United States District Court, D. Maryland
RENITA J. MACKALL, Plaintiff,
CAROLYN COLVIN, Defendant.
ELLEN LIPTON HLLANDER, District Judge.
Renita J. Mackall, plaintiff, has sued Carolyn Colvin, defendant, in her capacity as Acting Commissioner of the United States Social Security Administration ("SSA"), pursuant to Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. §§ 2000e et seq. See ECF 21 ("Amended Complaint" or "Am. Compl."). Plaintiff alleges employment discrimination based on race (Count I) and unlawful retaliation (Count II). She claims, inter alia, that a performance evaluation in 2010 was a "downgrade" based on race, and that the evaluation rendered her "ineligible" for a cash employee incentive award. Id. ¶ 19.
In response to the original Complaint (ECF 1), defendant filed a "Motion to Dismiss or, in the Alternative, for Summary Judgment." See ECF 4. As an exhibit to that motion, defendant appended the Report of Investigation ("ROI No. 1") prepared by the Equal Employment Opportunity Commission ("EEOC") in connection with an Equal Employment Opportunity ("EEO") complaint filed by plaintiff on or about July 28, 2010. As discussed, infra, that motion was administratively terminated. See ECF 9; ECF 10.
After plaintiff filed her Amended Complaint, defendant filed another "Motion to Dismiss or, in the Alternative, Motion for Summary Judgment" (ECF 24) and a supporting memorandum (ECF 24-1) (collectively, the "Motion"). That Motion is now pending. As an exhibit to the Motion, defendant submitted the Report of Investigation ("ROI No. 2") prepared by the EEOC in connection with an EEO complaint filed by plaintiff on January 25, 2011. Plaintiff opposes the Motion (ECF 32, the "Opposition"),  and has submitted nineteen exhibits. They include, inter alia, the performance evaluations of plaintiff's co-worker, Tatia Little, and the declarations of plaintiff; plaintiff's former first-line supervisor, Heath Kelly; and Jeffrey Menzise, Ph.D., who is described as an expert "in the area of racial and cultural studies." ECF 32-17 ¶ 1. Defendant has replied (ECF 33, the "Reply").
The Motion has been fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, I will construe the Motion as one for summary judgment, and I will grant it.
A. Factual Background 
Mackall, an African American woman, has worked for SSA since August 13, 1989. Am. Compl., ECF 21 ¶ 5. In 2007, she became a Program Expert in the Policy and Program Branch, Center for Program Support, at a pay grade of GS-13. Id. ¶¶ 5, 6.
SSA's fiscal year and employer appraisal periods run from October 1 through September 30. Id. ¶ 7. SSA utilizes a three-tiered rating system to evaluate the performance of its employees. See National Agreement of 2005 between SSA and the American Federation of Government Employees Art. 21 ("Collective Bargaining Agreement"), ROI No. 2 at 328-342; Reply, ECF 33 at 8. Level 5, the best rating, corresponds to Outstanding Contribution; Level 3 corresponds to Successful Contribution; and Level 1 refers to a rating of Not Successful. Collective Bargaining Agreement, ROI No. 2 at 328. Pursuant to the terms of the Collective Bargaining Agreement, "An appraisal rating of at least Successful' is required in order to be considered for awards and/or promotions." Id. at 328. But, an employee must "earn a 4.0 or above" to receive a Recognition of Contribution Award. Management Affidavit of Jack Leuchtman dated April 29, 2011 ("Leuchtman Affidavit"), ROI No. 2 at 133.
From 2007 through June 2009, plaintiff's supervisor was Heath Kelly, an African American male who held the position of Program Manager in the Center for Program Support. Am. Compl., ECF 21 ¶ 7. He served as plaintiff's first-line supervisor for the 2008-2009 year. Id. ¶ 12. In October 2009, Kelly proposed a performance assessment score for plaintiff of 5.0 for the fiscal year ending September 30, 2009. Id. ¶¶ 7, 31. This is the best possible assessment score. Id. But, he was allegedly told by his supervisor, Center Director Billy Donner, to reduce plaintiff's final score to 4.5. Id. ¶ 7. Nevertheless, based on that score, plaintiff received a Recognition of Contribution Award in 2009, a cash award based on her performance for that year. Id. ¶ 42.
