. § 2302(b)(12), 29 C.F.R. § 1960, 29 C.F.R. § 1960.46, 10 U.S.C. § 907, 29 U.S.C. § 157. See id.
The Rehabilitation Act, 29 U.S.C. § 701 et seq. (“Rehabilitation Act”), rather than the ADA, is the statute upon which a federal employee can raise a disability discrimination claim. See Hatcher v. Wilkie, C/A No. 3:17-2535-JMC-PJG, 2019 WL 2090810, at *5 (D.S.C. Feb. 27, 2019) (collecting cases). In her amended complaint, Plaintiff references regulations promulgated by the EEOC as to the Rehabilitation Act. [See ECF No. 21-1 at 27-28 (citing 29 C.F.R. § 1614.203)].
This matter comes before the court on Defendants' motion to dismiss, or in the alternative, for summary judgment. [ECF No. 46]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the dismissal procedures and the possible consequences if she failed to respond adequately to Defendants' motion. [ECF No. 47]. The motion having been briefed [see ECF Nos. 57, 61], it is ripe for disposition. Also before the court are Plaintiff's motions to correct the designation of Union Defendants, motion for clarification, motion to oppose consolidation of Defendants, motion for default judgment as to Union Defendants, and motion for reasonable accommodation. [ECF Nos. 32, 40, 41, 44, 56].
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendants' motion and deny Plaintiff's motion for default judgment, rendering Plaintiff's motion to correct designation moot. The undersigned denies the remainder of Plaintiff's motions.
I. Factual and Procedural Background
A. Plaintiff's Employment with the Air Force
Beginning in August 2008, Plaintiff, a black woman, was employed by the Air Force as an Administrative Assistant, GS-0236-05, with the Fuels Management Flight of the 20th Logistics Readiness Squadron (“20 LRS”) at Shaw Air Force Base (“AFB”) in South Carolina. [ECF No. 46-3, see also ECF No. 46 at 3, ECF No. 21-1 at 1]. As a collateral duty, Plaintiff served for some period as the Disability Program Manager (“DPM”), until approximately January 9, 2019. [ECF No. 46-3 at 7 ECF No. 21-1 at 32, see also ECF No. 464 at 35].
From September 4, 2018, through May 10, 2019, Allgood, a white woman, was the 20 LRS Fuels Management Flight Commander, and Plaintiff's first level supervisor. [ECF No. 46-4 at 6, 15-16]. Plaintiff alleges “October 2018 the harassment began. October 15th a new supervisor (1st Lt Amy Allgood) comes. She begins an escalation of coercion, threats, intimidation and harassment.” [ECF No. 21-1 at 1].
Crawford, a black male, was the Chief, Personnel Flight with the 20th Force Support Squadron at Shaw AFB. Id. at 33-34. On or before January 9, 2019, Crawford decided to assign Denson, a black male, Human Resources Specialist, GS-0201-11, to work as the DPM because the most recent Air Force Civilian Personnel guidance stated that this position should fall under the Civil Personnel Office. Id. at 35-40. After being designated to serve as the DPM, Denson was sent to DPM training. Id. at 35-39.
The record indicates that Plaintiff initially contacted the Equal Employment Opportunity (“EEO”) office at Shaw AFB on February 7, 2019, to file an informal complaint of discrimination based on race, sex, and reprisal, after the reassigning of the DPM duties. [ECF No. 46-10 at 2]. Plaintiff alleges, however, without supporting evidence, that her “first visit to the EEO office” was before the reassigning of DPM duties, on “January 7th, 2019 .... Tanya R. Wyatt (Retired SMSgt) altered the paperwork to read that I met with her February 2019.” [See ECF No. 21-1 at 27].
On or about February 8, 2019, Plaintiff and Allgood discussed Allgood's direction that Plaintiff produce an Award Certificate for the Fuels Management Flight. Id. at 7, 17-21. It appears that Plaintiff would not let Allgood use the certificate template because it was something Plaintiff had created and Allgood “snapped” at her about it. Id. at 5, see also id. at 17, 21. On or about February 19, 2019, Pedro told Plaintiff that Plaintiff not allowing Allgood to use the template was “petty” behavior. Id. at 8-9, 24-27.
Pedro, a mixed-race male, was the Fuels Manager for 20 LRS Fuels Management Flight. [ECF No. 46-4 at 22-23]. He was the Fuels Management Flight's enlisted leader, but he was not in Plaintiff's supervisory chain. Id. Pedro was supervised by Allgood. Id.
On or about February 26, 2019, Pedro requested the Civil Engineer Squadron remove tape on the vent above Plaintiff's desk and replace the lights above her desk as part of a larger facility beautification project prior to an upcoming inspection. Id. at 10-14, 28-32. The entire office was renovated, including ripping up carpets, painting the building, fixing the air conditioning, and installing a new roof. Id.
Plaintiff stated during the EEO investigation that she had been allowed to have tape over her light for over eight years because of her migraines. [ECF No. 46-4 at 12]. Allgood stated during the EEO investigation that when Plaintiff requested to have the lights returned to its former condition, she was informed that she could request a reasonable accommodation and provide medical documentation and that she would be accommodated. [ECF No. 46-3 at 7]. Defendants represent that although a formal accommodation request regarding office conditions was not submitted, “it appears that this matter was resolved and Plaintiff received an outcome to which she did not object.” [ECF No. 46 at 23-24, see also ECF No. 46-29].
On March 1, 2019, Allgood issued Plaintiff a Notice of Proposed Reprimand (“reprimand”) for “[f]ailure to carry out assigned work or instruction in a reasonable period of time,” concerning the following:
On or about 1 Feb 19, you failed to comply with supervisory instruction by not producing the revised PWCS, Personal Wireless Communication System, appointment letter as directed five times ....
On your about 31 Jan 19, you failed to comply with supervisory instruction by not producing your name and phone number on the 1GRF February recall roster as directed four times ....
You failed to comply with supervisory instruction by not completing the certificate and Memorandum for Record (MFR) for the Pumper of the Month after two requests ....
On or about 11 Feb 19 at 0721 L, I instructed you to email five separate appointment letters for electronic signature no later than 11 Feb 19 by 1600L, to which you did not comply ....[ECF No. 46-5].
Also on March 1, 2019, Allgood issued Plaintiff a Notice of Unacceptable Performance and Commencement of Performance Improvement Period (“PIP”). [ECF No. 46-6]. The PIP stated that Allgood had “discussed . . . performance standards with [Plaintiff] on several occasions,” held a meeting with Plaintiff to go “though each element of [the] performance plan,” and now “summarizes [Plaintiff's] deficiencies,” identifying three areas for improvement. Id. Plaintiff refused to sign the PIP. See id.
