United States District Court, D. Maryland
Ellen L. Hollander United States District Judge
This Memorandum Opinion addresses plaintiff Susan Burgess’s “Motion for Reconsideration of the Memorandum Order Granting Defendant John McHugh’s Motion to Dismiss.” ECF 33, “Motion to Reconsider.” For the reasons that follow, I shall deny the Motion to Reconsider.
I. Procedural Background
In a First Amended Complaint filed June 16, 2015 (ECF 18, “Amended Complaint”), Burgess sued her former employer, System High Corporation (“SHC”), and John McHugh, Secretary, United States Army (the “Army”), alleging employment discrimination, in violation of Title VII of the Civil Rights Act of 1964, codified, as amended, at 42 U.S.C. § 2000e et seq.; violation of the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; and violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. In particular, Burgess claims discrimination based on sex and disability and in retaliation for her opposition to perceived unlawful acts. ECF 18, Amended Complaint.
SHC filed an answer to the Amended Complaint. ECF 20. But, the Army moved to dismiss, pursuant to Fed.R.Civ.P. 12(b)(1). ECF 25. In the Army’s supporting memorandum (ECF 25-1) (collectively, the “Motion”), the Army argued that plaintiff failed to exhaust her administrative remedies, in that she never filed a complaint with the Army’s Equal Employment Opportunity (“EEO”) office. ECF 25-1 at 6-8. In support of its Motion, the Army submitted several exhibits, including the Declaration of Roxanne Conley (ECF 25-2, “Conley Declaration”), a civilian employee in the Army’s EEO office in Aberdeen, Maryland. Plaintiff opposed the Motion to Dismiss (ECF 26, “Opposition”), and filed exhibits in support of her Opposition. ECF 26-1, 26-2. The Army filed a Reply (ECF 27), along with another exhibit. ECF 27-1.
By Memorandum Opinion and Order dated November 10, 2015 (ECF 28; ECF 29), this Court granted the Army’s Motion to Dismiss, on the ground that plaintiff had failed to exhaust administrative remedies before filing suit in federal court. ECF 28 at 9-20; ECF 29. On December 8, 2015, plaintiff filed the pending Motion to Reconsider (ECF 33) pursuant to Fed.R.Civ.P. 59(e) and 60(b) and Local Rule 105.10. Id. at 1. Plaintiff also filed an exhibit in support of her Motion, which includes a formal discrimination complaint that she filed with the Army’s EEO office on November 16, 2015. ECF 33-1, “Formal Discrimination Complaint.” On January 11, 2016, the Army filed an Opposition to Plaintiff’s Motion to Reconsider. ECF 37, “Opposition.” Thereafter, plaintiff replied. ECF 38, “Reply.” An exhibit accompanying plaintiff’s Reply includes a final decision from the Army EEO office, which dismissed plaintiff’s Formal Discrimination Complaint on January 19, 2016. ECF 38-1, “EEO Dismissal” at 1-2. With the consent of plaintiff (ECF 39), and with leave of court (ECF 40), the Army filed a Surreply in Opposition to Plaintiffs Motion for Reconsideration. ECF 41; see also Local Rule 105.2(a).
No hearing is necessary to resolve the Motion to Reconsider. See Local Rule 105.6. For the reasons stated below, I shall deny the Motion to Reconsider.
II. Factual Background
Plaintiff was employed by SHC for approximately four months, from September 27, 2013, until her termination on or about January 16, 2014. See ECF 18, ¶¶ 12, 40, Amended Complaint. She contends that the federal government was her “joint employer” (id. ¶ 17), based on a contract between SHC and the Army, to which Burgess was assigned, by which SHC provided technology protection services at the Army’s facilities at Aberdeen Proving Ground (“APG”) in Aberdeen, Maryland. ECF 18, ¶ 6.
The events relevant to plaintiffs suit occurred while plaintiff was working at APG, in the capacity of “Technology Protection Engineer (TPE) - Subject Matter Expert (SME), ” at the Army Research and Technology Protection Center. ECF 18, ¶ 12; see also ECF 25-1 at 2. She was supervised by two civilian employees of the Army: Steven Chimchirian and Mike Burris. ECF 18, ¶¶ 15, 16. Burgess contends that, based on their degree of control, the Army became her joint employer. Id. ¶ 17.
According to plaintiff, Chimchirian and Burris made disparaging remarks about her gender, her disabilities (severe osteoarthritis and degenerative disc disease), and her requests for accommodations. Id. ¶¶ 23, 24, 25, 26, 27. Burgess also alleges that SHC placed her on a Performance Improvement Plan in December 2013, based on a bogus assessment by Chimchirian. Id. ¶ 37. Then, in January 2014, SHC terminated plaintiff’s employment. Id. ¶ 40. Burgess maintains, however, that at all times she met or exceeded her “legitimate job expectations.” Id. ¶ 42.
As to SHC, on or about June 2, 2014, plaintiff filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”), based on gender and disability. Id. ¶ 8. On September 16, 2014, the EEOC issued a Notice of Right to Sue as to SHC. Id. ¶ 10.
