United States District Court, D. Maryland
SYDNEY S. HART, Plaintiff,
JACOB J. LEW, Secretary, U.S. Department of the Treasury, Defendant
[Copyrighted Material Omitted]
Sydney S. Hart, Plaintiff, Pro se, Ronkonkoma, NY.
For Department of Treasury, Jacob J. Lew, U.S. Department of the Treasury, Defendants: Alex S Gordon, LEAD ATTORNEY, Office of the United States Attorney, Greenbelt, MD.
Ellen L. Hollander, United States District Judge.
Sydney Hart, a male-to-female transsexual, filed suit, pro se, against the Department of the Treasury (the " Department" ),  alleging sex discrimination in employment (Count I) and retaliation (Count II), in violation of Title VII of the Civil Rights Act of 1964, codified, as amended, at 42 U.S.C. § § 2000e et seq. See Complaint ¶ ¶ 122-136 (ECF 1). At the relevant time, Hart worked as a Revenue Agent for the Internal Revenue Service (" IRS" ) but was discharged from her position.
Now pending is defendant's " Motion to Dismiss, Or, in the Alternative, for Summary Judgment" (" Motion," ECF 22), supported by a memorandum of law (" Memo,"
ECF 22-1) and an extensive record of prior administrative proceedings related to plaintiff's claims (ECF 22-2, 22-4). Along with her Opposition to the Motion (" Opp." or " Opposition," ECF 26), plaintiff has filed an affidavit under Fed.R.Civ.P. 56(d), challenging defendant's request for the pre-discovery conversion of the motion to dismiss to a motion for summary judgment. Defendant has replied (ECF 27).
No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I will construe defendant's Motion as a motion to dismiss, and I will grant it in part and deny it in part.
I. Factual Summary
Hart was employed by the IRS, a sub-agency of the Department, from April 3, 2006 until May 20, 2011. Plaintiff underwent gender reassignment surgery on November 3, 2009. Compl. ¶ 1. Prior to the surgery, plaintiff was known as Stuart Hart. 
From the inception of her employment, Hart filed numerous complaints regarding various actions taken by her supervisors and coworkers. Plaintiff's first complaint arose out of an incident that occurred on June 9, 2006, while plaintiff was still expressing as a male.  Plaintiff alleges that he appeared at work in " jeans and a shirt," and his on-the-job instructor, Larry Norris, told him that his attire was not appropriate for the office. Id. ¶ 6. Norris reminded plaintiff that he was still a probationary employee and advised him to " watch the way [he] conducted himself" so as to avoid termination. Id. Two weeks later, plaintiff met with Mary Jones, his first-line supervisor; they discussed the allegedly inappropriate attire plaintiff had worn on June 9 and Jones' perception that plaintiff needed to improve in his interactions with others. Id. ¶ ¶ 5, 7. One month later, on July 13, 2006, plaintiff filed an informal Equal Employment Opportunity (" EEO" ) complaint with the IRS about the series of incidents. id. ¶ 8. However, after another meeting with Jones, plaintiff voluntarily withdrew the complaint. Id. ¶ ¶ 8-9.
On August 16, 2006, Norris rated plaintiff negatively on two performance reviews, which allegedly led another of plaintiffs supervisors, Latosha Keown, to reduce plaintiffs caseload. Id. ¶ 10. In response, plaintiff filed an EEO complaint, alleging retaliation and discrimination based on sexual orientation and race.  id. ¶ 11. In addition, plaintiff met with Jones on September 1, 2006, to discuss the negative performance reviews. Jones acknowledged factual inaccuracies in the reviews and agreed to revise them but, according to plaintiff, she failed to do so. Id. ¶ 13. On September 15, 2006, plaintiff entered into an EEO Settlement Agreement (" Settlement Agreement #1" ) with
the Department.  id. ¶ 17. The Agreement provided, among other things, that the Department would revise the disputed performance reviews. Id.
Plaintiff received citations for two instances of misconduct in late 2006 and early 2007. According to Hart, both were issued in retaliation for the prior EEO complaints. As to the first incident, Norris reported that plaintiff was " deliberately avoiding [him] in the hallways." Id. ¶ 18. The second citation arose out of allegations that plaintiff acted disruptively during a workshop on November 17, 2006. Id. ¶ 26.