On April 12, 2019, Fappiano issued a Notice of Decision to Reprimand Plaintiff, finding “that the incidents described in the Notice of Proposed Reprimand . . . fully supported.” [ECF No. 46-7]. On May 28, 2019, Spencer King, 2d Lt., USAF, Commander, Fuels Management Flight, issued a Notice of Proposed Removal of Plaintiff, providing the following overview:
Lt Allgood assumed command of the Fuels Management Flight on or about 4 September 2018. She met with you on or about 22 October 2018 and 21 December 2018 to discuss expectations and the elements of your performance. However, you still did not complete all tasks within assigned suspenses (or request extensions from your supervisor) and your work product contained significant errors. Informal discussions/emails did not result in improvement; therefore, you were placed on a thirty (30) day Performance Improvement Plan (PIP) on or about 4 March 2019. Counseling sessions regarding this PIP were documented in progress reviews on or about 22 March 2019 and 5 April 2019, at which time you were informed that you had not shown a fully
successful performance. Lt Allgood arranged for on-the-job training for you regarding the Morning Report on 4 April 2019.
On or about 5 April 2019, Lt Allgood extended the PIP period until 19 April 2019 to provide another opportunity for you to demonstrate a fully successful performance. On 7 May 2019, Lt Allgood attempted to schedule the final progress review regarding this PIP, but you did not respond until 9 May 2019, the proposed date for the discussion. At that time, you stated would not meet with your supervisor in person without your union representative, who was not available at either of the two times proposed for the discussion. In light of this, the final progress review was sent to you via email on or about 10 May 2019 explaining that you still had not demonstrated fully successful performance.
I assumed command of the Fuels Management Flight on or about 13 May 2019. I have reviewed your performance on the PIP and have decided to propose removing you from your position for unacceptable performance.[ECF No. 46-8]. The document notes that “employee left meeting on 28 May 2019 without signing.” See id.
Plaintiff has submitted evidence that that “[t]he HR office never contacted the Union by either telephone or email that a date had been scheduled to present Ms. Pembleton the Proposed Letter of Removal, which means that Ms. Pembleton was denied her right to have a Union member present during the meeting.” [ECF 57-1 at 3].
On July 24, 2019, Stacy M. Eskridge, Maj., USAF, Commander, 20th Logistics Readiness Squadron, issued a Decision on Proposed Removal for Unacceptable Performance, terminating Plaintiff from her position effective immediately and noting the following:
On 28 May 2019, you received a Notice of Proposed Removal for Unacceptable Performance from 2d Lt Spencer King. You were advised in the Notice of Proposed Removal of your right to reply in writing, orally, or both, within twenty-one (21) calendar days of the
date you received the notice. To date, I have received no response from you.[ECF No. 46-9]. The document notes in part that “employee refused to review or acknowledge receipt when hand-delivered on 24 July 19.” See id.
Plaintiff argues that “Shaw AFB Human Resources did not follow legal procedures and terminated my employment” against “Union and Federal regulations.” [ECF No. 21-1 at 2].
B. Plaintiff's EEO Complaint
Plaintiff filed a formal discrimination complaint on April 9, 2019. [ECF No. 46-10]. On May 15, 2019, the agency accepted specific discrimination, hostile work environment, and reprisal claims for investigation. The first claim concerns whether Plaintiff
was discriminated against on the basis of Race (African American), sex (Female), and Reprisal (Previous EEO Complaint-June 2008 and November 2013-Docket 5W1C14001) by her supervisor, 2Lt Amy Allgood, Commander, Fuels Management Flight, 20 LRS, when on 10 Jan 2019: (i) The complainant was removed from her position as primary Disability Program Manager; (ii) And, the complainant was removed from her scheduled Disability Program Manager training TDY.Id. The second claim concerns whether Plaintiff
was subjected to a hostile work environment on the basis of Race (African American), Sex (Female), and Reprisal (Previous EEO Complaint-June 2008 and November 2013-Docket 5W1C14001) when: (i) On 7 Feb 2019, her supervisor, 2Lt Amy Allgood, Commander, Fuels Management Flight, 20 LRS, yelled at her in front of coworkers; (ii) On 19 Feb 2019 CMSgt Donald Pedro, Jr., Fuels Superintendent, 20 LRS, was informed by the complainant he would not classify her as a stereotypical black female when he
referred to her as being petty; (iii) And, on 26 Feb 2019 2Lt Amy Allgood had the tape removed from the vent and the lights replaced above the complainant's desk against the complainant's request.Id. The third claim concerns whether Plaintiff
was discriminated against on the basis of Race (African American), Sex (Female) and Reprisal (Previous EEO Complaint-June 2008 and November 2013-Docket 5W1C14001) by her supervisor, 2Lt Amy Allgood, Commander, Fuels Management Flight, 20 LRS, when on 4 Mar 2019: (i) The complainant received notice of proposed reprimand; (ii) And, the complainant received a 30 day performance improvement plan.Id. Plaintiff's EEO case was dismissed on March 29, 2021. [ECF No. 46-11].
Based on the record before the court, this is the only EEO complaint Plaintiff filed regarding the subject matter of this litigation. Plaintiff did not file an EEO complaint related to her termination.
C. Collective Bargaining Agreement (“CBA”) Complaint
As noted above, on July 24, 2019, Plaintiff received a Decision on Proposed Removal for Unacceptable Performance. In that document, Plaintiff was advised as follows:
[y]ou may appeal this decision to the Merit Systems Protection Board [(“MSPB”)], or you may grieve this decision through the negotiated grievance procedure. You may elect either the statutory appellate review procedure or the negotiated grievance procedure, but not both. You also have the right to file a complaint with the Equal Employment Opportunity Commission or to grieve allegations of unlawful discrimination, consistent with the provisions of 5 U.S.C. 7121(d) and 28 CFR 1614.301 and 1614.302.[ECF No. 46-9, see also ECF No. 46-8 (stating that “[y]ou shall be deemed to have exercised your option to appeal the adverse action at such time as you timely initiate an appeal to the Board, file a complaint with the [Office of Special Counsel (“OSC”)], timely file an administrative grievance in writing, or file a discrimination complaint . . . Should you file multiple actions, you will be deemed to have elected to pursue whichever action is filed first.”)]. The termination document then outlined the MSPB, grievance, EEO, and OSC procedures, including pertinent deadlines. [ECF No. 46-9].
In response, Plaintiff filed a grievance under the CBA. [ECF No. 46-13 (noting that Plaintiff “filed her grievance 14 days after her removal stating that it was being filed to challenge the July 24, 2019 decision to removal Willa Pembleton”) (internal quotations omitted)].
On September 18, 2019, the grievance was denied. [ECF No. 46-14]. On September 23, 2019, the AFGE emailed the Agency, invoking arbitration under the CBA regarding Plaintiff's termination. [ECF No. 46-15, ECF No. 57-1 at 21-22]. The parties agree that no further action was taken regarding arbitration. [ECF No. 46-15, ECF No. 57-1 at 21-22, ECF No. 57 at 155; ECF No. 44, see also ECF No. 46-16 (Appropriated Fund Memorandum of Agreement Under Chapter 71, Title 5 of the U.S. Code Between Shaw Air Force Base, SC and the American Federation of Government Employees Local Number 1872 (“Shaw CBA”)).
On June 4, 2020, Plaintiff filed an MSPB appeal concerning her termination. [ECF No. 46-13]. On September 18, 2020, the Administrative Judge dismissed the appeal, finding that Plaintiff had been informed that she had options regarding the forum in which to pursue her claim, she did not dispute notice regarding those options, she elected to file a grievance under the Shaw CBA, and, therefore, MSPB lacked jurisdiction over her claim. Id.
