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Demery v. McHugh

United States District Court, D. Maryland, Southern Division

September 9, 2014

Libby A. Demery, Plaintiff,
John M. McHugh, et al., Defendants.


PAUL W. GRIMM, District Judge.

Libby Demery applied for employment as a Management Analyst at the National Guard Bureau, but Defendant John McHugh, Secretary of the Army, selected another individual, John Woods, through the Priority Placement Program ("PPP").[1] Compl. ¶ 1, ECF No. 1. According to Demery, Defendant discriminated against her, a sixty-two year old African American, "30% Compensated Veteran, " in selecting Woods instead of her and again when he hired another individual, Barbara Stoucker, instead of her for the same position after Woods vacated it. Id. She claims that these denials of employment were "discrimination of Race, Age, Veterans' Preference and retaliation for seeking employment, in violation of Title VII of the Civil Rights Act of 1963 [42 U.S.C. § 2000e], Civil Rights Act 1991 Sec 102 & 103, " the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 626(c), and the Veterans Employment and Opportunities Act ("VEOA"), 5 U.S.C. §§ 3301-3330d. Id. I must determine whether this Court has subject matter jurisdiction and, if so, whether Plaintiff has stated a claim against McHugh. I also must determine whether to permit Plaintiff to amend her Complaint.[2] Because this Court lacks subject matter jurisdiction over the majority of Plaintiff's claims and, insofar as this Court has jurisdiction, Plaintiff failed to state a claim, I will dismiss her Complaint. Further, because amendment would be futile, I will deny her motions to amend.


After Defendant twice failed to hire Plaintiff, selecting Woods and then Stoucker instead of her, Plaintiff filed a formal EEO complaint on August 2, 2011, Compl. ¶ 3, alleging age and disability discrimination. Correction to Notice of Rescission and Partial Acceptance Ltr. 108, Compl. Ex. 12, ECF No. 1-1;[3] Denial of Reconsideration 1, Def.s' Mem. Ex. 2, ECF No. 22-4. The Equal Employment Opportunity Commission ("EEOC") dismissed the complaint as untimely and then partially rescinded its dismissal. Compl. ¶ 7; Def.'s Mem. 4, ECF No. 22-1. Specifically, the EEOC accepted the formal complaint as to the claims pertaining to non-selection for the position at the time Barbara Stoucker was hired. Def.'s Mem. 4. The dismissal remained in effect as to Demery's claims pertaining to her non-selection at the time John Woods was hired; the EEOC found these claims to be untimely because "Ms. Demery did not see an EEO counsel until some 77 days after she learned that Woods was hired for the position." Id. The EEOC explained to Plaintiff that she could not appeal "[t]he dismissed portion of [her] complaint... until final action is taken on the remainder of the complaint." Id. at 4-5; Compl. ¶¶ 8-11. Plaintiff sought reconsideration, which the EEOC denied. Compl. ¶¶ 8-11.

Plaintiff states that she filed a timely appeal with the Equal Employment Opportunity Commission, arguing that equitable tolling should apply because Defendant withheld information. Id. ¶ 4. She claims that she received her Right to Sue notice on November 20, 2012. She contends that her July 29, 2011 informal complaint "was erroneously processed and illegally converted, " Id. ¶ 12, and that she never had the "opportunity to file a Formal Complaint, receive[] a decision from Defendant" or "Appeal to the EEOC, " id. ¶ 13.

Additionally, Plaintiff "filed Veteran's Preference complaints with Department of Labor, Office of Secretary for Veterans Employment and Training (VETS), June 2011 and July 2012, " claiming that Defendant violated her rights as a veteran by not giving her preferential treatment as a job applicant. Compl. ¶ 2; Pl.'s Nov. 13, 2013 Opp'n 5, ECF No. 25. The Department of Labor ("DOL") investigated the June 2011 complaint and concluded that there was "no violation of veteran's rights.'" Pl.'s Nov. 13, 2013 Opp'n 5. She admits that she did not "file timely (15 day) appeal [to] MSPB, " contending that she "was not knowledgeable or [aware of] enough information" to file a timely appeal. Id. at 6. As for the July 2012 complaint, the DOL informed Plaintiff by a letter dated September 5, 2012 letter that it "closed [her] Veterans' Preference complaint because [her] claim was not filed within the... VEOA[] statutory deadline of 60 days from the date of the alleged violation, " and notified her that she had fifteen days to appeal. Def.'s Mem. Ex. 4, ECF No. 22-6. Plaintiff did not file her appeal with the MSPB until October 18, 2012; the MSPB dismissed it as untimely on February 4, 2013. Def.'s Mem. 5-6.