As of October 2009, there was a change in management of the Center for Program Support, along with a change as to Mackall's team of supervisors. Id. ¶ 8. Keerti Sulibhavi, a woman of Indian descent, replaced Mr. Kelly as plaintiff's first-line supervisor; Jacqueline Ruiz, who is Hispanic, became plaintiff's second-line supervisor; and Jack Leuchtman, a white male, was her third-line supervisor. Id.
On or about May 17, 2010, Sulibhavi provided Mackall with her mid-year performance assessment for fiscal year 2010. Id. ¶ 9. According to plaintiff, the assessment was "unremarkable in its absence of any negative comment, with indication that Plaintiff's performance in some areas of work merited favorable comment." Id. Ms. Sulibhavi stated in a "Management Affidavit" dated May 4, 2011 ("Sulibhavi Affidavit"), ROI No. 2 at 112-120, that the review was "positive, " but she also claimed that she identified areas for plaintiff's improvement in Interpersonal Skills and Achieving Business Results. Id. at 114.
Less than a month later, on or about June 11, 2010, Sulibhavi provided Mackall with an "optional" mid-year performance assessment for fiscal year 2010. Am. Compl., ECF 21 ¶ 10. Sulibhavi allegedly "gave no reason" for another assessment. Id. Sulibhavi commented that Mackall's "non-courteous responses were noticed when [her] manager attempted to communicate on several occasions.'" Id. She also noted that plaintiff had become "unreceptive to change initiatives and management requests and inquiries, which indicate [her] unwillingness to conform to new initiatives.'" Id.; see also PACS Performance Plan: Non-Managers Performance Discussion dated June 11, 2010 regarding Renita Mackall ("Optional Assessment"), ROI No. 2 at 158-59. According to Mackall, this "sharply critical" Optional Assessment reflected a "decided shift from the favorable tone" apparent in the initial mid-year assessment prepared less than one month earlier. Am. Compl., ECF 21 ¶ 10.
During the meeting on June 11, 2010, Mackall asked Sulibhavi for specific examples to explain the basis for the unfavorable performance review in her Optional Assessment, and "the failure of management to address such concerns in the mid-year assessment given just 18 work days earlier, " on May 17, 2010. Am. Compl., ECF 21 ¶ 11. When Sulibhavi did not offer any "specific corroboration, " plaintiff "pressed the discussion further without substantive response...." Id.; see Opposition, ECF 32 at 7 n.5. Because of the absence of "specific corroboration, " plaintiff characterized Sulibhavi's comments in the evaluation as "lies'" and claimed that "the failure of management to address such concerns in the mid-year assessment reflected poorly on the competence of management." Am. Compl., ECF 21 ¶ 11; see Opposition, ECF 32 at 7 n. 5. As a result of Ms. Mackall's comments to Sulibhavi, and as discussed, infra, Ms. Mackall received a written reprimand for "conduct unbecoming a federal employee." ECF 21 ¶ 11.
Following Mackall's meeting with Sulibhavi, Mackall sought an explanation from Leuchtman, her third-line supervisor, for the "negative performance optional assessment." Id. ¶ 13. In response, Leuchtman highlighted an incident that transpired at a meeting on May 20, 2010, attended by plaintiff, Little, and Ruiz, among others. Id. ¶¶ 13, 14. The purpose of that meeting was to brief SSA Associate Commissioner Carolyn Simmons on a particular project. Id. ¶ 14. Simmons is African American and, on the SSA hierarchy, she outranks plaintiff's chain of supervisors, including Ruiz. Id.
According to plaintiff, in response to an interruption from Ruiz, Simmons peered at Ms. Ruiz over her glasses and stated: "Let me make myself clear.'" Id. ¶ 14. Mackall observed that, for the rest of the meeting, Ruiz did not speak and appeared as though she had been "rebuked." Id. Plaintiff also contends that she and her co-worker, Tatia Little, remained quiet for the duration of the meeting. Id. ¶ 16. Nonetheless, Leuchtman claimed that he had been advised that, during the meeting, Mackall and Little "had been rude or had made rude comments or gestures" to Ruiz, plaintiff's second-line supervisor. Id. ¶ 13.