On July 25, 2019, Plaintiff contacted OSC regarding denial of accommodation regarding reassignment. [ECF No. 46-17]. The record also indicates that Plaintiff contacted OSC regarding a whistleblower complaint, which OSC dismissed. [ECF No. 46-13 at 5 n.6]. There is no evidence in the record that Plaintiff pursued or appealed these matters.
II. Discussion
A. Standard on Motion to Dismiss
Dismissal is appropriate under Fed.R.Civ.P. 12 (b)(1) where the court lacks subject-matter jurisdiction and under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of a plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Standard on Summary Judgment
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 nonmoving 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. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller, 901 F.2d at 387.
C. Analysis
1. Magistrate Judges' Jurisdiction
As an initial matter, the court addresses Plaintiff's argument that because she did not consent “for all proceedings to go through Magistrate Hodges” and that this case should be “removed” from the undersigned. [ECF No. 52, ECF No. 57 at 3].
Although Plaintiff is correct that 28 U.S.C. § 636(c) provides that a magistrate judge may “conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case” “[u]pon the consent of the parties,” this statute also provides in relevant part as follows:
(b)(1) Notwithstanding any provision of law to the contrary-
(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action,
to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.
(B) a judge may also designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement.
(C) the magistrate judge shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties.28 U.S.C.A. § 636(b)(1) (footnote omitted); see also, e.g., Settle v. Slager, 628 Fed.Appx. 206 (4th Cir. 2016) (“Settle's consent was not required before the district court referred to the magistrate judge for a non-dispositive ruling ....”); Samuel v. Ozmint, C/A No. 3:07-178-PMD, 2008 WL 512736, at *4 (D.S.C. Feb. 25, 2008) (collecting cases and holding the plaintiff's “consent was not required in order for the Magistrate Judge to issue a Report and Recommendation”).
Here, too, Plaintiff's consent is not required for the undersigned to issue orders as to nondispositive issues or to issue report and recommendations as to dispositive issues.
2. Bivens Claims
In her amended complaint, Plaintiff seeks damages, as well as other relief, against the Air Force and individual Defendants solely in their official capacities. [See ECF No. 21, ECF No. 21-1]. In Bivens, the Supreme Court held that a plaintiff may obtain damages for injuries caused by a federal employee acting “under color of his authority” in violation of the plaintiff's constitutionally-protected rights. Thus, a plaintiff may recover monetary damages in Bivens actions brought against federal employees in their individual capacities. However, because the United States has not waived its sovereign immunity in such matters, claims for damages brought pursuant to Bivens are not actionable against the United States, federal agencies, or public officials acting in their official capacities. FDIC v. Meyer, 510 U.S. 471 (1994).
In Bivens actions, while plaintiffs may not seek monetary damages against federal officers in their official capacities, plaintiffs may seek injunctive relief. See, e.g., Boone v. Carvajal, C/A No. 6:21-3053-JD-KFM, 2022 WL 20622475, at *5 n.2 (D.S.C. Nov. 18, 2022) (collecting cases), report and recommendation adopted, C/A No. 6:21-3053-JD-KFM, 2023 WL 4926150 (D.S.C. Aug. 2, 2023). However, for the reasons discussed in this report and recommendation, Plaintiff is not entitled to any injunctive relief she may be seeking. See also, e.g., Norris v. Poole, C/A No. 8:10-750-JFA-BHH, 2010 WL 1903970, at *3 (D.S.C. Apr. 19, 2010) (“The injunctive relief of compelling a government official to issue a published apology is also not available, because it is in the form of mandamus relief.”), report and recommendation adopted, C/A No. 8:10-750-JFA-BHH, 2010 WL 1903971 (D.S.C. May 11, 2010).
Additionally, a Title VII action against the federal government is the exclusive judicial remedy for discrimination in federal employment. Brown v. Gen. Servs. Admin., 425 U.S. 820, 835 (1976). Here, Plaintiff asserts Bivens claims arising out of her federal employment relationship with Defendants. However, she may not also seek relief based upon Bivens for the same allegedly discriminatory conduct. Middlebrooks v. Leavitt, 525 F.3d 341, 349 (4th Cir. 2008). As such, Plaintiff's Bivens claim against Defendants for employment discrimination is subject to summary dismissal.
For the same reasons, to the extent the court construes Plaintiff as asserting a claim for violation of her constitutional rights brought pursuant to 42 U.S.C. § 1983, the undersigned recommends dismissal of any such claim. See, e.g., Signal v. Gonzales, 430 F.Supp.2d 528, 537 (D.S.C. 2006) (“Although Plaintiff has attempted to bring this employment discrimination action under a number of statutes, including 42 U.S.C. §§ 1983 and 1985, the exclusive remedy for employment discrimination claims brought by federal employees is Title VII . . . .”).
3. Failure to Exhaust Administrative Remedies
Prior to filing a lawsuit alleging violations of Title VII and the Rehabilitation Act or the ADA, a plaintiff must first exhaust her administrative remedies. See, e.g., Melendez v. Sebelius, 611 Fed.Appx. 762, 763 (4th Cir. 2015)(“Federal employees like Melendez who seek to enforce their rights under Title VII, the Americans with Disabilities Act, and the Rehabilitation Act must exhaust their available administrative remedies before pursuing an action in federal court.”). As stated by the Fourth Circuit:
The exhaustion requirement exists to minimize “judicial interference with the operation of the federal government.” Doe v. Oberweis Dairy, 456 F.3d 704, 712 (7th Cir. 2006). The requirement is meant “‘to give the agency the opportunity to right any wrong it may have committed.'” Jaschv. Potter, 302 F.3d 1092, 1096 (9th Cir. 2002) (quoting McRae v. Librarian of Congress, 843 F.2d 1494, 1496 (D.C.Cir. 1988) (per curiam)). “If the agency has had this opportunity and has made a determination concerning discrimination, the administrative process has not been obstructed. It has been exhausted.” Jasch, 302 F.3d at 1096.Id.
Here, Defendants assert that Plaintiff failed to exhaust her administrative remedies as to any failure-to-accommodate claim. [See ECF No. 46-10]. Defendants additionally argue that, as to her termination, Plaintiff had multiple paths she could pursue to challenge the termination, she chose to pursue the Shaw CBA grievance procedure, and she and the AFGE failed to pursue arbitration within the required time period, thereby cancelling the grievance. [See ECF No. 46 at 24-25].
In support of their position, Defendants offer that Shaw CBA outlines specific grievance and arbitration procedures. [ECF No. 46-16]. Article 37, Section 4 of the Shaw CBA provides that
[a]n aggrieved employee affected by discrimination, removal or reduction in grade based on unacceptable performance (Section 4303) or adverse action (resulting in 15 or more days suspension, reduction in grade, or removal; Section 7512) may at his/her option raise the matter under a statutory appellate procedure or the negotiated grievance procedure, but not both.Id. at 52. The requirement for an aggrieved employee to pick a single path also was included in Plaintiff's termination notice. [ECF No. 46-9]. Plaintiff opted to file a grievance regarding her termination, rather than file an EEO or MSPB claim. [ECF No 46-14].