Plaintiff discussed the first issue with Jones on two occasions. During the second discussion, on November 1, 2006, Jones stated that she would " officially document" the incident. Id. ¶ 19. Thereafter, on November 3, 2006, Hart filed an EEO complaint, alleging that he was being retaliated against for his prior EEO activity. Id. ¶ 20. Jones issued a memorandum to plaintiff on November 21, 2006, stating that he had acted unprofessionally by avoiding Norris in the hall. According to plaintiff, Jones stated that Territory Manager Peter Hendricks, plaintiff's " second-line supervisor," directed Jones to issue the memorandum. Compl. ¶ ¶ 5, 21. Id. ¶ 21. On December 1, 2006, fearing " further reprisal," plaintiff withdrew the EEO complaint he had filed on November 3, 2006. Id. ¶ 22.
With regard to the second citation, Jones notified plaintiff on January 18, 2007, that she would formally document the incident. Plaintiff voiced his suspicion that the threatened censure was " reprisal for Plaintiff's prior EEO activity." Id. ¶ 26. Jones formally documented the incident on February 12, 2007. Id. ¶ 27. On February 14, 2007, plaintiff " contacted the EEO office to lodge another complaint." Id. ¶ 28.
In the interim, on December 23, 2006, the IRS notified plaintiff that he had been " found suitable for his position as a Revenue Agent." Id. ¶ 24.
The National Treasury Employees Union (" NTEU" ) filed three grievances on plaintiff's behalf in 2007 and 2008.  The first grievance alleged that Hendricks, plaintiff's Territory Manager, refused to use plaintiff's proper entrance-on-duty date when assigning priority for selection of office space. Id. ¶ 30. Three days later, the matter was apparently resolved when Jones informed plaintiff that Hendricks would use the proper date. Id. ¶ 31. Jones also agreed to allow plaintiff to telecommute to the office ( i.e. to work from home). Id. The second grievance was filed on June 21, 2007, id. ¶ 33, and arose out of plaintiff's annual performance appraisal on June 7, 2007, pertaining to the period of April 6, 2006 to February 28, 2007. Id. ¶ 32. According to Hart, the appraisal was due by April 1, 2007. Id. Although Jones and Hendricks awarded plaintiff a rating of " Fully Successful" in all job performance categories, id., the
grievance was filed because the review failed to include narrative descriptions of " critical job elements" (as allegedly required by an Agreement between the IRS and the NTEU). Id. ¶ 33. Hendricks denied that grievance on October 9, 2007. Id. ¶ 38. The NTEU filed a third grievance on May 19, 2008, alleging that management " obstructed Plaintiff's promotional opportunities." Id. ¶ 41. Hendricks denied the grievance on June 19, 2008. Id. ¶ 42.
In the meantime, in September 2007, the NTEU steward notified Hendricks that counseling memoranda issued to plaintiff on November 26, 2006, and February 12, 2007 regarding his " poor workplace interactions" were untimely, because they were issued more than 15 work days after the manager learned of the events. Id. ¶ 36. On December 6, 2007, Labor Relations Specialist Philip Wilcox advised that the two counseling memoranda were timely, and that they would not be removed from Hart's personnel file. Id. ¶ 39.
Plaintiff began Hormone Replacement Therapy in February 2009. Id. ¶ 43. Hart legally changed her first name from Stuart to Sydney on March 9, 2009. Id. ¶ 44. That month, plaintiff informed Jones that she had begun her transition from male to female and that because of her hormone therapy, she might " experience hot flashes, mood swings, and emotional lability." Id. ¶ 45. Plaintiff also requested a key to the women's restroom so that she could avoid using the men's restroom while dressed as a woman. Id. Jones and Hendricks denied her request. Id. On April 1, 2009, plaintiff appeared for the first time at the office dressed as a female. Id. ¶ 46. Hart surrendered her key to the men's bathroom on April 15, 2009. Id. ¶ 47. But, the next day, EEO Territory Manager Sarah Wilson denied plaintiff access to the women's restroom, because she " still had male genitalia." Id. ¶ 48.
