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Mallik v. Sebelius

United States District Court, Fourth Circuit

August 28, 2013



Paul W. Grimm, United States District Judge.

This Memorandum Opinion addresses Plaintiff Abraham Mallik’s Motion for Summary Judgment and Memorandum in Support, ECF No. 21; the Opposition that Defendant Kathleen Sebelius, Secretary, U.S. Department of Health and Human Services (“DHHS”) filed, ECF No. 27; and Plaintiff’s Reply, ECF No. 28; as well as Defendant’s Motion to Dismiss or, in the Alternative, for Summary Judgment, ECF No. 16, and Memorandum in Support, ECF No. 16-1; Plaintiff’s Memorandum in Opposition, ECF No. 20; and Defendant’s Reply, ECF No. 22. Having reviewed the filings, I find that a hearing is unnecessary. See Loc. R. 105.6. For the reasons stated herein, Defendant’s Motion is GRANTED in part and DENIED in part, without prejudice to renewal at the close of discovery, and Plaintiff’s Motion is DENIED.


Plaintiff, a “South-Asian American . . . of color” who was born in India, is a DHHS employee. Compl. ¶¶ 3–5. He is the “Section Chief, Product Management, ” for which his “primary task” is “being the Project Officer for the Travel Management Center (‘TMC’), which is the Departmental Travel Agency.” Id. ¶¶ 5 & 11. DHHS hired David Flynn, a Caucasian, in June 2008, at which time he became Plaintiff’s supervisor. Id. ¶ 13; see Id . ¶ 39.

Plaintiff claims that Flynn, as soon as he began working as Plaintiff’s supervisor, repeatedly discriminated against him based on his race, color, and national origin. Compl. ¶¶ 13 & 53–119. He also alleges that Flynn made racist statements and jokes and treated Plaintiff in such a way as to create a hostile workplace. Compl. ¶¶ 25–52. Further, Plaintiff insists that Flynn acted this way because of Plaintiff’s race, color, and national origin. Id. Specific instances of purportedly discriminatory and hostile acts are discussed below.

Plaintiff initiated contact with an Equal Employment Opportunity Commission (“EEOC”) counselor on September 16, 2010 and filed an EEOC formal complaint with DHHS in October 2010. EEOC Intake Questionnaire & EEOC Formal Complaint, Compl. Exs. A & B, ECF Nos. 1-5 & 1-6. He claims that, after he filed the EEOC complaint, Flynn retaliated against him, as detailed below. Compl. ¶¶ 120–55. When DHHS did not issue a final decision within 180 days of Plaintiff’s complaint, Plaintiff sought a hearing before the EEOC. Pl.’s Opp’n 7; Def.’s Mem. 5. Approximately one year later, at which point the EEOC had not issued a final decision, Plaintiff filed suit in this Court, and the EEOC dismissed the action before it. Pl.’s Opp’n 8; Def.’s Mem. 5. His three-count Complaint alleges discrimination based on race, color, or national origin; hostile workplace; and retaliation. Compl. ¶¶ 156–75.


Federal Rule of Civil Procedure 12(b)(6) provides for “the dismissal of a complaint if it fails to state a claim upon which relief can be granted.” Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule’s purpose “‘is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.’” Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). To that end, the Court bears in mind the requirements of Fed.R.Civ.P. 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), and must state “a plausible claim for relief, ” as “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, ” Iqbal, 556 U.S. at 678–79. See Velencia, 2012 WL 6562764, at *4 (discussing standard from Iqbal and Twombly). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663.

If the Court considers matters outside the pleadings when reviewing a motion to dismiss, as the Court does here, the Court must treat the motion as a motion for summary judgment. Fed.R.Civ.P. 12(d); Syncrude Canada Ltd. v. Highland Consulting Grp., Inc., No. RDB-12-318, 2013 WL 139194, at *2 (D. Md. Jan. 10, 2013). Summary judgment is proper when the moving party demonstrates, through “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials, ” that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A); see Baldwin v. City of Greensboro, No. 12-1722, 714 F.3d 828, 833 (4th Cir. 2013). If the party seeking summary judgment demonstrates that there is no evidence to support the nonmoving party’s case, the burden shifts to the nonmoving party to identify evidence that shows that a genuine dispute exists as to material facts. See Celotex v. Catrett, 477 U.S. 317 (1986). The existence of only a “scintilla of evidence” is not enough to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Instead, the evidentiary materials submitted must show facts from which the finder of fact reasonably could find for the party opposing summary judgment. Id.