Thus, to pursue the grievance regarding her termination, Plaintiff was required to follow the procedure outlined in the Shaw CBA. Under that procedure, if the grievance was not satisfactorily settled at the informal and formal grievance stages,
either party will notify the other within 5-calendar days of their intent to invoke arbitration. The other party has 15-calendar days from receipt of the notification to respond to the filing party. If no response is received or the response does not satisfactorily resolve the issue, the party who filed the notice of intent may invoke arbitration. If the decision is to invoke arbitration, the filing party must accomplish this within 10-calendar days from the expiration of the response period or receipt of the response, whichever occurs first . . . Failure on the part of the grievant or Union to meet any time requirements or to request an extension of the time frames will cancel the grievance.[See ECF No. 46-16]. As stated, Defendant argues Plaintiff and the AFGE failed to pursue arbitration within the required time period, thereby cancelling the grievance.
Plaintiff's only response appears to be as follows:
F. Defense purports that Plaintiff exhausted remedies under the Collective Bargaining Agreement.
Plaintiff Response:
• The Defendants denied her grievance procedure of the Invoking of Arbitration on September 2019 by blatantly ignoring the invocation without hint of responding with complete consciousness of guilt. (See Exhibit H).[ECF No. 57 at 155 (citing ECF No. 57-1 at 21-22 (email dated September 23, 2019, attaching an arbitration invocation)].
Plaintiff does not appear to contest that she has failed to exhaust her administrative remedies as to any failure-to-accommodate claim and appears to agree that no action was taken after an arbitration invocation was sent regarding any challenge to her termination, thus cancelling her grievance See, e.g., Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d 875, 885 (4th Cir. 1996) (“the rule of the Supreme Court and this circuit is that an employee must follow the grievance procedure established by the collective bargaining agreement prior to filing suit in federal court”); Crosby v. United Parcel Serv., Inc., C/A No. 8:12-00681-JM, 2014 WL 1278009, at *11 (D.S.C. Mar. 27, 2014) (same).
Therefore, Plaintiff has failed to exhaust her administrative remedies as to any failure-to-accommodate claim and as to her termination. Accordingly, the undersigned recommends these claims be dismissed for failure to exhaust her administrative remedies.
4. Exhausted Title VII Claims
a. Title VII Discrimination Claims
Title VII forbids employment discrimination based on “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). That prohibition extends to federal employees through Title VII's federal-sector provision: “All personnel actions affecting employees or applicants for employment . . . in executive agencies .... shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a).
Absent evidence of direct discrimination, Plaintiff may use the burdenshifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to prove his claims of discrimination. Plaintiff must show: (1) she is a member of a protected class; (2) she was performing her duties in a satisfactory manner; (3) she was subjected to an adverse employment action;and (4) the adverse employment action occurred under circumstances that give rise to an inference of unlawful discrimination, such as different treatment for similarly-situated individuals outside the protected class. Jones v. Constellation Energy Projects & Servs. Grp., Inc., 629 Fed.Appx. 466, 468 (4th Cir. 2015).
The United States Supreme Court has signaled that the federal-sector term “personnel action” should be interpreted more broadly than its private-sector counterpart “employment action.” In Babb v. Wilkie, a case involving the federal-sector version of the ADEA, the Court observed in dicta that, although “personnel action” was not defined in the ADEA, its “meaning is easy to understand” by reference to the Civil Service Reform Act of 1978 (“CSRA”). 140 S.Ct. 1168, 1173 (2020). The CSRA provides a list of “personnel actions,” including among others appointment, promotion, transfer, reassignment, and performance evaluations, regardless of the impact they have on the employee's job responsibilities. 5 U.S.C. § 2302(a)(2).
If the plaintiff establishes a prima facie case, the burden shifts to the defendant to produce a legitimate, nondiscriminatory reason for its decision. Hemphill v. United Parcel Serv., Inc., 975 F.Supp.2d 548, 557 (D.S.C. 2013). This is merely a burden of production, not of persuasion. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). Once the defendant meets its burden by producing a legitimate, nondiscriminatory reason, the sole remaining issue is “discrimination vel non.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). In other words, the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence that the legitimate reason produced is not the true reason, but was pretext for discrimination. Id. Throughout the burden-shifting scheme set forth in McDonnell Douglas, the ultimate burden of proving the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.
Here, Plaintiff has exhausted her race and sex discrimination claims regarding the reassigning collateral Disability Program Manager (“DPM”) duties as well as receipt of the reprimand and placement on the PIP. Defendants argue that because these actions do not qualify as actionable adverse personnel actions under Title VII, the claims should be dismissed.
The court need not resolve this issue for multiple reasons. First, and applicable to any discrimination claim she may be asserting, Plaintiff has failed to offer any allegation, evidence, or even argument that she was discriminated against because of her membership in a protected group. As stated by the Fourth Circuit in assessing a similar situation:
In her complaint, McCleary-Evans purported to state a claim under Title VII, which means that she was required to allege facts to satisfy the elements of a cause of action created by that statute-i.e., in this case, that the Highway Administration “fail[ed] or refus[ed] to hire” her “because of [her] race . . . [or] sex.” 42 U.S.C. § 2000e-2(a)(1) (emphasis added). While she did allege that the Highway Administration failed to hire her, she did not allege facts sufficient to claim that the reason it failed to hire her was because of her race or sex.McCleary-Evans v. Maryland Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015).
Here, too, there are no facts demonstrating any animus based on race, color, sex, gender, or otherwise. Plaintiff appears to rely solely on the generic assertion that she has “claims regarding discrimination based on race, sex and reprisal.” [See ECF No. 21-1 at 4, 11, and 23]. That conclusory position statement has no connection to Plaintiff's allegations regarding the reassignment of the DPM collateral duties and training to Denson, a black male, or the scrutiny of her work, including the receipt of a reprimand and placement on a PIP. In short, Plaintiff relies on speculation and conclusory allegations to support the alleged discriminatory animus. However, that approach does not satisfy Plaintiff's burden. See Bing v. Brivo Sys., LLC, 959 F.3d 605, 618 (4th Cir. 2020) (“Being aware of no alternative explanation and guessing that conduct is racially motivated does not amount to pleading actual facts to support a claim of racial discrimination.”).
Plaintiff also states that during the EEO investigation, she provided multiple witnesses to “corroborate and substantiate her claims regarding discrimination based on race, sex and reprisal.” [ECF No. 21-1 at 4]. However, Plaintiff has failed to provide any indication who these witnesses are or what corroboration they could provide.
During the EEO investigation, Plaintiff stated that she was informed by another person who had previously worked with Allgood, Elfreda Williams (“Williams”), that “Lt. Allgood has a problem with black women.” [See ECF No. 46-4 at 12]. Plaintiff argues in briefing this is evidence that Defendants knew of Allgood's “racially discriminatory perspective.” [ECF No. 57 at 13-14]. Plaintiff has failed to make allegations or offer evidence in this case concerning Williams' alleged statement nor provide any further context for her alleged comment. Plaintiff must, and has not, provided factual support that permits a plausible inference of discrimination as distinct from pure happenstance. See McCleary-Evans, 780 F.3d at 586; Bing, 959 F.3d at 618.