Plaintiff alleges that, due to the exchange between Simmons and Ruiz during this meeting, Ruiz "was embarrassed, and harbored as a result racial animus " against Simmons, who, as indicated, is African American. Id. ¶ 15. According to plaintiff, Ruiz then directed this "racial animus " towards plaintiff and Little, "the lowest ranking African American personnel in the room" during the meeting, who worked under the supervision of Ruiz. Id. ¶ 15. Plaintiff contends that, to the extent that Leuchtman was notified about allegedly rude behavior on the part of plaintiff and Little during the meeting of May 20, 2010, "these reports were made as the product of a motivation other than accurately reporting events." Id. ¶ 16.
According to plaintiff, a similar, nearly simultaneous optional evaluation and downgrade occurred with respect to Little, her African American colleague, who shared plaintiff's chain of supervisors. Am. Compl., ECF 21 ¶ 12. She recounts in the Amended Complaint facts pertinent to Little's evaluations, including the overall assessment score of 4.0 that Little received from Mr. Kelly for 2009. Id.
Plaintiff explains that on or about May 19, 2010, Little testified as a witness at a Merit Systems Protection Board and EEO hearing in support of Delinda Morrison, an SSA employee who alleged discrimination by the agency. Id. ¶ 17. According to plaintiff, Little's appearance at this proceeding was known to Sulibhavi and made known to Ruiz. Id.  Yet, on May 28, 2010, when Little received her mid-year performance assessment for fiscal year 2010 from Sulibhavi, the assessment was "generally favorable" and "lacked any general or specific negative comment." Id. ¶ 12.
On June 10, 2010, the final proceeding in Morrison's EEO hearing took place. Id. ¶ 18. The next morning, June 11, 2010, Little received an optional performance assessment from Sulibhavi, although Little had been present in the office for only five days following her mid-year assessment of May 28, 2010. Id. ¶ 12. Akin to Mackall's Optional Assessment, Little's optional assessment allegedly reflected a perceptible shift from the "generally favorable" assessment only days earlier. Id. When Little asked Sulibhavi for an explanation for the change, Sulibhavi offered "no answers of substance." Id.
As indicated, with respect to the events of June 11, 2010, involving Sulibhavi's Optional Assessment of plaintiff, SSA issued a "written reprimand" to Mackall on June 29, 2010, for "conduct unbecoming a federal employee." Am. Compl., ECF 21, ¶ 11; see also ROI No. 1 at 164-65 ("Letter of Reprimand"). In the Letter of Reprimand, plaintiff was advised that "[a]busive language is unacceptable and detracts from the agency's ability to maintain a safe and productive work environment." ROI No. 1 at 165. SSA informed plaintiff that she must "treat coworkers and the public with courtesy and respect at all times" and warned her that if such misconduct persisted, she could be subject "to a more severe disciplinary action." Id. The Letter of Reprimand also stated that it would be placed in plaintiff's "Official Personnel Folder... for up to two (2) years." Id.
Plaintiff alleges that the negative assessment she received in the June 11, 2010 optional review was "carried... on through to the year-end review" on October 28, 2010. Am. Compl., ECF 21 ¶ 19. Mackall received a final performance assessment score of 3.5 for the 2010 fiscal year, which was a full point below "the compromised assessment" for 2009. Id. According to Mackall, her downgraded performance assessment was "done without basis in actual performance." Id. ¶ 20. Further, she claims that the assessment rendered her "ineligible" to receive the Recognition of Contribution Award for her performance during the 2010 fiscal year. Id. ¶ 19; see also id. ¶ 31.
As indicated, a score of 3.5 would be considered within the Successful tier, see Collective Bargaining Agreement, ROI No. 2 at 328, but an employee must "earn a 4.0 or above" to receive a Recognition of Contribution Award. Leuchtman Affidavit, ROI No. 2 at 133. However, with an assessment score within the Successful range, Mackall remained eligible for other awards, such as the "Exemplary Contribution or Service Award." Id. Nonetheless, in his Affidavit of April 2011, Leuchtman averred that "no awards have been issued for the rating year that ended in September 2010 for budgetary reasons." Id. Similarly, Sulibhavi provided the same information. See Sulibhavi Affidavit, ROI No. 2 at 118. Leuchtman added: "So, no one has received awards for that period yet." Leuchtman Affidavit, ROI No. 2 at 133.