Plaintiff insists that summary judgment in his favor is appropriate “due to Defendant’s failure to properly administer Plaintiff’s Title VII claims and due to Defendant’s failure to complete a proper and timely Report of Investigation (“ROI”) mandated by 29 C.F.R. § 1614.108.” Pl.’s Mem. 1. Specifically, he contends:

Defendant: 1) failed to properly administer and process Plaintiff’s formal complaint of October 28, 2010 by losing Plaintiff’s formal complaint and all related files 2) failed to process Plaintiff’s additional claims of May and August 2011 within 30 days as mandated by 29 C.F.R. § 1614.105(d), 3) failed to investigate and complete an impartial ROI within 180 days of filing of the formal complaint as mandated by 29 C.F.R. § 1614.108, and 4) failed to show cause or respond to Plaintiff’s motion for sanctions in the EEOC proceeding, or provide any reasonable explanation that would excuse such failure.

Id. at 1–2.

According to Plaintiff, if an agency fails to comply timely with 29 C.F.R. § 1614, which governs employment discrimination claims, such as by “fail[ing] to show cause as to why it failed to conduct an investigation within 180 days of the filing of the formal complaint, ” then “the entry of a default judgment [2] in favor of the complainant is the appropriate remedy.” Pl.’s Mem. 8 & 10. Plaintiff does not cite any federal case law – controlling or persuasive – in support of his argument. According to Defendant, Plaintiff’s “theory of relief is not supported by any decision from a federal court.” Def.’s Mem. 7. Indeed, Plaintiff concedes that “the circumstances presented here are unprecedented in a federal court, ” while maintaining that “the applicable rule of law is clear and well developed.” Pl.’s Reply 2. Plaintiff relies on three EEOC decisions: Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052, 2009 WL 3163287 (Sep. 25, 2009); Reading v. Dep’t of Veterans Affairs, EEOC Appeal No. 07A40125, 2006 WL 2992420 (Oct. 12, 2006); Talahongva-Adams v. Dep’t of the Interior, EEOC Appeal No. 0120081694, 2010 WL 2253800 (May 28, 2010). Pl.’s Mem. 10.

Noting that “Plaintiff’s motion for summary judgment is not based on the merits of substantive federal discrimination law, but rather on procedural errors in the handling of his formal complaint by [DHHS], ” Defendant argues that “[f]ederal courts … have flatly refused to create an independent cause of action for procedural irregularities in an agency’s handling of EEO complaint.” Def.’s Opp’n 1 (citing Young v. Sullivan, 733 F.Supp. 131, 132 (D.D.C. 1990) (citing cases)). Defendant contends that “[a] plaintiff’s remedy, ‘when he [is] unhappy with the processing of his administrative claim, [is] to file a lawsuit challenging the agency’s decision.’” Id. at 8 (quoting Hill v. England, 2005 WL 3031136, at *3 (E.D. Cal. Nov. 8, 2005) (quotation omitted)). Additionally, in Defendant’s view, “Plaintiff’s version of the facts regarding complaint processing by the agency and procedure before the EEOC are both inaccurate and incomplete.” Id. at 1.