Additionally, even if the actions taken by Defendants-reassigning of the DPM duties, issuing a reprimand, and placing Plaintiff on a PIP-were actionable adverse personnel actions, Defendants have submitted the following undisputed evidence. First, Defendants have shown that on or before January 9, 2019, Crawford decided to assign Denson, a black male, to work as the DPM because the most recent Air Force Civilian Personnel guidance stated that this position should fall under the Civil Personnel Office. Second, both the reprimand and the PIP documents outline the reasons why those actions took place.
Plaintiff has offered no allegations, no evidence, and no argument that Defendants' legitimate, nondiscriminatory reason for the decisions were pretext for discrimination.Although Plaintiff argues repeatedly that she should not have been disciplined or terminated in that, for example, she was disciplined for not meeting unreasonable expectations or for doing things others commonly did [see, e.g., ECF No. 21-1 at 3-4, see also id. at 22 (“Mrs. Pembleton was reprimanded for job responsibilities that were not outlined in her job description and terminated for non-designated tasks”)], Plaintiff's argument misses the mark. The Fourth Circuit has made clear that pretext inquiries under a Title VII framework are focused on determining whether the defendant's proffered reason for termination was pretexual, and “it is not [the court's] province to decide whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination.” DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998). While it would certainly be unfortunate if a Plaintiff was “fired for misconduct [she] did not actually engage in . . . a good-faith factual mistake is not the stuff of which Title VII violations are made.” Villa v. CavaMezze Grill, LLC, 858 F.3d 896, 903 (4th Cir. 2017).
Plaintiff has submitted evidence she states illustrates the “egregious and pervasive use of coercion, threats, intimidation and Title VII violations at Shaw [AFB],” specifically a statement from the former manager of the EEO at Shaw AFB alleging multiple EEO irregularities. [See ECF No. 57 at 15, ECF No. 57-1 at 1, see also id. at 13-20]. However, this statement does not relate to any allegations or persons related to the instant case.
Plaintiff also repeatedly calls into question the sufficiency of the EEO investigation, arguing for example that witnesses she submitted were not interviewed. [See, e.g., ECF No. 57 at 12]. However, Plaintiff has failed to indicate who these witnesses are or what evidence they would offer. Additionally, as held by the Fourth Circuit, “[a]lthough [plaintiff] questions the quality of [defendant's] investigation into the events that ultimately led to [his or her] termination, the fact that the investigation may not have been as thorough as [plaintiff] would have liked does not establish pretext.” Nnadozie v. ManorCare Health Servs., LLC, 792 Fed.Appx. 260, 262 (4th Cir. 2019) (citing Bonds v. Leavitt, 629 F.3d 369, 386 (4th Cir. 2011)). Here, even if Defendants had conducted an improper or substandard investigation, it would do little to establish that the reasons given for their actions were not the actual reason and does not give rise to a reasonable inference that discrimination was the real reason for the actions taken.
Accordingly, the undersigned recommends the district judge grant Defendants' motion as to Plaintiff's Title VII discrimination claims.
b. Title VII Retaliation Claims
Title VII's federal-sector provision mandates that “[a]ll personnel actions affecting employees . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a); see also Bonds, 629 F.3d at 384 (holding 42 U.S.C. § 2000e-16(a) incorporates retaliation protected afforded to private employees). To make a prima facie claim of retaliation, a plaintiff must show: (1) that she engaged in protected activity, (2) that the employer took a materially adverse action against her, and (3) there is a causal connection between the protected activity and the adverse action. See Evans v. Int'l Paper Co., 936 F.3d 183, 195 (4th Cir. 2019) (citing Burlington N & S.F.R. Co. v. White, 548 U.S. 53, 61-68 (2006)). The Fourth Circuit has stated “[a] causal connection for purposes of demonstrating a prima facie case exists where the employer takes adverse employment action against an employee shortly after learning of the protected activity.” Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004) (citations omitted).
As with her discrimination claims, once the employee establishes a prima facie case, the burden shifts to the employer to rebut the inference of retaliation. McDonnell Douglas, 411 U.S. at 802. Although the employer's burden is not onerous, it must articulate “some legitimate, nondiscriminatory reason” for the adverse employment action. Id. Once the employer produces a legitimate, nondiscriminatory reason, the burden returns to the plaintiff to prove that the defendant's stated reason is pretextual. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). To that end, the employee must either show that the employer's explanation is “‘unworthy of credence or by offering other forms of circumstantial evidence sufficiently probative of [retaliation].'” Walker v. Mod-U-KrafHomes, LLC, 775 F.3d 202, 212 (4th Cir. 2014) (citing Reeves, 530 U.S. at 147).
Here, it appears that Plaintiff has exhausted her claims that based on her filing of EEO complaints in June 2008 and November 2013 that 1) she was retaliated against in January 2019, when the DPM duties were reassigned; 2) in February 2019, when she experienced various forms of harassment; and 3) in March 2019, when she received a reprimand and was placed on a PIP.
Notwithstanding, Plaintiff has failed to establish a prima facie case of retaliation. Although temporal proximity may suffice to establish causation when the protected activity and adverse action are “very close” or less than, for example, three months apart, see, e.g., Ali v. BC Architects Engineers, PLC, 832 Fed.Appx. 167, 173 (4th Cir. 2020), as amended (Oct. 16, 2020) (holding two weeks close enough, but three months “too tenuous to support a reasonable inference of causation”), here, the closest in time alleged protected activity and alleged retaliatory act spanned multiple years. Additionally, it is not clear that the relevant decisionmakers were aware of Plaintiff's protected activities. See, e.g., Barnes v. Charles Cnty. Pub. Sch., 747 Fed.Appx. 115, 119 (4th Cir. 2018) (“Barnes presented no evidence to indicate that the principal was aware of Barnes' protected activity. An employee is not insulated from discipline simply because he engaged in protected activity.”) (citations omitted).
To the extent that Plaintiff brings retaliation claims based on her EEO activity as to her instant claims, the EEOC opinion notes that Plaintiff
contended that evidence of reprisal could been [sic] seen in the temporal proximity between the date when she initiated EEO contacted [sic] and the date when the Commander removed her DPM duties. She emphasized that only two days separated the two dates.[ECF No. 46-24, ECF No. 21-1 (Plaintiff alleging she visited the EEO office on January 7, 2019); see also ECF No. 46-4 at 10 (Plaintiff stating that harassment escalated after she contacted the EEO)]. In response, the Air Force stated Plaintiff's
own handwriting on the EEO initial contact form reveals that she contacted the EEO Office on February 7, 2019, nearly a month after her duties had been removed. The Agency claims that [Plaintiff] disingenuously represented the relevant dates to the Commission to try to create a contemporaneous or subsequent reprisal action where there is none.Id.
The court need not resolve this issue. To the extent that Plaintiff is attempting to bring this claim [see, e.g., ECF No. 57 at 96], as discussed above as to the relevant, alleged retaliatory activities, including the reassignment of the DPM duties, issuance of a reprimand, and placement on a PIP, she has failed to show Defendants' legitimate, non-discriminatory reasons for the actions were pretext.
Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to Plaintiff's Title VII retaliation claims.
c. Title VII Hostile Work Environment Claims
To state a claim for a Title VII hostile work environment claim, Plaintiff must allege conduct was (1) unwelcome; (2) based on her race and/or sex; (3) sufficiently severe or pervasive to alter the conditions of his employment and to create an abusive work environment; and (4) imputable to her employer. Pryor v. United Air Lines, Inc., 791 F.3d 488, 495-96 (4th Cir. 2015). In other words, as the Supreme Court has made clear, a hostile work environment exists when an employee's “workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations omitted).
Plaintiff has failed to allege or offer evidence that she was subject to a workplace permeated with discriminatory intimidations, ridicule, and insult. Plaintiff has alleged that Allgood yelled at her in front of others, that Pedro stated he would not classify her as a stereotypical black female when he referred to her as being petty, and that Allgood had the tape removed from a vent and the lights replaced above her desk against her request. These allegations are insufficient to support a Title VII hostile work environment claim.
As stated by the Fourth Circuit, responding to a somewhat factually similar situation:
Buchhagen alleges that that Dr. Beebe, her supervisor, created a hostile environment over the course of nine months by, inter alia, “mockingly” yelling at Buchhagen in one meeting, J.A. 22; yelling and pounding her hands on her desk during another meeting; “repeatedly harp[ing]” on a mistake made by Buchhagen in October 2009, J.A. 22; making “snide comments” to Buchhagen, J.A. 28; playing favorites with employees and pitting employees against each other; and unfairly scrutinizing and criticizing Buchhagen's use of leave and compliance with Beebe's directives. Many of these allegations are conclusory and lack sufficient factual support to make them plausible. In any event, the conduct alleged falls far short of being severe or pervasive enough to establish an abusive environment, and the district court therefore properly dismissed Buchhagen's hostile environment.Buchhagen v. ICF In't Inc., 545 Fed.Appx. 217, 219-20 (4th Cir. 2013); see also Hawkins v. PepsiCo, Inc., 203 F.3d 274, 276, 281 (4th Cir. 2000) (dismissing claim of hostile work environment where plaintiff showed “nothing more than a routine difference of opinion and personality conflict with her supervisor,” and where plaintiff alleged, in part, “she received inadequate coaching, had to do work over and over, was unreasonably required to work late the night of an office Christmas party, and did not have access to the same work opportunities as other managers.”); EEO v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008) (“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.”).
Accordingly, the undersigned recommends dismissal of Plaintiff's hostile work environment claims.
Plaintiff makes brief reference to a Title VII disparate treatment claim in briefing. [See ECF No. 57 at 20]. However, Plaintiff fails to identify clearly who she is comparing herself to [see, e.g., id. at 23 (“Mrs. Pembleton claims that these disciplinary measures were unfairly imposed based on her gender and racial origin in that they applied solely to her and not to other members of other ethnicities working in the same capacity as her.”), and her “complaint sounds more in unfair employment treatment than in racially discriminatory treatment .... Although the plaintiff may feel he was treated unfairly, he has not shown that he was discriminated against, and therefore has failed to make out a Title VII claim.” Glover v. Lockheed Corp., 772 F.Supp. 898, 902 (D.S.C. 1991). To the extent Plaintiff attempts to offer comparator evidence, she has failed to offer sufficient information as to any potential comparator. See, e.g., Lightner v. City of Wilmington, N.C. , 545 F.3d 260, 265 (4th Cir. 2008) (“[t]he similarity between comparators . . . must be clearly established in order to be meaningful”); Haynes v. Waste Connections, Inc., 922 F.3d 219, 223-24 (4th Cir. 2019) (“[T]o establish a valid comparator, the plaintiff must produce evidence that the plaintiff and comparator . . . engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.”) (citation omitted)).
5. Privacy Act Claims
Plaintiff contends that Defendants violated the Privacy Act by engaging in the following activities about which she alleges she became aware on or about February 2019 or, at least, before July 24, 2019:
• Mrs. Pembleton was given a screenshot of a Facebook discussion by people that did not work on Shaw AFB about her being fired about 3 to 4 months prior to her receiving any notice of a proposal to terminate or termination notice;
• During the February 19, 2019 meeting, CMSgt Pedro referenced information regarding previous EO activity which part of a confidential activity [sic];
• On February 27, 2019 during review of the contents [sic] her personnel file, Ms. Brown and the [sic] Mrs. Pembleton noticed admonishments had been altered without employee or Union notification and there were copies of PII which should only remain in the possession of human resources department;
• Ms. Erica Brown (AFGE Union Local 1872, Representative) and the [sic] Mrs. Pembleton reviewed the folder and Ms. Brown noted the following information that did not belong in the first line supervisor folders: Copy of the Mrs. Pembleton's Dependent ID, and copies of Mrs. Pembleton's prior CONFIDENTIAL EEO activity.
• On February 27, 2019 during a view of the contents her [sic] Ms. Brown and the [sic] Mrs. Pembleton notices, admonishments had been altered without employee or Union notification and copies of PII which should only remain in the possession of human resources department.[ECF No. 21-1 at 5-6].
“For all actions brought under the Privacy Act, there is a two-year statute of limitations requiring that the action be brought within two years from the date on which the cause of action arose.” Biondo v. Dep't of the Navy, 928 F.Supp. 626, 630 (D.S.C. 1995) (citations omitted); see also Gattis v. Fuller, C/A No. 2:06-2767-SB, 2007 WL 2156697, at *2 (D.S.C. July 26, 2007) (enforcing two-year statute of limitations). Plaintiff's amended complaint states that Plaintiff knew about these alleged violations at least before July 24, 2019. [See ECF No. 21-1 at 5-6]. However, Plaintiff failed to file this action until November 2022, more than one year after the statute of limitations had run. Because Plaintiff failed to file a Privacy Act claim within the two-year statute of limitations, any such claim is time-barred.
Plaintiff does not respond to the issues above beyond stating that “Defendants continued Privacy Act violations thru full EEO process which did not end until August 2022,” noting also that she was denied a “final FOIA Request.” [ECF No. 57 at 155]. However, Plaintiff has failed to identify any alleged Privacy Act violations beyond those identified in her amended complaint, discussed above.
Accordingly, the undersigned recommends the district judge grant Defendants' motion as to Plaintiff's Privacy Act claims.
6. Defamation Claims
Plaintiff contends that she was wrongfully subjected to defamation during the course of her work as an employee of the Air Force. [See ECF No. 21-1 at 31]. Plaintiff failed to exhaust administrative remedies related to any tort claims and failed to bring suit pursuant to the Federal Tort Claims Act (“FTCA”), but any such attempt also would have been futile. Specifically, “[s]ince libel and slander are intentional torts . . . Plaintiff's claim does not fall under the FTCA, and therefore must be dismissed.” James v. United States, C/A No. 3:16-2041-CMC-BM, 2017 WL 1683121, at *2 (D.S.C. Apr. 12, 2017), report and recommendation adopted, C/A No. 3:16-2041-CMC-BM, 2017 WL 1632583 (D.S.C. May 2, 2017). Additionally, “the libel and slander exception of [28 U.S.C.] § 2680(h) bars personnel related defamation suits by federal employees.” Id. (citing Talbert v. United States, 932 F.2d 1064, 1067 (4th Cir. 1991) (additional citations omitted)).