Plaintiff maintains that the quality of her performance did not change between 2009 and 2010, Am. Compl., ECF 21 ¶ 28, and that the downgrade was based on race, id., and "for impermissible reasons of racial retribution and/or unlawful retaliation." Id. ¶ 20. She also claims that the Letter of Reprimand was "unjustified" and based on "racial animus. " Id. ¶ 29. Notably, however, plaintiff does not allege in her suit that she was contractually entitled to a bonus or an incentive award. Moreover, she does not claim that she sustained a reduction in salary or pay grade or was deprived of a promotion as a result of her 2010 performance assessment or the Letter of Reprimand. Nor has she disputed Leuchtman's assertion that, for budgetary reasons, no awards were conferred for the rating year ending September 2010. And, plaintiff does not dispute that, at the meeting on June 11, 2010, she accused Ms. Sulibhavi of being a liar. See, e.g., Am. Compl., ECF 21 ¶¶ 31-34.
B. Procedural Background
As indicated, plaintiff was subjected to an optional mid-year performance assessment for fiscal year 2010 on June 11, 2010, which she claims resulted in a "downgrade" of her overall assessment score, issued at the year-end review on October 28, 2010. Following the events of June 11, 2010, plaintiff contacted an EEO counselor on June 17, 2010, to complain about the mid-year performance evaluation. Am. Compl., ECF 21 ¶ 21; see ROI No. 1 at 39. After plaintiff received the Letter of Reprimand on June 29, 2010, she also complained about the letter. ROI No. 1 at 43. The parties subsequently participated in informal EEO counseling and, on July 27, 2010, plaintiff received a notice of her right to file a formal EEO complaint of discrimination. Id. at 49-51. Plaintiff filed her first EEO complaint on July 28, 2010 ("First EEO Complaint"). Id. at 31.
The matter "continued administratively in a contested proceeding" before the EEOC. Am. Compl., ECF 21 ¶ 21. On October 13, 2011, the administrative judge ruled in favor of SSA, without a hearing, with respect to plaintiff's First EEO Complaint. Id. On March 15, 2012, SSA issued a final order adopting that decision. Id. Plaintiff filed this suit a month later, on April 16, 2012, pertaining only to the 2010 mid-year evaluation and the Letter of Reprimand. See ECF 1.
On November 23, 2010, after plaintiff received her performance assessment of October 28, 2010, for the fiscal year ending September 2010, plaintiff contacted an EEO counselor. See ROI No. 2 at 62; see also ECF 21 ¶ 22. The parties subsequently participated in informal EEO counseling and, on January 14, 2011, plaintiff received notice of a right to file a formal EEO complaint of discrimination. ROI No. 2 at 62-75; 77. Plaintiff filed that EEO complaint on January 25, 2011 ("Second EEO Complaint"). Id. at 52.
On December 11, 2012, the EEOC denied SSA's motion to dismiss and directed that Mackall be afforded an administrative hearing as to her Second EEO Complaint. Am. Compl., ECF 21 ¶ 22. Although the administrative hearing was initially scheduled for April 3, 2013, it was postponed to enable the EEOC to rule on SSA's renewed motion to dismiss the administrative action. Id. Since April 3, 2013, the EEOC has taken no further action to dispose of Mackall's Second EEO Complaint, despite the "best efforts" of both parties. Id. 
When plaintiff filed suit in this case on April 16, 2012, it pertained only to the First EEO Complaint. See ECF 1. At that time, the Second EEO Complaint was pending with the EEOC. On October 23, 2012, defendant filed a motion to dismiss or, in the alternative, for summary judgment, see ECF 4, along with ROI No. 1. Thereafter, on January 4, 2013, the parties filed a "Consent Motion To Stay Proceedings, " pending the outcome of the EEOC proceedings in connection with plaintiff's Second EEO Complaint. ECF 9. I approved the parties' joint request for a stay. See ECF 10 (Order). However, because the EEOC proceedings as to the Second EEO Complaint were pending indefinitely, without a final resolution, the parties filed a status report on August 30, 2013, asking that "this litigation should commence again, at least to the extent that Plaintiff shall respond to the pending agency motion to dismiss the complaint." See ECF 13.