As to the Army, plaintiff alleges that in January 2014 she contacted the Army’s EEO office at APG “to complain about the discriminatory and retaliatory actions of [the] Army[.]” Id. ¶ 9. Plaintiff first spoke with Ashley L. Reid, the Complaints Manager at the Army’s EEO office. ECF 26-1 at 1, Affidavit of Susan Burgess (“Burgess Affidavit”). Burgess complained about her “boss, ” Chimchirian, and Reid noted that he “is a civilian. . . .” ECF 26-1 at 3 (email from Reid to Conley dated 1/17/14). Reid then emailed Conley, the Army’s EEO specialist at APG, and advised that Burgess “believes she is being discriminated against based upon her disability.” Id. Plaintiff asserts: “[T]he EEO office for the U.S. Army at APG documented her complaint and referred her to the Baltimore EEOC Office, advising that she was ‘not a federal employee’ and would not process her complaint of discrimination.” ECF 18, ¶ 9, Amended Complaint.
The parties agree that plaintiff conferred by telephone with Conley regarding her discrimination claims. See ECF 25-2, Conley Declaration; ECF 26-1, Burgess Affidavit. However, the parties disagree about the content of the discussions. According to the Army, Conley explained the Army’s EEO process to plaintiff, and also provided plaintiff with information as to how to pursue a claim against SHC with the EEOC. ECF 25-2, ¶¶ 2, 5, 6, Conley Declaration. Moreover, Conley maintains that she did not discourage plaintiff from initiating a complaint against the Army. Id. ¶ 5. Conley expressly denies that she advised plaintiff that she (Burgess) was not an Army employee for purposes of the federal discrimination laws (ECF 25-2, ¶ 4), and avers that she “never make[s] a determination as to whether a person is [a] joint employee” of the Army. Id. ¶ 6. Conley also disputes that she told Burgess that she had to file her complaint against the Army with the EEOC. Id. ¶ 7. Conley claims that, when she talked to Burgess, plaintiff “was already aware of and inclined to file her claim at the EEOC . . . .” ECF 25-2, ¶ 7.
Burgess received an email from Conley on January 23, 2014, at 7:44 a.m. It stated, in part, ECF 26-1 at 5 (emphasis added):
As discussed yesterday telephonically, attached is the Information Inquiry with the information on how to file an EEO complaint with the Equal Employment Opportunity Office in Baltimore, Maryland. There [sic] website is: http://www.eeoc.gov/field/baltimore/index.cfm At the website they have information pertaining to how to file. Also you may call them . . . .
If you need additional information or have any questions/concerns, please don’t hesitate to contact our office. As a reminder you have 45 calendar days from the date of the incident or the date you were aware of the incident to initiate your complaint of alleged discrimination. . . .
Conley’s email to Burgess referred to filing a complaint with the EEOC, as evidenced by the comment in the email about the EEOC website and the emphasized text. But, Conley’s email also referred to a 45-day deadline for filing, which arguably supported her claim that she also informed Burgess about the Army’s EEO process. This is because the only 45-day deadline is one that pertained to the “pre-complaint processing” requirements for federal employees. See C.F.R. § 1614.105(a)(1) (providing that an “aggrieved person must initiate contact with a Counselor within 45 days of the date” of the alleged discrimination to begin pre-complaint processing). In contrast, aggrieved persons in the private sector must file a complaint with the EEOC within 180 days of the alleged discrimination, except in a “deferral” jurisdiction, where the period is 300 days. See 42 U.S.C. § 2000e-5(e)(1) (“A charge . . . shall be filed within one hundred and eighty days after the alleged unlawful employment practice[.]”); Edelman v. Lynchburg Coll., 300 F.3d 400, 404 & n.3 (4th Cir. 2002). Maryland is a deferral state under Title VII; the Maryland Commission on Civil Rights is the applicable State enforcement agency.See, e.g., Prelich v. Med. Resource, Inc., 813 F.Supp.2d 654, 661-62 (D. Md. 2011); EEOC v. Randstad, 716 F.Supp.2d 734, 739 & n.1 (D. Md. 2011).
Along with Conley’s Declaration, the Army submitted a Form 7509, titled “Information Inquiry Summary, ” dated January 22, 2014. See ECF 25-2 at 3. The Form was completed by Conley on the same date that she spoke to plaintiff. Arguably, the Form 7509 indicates that Conley advised plaintiff of both the EEO and the EEOC complaint processes. Moreover, the preprinted text of the Form specifies that its “Principal Purpose” is for use in processing discrimination complaints based on race, sex, age, disability, color, religion, and/or reprisal by “Army civilian employees, former employees . . . and some contract employees.” ECF 25-2 at 3.
Box 10 on the form is titled “Contact Summary.” There is an X in the box next to the following statement: “Provided general information regarding EEO complaint processing, emphasizing the 45-calendar day prescribed time limitation for initiating the EEO complaint process and right to representation during the EEO process, including the pre-complaint intake interview.” (Emphasis in original). A box directly below, titled “Other (Explain)”, is also marked with an X. Under it, the form states: “Equal Employment Opportunity Commission - Baltimore Field Office.” The contact information for the Baltimore Field Office of the EEOC is below that line, ...