A. Standard of Review

"[F]ederal courts lack subject matter jurisdiction over Title VII claims for which a plaintiff has failed to exhaust administrative remedies.'" Murphy v. Adams, No. DKC-12-1975, 2014 WL 3845804, at *7 (D. Md. Aug. 4, 2014) (quoting Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 406 (4th Cir. 2013)). On this basis, Defendant moves to dismiss under Fed.R.Civ.P. 12(b)(1). Def.'s Mot. 1. In considering Defendant's motion, "the Court may... consider matters beyond the allegations in the complaint" because Defendant asserts that "the jurisdictional allegations in the complaint are not true." Fontell v. MCGEO UFCW Local 1994, No. AW-09-2526, 2010 WL 3086498, at *3 (D. Md. Aug. 6, 2010); see Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (same). The Court "regard[s] the pleadings' allegations as mere evidence on the issue, " and its consideration of additional evidence does not "convert[] the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac Ry. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); see Adams, 697 F.2d at 1219 ("A trial court may consider evidence by affidavit, depositions or live testimony without converting the proceeding to one for summary judgment.").

The burden is on the plaintiff to prove that subject matter jurisdiction exists when a defendant challenges subject matter jurisdiction. See Evans v. B.F. Perkins, Co., 166 F.3d 642, 647 (4th Cir. 1999); El-Amin v. Int'l Longshoremen's Ass'n Local No. 333, No. CCB-10-3653, 2011 WL 2580630, at *2 (D. Md. June 28, 2011). "A court should grant a Rule 12(b)(1) motion if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.'" El-Amin, 2011 WL 2580630, at *2 (quoting Evans, 166 F.3d at 647).

B. Claims with Regard to Non-Selection in Favor of Woods

One requirement for exhaustion is that an individual who believes that she 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, 711 F.3d at 406; Krpan v. Bd. of Educ. of Howard Cnty., No. ELH-12-2789, 2013 WL 4400475, at *5 (D. Md. Aug. 15, 2013). Additionally, prior to filing the complaint, the aggrieved individual "must consult a Counselor... to try to informally resolve the matter." 29 C.F.R. § 1614.105(a). This consultation requirement serves "to encourage early resolution of discrimination claims on a less contentious and less adversarial basis.'" Upshaw v. Tenenbaum, No. PWG-12-3130, 2013 WL 3967942, at *5 (D. Md. July 31, 2013) (citation omitted). The deadline for contacting an EEO counselor is "within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action, " id. § 1614.105(a)(1), unless the individual has a reasonable explanation for her delay, in which case the EEOC will extend the deadline, id. § 1604.105(a)(2).

Plaintiff "applied, [was] referred and interviewed for the position [of Management Analyst] on October 10, 2010." May 22, 2012 EEO Ltr. to Demery 2, Compl. Ex. 12, at 109. She received a tentative offer on November 3, 2010, but then heard nothing about the status of her application for almost half a year, despite making repeated inquiries. Id. According to Plaintiff, she was referred for the position again on April 15, 2011, Compl. ¶ 38, and she "suspected discrimination... based on new referrals for the same [job] Announcement, " Pl.'s Nov. 13, 2013 Opp'n 7. Thus, she knew or should have known by April 15, 2011 that she was not selected for the position when she "received an email from USAJOBS that [her] application for that position had been referred to the selecting official" once again. May 22, 2012 EEO Ltr. to Demery 2; see Compl. ¶ 38. She claims that she contacted an EEO counselor on June 26, 2011 and that the informal complaint she filed on July 1, 2011 was "within forty-five days of suspected discrimination" and therefore "timely." Compl. ¶ 38.

Despite her assertions of timeliness, Plaintiff failed to contact an EEO counselor within forty-five days. Although she contends that Defendant tried to prevent her from learning of the discrimination so that her contact would fall outside the window, see Compl. ¶¶ 40-44, she does not provide a reasonable explanation for delaying more than forty-five days beyond April 15, 2011, the date on which she should have known about Defendant's hiring decision, regardless of any alleged efforts by Defendant to conceal that information. Indeed, she admits that she "suspected discrimination" after receiving an email about the job posting on that date. Pl.'s Nov. 13, 2013 Opp'n 7. Therefore, Plaintiff failed to exhaust her ...

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