On July 1, 2009, " while Plaintiff was attempting to secure access to the women's restroom facilities," Hendricks issued plaintiff a " letter of admonishment," claiming that plaintiff had sent several " unprofessional" emails. Id. ¶ 49. Five days later, the NTEU filed a grievance on plaintiff's behalf, objecting to the letter of admonishment. Id. ¶ 50. The grievance was denied on February 26, 2010. Id. ¶ 78.
On July 10, 2009, plaintiff learned that she was promoted to a new position, which required her to transfer from her post in Fairfax, Virginia to Baltimore, Maryland. Id. ¶ 51. The transfer was scheduled to take place on August 3, 2009. Id. ¶ 53. Hart's new supervisors would be manager Steve Hansen in Baltimore and Barbara Tobias, the " Second-line Manager," in Florida. Id. On July 16, 2009, Jones notified Hart that she could use the women's restroom facilities at the Fairfax Office. Id. ¶ 52. Hansen and plaintiff executed an agreement on August 3, 2009, allowing plaintiff to telecommute, i.e., to work from home. Id. ¶ 55.
In late August and early September 2009, plaintiff and her workgroup attended training workshops in Denver, Colorado and Washington, D.C. Id. ¶ 57-58. In both cities, plaintiff's coworkers allegedly ridiculed her, laughed at her appearance, and balked at her use of the women's restroom. Id. ¶ 59. Additionally, Hansen allegedly ignored plaintiff on one occasion and " set an improper tone for the workgroup." Id. ¶ 61. At a meeting between Hart and Hansen on September 9, 2009, Hansen told Hart that he was angry with Hart for bringing her grievances to the NTEU rather than first addressing them with him. Id. ¶ 62. Hansen also told plaintiff that she needed sensitivity training, that
her skirts were too short, that Hansen's colleagues in the Fairfax office had informed him that " Plaintiff files too many EEO complaints," and that " the EEO office no longer takes Plaintiff seriously." Id. ; see also id. ¶ 63. In late September and early October 2009, plaintiff notified the EEO office, verbally and in writing, of the incidents involving Hansen. Id. ¶ 67. Also in early October, the IRS transferred plaintiff's workgroup. Id. ¶ 66. As a result, Director Lori Nichols became Hart's third-line supervisor. Id.
On October 22, 2009, Hansen requested that plaintiff, who had been working from home, report to the Baltimore office for a workload review on October 26, 2009. Id. ¶ 68. Plaintiff, who " had to prepare" for her impending gender reassignment surgery on November 3, 2009, id., requested that they instead conduct a telephone review. Id. Hansen denied the request despite the fact that, according to plaintiff, Hansen knew about Hart's upcoming surgery, id., and regularly conducted telephone reviews with other revenue agents. Id. ¶ 70. The workload review did not take place prior to plaintiff's surgery. Id. ¶ 75.
Plaintiff underwent reassignment surgery on November 3, 2009, and returned to work on December 16, 2009. Id. ¶ ¶ 72, 73. On January 12, 2010, Hansen met with plaintiff for the workload review that they had previously failed to conduct. Id. ¶ 75. Through Hansen, Tobias charged plaintiff with insubordination based on Hart's failure to meet with Hansen in October 2009. Id. Tobias gave plaintiff the choice of a five-day suspension or the option of proposing an alternative form of discipline. Id. On February 25, 2010, plaintiff opted to donate twenty-four hours of her annual leave to the IRS Annual Leave Bank. Id. ¶ 77.
On April 26, 2010, plaintiff received an annual performance appraisal for the period of March 1, 2009, to February 28, 2010. Id. ¶ 79. Plaintiff's overall performance rating was less favorable than it had been the previous year, prior to her surgery. Id. Also, " Management failed to provide to Plaintiff her Mid-Year Review" and belatedly issued only one workload review in January 2010. Id. ¶ 79. In response to the unfavorable performance review, plaintiff filed an EEO complaint on May 21, 2010, alleging sex discrimination. Id. Then, on June 17, 2010, plaintiff emailed Acting Territory Manager Louis Liotine, notifying him that Hansen had treated her " in an inappropriate and unprofessional manner on many numerous occasions, beginning when he learned that [plaintiff] had filed an EEO complaint 4 years ago." Id. ¶ 80.