Instead, any right to relief that Plaintiff might have had regarding these claims would have fallen under the CSRA:
With respect to Plaintiff's claim for defamation (libel and slander), as Plaintiff's allegations demonstrate that her tort claim arises from her federal employment relationship and is directly tied to an adverse employment decision, she must seek redress through the CSRA. Further, under the CSRA, “judicial review is provided only for actions that are appealable to the Merit Systems Protection Board [MSPB] and which result in a final order or decision, [following which] review may be sought exclusively in the Federal Circuit Court of Appeals, not a District Court”.Id. (citations omitted); see also 5 U.S.C. § 7121, et seq.; Gordon v. Gutierrez, C/A No. 1:06-861, 2006 WL 3760134, at *2 (E.D. Va. Dec. 14, 2006), aff'd, 250 Fed.Appx. 561 (4th Cir. 2007) (same).
Even if there were evidence that Plaintiff had pursued these claims through the proper CSRA procedure, this court would not have jurisdiction over any appeal. Therefore, these claims should be dismissed.
Plaintiff appears to assert a claim under 29 U.S.C. § 157. [See ECF No. 21-1 at 27]. Section 7 of the Labor Management Relations Act, 29 U.S.C. § 157, provides employees the right to form unions and engage in collective bargaining, in addition to other rights. “It shall be an unfair labor practice for an employer . . . to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title. 29 U.S.C. § 158.
However, “[t]his court is not the forum for plaintiffs' unfair labor practice claim” and all such claims “are within the primary and exclusive jurisdiction of the National Labor Relations Board.” Joyner v. Abbott Lab'ys, 674 F.Supp. 185, 194 (E.D. N.C. 1987) (collecting cases); see also, e.g., Norton Coal Co. v. UMW of Am., Dist. 28, UMWA, 387 F.Supp. 50, 52 (W.D. Va. 1974) (“Defendant's reliance on section 7 of the Labor Management Relations Act, 29 U.S.C. § 157, for the purpose of establishing the court's original jurisdiction is also misplaced. This section establishes the substantive rights of employees to engage in concerted labor activities and does not confer jurisdiction.”).
Likewise, Plaintiff's assertions regarding anti-union animus [see ECF No. 21-1 at 28] fails because this court does not have jurisdiction over allegations of anti-union animus. Scott v. Wackenhut Servs., Inc., C/A No. 1:08-3863-MBS-JRM, 2010 WL 1254866, at *3 (D.S.C. Mar. 1, 2010); see also Dixon v. Boeing Co., C/A No. 2:20-01356-BHH-MGB, 2020 WL 9211161, at *4 (D.S.C. May 11, 2020).
Accordingly, the undersigned recommends the district judge grant Defendants' motion, dismissing these claims.
8. CSRA and MSPB Claims
Plaintiff cites various CSRA and MSPB provisions in support of her claims. [See, e.g., ECF No. 21-1 at 3-5, 23-25, and 28-31]. “The CSRA establishes a framework for evaluating personnel actions taken against federal employees.” Zachariasiewicz v. U.S. Dep't of Justice, 48 F.4th 237, 242 (4th Cir. 2022) (citation omitted). The CSRA provides that, under certain circumstances, “an employee may appeal a major personnel action, such as termination, directly to the MSPB, and if [she] does not prevail before the MSPB, [she] may seek review in the Federal Circuit.” Id. (citations omitted). In this case, Plaintiff opted to challenge her termination by filing a grievance under the CBA, rather than following the CSRA procedures. As a result, not only does this court lack jurisdiction over her termination claim, but it appears the MSPB and the Federal Circuit also lack jurisdiction over her termination claim.
“To challenge other, less serious personnel actions that violate certain prohibited personnel practices, the employee must first file a complaint in the OSC before proceeding to the MSPB.” Zachariasiewicz, 48 F.4th at 242. Here, Plaintiff filed a complaint with OSC that was dismissed, and she was advised of her right to appeal to the MSPB. [ECF No. 46-13]. The MSPB rejected Plaintiff's claims. Id. At that point, Plaintiff could have sought judicial review of the MSPB decision in the Federal Circuit or any court of appeals of competent jurisdiction. See Zachariasiewicz, 48 F.4th at 242. Instead, she filed this litigation. Because this court is neither the Federal Circuit nor a court of appeals of competent jurisdiction, it does not have jurisdiction to review the MSPB decision and any such claims should be dismissed.
9. 5 U.S.C. §§ 7114, 7116 and Breach of Contract Claims
Plaintiff relies on alleged violations of 5 U.S.C. §§ 7114 and 7116 and breach of CBA/breach of contract as bases for her claims. [See ECF No. 21-1 at 1, 2, and 17-18].
The CSRA was enacted to govern labor organizations and collective bargaining in the civil service context. 5 U.S.C. § 7101(a). Under the CSRA, federal labor organizations owe their members a duty of fair representation. 5 U.S.C. § 7114(a). See Tunnicliff v. Apfel, 160 F.Supp.2d 147, 149 (D. Mass. 2001). Breach of that duty constitutes an unfair labor practice under 5 U.S.C. § 7116. Id.
Federal employees who claim that a union has committed an unfair labor practice may file complaints with the Federal Labor Relations Authority (“FLRA”), not the district court. Id. Access to federal courts is limited to review of a final FLRA order by a federal appellate court, judicial enforcement of the FLRA order, or temporary injunctive relief for the FLRA. Id. (citing Karahalios v. Nat'l Fed'n of Fed. Employees, Local 1263, 489 U.S. 527, 532 (1989)).
Here, this court lacks subject matter jurisdiction over claims for breach of the duty of fair representation and the claims should be dismissed. See Id. (“Courts thus regularly dismiss, for lack of subject matter jurisdiction, claims brought by federal employees against their unions for breach of the duty of fair representation.”) (collecting cases)).
Additionally, there is no private right of action under these statutes that address disputes between unions and members. See id. at 147-149. Accordingly, even if there were jurisdiction, Plaintiff cannot state any claim against Defendants under these statutes.
Finally, the reference to contract law in the amended complaint does not rescue Plaintiff's claim or confer jurisdiction on the court. Id. (citing Celli v. Shoell, 995 F.Supp. 1337, 1342-43 (D. Utah 1998) (attempt to characterize claim as one for breach of contract, rather than unfair labor practice under CSRA, did not confer jurisdiction on district court)).
Moreover, Plaintiff has not identified the essential elements for pursuing a breach of contract claim: namely, any binding contract between Plaintiff and Defendants, a breach of any contract, or that a breach led to damages. See, e.g., DeFeo v. Blackboard Ins. Co., C/A No. 4:19-01583-RBH, 2019 WL 3206133, at *3 (D.S.C. July 16, 2019).
Accordingly, the undersigned recommends dismissal of Plaintiff's claims grounded in violation of 5 U.S.C. §§ 7114, 7116 and breach of contract.