A review of the EEOC decisions that Plaintiff cites is informative. In Royal, the EEOC concluded that there was no abuse of discretion in its previous decision to uphold an administrative judge’s (“AJ”) entry of default judgment against an agency “as a sanction for the agency’s failure to complete an investigation within the 180-day period specified at 29 C.F.R. § 1614.108(e).” 2009 WL 3163287, at *1. Likewise, in Reading, the EEOC concluded that “the AJ did not abuse her discretion in issuing a [default judgment in favor of] complainant as a sanction against the agency for its dilatory investigation and discovery practices.” 2006 WL 2992420, at *2 & 4. Similarly, in Talahongva-Adams, when the agency did not submit a complete complaint file in response to the administrative judge’s order, and the administrative judge “found that no investigation was ever begun, much less completed, within the 180-day period following the filing of complainant’s formal complaint, ” the EEOC found that “the AJ’s decision to sanction the agency [by] issu[ing] a default judgment was proper.” 2010 WL 2253800, at *2 & 4. Thus, clearly, precedent exists for an administrative judge to issue a default judgment when an agency does not complete its investigation in a timely fashion.

Notably, in these decisions, the EEOC observed that “[t]he Commission has the inherent power to protect its administrative process from abuse by either party, ” Reading, 2006 WL 2992420, at *2 (emphasis added), and “[a]n AJ has inherent powers to conduct a hearing and to issue appropriate sanctions, including a default judgment, ” Royal, 2009 WL 3163287, at *4 (emphasis added); see Talahongva-Adams, 2010 WL 2253800, at *3 (same); Reading, 2006 WL 2992420, at *3 (noting that administrative judges have “broad discretion in the conduct of a hearing, including such matters as . . . the drawing of adverse inferences and other sanctions”). What is most significant is what these decisions neither state nor imply: They do not state that a federal district judge has the power to issue sanctions such as a judgment in an employee’s favor, for an agency’s failure to comply with EEOC procedures or to prevent abuse of the EEOC’s administrative process. Moreover, even if they did so state, EEOC decisions are not binding on this Court, and Plaintiff has not identified any case in which a federal court has granted the relief he requests.

Additionally, the EEOC decisions discuss default judgments, not the summary judgment that Plaintiff seeks. Further, DHHS’s alleged failings in administering Plaintiff’s claims and untimely completion of its Report of Investigation, though shameful, if true, cannot form the basis for judgment against DHHS, as this Court has noted that an employee “may not file suit against DHHS under Title VII for deficiencies in its EEO complaint process.” Schaff v. Shalala, Nos. HAR-93-1251 & HAR-93-1993, 1994 WL 395751, at *3 (D. Md. July 14, 1994). Indeed, “Title VII creates only a cause of action for discrimination. It does not create an independent cause of action for the mishandling of an employee’s discrimination complaints.’” Id. (quoting Young v. Sullivan, 733 F.Supp. 131, 132 (D.D.C. 1990); see Olivares v. NASA, 934 F.Supp. 698, 704 (D. Md. 1996) (“[T]here is no separately recognized cause of action for failure to timely process an EEO complaint.”). Consequently, Plaintiff has not shown that he is entitled to judgment as a matter of law, and his Motion for Summary Judgment is DENIED. See Fed. R. Civ. P. 56(a).


A. Exhausting Administrative Remedies By Pleading Claims in EEOC Complaint

To bring a Title VII employment discrimination claim in federal court, a plaintiff must first “exhaust his administrative remedies . . . .” Van Durr v. Geithner, No. 12-2137-AW, 2013 WL 4087136, at *4 (D. Md. Aug. 12, 2013) (quoting Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2004)). To do so, an individual who believes that he has been discriminated against in violation of Title VII must file a timely complaint with the EEOC pursuant to 42 U.S.C. § 2000e-5(e)(1). Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 406 (4th Cir. 2013); Krpan v. Bd. of Educ. of Howard Cnty., No. ELH-12-2789, 2013 WL 4400475, at *5 (D. Md. Aug. 15, 2013). A plaintiff only exhausts his administrative remedies as to “‘those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint.’” Vann Durr, 2013 WL 4087136, at *4 (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996)); see Balas, 711 F.3d at 407 (noting that any claims that “exceed the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof . . . are procedurally barred” (citations and quotation marks omitted)); Krpan, 2013 WL 4400475, at *5–6 (granting motion to dismiss count for discrimination based on national origin because plaintiff “did not include such a claim in his complaint to the EEOC”); Bryant, 288 F.3d at 132– 33 (affirming ...

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