On June 29, 2010, an IRS secretary, Robert Curry, told a coworker that " all the plaintiff does is file grievances." Id. ¶ 82. Curry allegedly " spit something into a garbage can" after plaintiff greeted him. Id. ¶ 85. However, Curry missed the trash can and then allegedly told plaintiff: " It's a man thing." Id. Curry also allegedly told plaintiff that she " needs to learn how to get along with others." Id. ¶ 82. Plaintiff reported these incidents to Tobias in two separate emails. Id. ¶ ¶ 82, 85.
On July 21, 2010, plaintiff and the Department entered into a second EEO settlement agreement (" EEO Settlement #2" ). They agreed that the EEO office would provide diversity training to plaintiff's workgroup. Id. ¶ 86. The training took place on October 5, 2010. Id. ¶ 94.
Plaintiff received a mid-year review on September 22, 2010, in which Hansen gave her ratings identical to those she had received in the April annual review. Id. ¶ 89. In response, plaintiff filed another EEO complaint on September 22, 2010,
alleging sex discrimination and reprisal. Id. ¶ ¶ 89, 90.
Commissioner Shulman sent an email to all IRS employees on September 30, 2010, reaffirming his commitment to equal opportunity. Id. ¶ 92. Then, on October 6, 2010, Hansen allegedly criticized the length of plaintiff's skirt, chastised her for contacting NTEU and EEO counselors, and said, " 'Why don't you just resign?'" Id. ¶ 95. According to plaintiff, Hansen's tone, body language, and facial expressions made her " afraid and fearful." Id. After the meeting, plaintiff left Hansen's office, notified him that she was feeling sick, and returned to her home. Id. Hansen denied Hart's request for a sick day, instead charging her with 6.5 hours of " AWOL." Id.
On October 14, 2010, plaintiff and the Department entered into EEO Settlement Agreement #3, which provided that the Department would work with plaintiff to develop a " Career Learning Plan." Id. ¶ 97. That same day, plaintiff emailed several Department employees, informing them that she was " licensed as an armed private investigator awaiting personal protection specialist and security officer arrest authority status." Id. ¶ 97. The next day, a Special Agent with the Treasury Inspector General for Tax Administration (" TIGTA" ) contacted plaintiff with regard to her email of October 14, 2010. Id. ¶ 98.
Plaintiff filed an EEO complaint on October 20, 2010, pointing out that an IRS official had reported her to TIGTA less than one day after the execution of Settlement Agreement #3. Id. ¶ ¶ 99, 100. Throughout October 2010, plaintiff and Hansen feuded via email. On multiple occasions, Hansen requested that plaintiff report to the office, plaintiff refused because she was medically unable to work and was fearful of Hansen, and Hansen designated plaintiff as " AWOL." Id. ¶ ¶ 97-104. On October 21, 2010, Hansen terminated plaintiff's telecommuting privileges, which she had held since 2007, and directed her to report to the office as of October 25, 2010. Id. ¶ 101.
Tobias emailed plaintiff on October 22, 2010, advising that another manager would be present so as " 'to minimize [Hart's] concerns about meeting with [Hansen].'" Id. ¶ 102. But, she reiterated that Hart could not work from home. Id. Plaintiff responded on October 23, 2010, stating that Tobias' suggestion " was unacceptable, and did not allay [Hart's] fears," given the prospect of " chance encounters" with Hansen while at work. Id. ¶ 102. Moreover, Hart claimed she was still experimenting " after-effects" from numerous medical procedures as part of her " gender transition." Id. Thus, she was " unable to come off flexiplace."  Id.
By email of November 2, 2010, Hart wrote to Tobias, accusing her of terminating plaintiff's telecommuting privileges " out of retaliatory spite" and without addressing Hart's " medical and safety concerns." Id. ¶ 108. Plaintiff maintained that she was afraid of Hansen and could not report ...