10. No Private Right of Action
Plaintiff attempts to assert a variety of causes of action for which no private right of action exists. [See ECF No. 21-1 at 8-10 (invoking 5 U.S.C. § 6385), 10-13 (invoking 5 U.S.C. § 7102), 18-22 (invoking 5 U.S.C. § 2302), 2223 (invoking 29 C.F.R. § 1960 (OSHA)), and 25-27 (invoking 10 U.S.C. § 907, Article 107 (Uniform Code of Military Justice)); see also Valencia v. Dep't of Interior, C/A No. 3:08-69-WKW, 2008 WL 4495694, at *12 (M.D. Ala. Oct. 7, 2008) (holding no private right of action under 5 U.S.C. § 6385); Martin v. Thomas, C/A No. CA 83-0056-T, 1983 WL 609, at *1 (D. Mass. Dec. 27, 1983) (holding no private right of action under 5 U.S.C. § 7102 or that any such claim must be exhausted); Convertino v. U.S. Dep't of Justice, 393 F.Supp.2d 42, 47 (D.D.C. 2005) (holding no private right of action under 5 U.S.C. § 2302); Walker v. Universal Health Servs., C/A No. 6:22-01414-DCC-KFM, 2022 WL 3908802, at *1 (D.S.C. July 11, 2022) (no private right of action under OSHA); Milhouse v. Hilton Garden Inn Employees, C/A No. 22-CV-2934 (LTS), 22-CV-2940 (LTS), 2022 WL 1749844, at *4 (S.D.N.Y. May 31, 2022) (no private right of action under the Uniform Code of Military Justice).
To the extent that Plaintiff seeks to assert claims against Defendants pursuant to these statutory or regulatory provisions, no private right of action exists for such claims and her claims should be dismissed.
Although not found in Plaintiff's amended complaint, only in briefing, 18 U.S.C. 1001 also does not provide a private right of action. See, e.g., Federal Sav. & Loan Ins. Corp. v. Reeves, 816 F.2d 130, 137 (4th Cir. 1987) (explaining that 18 U.S.C. § 1001 is a criminal provision that does not provide for a private cause of action). The undersigned notes that Plaintiff argues in briefing she has multiple claims, including violation of 18 U.S.C. 1001, as well as, for example, age discrimination claims, none of which are found in her amended complaint. See, e.g., U.S. ex rel. Owens v. First Kuwaiti Gen. Trading & Contracting Co., 612 F.3d 724, 731 (4th Cir. 2010) (“[I]t is well established that a plaintiff may not raise new claims after discovery has begun without amending his complaint.”).
11. Plaintiff's Motions
Plaintiff first seeks to correct the designation of certain defendants, specifically Union Defendants, in that on the summons issued as these defendants, “the Clerk identified as the ‘Event” classification into the Court system as ‘US' rather than private Defendants,” which she contends is incorrect in that
The Defendants; AFGE Local 1872, Jerome Brown, President of AFGE Local 1872, Erica Brown, Secretary/Treasurer, are private U.S. citizens that are not representative or affiliated with the United States Government in their official capacity with AFGE.[ECF No. 32 at 2]. Plaintiff also seeks default judgment as to Union Defendants for failure to respond to the amended complaint. [ECF No. 44]. Plaintiff's claims against Union Defendants solely concern Union Defendants' union representation of her against Defendants. [See ECF Nos. 21, 44].
“When a ‘motion for default judgment is unopposed, the court must exercise sound judicial discretion to determine whether default judgement should be entered.'” Craig v. Glob. Sol. Biz LLC, C/A No. 2:19-00187-DCN, 2020 WL 528015, at *2 (D.S.C. Feb. 3, 2020) (citation omitted). In doing so, “the court accepts a plaintiff's well-pleaded factual allegations as true.” Broxton v. Blue Ridge in Fields, 2019 WL 3315245, at *2 (D.S.C. July 24, 2019) (citing DIRECTV, Inc. v. Rawlins, 523 F.3d 318, 322 n.2 (4th Cir. 2008)). However, “a default is not treated as an absolute confession by the defendant of his liability and of the plaintiff's right to recover.” Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001) (citation omitted). As such, the court need not accept the plaintiff's legal conclusions and must determine whether the plaintiff's allegations support the relief sought. Id. “The party moving for default judgment must still show that the defaulted party was properly served and that the unchallenged factual allegations constitute a legitimate cause of action.” Craig, 2020 WL 528015, at *2 (citation omitted). If the court determines that service was proper and that the allegations entitle the plaintiff to relief, then it must then determine the appropriate amount of damages. Id. (citation omitted).
As discussed above in the section concerning Plaintiff's 5 U.S.C. §§ 7114, 7116 and breach of contract claims, and for the same reasons already stated, the court is without jurisdiction to adjudicate Plaintiff's claims against Union Defendants. Accordingly, the undersigned recommends the district judge deny Plaintiff's motion for default judgment, rendering Plaintiff' motion to correct the designation moot. The undersigned further recommends the district judge dismiss Plaintiff's claims as to Union Defendants. See, also, e.g., Price v. Am. Fed. Gov't Emps., C/A No. 3:15-293, 2016 WL 1276421, at *5 (E.D. Va. Mar. 30, 2016) (“This Court lacks subject matter jurisdiction over Price's claims against AFGE for breach of the duty of fair representation because the CSRA provides the exclusive remedy for such claims, and the district court plays no part in their resolution.”) (citations omitted)).
On April 3, 2023, Defendants filed a motion for extension of time to file an answer to Plaintiff's amended complaint, which the court granted. [ECF Nos. 33, 34]. Plaintiff argues that this motion was in fact a motion to consolidate defendants and she filed two motions in response: a motion for clarification, reconsideration and extension of time to respond [ECF No. 40] and a motion to oppose consolidation of Defendants. [ECF No. 41]. The undersigned denies both motions. Cases cited by Plaintiff concern the consolidation of separate cases into one action and do not apply here. Here, Defendants have not moved to consolidate this case with another.
Finally, on August 7, 2023, Plaintiff filed a motion for reasonable accommodation, arguing that under the ADA and given her disabilities, the court should appoint an attorney as a reasonable accommodation in this case. [ECF No. 56]. However, Plaintiff has failed to argue she is entitled to the appointment of an attorney pursuant to the ADA or any other statute. See, e.g., Clay v. Wall, C/A No. 17-506WES, 2019 WL 113718, at *3 (D.R.I. Jan. 4, 2019) (“Based on the foregoing, and assuming without deciding that Plaintiff's impairments impacted a major life activity so that they amount to a disability, Plaintiff's motion for reasonable accommodation by the appointment of an attorney or an ‘advocate' is denied because the ADA does not apply to the federal court.”); Pierce v. Woodford, C/A No. C 03-04934 JF (PR), 2009 WL 2605380, at *1 (N.D. Cal. Aug. 25, 2009) (“Plaintiff's motion for a court appointed attorney pursuant to the [ADA] is DENIED as there is no right to appointment of counsel under the ADA.”).
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned denies Plaintiff's motions for clarification, opposing consolidation, and for accommodation. [ECF Nos. 40, 41, 56]. The undersigned recommends the district judge grant Defendants' motion to dismiss/summary judgment [ECF No. 46] and deny Plaintiff's motion for default judgment [ECF No. 44], dismissing the amended complaint in full, including claims asserted against Union Defendants. If the district judge accepts this recommendation, Plaintiff's motion to correct designation will be rendered moot. [ECF No. 32].
IT IS SO ORDERED AND RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”