Plaintiff also sought leave to amend her complaint to update it. ECF 15. That motion was granted. ECF 16. On November 4, 2013, plaintiff filed the Amended Complaint (ECF 21), adding claims related to the fiscal year 2010 performance evaluation, which are the subject of her Second EEO Complaint. See Am. Compl., ECF 21. As noted, defendant responded with the Motion at issue here. ECF 24.
Additional facts are included in the Discussion.
II. Standard of Review; Plaintiff's Request for Discovery
Defendant's Motion is styled as a motion to dismiss under Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. See ECF 24 at 1; ECF 24-1 at 5-6. Ordinarily, a court "is not to consider matters outside the pleadings... when ruling on a motion to dismiss" under Rule 12(b)(6). Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007); see Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013). But, a motion such as the one here, styled in the alternative, implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure to consider documents outside the pleadings. See Kensington Vol. Fire Dept., Inc. v. Montgomery County, 788 F.Supp.2d 431, 436-37, (D. Md. 2011), aff'd, 684 F.3d 462 (4th Cir. 2012).
If the court does so, "the motion must be treated as one for summary judgment under Rule 56, " and "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d). However, when the movant expressly captions its motion "in the alternative" as one for summary judgment, and submits matters outside the pleadings for the court's consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur. In that circumstance, the court "does not have an obligation to notify parties of the obvious." Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).
A district judge has "complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it." 5C WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 1366, at 159 (3d ed. 2004, 2011 Supp.). This discretion "should be exercised with great caution and attention to the parties' procedural rights." Id. at 149. In general, courts are guided by whether consideration of extraneous material "is likely to facilitate the disposition of the action, " and "whether discovery prior to the utilization of the summary judgment procedure" is necessary. Id. at 165-67.
Even if the court were to construe the Motion under Rule 12(b)(6), the court may consider materials that are "integral to the complaint and authentic." U.S. ex rel. Oberg v. Pennsylvania Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014) (quoting Philips v. Pitt Cty Memorial Hosp., 572 F.3d 176, 180 (4th Cir. 2009)); see Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014). To be "integral, " a document must be one "that by its very existence, and not the mere information it contains, gives rise to the legal rights asserted.'" Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F.Supp.2d 602, 611 (D. Md. 2011) (citation omitted) (emphasis in original).
Throughout her Amended Complaint, plaintiff refers to her performance evaluations and the Letter of Reprimand of June 29, 2010. Indeed, these documents form the basis for plaintiff's discrimination claims. See, e.g., Am. Compl., ECF 21 ¶¶ 10-11, 19, 21-22, 26-27, 28-31, 37, 39-40. Although plaintiff did not append these documents to the Amended Complaint (ECF 21), SSA submitted them as part of ROI No. 1 and ROI No. 2. See Letter of Reprimand, ROI No. 1 at 164-66; Optional Assessment, ROI No. 2 at 158-59. Plaintiff does not dispute the authenticity of these documents. Therefore, I may consider these particular documents without converting the Motion to one for summary judgment. See Sammarco v. Bd. of Educ. of Prince George's Cnty., Civil No. CCB-13-1079, 2013 WL 5274277, at *1 n.1 (D. Md. Sept. 16, 2013) (considering negative performance evaluations attached to motion to dismiss, and noting that plaintiff referenced the evaluations in her complaint in support of allegations and did not dispute their authenticity), aff'd, 556 Fed.App'x 200 (4th Cir. 2014) ( per curiam ), cert. denied, ___ U.S. ___, 135 S.Ct. 339 (2014).
As discussed, infra, the key issues in this case are whether Mackall's performance evaluation downgrade for the 2010 fiscal year and plaintiff's resulting ineligibility for a particular cash award constitute adverse employment actions under Title VII. Article 21 of the Collective Bargaining Agreement is part of ROI No. 2, submitted by SSA as an exhibit. ROI No. 2 at 328-42. It describes SSA's performance rubric and the assessment score necessary to be "considered" for any SSA award or promotion. See id. at 328. ROI No. 2 also includes the affidavits of Leuchtman and Sulibhavi, which provide, inter alia, information on SSA's award criteria. Leuchtman Affidavit, ROI No. 2 at 129-35; Sulibhavi Affidavit, ROI No. 2 at 112-20. As ...